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Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a Regulated Navigation Area (RNA) on the navigable waters of the Arthur Kill in New York and New Jersey. This RNA will allow the Coast Guard to enforce speed and wake restrictions and limit vessel traffic through the RNA during bridge replacement operations on the Goethals Bridge and during drilling, blasting, and dredging operations in support of the U.S. Army Corps of Engineers channel deepening project, both planned and unforeseen, which could pose an imminent hazard to persons and vessels operating in the area. This rule is necessary to provide for the safety of life on the navigable waters during construction on the Goethals Bridge and the channel deepening project.
This rule is effective without actual notice from January 7, 2015 until October 31, 2018. For the purposes of enforcement, actual notice will be used from the date the rule was signed, December 2, 2014, until January 7, 2015.
Documents mentioned in this preamble are part of docket USCG-2013-1063. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LT Hannah Eko, Waterways Management, U.S. Coast Guard; telephone 718-354-4114, email
On September 25, 2013, a Bridge Permit was issued approving the location and plans for new construction of the Goethals Bridge, which spans the Arthur Kill.
On April 14, 2014, we published a Notice of Proposed Rulemaking (NPRM) with respect to this rule (79 FR 20851) entitled Regulated Navigation Area; Arthur Kill, NY and NJ in the
The Coast Guard also held five navigational safety meetings concerning Arthur Kill 4 (AK-4) dredging and Goethals Bridge construction activities and navigational safety. The last meeting was held July 9, 2014.
No public meeting was requested and none was held.
Under the Ports and Waterways Safety Act, the Coast Guard has the authority to establish RNAs in defined water areas that are hazardous or in which hazardous conditions are determined to exist. See 33 U.S.C. 1231 and Department of Homeland Security Delegation No. 0170.1.
The Goethals Bridge spans the Arthur Kill at mile 11.5. The current structure of the Goethals Bridge will be replaced with a twin span south of the existing bridge. Work on the bridge commenced in December 2013. New westbound construction has been underway since April 2013 and is expected to continue until December 2017. Substantial completion of both bridges is expected to occur in December 2017. Demolition of the main span of the currently existing bridge is expected to occur within the December 2016 to October 2018 timeframe.
Currently, it is unknown whether explosives will be utilized for demolition purposes or whether the existing span will be lowered in increments into barges moored in the Arthur Kill. Final completion of the bridge project is expected to occur in October 2018.
Dredging activities will resume in a portion of the Arthur Kill from December 2014 until December 2015. These activities may potentially involve drilling and underwater blasting of bedrock in the Arthur Kill navigable channel. Dredging operations may encroach on portions of the navigable channel, require the relocation of lateral aids to navigation, and create a reduction in the width of the navigational channel.
The Coast Guard First District Commander has determined that this construction project poses dangers to the maritime public and this rule is necessary to ensure the safe transit of vessels in the area, and to protect all persons, vessels, and the marine environment.
For the reasons discussed above, The Coast Guard is establishing a RNA on the navigable waters of the Arthur Kill from Port Ivory to the charted Graselli High Wires north of Pralls Island from December 2014 through October 2018.
Construction operations are sensitive to water movement, and wake from passing vessels could pose significant risk of injury or death to construction workers. In order to minimize such unexpected or uncontrolled movement of water, the RNA will limit vessel speed and wake of all vessels operating in the vicinity of the bridge and dredging construction zone. This will be achieved by implementing a five (5)
The Coast Guard may close the RNA described in this rule to all vessel traffic during any circumstance that poses an imminent threat to waterway users operating in the area. Complete waterway closures will be made with as much advanced notice as possible.
Further, the speed limit of five (5) knots will be in effect at all times within the RNA and all vessels must proceed through the area with caution and operate in such a manner as to produce no wake unless a higher minimum speed is necessary to maintain bare steerage. The Coast Guard will rely on the methods described in 33 CFR 165.7 to notify the public of the time and duration of any closure of the RNA.
The Coast Guard received one comment during the 60-day NPRM comment period. The comment was authored by a representative of the American Waterway Operators and contained two recommendations. The first recommendation concerned notifying mariners at least 48 hours in advance of waterway closures on the Arthur Kill and ensuring that waterway closures last only as long as needed to ensure safe navigation. The second recommendation requested that the Coast Guard set up a vessel queue system that would allow vessels moving with the flood tide to access the right-of-way in the restricted portion of the Arthur Kill. AWO recommended that Vessel Traffic Service New York (VTSNY) administer the proposed queue system.
The Coast Guard agrees with early notifications and will make every effort to notify mariners 48 hours or more in advance of waterway closures. We participated in five initial planning meetings with the USACE, NY and NJ Port Authorities, harbor and docking pilots, tug boat operators, and construction and dredge contractors between March and July 2014. The results of the meetings determined that there may be times when the Coast Guard will be unable to provide 48 hours notice to the public. However, this waterway is within the VTSNY area and, as such, VTSNY will serve to communicate waterway closures and impacts with as much notice as possible. The Coast Guard's decision to close the waterway will be influenced by the dynamic nature of the bridge construction, dredging process, and multitude of construction, drilling, and blasting equipment associated with the project. The associated hazardous conditions necessitate that all mariners comply with this RNA, as the conditions surrounding the construction, drilling, and blasting may change on a daily basis. Moreover, the Coast Guard will continue to meet with the USACE, harbor and docking pilots, tug boat operators, and the contractors to assess the need for a vessel queue system when the dredging and bridge contractors submit work plans to the Coast Guard. All waterway users have 24 hour access to VTSNY for immediate access to the Coast Guard, and there is ample time for the “Harbor Safety, Navigation, and Operations Committee of New York,” which is composed of all waterway users, to address waterway closure or traffic management concerns that may arise. If a vessel queue system is needed, it will be administered on a case-by-case basis by the VTSNY. As such, the Coast Guard made no changes to the rule proposed in the NPRM based on comments received.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
We expect the economic impact of this rule to be minimal because this RNA only enforces a speed and wake restriction through a limited portion of the Arthur Kill, and will have limited traffic restrictions during operations involving bridge construction and dredging, both planned and unforeseen therefore causing only a minimal delay to a vessel's transit.
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 received zero comments from the Small Business Administration on this rule. 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 would 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 the Arthur Kill from December 2014 to October 2018.
The Coast Guard expects no significant economic impact on a substantial number of small entities, as mentioned in the Regulatory Planning and Review section above, because this rule only requires vessels to reduce their speed through a limited portion of the Arthur channel and will have limited traffic restrictions during operations involving bridge construction, both planned and unforeseen therefore causing only a minimal delay to a vessel's transit.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of an RNA on portions of the Arthur Kill. This rule 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 where indicated under
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(2) Any vessel transiting through the RNA must make a direct passage. No vessel may stop, moor, anchor or loiter within the RNA at any time unless they are working on the bridge construction. Movement within the RNA is subject to a “Slow-No Wake” speed limit. All vessels may not produce a wake and may not attain speeds greater than five (5) knots unless a higher minimum speed is necessary to maintain bare steerage.
(3) There may be times that the First District Commander or the Captain of the Port (COTP) finds it necessary to close the RNA to vessel traffic. During times of limited closure, persons and vessels may request permission to enter the RNA by contacting the COTP or the COTP's on-scene representative on VHF-16 or via phone at 718-354-4353.
(4) Any vessels transiting in the RNA must comply with all directions given to them by the COTP or the COTP's on-scene representative. The “on-scene representative” of the COTP is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on the COTP's behalf. The on-scene representative may be on a Coast Guard vessel; or other designated craft; or on shore and communicating with a VTSNY Watchstander or vessels via VHF-FM radio or loudhailer. Members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.
(5) All other relevant regulations, including but not limited to the Rules of the Road, as codified in 33 CFR subchapter E, Inland Navigational Rules, remain in effect within the RNA and must be strictly followed at all times.
(6) Vessel Movement Reporting System (VMRS) users are prohibited from meeting or overtaking other vessels when transiting alongside an active work area where dredging and drilling equipment are being operated.
(c)
(d)
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Alaska State Implementation Plan (SIP) submitted by the Commissioner of the Alaska Department of Environmental Conservation (ADEC) on December 11, 2009, November 29, 2010, December 10, 2012, January 28, 2013, July 1, 2014, and October 24, 2014, to meet Clean Air Act (CAA) requirements. These revisions update Alaska's adoption by reference of the Federal preconstruction permitting regulations for large industrial (major source) facilities located in designated nonattainment areas, referred to as the Nonattainment New Source Review (major NNSR) program. The major NNSR program is designed to ensure that major stationary sources of air pollution are constructed or modified in a manner that is consistent with attainment and maintenance of the National Ambient Air Quality Standards (NAAQS).
This final rule is effective on February 6, 2015.
The EPA has established a docket for this action under Docket Identification No. EPA-R10-OAR-2014-0753. All documents in the docket are listed on the
Donna Deneen at (206) 553-6706,
Throughout this document wherever “we,” “us” or “our” is used, it is intended to refer to the EPA.
The EPA proposed action on revisions to the Alaska SIP related to major NNSR in a notice of proposed rulemaking published on November 4, 2014 (79 FR 65366). In general, the revisions update the adoption by reference of 40 CFR 51.165 in 18 AAC 50.040(i), which is relied on as part of Alaska's nonattainment area major stationary source permit provisions in 18 AAC 50.311. The revisions were submitted by ADEC on December 11, 2009, November 29, 2010, December 10, 2012, January 28, 2013, July 1, 2014, and October 24, 2014. Please see EPA's November 4, 2014 proposed rulemaking (79 FR 65366) for further explanation of the revisions and the basis for our approval.
The EPA received one comment letter on the November 4, 2014 (79 FR 65366), proposed rule. The comment letter, submitted by ADEC, states that it supports the EPA's proposed action. The EPA acknowledges ADEC's support of this action.
Consistent with the discussion and analysis in the proposed rulemaking published on November 4, 2014, the EPA is approving into the SIP at 40 CFR part 52, subpart C, 18 AAC 50.040(i) and 18 AAC 50.990, as in effect on November 9, 2014. Where the same provision has been amended on multiple occasions and submitted in more than one submittal, we are approving the most recently submitted amendment to any particular provision.
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, the 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 action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National
• does not provide the 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, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, the rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 9, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing to partially approve the May 22, 2014, State Implementation Plan (SIP) submittal from Idaho to revise the SIP to update the incorporation by reference of Federal air quality regulations into the SIP. In addition, the EPA is proposing to partially disapprove Idaho's incorporation by reference of certain provisions of the Federal prevention of significant deterioration (PSD) permitting rules that have been vacated by a Federal Court. Upon final action, the Idaho SIP would incorporate by reference certain Federal regulations as of July 1, 2013.
Comments must be received on or before February 6, 2015.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2014-0477, by any of the following methods:
•
•
•
•
Heather Valdez at: (206) 553-6220,
Throughout this document wherever “we”, “us” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:
Section 110 of the Clean Air Act (CAA) specifies the general requirements for states to submit SIPs to implement, maintain and enforce the National Ambient Air Quality Standards (NAAQS) and the EPA's actions regarding approval of those SIPs. On May 22, 2014, the State of Idaho (the State) submitted a SIP revision to the EPA to account for regulatory updates adopted by the Idaho Board of Environmental Quality on October 17, 2013. Idaho incorporates by reference (IBR) various portions of Federal regulations codified in the Code of Federal Regulations (CFR) into the Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01). Idaho then submits parts of IDAPA 58.01.01 to the EPA for approval into the Federally-approved Idaho SIP (generally those provisions that relate to the criteria pollutants regulated under section 110 of the CAA for which the EPA has promulgated NAAQS or other specific requirements of section 110). To ensure that its rules remain consistent with the EPA requirements, Idaho generally updates the IBR citations in IDAPA 58.01.01 on an annual basis and submits a SIP revision to reflect any changes made to the Federal regulations during that year. Idaho's current SIP includes the approved incorporation by reference of specific Federal regulations, revised as of July 1, 2012, at IDAPA 58.01.01.107 “Incorporation by Reference.”
On May 22, 2014, the State submitted for approval into the Idaho SIP updates
In IDAPA 58.01.01.107.02 “Availability of Reference Materials,” paragraph (b) was revised to include a reference to the State of Idaho statutes. This is an informational provision describing where documents that are incorporated by reference elsewhere in the rules are available. This revision to IDAPA 58.01.01.107.02(b) is consistent with CAA requirements as the revision merely identifies where reference materials can be obtained and does not itself impose any regulatory requirements.
IDAPA 58.01.01.107.03 “Documents Incorporated by Reference” updates the citation dates of specific Federal provisions incorporated by reference. Paragraph (a) incorporates by reference the Requirements for Preparation, Adoption, and Submittal of Implementation Plans, 40 CFR part 51, with the exception of certain visibility-related provisions, as of July 1, 2013. This updated incorporation by reference of Federal regulations makes paragraph (a) consistent with Federal law. The incorporation by reference date of July 1, 2013, includes the portion of 40 CFR part 51 relating to nonattainment New Source Review (NSR) requirements at 40 CFR 51.165, which is relied on as part of Idaho's nonattainment area major stationary source permit provisions in IDAPA 58.01.01.204. On January 4, 2013, the U.S. Court of Appeals for the District of Columbia issued a decision related to 40 CFR 51.165. The effect of this decision is discussed below in Section II.B.1. For the reasons above and for the reasons provided in Section II.B.1 relating to 40 CFR 51.165, the EPA proposes to find that paragraph (a) is consistent with CAA requirements.
Paragraph (c) of IDAPA 58.01.01.107.03 incorporates by reference the Approval and Promulgation of Implementation Plans, 40 CFR part 52 subparts A and N and appendices D and E, including the Federal PSD permitting rules in part 52 subpart A at 40 CFR 52.21, as of July 1, 2013. This updated incorporation by reference, except for the incorporation by reference of 40 CFR 52.21(i)(5)(i)(c) (relating to the PM
Paragraphs (b), (d), (e), and (q) of IDAPA 58.01.01.107.03 incorporate by reference the following provisions revised as of July 1, 2013: (b) National Primary and Secondary Ambient Air Quality Standards, 40 CFR part 50; (d) Ambient Air Monitoring Reference and Equivalent Methods, 40 CFR part 53; (e) Ambient Air Quality Surveillance, 40 CFR part 58; and (q) Determining Conformity of Federal Actions to State or Federal Implementation Plans, 40 CFR part 93, subpart A, sections 93.100 through 93.129, although certain subsections are specifically excluded from the State's incorporation by reference. The EPA proposes to determine that paragraphs (b), (d), (e), and (q) are consistent with CAA requirements.
On January 4, 2013, the U.S. Court of Appeals for the District of Columbia, in
As discussed above, IDAPA 58.01.01.107.03(c) incorporates by reference the Federal PSD permitting
On January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in
At the EPA's request, the decision also vacated and remanded to the EPA for further consideration the portions of the 2010 PSD PM
In response to the vacatur of the EPA regulations as they relate to the PM
In 2011, the EPA revised the definition of “subject to regulation” at 40 CFR 52.21(b)(49)(ii)(
On July 12, 2013 the U.S. Court of Appeals for the District of Columbia, in
As discussed above, IDAPA 58.01.01.107.03(c) incorporates by reference the Federal PSD permitting rules at 40 CFR 52.21. The current Idaho SIP incorporates 40 CFR 52.21 by reference as of July 1, 2012. Idaho's submittal updates the incorporation by reference date of the PSD permitting rules to July 1, 2013. Therefore Idaho's submittal includes revisions to 40 CFR 52.21(b)(49)(v) (relating to the application of PSD permitting requirements to GHG emissions) promulgated under the Greenhouse Gas Tailoring Rule (June 3, 2010, 75 FR 31514) (Tailoring Rule).
On June 23, 2014, the United States Supreme Court, in
The EPA anticipates a need to revise Federal PSD rules in light of the Supreme Court decision. In addition, the EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to the EPA regulations is expected to be informed by additional legal processes before the D.C. Circuit. The EPA is not expecting states to have revised their existing PSD program regulations at this juncture, before the D.C. Circuit has addressed these issues and before the EPA has revised its
Idaho's existing approved SIP contains the GHG permitting requirements reflected in 40 CFR 52.21, as amended in the Tailoring Rule. As a result, the PSD permitting program in Idaho previously approved by the EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT when sources emit or increase GHGs in the amount of 75,000 tons per year (measured as carbon dioxide equivalent). Although the approved Idaho PSD permitting program may also currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not prevent the EPA from approving this SIP submission. Idaho's May 22, 2014, SIP submission does not add any GHG permitting requirements that are inconsistent with the Supreme Court decision. While Idaho's submission incorporates all of 40 CFR 52.21 for completeness, the submission mostly reincorporates PSD permitting requirements for GHGs that are already in the Idaho SIP.
This revision does add to the Idaho SIP the elements of the EPA's 2012 rule implementing Step 3 of the phase-in of PSD permitting requirements for GHGs described in the Tailoring Rule. 77 FR 41051 (July 12, 2012). This rule became effective on August 13, 2012. Specifically, the incorporation of the Step 3 rule provisions will allow GHG-emitting sources to obtain plantwide applicability limits (PALs) for their GHG emissions on a carbon dioxide equivalent (CO
The EPA is proposing to partially approve the May 22, 2014, submittal from Idaho to update the incorporation by reference of Federal air quality regulations into the SIP. Specifically, we are proposing to approve the revisions to IDAPA 58.01.01.107.02 “Availability of Reference Materials” and IDAPA 58.01.01.107.03 “Incorporations by Reference,” except that we are proposing to partially disapprove the revision to IDAPA 58.01.01.107.03(c) as it relates to the incorporation by reference of specific vacated provisions at 40 CFR 52.21 (namely, 40 CFR 52.21(i)(5)(i)(c) and 40 CFR 52.21(k)(2)) for the reasons discussed in Section II.B.2 of this proposal. Upon final action, the Idaho SIP would incorporate by reference specific Federal regulations as of July 1, 2013.
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, the 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 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 (Public Law 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 the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Washington State Implementation Plan (SIP) that were submitted by the Department of Ecology (Ecology) on January 27, 2014. These revisions implement the preconstruction permitting regulations for large industrial (major source) facilities in attainment and unclassifiable areas, called the Prevention of Significant Deterioration (PSD) program. Currently, the PSD program in Washington is operated under a Federal Implementation Plan (FIP). If finalized, the EPA's proposed approval of Ecology's PSD program would narrow the current FIP to include only those few facilities, emission categories, and geographic areas for which Ecology does not have PSD permitting jurisdiction. The EPA is also proposing to approve Ecology's visibility protection permitting program which overlaps significantly with the PSD program in most cases.
Comments must be received on or before February 6, 2015.
Submit your comments, identified by Docket ID No. EPA-R10-OAR-2014-0755, by any of the following methods:
A.
B.
C.
D.
Jeff Hunt at (206) 553-0256,
Throughout this document wherever “we”, “us” or “our” are used, it is intended to refer to the EPA.
On January 27, 2014, Ecology submitted revisions to update the general air quality regulations contained in Chapter 173-400 of the Washington Administrative Code (WAC) that apply to sources within Ecology's jurisdiction, including minor new source review, major source nonattainment new source review (major NNSR), PSD, and the visibility protection (visibility) program. On October 3, 2014, the EPA finalized approval of provisions contained in Chapter 173-400 WAC that apply generally to all sources under Ecology's jurisdiction, but stated that we would act separately on the major source-specific permitting programs in a phased approach (79 FR 59653). On November 7, 2014, the EPA finalized the second phase in the series, approving the major NNSR regulations contained in WAC 173-400-800 through 173-400-860, as well as other parts of Chapter 173-400 WAC that support major NNSR (79 FR 66291).
In this proposal, the third and final phase in the series, the EPA is proposing to approve the remainder of Ecology's January 27, 2014 submittal, covering the PSD and visibility requirements for major stationary sources under Ecology's jurisdiction.
The specific requirements applicable to SIP-approved PSD programs are set forth in 40 CFR 51.166. The EPA's FIP for implementing PSD in areas where states do not have SIP-approved PSD programs is set forth in 40 CFR 52.21. As explained in more detail below, Ecology has, with limited exceptions, incorporated by reference the EPA's PSD FIP at 40 CFR 52.21 as in effect on August 13, 2012, to meet the requirements of 40 CFR 51.166.
As described in more detail in the EPA's July 10, 2014 proposal (79 FR 39351) and October 3, 2014 final action (79 FR 59653), WAC 173-400-110 through WAC 173-400-113 are the starting points for any source seeking to construct a new source or modify an existing source under Ecology's rules, whether major or minor. Specific provisions in these sections direct sources constructing a “major” source or making a “major modification” to a “major” source in an attainment or unclassifiable area to also comply with the PSD requirements of WAC 173-400-700 through WAC 173-400-750. WAC 173-400-110 through WAC 173-400-113 also require major sources and major modifications to comply with the visibility permitting requirements of WAC 173-400-117 for all areas, including nonattainment areas. See, for example, WAC 173-400-110(1)(d) for PSD and WAC 173-400-111(1)(c) for visibility. As discussed in the EPA's July 2014 proposal, the EPA's review of WAC 173-400-110 through 173-400-113 expressly did not include a determination that these revised regulations meet requirements for approval of a SIP-approved PSD or visibility permitting program. In this action, we are proposing to approve WAC 173-400-110 through 173-400-113 for purposes of implementing the PSD and visibility permitting programs because these provisions require compliance with WAC 173-400-700 through 173-400-750 (which, as discussed below, are consistent with the CAA requirements for a PSD permitting program) and WAC 173-400-117 (which, as discussed below, is consistent with the CAA requirements for visibility).
As described in more detail in the EPA's July 10, 2014 proposal and October 3, 2014 final action, Ecology shares permitting jurisdiction with seven local clean air agencies and one other state agency, the Energy Facilities Site Evaluation Council (EFSEC). WAC 173-400-700, in conjunction with WAC 173-400-020, describes how Ecology's regulations apply in the local and EFSEC jurisdictions with respect to PSD. WAC 173-400-700 states that Ecology's PSD regulations contained in WAC 173-400-700 through 173-400-750 apply statewide except where a local clean air agency has received delegation of the Federal PSD program from the EPA or has a SIP-approved PSD program. WAC 173-400-700 also states that Ecology's PSD program, under WAC 173-400-700 through 173-400-750, excludes projects under the jurisdiction of the EFSEC pursuant to Chapter 80.50 Revised Code of Washington (RCW). At this time, no local clean air agencies in Washington have a delegated or SIP-approved PSD program. Therefore, the EPA proposes to approve Ecology's PSD program, contained in WAC 173-400-700 through 173-400-750, as applying statewide except for those facilities under EFSEC jurisdiction and other emission categories and geographic areas for which Ecology does not have jurisdiction, as discussed below in Section IV.C.
WAC 173-400-710(a) states that for purposes of WAC 173-400-720 through 173-400-750 the definitions in 40 CFR 52.21(b), adopted by reference in WAC 173-400-720(4)(a)(vi), shall apply, except for the definition of “secondary emissions.” In the case of secondary emissions, Ecology uses the general definition contained in WAC 173-400-030, which is consistent with the court decision in
There are also several important distinctions between the applicability of Ecology's minor NSR program and its PSD program that arise from the State's definitions of the terms “modification” in WAC 173-400-030(48) and “major modification” in WAC 173-400-710 and -720, which adopt the federal definitions in 40 CFR 52.21(b)(2) for Ecology's PSD program. First, the applicability test for “modifications” under Ecology's minor NSR program is based on the definition of modification in CAA section 111(a)(4) and the EPA's implementing rules at 40 CFR 60.14, specifically, that a modification is an increase in the emission rate of an existing facility in terms of kilograms per hour. See WAC 173-400-030(48). In contrast, the applicability test for Ecology's PSD program is based on a “major modification” which is, consistent with the Federal PSD program, based on a comparison of “baseline actual emissions” before the change to “projected actual emissions” after the change in terms of tons per year. See WAC 173-400-710(a) and 400-173-720(4)(a)(iv), which adopt by reference the definitions in 40 CFR 52.21(b)(2). Thus, for any physical or operational change at an existing stationary source, regulated sources and permitting authorities will need to calculate emission changes in terms of both kilograms per hour and tons per year to determine whether changes are subject to minor NSR, PSD, or both. Second, under Ecology's minor NSR program, new source review of a modification is limited to the emission unit or units proposed to be modified and the air contaminants whose emissions would increase as a result of the modification. See WAC 173-400-110(1)(d) (“New source review of a modification is limited to the emission unit or units proposed to be modified and the air contaminants whose emissions would increase as a result of the modification.”). In contrast, under Ecology's PSD program, as under the Federal PSD program, Ecology must determine whether the sum of increases in emissions from new and modified units is “significant” and if so, whether there is a net significant emissions increase from all contemporaneous emissions increases and decreases at the major stationary source. See WAC 173-400-110(1)(d) (“Review of a major modification must comply with WAC 173-400-700 through 173-400-750 or 173-400-800 through 173-400-860, as applicable.”) and WAC 173-400-720 (adopting by reference 40 CFR 52.21(a)(2), 52.21(b)(2), and 52.21(b)(3)).
The EPA reviewed Ecology's submission and is proposing to approve the definitions contained in WAC 173-400-710 as consistent with the CAA requirements for a SIP-approved PSD program.
WAC 173-400-720 generally incorporates by reference the Federal PSD program contained in 40 CFR 52.21, in effect as of August 13, 2012. Exceptions to the incorporation by reference are listed in WAC 173-400-720(4)(b). First, WAC 173-400-720(4)(b)(i) clarifies when use of the word “Administrator” as part of the incorporation by reference refers to Ecology versus those specific provisions where “Administrator” continues to refer to the EPA Administrator. Second, WAC 173-400-720(4)(b)(ii) excludes the PSD Class I area variance provisions contained in 40 CFR 52.21(p)(5) through (8), making the Ecology program more stringent than the Federal PSD program. WAC 173-400-720(4)(b)(ii) also reflects Ecology's use of the state public participation procedures in WAC 173-400-740,
In addition to these exceptions to Ecology's incorporation by reference of 40 CFR 52.21, two other issues merit further discussion. First, in response to recent court decisions, Ecology has not included in, or has withdrawn from, its SIP submittal, incorporation by reference of 40 CFR 52.21(i)(5)(i)(c), 52.21(k)(2), and 52.21(b)(49)(v). These provisions, therefore, are not before the EPA for approval and would not be part of the Washington SIP if this action is finalized. Please refer to Section III below for a detailed discussion of the court decisions and why the exclusion of these provisions from Ecology's SIP-approved PSD program is consistent with CAA requirements.
Second, WAC 173-400-720(4)(b)(iii)(C) contains an inadvertent typographical error. Ecology intended to reference the concentrations listed in WAC 173-400-116(3) rather than WAC 173-400-116(2). To avoid confusion, the EPA is excluding WAC 173-400-720(4)(b)(iii)(C) from our proposed approval. However, exclusion of WAC 173-400-720(4)(b)(iii)(C) from the SIP has no substantive effect because it was merely a pointer to the provisions of WAC 173-400-116(3) which are consistent with the CAA and proposed for approval into the SIP, as discussed in Section II.H below. Ecology has advised the EPA correction of this error will be made as soon as practicable.
In addition to incorporating by reference pertinent portions of 40 CFR 52.21, WAC 173-400-720 also contains provisions relating to enforcement authority. Subparagraph (3) provides that both Ecology and any local air permitting authority with jurisdiction over a source are authorized to enforce the requirement to apply for a PSD permit if one is required and the conditions of a PSD permit. The EPA is proposing to approve WAC 173-400-720 as consistent with the CAA requirements for a SIP-approved PSD program.
This section contains Ecology's permit application and processing procedures. These procedures are based on the EPA requirements contained in 40 CFR 51.166(q) and includes requirements for the processing of permit applications, completeness determinations, issuance of final permits, and permit appeals. This section also includes procedures for permit extensions. As discussed above, Ecology has excluded from adoption by reference in WAC 173-400-720 the extension provision of 40 CFR 52.21(r)(2). That provision authorizes the EPA to grant extensions to the 18-month construction time limitation in 40 CFR 52.21(r)(2) “upon a satisfactory showing that an extension is justified,” but that provision does not provide any specific criteria or required process that must be satisfied before the EPA can exercise its discretion to determine that a permit extension should be granted. The EPA has recently issued guidance for the EPA and states with delegated PSD programs to clarify the EPA's views on what constitutes an adequate justification for an extension of the 18-month timeframe under 40 CFR 52.21(r)(2) for commencing construction of a source that has been issued a PSD permit. See Memorandum from Stephen D. Page, Director of EPA's Office of Air Quality Planning and Standards, to Regional Air Division Directors, Region 1-10, Guidance on Extension of Prevention of Significant Deterioration (PSD) Permits under 40 CFR 52.21(r)(2), dated January 31, 2014 (Extension Guidance).
Similar to the Federal PSD regulations at 40 CFR 52.21(r)(2), Ecology's PSD regulations provide that approval to construct or modify a major stationary source becomes invalid if construction is not commenced within eighteen months of the effective date of the approval, if construction is discontinued for a period of eighteen months or more, or if construction is not completed within a reasonable time. Ecology has also included in WAC 173-400-730(5)(b) provisions setting forth the criteria and procedures that apply to sources requesting and Ecology in granting extensions to the 18-month time period. These provisions are generally consistent with, but in some respects more stringent than, EPA's Extension Guidance. The EPA reviewed Ecology's permit application processing procedures, including the extension provisions, and is proposing to approve them as consistent with the CAA.
WAC 173-400-740 sets out the public participation procedures for Ecology's PSD program based on the EPA requirements contained in 40 CFR 51.166(q). The SIP-approved provisions of WAC 173-400-171, which apply to Ecology minor source and major NNSR permitting actions, do not apply to permits issued under the PSD program. Instead, WAC 173-400-171(1)(a) refers all actions regulated by WAC 173-400-700 through 173-400-750 to the public participation procedures of WAC 173-400-740. That regulation requires Ecology to, among other things, provide an opportunity for public comment and hearing, make relevant information regarding a PSD permit application and Ecology's preliminary determination on an application available to the public, send a copy of the notice of public comment to the applicant, the EPA, and other identified entities, consider all timely public comments in issuing a final determination, and provide notice of the final determination to specified entities.
WAC 173-400-171 does apply, however, to any visibility-related elements for permits subject to major NNSR requirements under WAC 173-400-800 through WAC 173-400-860. The EPA is proposing to find that WAC 173-400-740 and WAC 173-400-171 meet the CAA requirements for public participation for both the PSD and visibility permitting programs.
WAC 173-400-750 contains procedures for revisions to PSD permits. Under this regulation, except in the case of certain categories of revisions identified as “administrative,” revisions to PSD permits are subject to the same public participation requirements that apply to initial issuance of PSD permits. In addition, prior to revising a PSD permit, Ecology must find, among other things, that no ambient air quality standard or PSD increment will be exceeded as a result of the change, the change will not adversely impact the ability of Ecology to determine compliance with an emissions standard, and the revised PSD permit will continue to require Best Available Control Technology (BACT) for each new or modified emission unit approved by the original PSD permit. Revisions that qualify as “administrative” under Ecology's regulation are subject to the same substantive requirements as non-administrative revisions but are not subject to Ecology's public involvement requirements. The changes Ecology has characterized as administrative are similar to the changes the EPA has characterized as administrative or minor under the Title V permit program and for which public notice and comment is not required. See 40 CFR 70.7(d) and (e)(2).
Neither the EPA's PSD FIP at 40 CFR 52.21, nor the EPA's regulations for SIP-approved PSD programs at 40 CFR 51.166, has explicit provisions for revisions to PSD permits. The authority to revise permits, however, is a necessary function of administering a permitting program, and Ecology's regulations contain appropriate safeguards on such revisions. The EPA reviewed WAC 173-400-750 and is proposing to approve it as consistent with the CAA.
WAC 173-400-116 establishes Ecology's PSD increment protection criteria. In particular, WAC 173-400-116(3) establishes the exclusions from increment consumption allowed under 40 CFR 51.166(f). These exclusions include concentrations of particulate matter, PM
WAC 173-400-117 consolidates in one section many of the requirements for new or modified major sources that would impact Federal Class I areas, including the visibility permitting program. This includes the air quality related values (including visibility) requirements that support implementation of 40 CFR 52.21(p)(1) through (4) for PSD actions in attainment and unclassifiable areas, as
Section 110(a)(2)(E)(i) of the CAA requires that states have adequate personnel, funding, and authority under state law to carry out a SIP. Ecology's authority under state law to carry out the PSD program is discussed above. With respect to personnel and funding, Ecology has been issuing CAA PSD permits under a full or partial delegation agreement with the EPA since 1983. The staff of engineers and air quality modelers who supported Ecology in its issuance of PSD permits under a delegation agreement with the EPA will continue to support Ecology's issuance of PSD permits under a SIP-approved PSD program. The EPA therefore proposes to find that Ecology has adequate personnel, funding, and authority to implement the PSD program in Washington.
As discussed in Section II above, Ecology's PSD program generally incorporates by reference the Federal PSD permitting provisions in 40 CFR 52.21, in effect as of August 13, 2012. This version of 40 CFR 52.21 includes 40 CFR 52.21(i) (relating to the significant monitoring concentration (SMC)) and 40 CFR 52.21(k) (relating to the significant impact level (SIL)) that added a SMC and SIL for fine particulate matter as part of the EPA's final rule
On January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in
At the EPA's request, the decision also vacated and remanded to the EPA for further consideration the portions of the 2010 PSD PM
In response to the vacatur of the EPA regulations as they relate to the PM
On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to greenhouse gas (GHG) emissions. See
On September 5, 2014, Ecology submitted a letter withdrawing from its January 27, 2014 submittal the portion of WAC 173-400-720(4)(a)(vi) that incorporates 40 CFR 52.21(b)(49)(v) by reference. Ecology notes in its letter that it was not including this provision for
Ecology's letter does not discuss the fact that, because it adopted EPA's PSD regulations as of August 13, 2012, its rules include the elements of the EPA's 2012 rule implementing Step 3 of the phase-in of PSD permitting requirements for greenhouse gases described in the Tailoring Rule, which became effective on August 13, 2012 (77 FR 41051, July 12, 2012). The incorporation of the Step 3 rule provisions into Washington's SIP will allow GHG-emitting sources to obtain plantwide applicability limits (PALs) for their GHG emissions on a carbon dioxide equivalent (CO
Consistent with the discussion above, the EPA proposes to approve the PSD and visibility permitting regulations submitted by Ecology on January 27, 2014. This action is the third and final in a series acting on all remaining elements contained in Ecology's January 27, 2014 submittal. The previous two actions consisted of the EPA's October 3, 2014 (79 FR 59653) final approval of general provisions that apply to all air pollution sources and the EPA's November 7, 2014 (79 FR 66291) final approval of requirements that implement major source NNSR.
The EPA proposes to approve into Washington's SIP at 40 CFR part 52, subpart WW, the Ecology regulations listed in the table below. The EPA also proposes to determine that the general air quality regulations contained WAC 173-400-110, WAC 173-400-111, WAC 173-400-112, WAC 173-400-113, and WAC 173-400-171 also meet the EPA's requirements for PSD and visibility permitting and are approved for such purposes.
In a letter dated October 24, 2014, Ecology requested approval to exercise its authority to fully administer the PSD program with respect to those sources under Ecology's permitting jurisdiction that have existing PSD permits issued by the EPA since August 7, 1977. This would include authority to conduct general administration of these existing permits, authority to process and issue any and all subsequent PSD permit actions relating to such permits (
Under WAC 173-400-700, Ecology's PSD regulations contained in WAC 173-400-700 through 173-400-750 apply statewide except where a local clean air agency has received delegation of the Federal PSD program from the EPA or has a SIP-approved PSD program. At this time, no local clean air agencies have a delegated or SIP-approved PSD program. The EPA is therefore approving Ecology's regulations contained in WAC 173-400-700 through 173-400-750 to apply statewide, except for the three situations described below. For these facilities, emission categories, and geographic areas, the PSD FIP at 40 CFR 52.21 will continue to apply and the EPA will retain responsibility for issuing permits affecting such sources.
By statute, Ecology does not have authority for sources under the jurisdiction of EFSEC. See Chapter 80.50 RCW. Therefore, the EPA's proposed approval of Ecology's PSD program, under WAC 173-400-700 through 173-400-750, excludes projects under the jurisdiction of EFSEC. Such sources will continue to be subject to the PSD FIP in 40 CFR 52.21 until such time that EFSEC's PSD rules are approved into the SIP.
Under a provision contained in RCW 70.235.020,
The EPA is also excluding from the scope of this proposed approval of Ecology's PSD program all Indian reservations in the State, except for non-trust land within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area), and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area and the EPA is therefore proposing to approve Ecology's PSD regulations into the SIP with respect to such lands.
Consistent with the limitations on the scope of the EPA's proposed approval of WAC 173-400-700 through 173-400-750 in the Washington SIP, the EPA is proposing to retain, but significantly narrow, the scope of the current PSD FIP in 40 CFR 52.2497. The EPA's Federal PSD permitting rules will continue to apply to facilities subject to the jurisdiction of the Energy Facilities Site Evaluation Council; carbon dioxide emissions from facilities with industrial combustion of biomass in the form of fuel wood, wood waste, wood by-products and wood residuals; and facilities located within Indian reservations in Washington (except for non-trust land within the exterior boundaries of the Puyallup Indian Reservation) and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In addition, the EPA's PSD rules will continue to apply to sources subject to PSD permits issued by the EPA prior to August 7, 1977, but only with respect to the general administration of any such permits still in effect (
With respect to the EPA's proposed approval of WAC 173-400-116 and WAC 173-400-117, the SIP-approved provisions of WAC 173-400-020 govern jurisdictional applicability for those sections. WAC 173-400-020 states, “[t]he provisions of this chapter shall apply statewide, except for specific subsections where a local authority has adopted and implemented corresponding local rules that apply only to sources subject to local jurisdiction as provided under RCW 70.94.141 and 70.94.331.” Because Ecology will be the only authority in Washington with a SIP-approved PSD program that would implement WAC 173-400-116,
Consistent with the limitations on the scope of the EPA's approval of Ecology's major NNSR program, the EPA is proposing to retain, but significantly narrow, the scope of the current
In approving state new source review rules into SIPs, the EPA has a responsibility to ensure that all states properly implement their SIP-approved preconstruction permitting programs. The EPA's approval of Ecology's PSD rules does not divest the EPA of the responsibility to continue appropriate oversight to ensure that permits issued by Ecology are consistent with the requirements of the CAA, Federal regulations, and the SIP. The EPA's authority to oversee permit program implementation is set forth in sections 113, 167, and 505(b) of the CAA. For example, section 167 provides that the EPA shall issue administrative orders, initiate civil actions, or take whatever other action may be necessary to prevent the construction or modification of a major stationary source that does not “conform to the requirements of” the PSD program. Similarly, section 113(a)(5) of the CAA provides for administrative orders and civil actions whenever the EPA finds that a state “is not acting in compliance with” any requirement or prohibition of the CAA regarding the construction of new sources or modification of existing sources. Likewise, section 113(a)(1) provides for a range of enforcement remedies whenever the EPA finds that a person is in violation of an applicable implementation plan.
In making judgments as to what constitutes compliance with the CAA and regulations issued thereunder, the EPA looks to (among other sources) its prior interpretations regarding those statutory and regulatory requirements and policies for implementing them. It follows that state actions implementing the Federal CAA that do not conform to the CAA may lead to potential oversight action by the EPA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves the state's law as meeting Federal requirements and does not impose additional requirements beyond those imposed by the state's 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 the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and
• does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not impose substantial direct costs on tribal governments or preempt tribal law. As discussed above, the SIP is not approved to apply in Indian country located in the state, except for non-trust land within the exterior boundaries of the Puyallup Indian Reservation (also known as the 1873 Survey Area), or any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Consistent with EPA policy, the EPA provided a consultation opportunity to the Puyallup Tribe in a letter dated February 25, 2014. The EPA did not receive a request for consultation.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 13 chemical substances which were the subject of premanufacture notices (PMNs). This action would require persons who intend to manufacture (including import) or process any of the chemical substances for an activity that is designated as a significant new use by this proposed rule to notify EPA at least 90 days before commencing that activity. The required notification would provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit the activity before it occurs.
Comments must be received on or before March 9, 2015.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2014-0760, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this proposed rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers (including importers) or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemical substances subject to a final SNUR must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of this final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see 40 CFR 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
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EPA is proposing these SNURs under TSCA section 5(a)(2) for 13 chemical substances which were the subject of PMNs P-13-270, P-13-365, P-13-392, P-13-393, P-13-471, P-13-563, P-13-617, P-13-618, P-13-619, P-14-60, P-14-267, P-14-268, and P-14-478. These SNURs would require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity. In the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use. Persons who must report are described in § 721.5.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the final rule. Provisions relating to user fees appear at 40 CFR part 700. According to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, taking into consideration the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is proposing significant new use and recordkeeping requirements for 13 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name.
• Chemical Abstracts Service (CAS) Registry number (assigned for non-confidential chemical identities).
• Public comments and EPA's response to comments on the ten direct final SNURs subject to PMNs, P-13-365, P-13-392, P-13-393, P-13-471, P-13-270, P-13-563, P-13-617, P-13-618, P-13-619, and P-14-60.
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VII. for more information).
• CFR citation assigned in the regulatory text section of this proposed rule.
The regulatory text section of this proposed rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (
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(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.
The commenter argues these listed respirators have, in fact, APFs ranging from 25 to 1,000 and not 10 as required.
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For these 13 PMNs subject to these proposed SNURs, EPA determined that one or more of the criteria of concern established at 40 CFR 721.170 were met. For additional discussion of the rationale for the SNURs on these chemical substances, see Units II. and IV. of the proposed rule.
EPA is proposing these SNURs for specific chemical substances that have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this proposed rule:
• EPA will receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.
• EPA will be able to regulate prospective manufacturers or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA section 5(e), 5(f), 6, or 7.
• EPA will ensure that all manufacturers and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at
To establish a significant “new” use, EPA must determine that the use is not ongoing. The chemical substances subject to this proposed rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no other person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.
When chemical substances identified in this proposed rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. The identities for 10 of the 13 chemical substances subject to this proposed rule have been claimed as confidential and EPA has received no post-PMN bona fide submissions (per 40 CFR 720.25 and § 721.11). Based on this, the Agency believes that it is highly unlikely that any of the significant new uses described in the regulatory text of this proposed rule are ongoing.
Therefore, EPA designates January 7, 2015 as the cutoff date for determining whether the new use is ongoing. Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires. If such a person met the conditions of advance compliance under § 721.45(h), the person would be considered exempt from the requirements of the SNUR. Consult the
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances which were the subject of PMNs P-13-270, P-13-365, P-13-392, P-13-393, P-13-471, P-13-563, P-13-617, P-13-618, P-13-619, and P-14-60, during the development of the direct final rules. EPA's complete economic analyses associated with these ten PMNs are available in the docket under docket ID numbers EPA-HQ-OPPT-2013-0739, EPA-HQ-OPPT-2014-0166, and EPA-HQ-OPPT-2014-0277. EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances which were the subject of PMNs P-14-267, P-14-268, and P-14-478. EPA's complete economic analysis associated with these three PMNs is available in the docket under docket ID number EPA-HQ-OPPT-2014-0760.
This proposed rule would establish SNURs for 13 chemical substances that were the subject of PMNs and a TSCA section 5(e) consent order. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).
According to PRA, 44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action would not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUR submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this proposed rule.
This proposed rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit IX., and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Therefore, the promulgation of these SNURs would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government would be impacted by this proposed rule. As such, EPA has determined that this proposed rule would not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501
This action would not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).
This proposed rule would not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This proposed rule would not significantly nor uniquely affect the communities of Indian Tribal governments, nor would it involve or impose any requirements that affect Indian Tribes. Accordingly, the
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This proposed rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action would not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), would not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, it is proposed that 40 CFR chapter I be amended as follows:
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as poly(oxy-1,2-ethanediyl), -[ [ (3-isocyanatomethylphenyl)amino]carbonyl]—
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as carbamic acid, N-(3-isoocyanatomethylphenyl)-, 2-[2-(2-butoxyethoxy)ethoxy]ethyl ester (PMN P-14-268; CAS No. 304855-14-9) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying half-mask respirator equipped with appropriate gas/vapor cartridges in combination with N100, R100, or P100 filters or an appropriate canister incorporating N100, R100, or P100 filters (for scenarios where neither dermal nor ocular exposure is likely).
(B) NIOSH-certified power air- purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters (for scenarios where dermal and/or ocular exposure is also likely).
(C) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet (for scenarios where dermal and/or ocular exposure is also likely).
(D) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece (for scenarios where dermal and/or ocular exposure is also likely).
(ii)
(b)
(1)
(2)
Forest Service, USDA.
Notice of meetings.
The National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule Committee (Committee) will meet in Charlotte, North Carolina. Attendees may also participate via webinar and conference call. The Committee operates in compliance with the Federal Advisory Committee Act (FACA) (Pub. L. 92-463). Additional information relating to the Committee can be found by visiting the Committee's Web site at:
The meetings will be held, in-person and via webinar/conference call on the following dates and times:
• Tuesday, January 27, 2015 from 9 a.m. to 5:15 p.m. EST.
• Wednesday, January 28, 2015 from 9 a.m. to 5:15 p.m. EST.
• Thursday, January 29, 2015 from 9 a.m. to 3 p.m. EST.
The meeting will be located at Holiday Inn City Center; 230 North College Street Charlotte, NC 28202.
For anyone who would like to attend via webinar and/or conference call, please visit the Web site listed above or contact the person listed in the section titled
All comments are placed in the record and are available for public inspection and copying, including names and addresses when provided. The public may inspect comments received at the USDA Forest Service Washington Office—Yates Building. Please call ahead to facilitate entry into the building.
Chalonda Jasper, Committee Coordinator, by phone at 202-260-9400 or email at
The purpose of this meeting is to provide ongoing advice and recommendations on implementation of the planning rule. This meeting is open to the public.
The following business will be conducted:
1. Continue deliberations on formulating advice for the Secretary,
2. Discussion of Committee work group findings and progress, including finalizing the Citizen and Government Guides, and finalizing recommendations put forth from the Turnover working group,
3. Dialogue with key Forest Service personel and stakeholders from Region 8, the Southern Region, regarding the land management plan revision processes currently underway in the region,
4. Conduct work group break-out sessions to advance each work group and plan work group tasks for upcoming months,
5. Hear public comments, and
6. Administrative tasks.
The agenda and a summary of the meeting will be posted on the Committee's Web site within 21 days of the meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty (CVD) order on multilayered wood flooring (wood flooring) from the People's Republic of China (PRC). The period of review (POR) is January 1, 2012, through December 31, 2012. We preliminarily find that the mandatory respondents Fine Furniture (Shanghai) Limited (Fine Furniture) and The Lizhong Wood Industry Limited Company of Shanghai (Lizhong) (also known as “Shanghai Lizhong Wood Products Co., Ltd.”) received countervailable subsidies during the POR. We also intend to rescind the review of one company, Changzhou Hawd Flooring Co., Ltd. (Changzhou), which timely certified that it had no shipments of subject merchandise to the United States during the POR. Interested parties are invited to comment on these preliminary results.
Mary Kolberg or Joshua Morris, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1785 or (202) 482-1779, respectively.
Multilayered wood flooring is composed of an assembly of two or
While HTSUS subheadings are provided for convenience and customs purposes, the written product description remains dispositive.
A full description of the scope of the order is contained in the memorandum from Gary Taverman, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Decision Memorandum for Preliminary Results of Countervailing Duty Administrative Review: Multilayered Wood Flooring from the People's Republic of China” dated concurrently with this notice (Preliminary Decision Memorandum), which is hereby adopted by this notice.
The Preliminary Decision Memorandum is a public document and is on file electronically
On April 4, 2014, we received a timely filed no-shipment certification from Changzhou. Because there is no evidence on the record to indicate that this company had entries of subject merchandise during the POR, pursuant to 19 CFR 351.213(d)(3), we intend to rescind the review with respect to Changzhou. A final decision regarding whether to rescind the review of this company will be made in the final results of this review.
We have conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily find that there is a subsidy,
We were not able to make a preliminary determination concerning the countervailability of certain programs because we require additional information.
In accordance with 19 CFR 351.221(b)(4)(i), we calculated a countervailable subsidy rate for each of the mandatory respondents, Fine Furniture and Lizhong.
For the non-selected respondents, we have followed the Department's practice, which is to base the subsidy rates on an average of the subsidy rates calculated for those companies selected for individual review, excluding
We preliminarily find the countervailable subsidy rates for the producers/exporters under review to be as follows:
We will disclose to parties in this proceeding the calculations performed in reaching the preliminary results within five days of the date of public announcement of these preliminary results.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce within 30 days after the date of publication of this notice.
Parties are reminded that briefs and hearing requests are to be filed electronically using ACCESS and that electronically filed documents must be received successfully in their entirety by 5 p.m. Eastern Time on the due date.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, we intend to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
Consistent with section 751(a)(1) of the Act, upon issuance of the final results, the Department shall determine,
Also in accordance with section 751(a)(1) of the Act, the Department intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown above for each of the respective companies listed above. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits at the most recent company specific or all-others rate applicable to the company. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (“Department”) is conducting an administrative review of the antidumping duty order on honey from the People's Republic of China (“PRC”). The period of review (“POR”) is December 1, 2012, through November 30, 2013. As discussed below, during the review, because the single mandatory respondent, Kunshan Xinlong Food Co., Ltd. (“Kunshan Xinlong”), did not cooperate, the Department preliminarily determines to treat this company as part of the PRC-wide entity. If these preliminary results are adopted in the final results of review, the Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the POR.
Irene Gorelik, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6905.
On February 3, 2014, the Department initiated an administrative review of the antidumping duty
The products covered by the
The merchandise subject to the order is currently classifiable under subheadings 0409.00.00, 1702.90.90, 2106.90.99, 0409.00.0010, 0409.00.0035, 0409.00.0005, 0409.00.0045, 0409.00.0056, and 0409.00.0065 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise under the order is dispositive.
The Department conducted this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (“the Act”). In making our findings, we have relied on facts available, and because the single mandatory respondent, Kunshan Xinlong, which we preliminarily are treating as part of the PRC-wide entity, did not act to the best of its ability to respond to the Department's requests for information, we have drawn an adverse inference in selecting from among the facts otherwise available.
For a full description of the methodology underlying our conclusions, see the Preliminary Decision Memorandum, dated concurrently with these results and hereby adopted by this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”).
We preliminarily determine that the following antidumping duty margin exists:
Normally, the Department discloses to interested parties the calculations performed in connection with a preliminary results within five days of the date of publication of the notice of preliminary results in the
Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results.
Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically in ACCESS. An electronically filed document must be received successfully in its entirety in ACCESS, by 5:00 p.m. Eastern Standard Time, within 30 days after the date of publication of this notice.
The Department intends to issue the final results of this administrative review, including the results of our analysis of issues raised in the written comments, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be the rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to a request from respondent Beşsan Makarna Gida San. Ve Tic. A.S. (Beşsan), the Department of Commerce (the Department) is conducting a new shipper review of the antidumping duty order on certain pasta (pasta) from Turkey. The period of review (POR) is July 1, 2013, through January 31, 2014. We preliminarily find that Beşsan did not sell subject merchandise at prices below normal value (NV) during the POR. If these preliminary results are adopted in our final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to liquidate entries of merchandise produced by Beşsan without regard to antidumping duties. We invite interested parties to comment on these preliminary results.
Tyler Weinhold or Robert James, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW.,
Imports covered by this review are shipments of certain non-egg dry pasta in packages of five pounds (2.27 kilograms) or less, whether or not enriched or fortified or containing milk or other optional ingredients such as chopped vegetables, vegetable purees, milk, gluten, diastases, vitamins, coloring and flavorings, and up to two percent egg white.
For a full description of the scope of the order,
The Department has conducted this review in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.214. Export price is calculated in accordance with section 772 of the Act. NV is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
As a result of this review, we preliminarily determine the following dumping margin for the period July 1, 2013, through January 31, 2014.
The Department intends to disclose to interested parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by the Departments electronic records system, ACCESS, by 5:00 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, within 90 days after the date of publication of this notice, pursuant to section 751(a)(2)(B)(iv) of the Act.
Upon completion of this new shipper review, the Department shall determine and U.S. Customs and Border Protection (CBP) shall assess antidumping duties on all appropriate entries. If Beşsan's weighted-average dumping margin is not zero or
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective upon publication of the notice of final results of new shipper review for all shipments of pasta from Turkey entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Beşsan will be the rate established in the final results of this new shipper review except if the rate is
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.214.
National Institute of Standards and Technology, Commerce.
Notice.
The 100th Interim Meeting of the National Conference on Weights and Measures (NCWM) will be held in Daytona Beach, Florida, from Sunday, January 18, 2015 through Wednesday, January 21, 2015. This notice contains information about significant items on the NCWM Committee agendas, but does not include all agenda items. As a result, the items are not consecutively numbered.
The meeting will be held from Sunday, January 18, 2015 through Wednesday, January 21, 2015, meeting schedule is available at
This meeting will be held at the Hilton Daytona Beach Oceanfront Resort 100 North Atlantic Avenue, Daytona Beach, Florida 32118.
Ms. Carol Hockert, Chief, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899-2600. You may also contact Ms. Hockert at (301) 975-5507 or by email at
Publication of this notice on the NCWM's behalf is undertaken as a public service; NIST does not endorse, approve, or recommend any of the proposals or other information contained in this notice or in the publications of the NCWM.
The NCWM is an organization of weights and measures officials of the states, counties, and cities of the United States, federal agencies, and representatives from the private sector. These meetings bring together government officials and representatives of business, industry, trade associations, and consumer organizations on subjects related to the field of weights and measures technology, administration, and enforcement. NIST participates to encourage cooperation between federal agencies and the states in the development of legal metrology requirements. NIST also promotes uniformity among the states in laws, regulations, methods, and testing equipment that comprise the regulatory control of commercial weighing and measuring devices, packaged goods, and other trade and commerce issues.
The following are brief descriptions of some of the significant agenda items that will be considered at the NCWM Interim Meeting. Comments will be taken on these and other issues during several public comment sessions. At this stage, the items are proposals. This meeting also includes work sessions in which the Committees may also accept comments, and where recommendations will be developed for consideration and possible adoption at the NCWM 2015 Annual Meeting. The Committees may withdraw or carryover items that need additional development. The 100th Annual Meeting of the NCWM will be held July 19 to 23, 2015, at The Sheraton Philadelphia Society Hill Hotel, 1 Dock Street, Philadelphia, Pennsylvania 19106.
Some of the items listed below provide notice of projects under development by groups working to develop specifications, tolerances, and other requirements for devices used in the retail sales of engine fuels and the establishment of approximate gallon and liter equivalents to diesel fuel that would be used in marketing both compressed and liquefied natural gas. These notices are intended to make interested parties aware of these development projects and to make them aware that reports on the status of the project will be given at the Interim Meeting. The notices are also presented to invite the participation of manufacturers, experts, consumers, users, and others who may be interested in these efforts.
The Specifications and Tolerances Committee (S&T Committee) will consider proposed amendments to NIST Handbook 44, “Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices.” Those items address weighing and measuring devices used in commercial applications, that is, devices that are used to buy from or sell to the public or used for determining the quantity of products or services sold among businesses. Issues on the agenda of the NCWM Laws and Regulations Committee (L&R Committee) relate to proposals to amend NIST Handbook 130, “Uniform Laws and Regulations in the area of Legal Metrology and Engine Fuel Quality” and NIST Handbook 133, “Checking the Net Contents of Packaged Goods.”
The following items are proposals to amend NIST Handbook 44:
The S&T Committee will consider recommending adoption of a new code to be included in NIST Handbook 44 that will include the specifications, tolerances, and other technical
Belt-conveyor scales are used in a wide variety of applications for weighing coal, grain, ore, and many other raw materials or products. Currently, only scales that are fully integrated into a conveyor system are permitted under NIST Handbook 44. The S&T Committee will consider adoption of new definitions and proposals to broaden the scope of the requirements to allow fully “self-contained weigh-belt systems” to be covered by the specifications, tolerances, and other technical requirements in NIST Handbook 44 so these devices may be utilized in commercial transactions.
The S&T Committee will consider a proposal to change the test procedures and tolerances for automatic bulk weighing systems to reflect that these devices are generally operating in a “dynamic” mode when commercial weight determinations are made. When these devices weigh in a “dynamic” mode, the accuracy of the weighment can be affected by many additional factors (
The S&T Committee will consider a proposal that would allow device manufacturers to supply required security and configuration related data in “event loggers” (
The S&T Committee will consider a proposal to update the Liquid-Measuring Devices Code to include test procedures that recognize technological advances in meter calibration and improve the accuracy of meters used to measure petroleum, chemicals, and other liquids. The intent of the proposal is to prescribe test procedures for meters with multi-point calibration (
The S&T Committee will consider a proposal to recognize the use of calibrated transfer standards (also called “master meters”) in the verification and calibration of Liquefied Petroleum Gas and Anhydrous Ammonia Liquid-Measuring Devices. Currently, most official tests of these devices are conducted using volumetric test measures or using gravimetric testing. Adoption of this proposal, which includes requirements for a minimum test draft, would allow the use of “master meters” in both service-related and official testing. The S&T Committee will also consider expanding the use of transfer standards to other types of measuring devices, including those used to measure petroleum at terminals and retail outlets and to meters used to deliver home heating fuel and other products.
Natural gas is sold in the marketplace in both compressed (CNG) and liquefied (LNG) states as alternative fuel choices to gasoline and diesel fuel. The S&T Committee will consider proposed revisions to NIST Handbook 44 to define volume units for CNG and LNG in terms of the energy equivalents for a liter or gallon of diesel fuel. The availability of these values should enable consumers to compare the cost and mileage economy of different fuels so enable informed purchasing decisions when considering the use, purchase, or lease of vehicles equipped to operate on different fuels.
The S&T Committee will consider this group of proposals (listed above) which includes proposed revisions and updates to the Taximeter Code in NIST Handbook 44 to address changes in technology related to indicating and recording elements (
The S&T Committee will consider a progress report from a national working group that is studying the use of Global Positioning Systems and smart phone/web based applications in transportations services in order to develop proposed specifications, tolerances, and other technical requirements to ensure accuracy and transparency for passengers, drivers, and businesses for inclusion in NIST Handbook 44.
The S&T Committee will consider a proposed definition for “batching
The S&T Committee will consider recommending adoption of a draft code for use in electric vehicle charging and submetering for inclusion in NIST Handbook 44. The code was developed by a national working group that continues to further refine the specifications, tolerances, and other technical requirements to ensure accuracy and transparency for drivers of electric vehicles and power resellers. The S&T Committee will also consider proposed changes to the section 5.55. “Timing Devices” in NIST Handbook 44 to address requirements for the timing mechanisms that are likely to be used in some recharging systems to determine additional charges for other services (
NCWM Laws and Regulations Committee (L & R Committee)
The following items are proposals to amend NIST Handbook 130 or NIST Handbook 133:
Animal Bedding is generally defined as any material, except for baled straw, that is kept, offered or exposed for sale or sold to retail consumers for primary use as a medium for any pet or companion or livestock animal to nest or eliminate waste. The purpose of this proposal is to provide a uniform method of sale for animal bedding that will enhance the ability of consumers to make value comparisons and will ensure fair competition. If adopted, the proposal will require packers to advertise and sell packages of animal bedding on the basis of the expanded volume of the bedding. Most packages of animal bedding are compressed during packaging and the expanded volume is the amount of product that consumers will recover through unwrapping and decompressing the bedding according to the instructions provided by the packer. See also Item 260-3 for proposed Test Procedures for Verifying the Expanded Volume Declaration on Packages of Animal Bedding
This proposal will add a test procedure and purge allowance to NIST Handbook 133 so that the drainage equipment and methods used by state and local weights and measures officials are identical to those used by the Food Safety and Inspection Service of the U.S. Department of Agriculture (USDA) in packing plants. Currently neither a purge allowance nor test procedure are contained in the handbook so state and local weights and measures inspectors use a modified test procedure developed for frozen seafood and information provided in a USDA response to a consumer inquiry to carry out inspections of these food products. This test procedure will also be used in verifying the amount of purge from beef tripe.
Army & Air Force Exchange Service (Exchange), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by March 9, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to
Respondents are Exchange applicants for employment.
Army & Air Force Exchange Service (Exchange), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by March 9, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Army and Air Force Exchange Service, Office of the General Counsel, Compliance Division, Attn: Teresa Schreurs, 3911 South Walton Walker Blvd., Dallas, TX 75236-1598 or call the Exchange Compliance Division at 800-967-6067.
Authorized customers of the Army and Air Force Exchange Service information, who provide comments, suggestions, complaints, concerns, opinions, observations or other information pertaining to Exchange operations. The Exchange collects information electronically transmitted, or provided by customers via paper forms completed by the customer or by phone, which allows the Exchange to contact the customer for special events, sales, address customer complaints as well as provide information about shopping at the Exchange. The information provides valuable data to the Exchange, which is used to enhance operations and improve efficiencies of the Exchange marketing program, and to generally enrich the customers' experience. If the Exchange does not receive the data, the Exchange efforts to improve the shopping experience would
Army & Air Force Exchange Service (Exchange), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by March 9, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Army and Air Force Exchange Service, Office of the General Counsel, Compliance Division, Attn: Teresa Schreurs, 3911 South Walton Walker Blvd., Dallas, TX 75236-1598 or call the Exchange Compliance Division at 800-967-6067.
Respondents are Exchange terminated employees, retired employees, employee beneficiaries, and contractors who are actively working with the exchange. These individuals submit information to the Exchange primarily through electronic means so the Exchange may pay them appropriately for their time and accurately provide them with benefits and leave.
Army & Air Force Exchange Service (Exchange), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by March 9, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
• Federal eRulemaking Portal:
• Mail: Federal Docket Management System Office, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Army and Air Force Exchange Service, Office of the General Counsel, Compliance Division, Attn: Teresa Schreurs, 3911 South Walton Walker Blvd., Dallas, TX 75236-1598 or call the Exchange Compliance Division at 800-967-6067.
Respondents are Exchange personnel who are active, terminated, or retired. Information on dependents including ex-spouses is obtained from the Exchange personnel. These individuals submit information to the Exchange primarily through electronic means.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Consideration will be given to all comments received by February 6, 2015.
The clause at DFARS 252.217-7012 is used in master agreements for repair and alteration of vessels. Contracting officers use the information required by paragraph (d) of the clause to determine that the contractor is adequately insured. This requirement supports prudent business practice, because it limits the Government's liability as a related party to the work the contractor performs. Contracting officers use the information required by paragraphs (f) and (g) of the clause to keep informed of lost or damaged property for which the Government is liable, and to determine the appropriate course of action for replacement or repair of the property.
Contracting officers use the information required by the provision at DFARS 252.217-7026 to identify the apparently successful offeror's sources of supply so that competition can be enhanced in future acquisitions. This collection complies with 10 U.S.C. 2384, Supplies: Identification of Suppliers and Sources, which requires the contractor to identify the actual manufacturer or all sources of supply for supplies furnished under contract to DoD.
Contracting officers use the information required by the clause at 252.217-7028 to determine the extent of “over and above” work before the work commences. This requirement allows the Government to review the need for pending work before the contractor begins performance.
Contracting officers use the information required by DFARS 217.7004(a) where offerors shall state prices for the new items being acquired both with and without any exchange (trade-in allowance).
Contracting officers use the information from 217.7404-3(b), to evaluate a contractor's “qualifying proposal” in accordance with the definitization schedule. This subpart allows the contracting officer to require receipt of a qualifying proposal containing sufficient information for DoD to complete a meaningful analyses and audit of the information in the proposal, and any other information that the contracting officer has determined DoD needs to review in connection with the contract.
Contracting officers use the information from 217.7505(d), where the offeror submits with its proposal, price and quantity data on any Government orders for the replenishment part issued within the most recent 12 months.
Written comments and recommendations on the proposed information collection should be sent to Ms. Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Mr. Licari at: Publication Collections Program, WHS/ESD Information Management Division, 4800 Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Department of the Navy, DoD.
Notice.
The invention listed below is assigned to the United States Government as represented by the Secretary of the Navy. The Department of the Navy hereby gives notice of its intent to grant to Vann Technology, LLC. a revocable, nonassignable, exclusive license to practice in the United States, the Government-owned invention described below: U.S. Patent 6,902,316 (Navy Case 85003): Issued June 7, 2005, entitled “NON-INVASIVE CORROSION SENSOR”.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than January 26, 2015.
Written objections are to be filed with Naval Surface Warfare Center, Crane Division, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001.
Mr. Christopher Monsey, Naval Surface Warfare Center, Crane Division, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001, telephone 812-854-4100.
35 U.S.C. 207, 37 CFR part 404
Department of the Navy, DoD.
Notice.
The inventions listed below are assigned to the United States Government, as represented by the Secretary of the Navy and are available for domestic and foreign licensing by the Department of the Navy.
The following patents are available for licensing: Patent No. 8,784,584: PERCHLORATE-FREE YELLOW SIGNAL FLARE COMPOSITION//Patent No. 8,782,944: ACCESSORY INTERFACE SYSTEM//Patent No. 8,802,983: PROTECTIVE MEMBERS FOR AN ELECTRICAL INTERFACE ASSEMBLY//Patent No. 8,669,504: HAND LAUNCHABLE UNMANNED AERIAL VEHICLE//Patent No. 8,738,324: METHOD AND SYSTEM FOR DETERMINATION OF DETECTION PROBABILITY OF A TARGET OBJECT BASED ON A RANGE//Patent No. 8,493,261: COUNTERMEASURE DEVICE FOR A MOBILE TRACKING DEVICE//Patent No. 8,526,097: TUNABLE DETECTION SYSTEM//Patent No. 8,576,548: COMMUNICATIONS VEHICLE//Patent No. 8,692,171: HAND LAUNCHABLE UNMANNED AERIAL VEHICLE//Patent No. 8,434,397: HELICOPTER WEAPON MOUNTING SYSTEM//Patent No. 8,209,897: TARGETING SYSTEM FOR A PROJECTILE LAUNCHER//Patent No. 8,573,109: AMMUNITION CANISTER AND FEED SYSTEM//Patent No. 8,692,729: ANTENNA WITH SHAPED DIELECTRIC LOADING//Patent No. 8,531,114: ILLUMINATION BEACON//Patent No. 8,216,403: PERCHLORATE-FREE RED SIGNAL FLARE COMPOSITION//Patent No. 8,366,847: PERCHLORATE-FREE YELLOW SIGNAL FLARE COMPOSITION//Patent No. 8,215,236: SIGNAL TRANSMISSION SURVEILLANCE SYSTEM//Patent No. 8,001,901: SIGNAL TRANSMISSION SURVEILLANCE SYSTEM//Patent No. 8,543,357: RF POWER DENSITY AND FIELD CHARACTERIZATION TECHNIQUE//Patent No. 8,788,218: EVENT DETECTION SYSTEM HAVING MULTIPLE SENSOR SYSTEMS IN COOPERATION WITH AN IMPACT DETECTION SYSTEM//Patent No. 8,788,220: VEHICLE DAMAGE DETECTION SYSTEM//Patent No. 8,365,664: IMPULSE CARTRIDGE//Patent No. 8,250,979: MULTIPLE BAY EJECTION DEVICE SYSTEM//Patent No. 8,671,840: FLEXIBLE FRAGMENTATION SLEEVE//Patent No. 8,234,978: HAND-HELD FIRING DEVICE//Patent No. 8,356,541: VEHICLE PROTECTIVE STRUCTURE//Patent No. 8,146,480: VEHICLE PROTECTIVE STRUCTURE//Patent No. 8,479,434: ACCESSORY INTERFACE SYSTEM//Patent No. 8,478,335: SYSTEM AND METHOD FOR RADIO COMMUNICATION//Patent No. 8,151,426: METHOD OF CONVERTING A TRAILER CONFIGURATION//Patent No. 8,276,325: VEHICLE AND MAST MOUNTING ASSEMBLY THEREFOR//Patent No. 8,146,283: WEAPON MOUNTED ADAPTER//Patent No. 7,988,802: THERMITE TORCH FORMULATION INCLUDING COMBINED OXIDIZERS//Patent No. 7,998,291: THERMITE TORCH FORMULATION INCLUDING MOLYBDENUM TRIOXIDE//Patent No. 8,737,634: WIDE AREA NOISE CANCELLATION SYSTEM AND METHOD//Patent No. 8,297,626: PRESSURE SEAL//Patent No. 8,154,954: PROJECTILE FOR FOCUSING A KINETIC PULSE ARRAY//Patent No. 7,804,741: SYSTEM AND METHOD FOR FOCUSING A KINETIC PULSE ARRAY//Patent No. 7,948,829: LOCATOR SYSTEM AND METHOD INCLUDING NODE AND TARGET ACQUISITION//Patent No. 8,402,892: SIMULTANEOUS NONELECTRIC PRIMING ASSEMBLY AND METHOD//Patent No. 8,408,460: AUTO ADJUSTING RANGING DEVICE//Patent No. 8,281,718: EXPLOSIVE FOIL INITIATOR AND METHOD OF MAKING//Patent No. 8,445,813: COMPACT PORTABLE HIGH POWER YTTERBIUM LASER//Patent No. 7,999,230: TUNABLE DETECTION SYSTEM AND METHOD OF USE//Patent No. 8,420,977: HIGH POWER LASER SYSTEM//Patent No. 8,367,991: MODULATION DEVICE FOR A
Requests for copies of the patents cited should be directed to Naval Surface Warfare Center, Crane Division, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001.
Mr. Christopher Monsey, Naval Surface Warfare Center, Crane Division, Code OOL, Bldg 2, 300 Highway 361, Crane, IN 47522-5001, telephone 812-854-4100.
35 U.S.C. 207, 37 CFR part 404.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Applications Available: January 7, 2015.
Date of Pre-Application Webinar: January 15, 2015.
Deadline for Transmittal of Applications: March 9, 2015.
Deadline for Intergovernmental Review: May 7, 2015.
(1) Basic or advanced training leading to an academic degree in areas of personnel shortages in rehabilitation as identified by the Secretary;
(2) A specified series of courses or program of study leading to the award of a certificate in areas of personnel shortages in rehabilitation as identified by the Secretary; and
(3) Support for medical residents enrolled in residency training programs in the specialty of physical medicine and rehabilitation.
These priorities are:
Under 34 CFR 75.105(c)(3), for this competition, we consider only applications that propose to provide training in the priority area of rehabilitation counseling.
The full text of this priority is included in the notice of final priority for this program published in the
(a) The recommendation of the RSA project officer who will monitor the reported annual performance of the grantee's training program and measure it against the projections stated in the grantee's application. This review will consider the number of students actually enrolled in the grantee's training program, the number of students who successfully enter qualifying employment with State VR agencies, and the number who obtain qualifying employment in related agencies.
(b) The timeliness and effectiveness with which all requirements of the grant award have been or are being met by the grantee, including the submission of annual performance reports and annual RSA scholar payback program reports, and adherence to fiduciary responsibilities related to the budget submitted in the application; and
(c) The quality, relevance, and usefulness of the grantee's training program and activities and the degree to which the training program and activities and their outcomes have contributed to significantly improving the quality of VR professionals ready for employment with State VR agencies and related agencies, as measured by the percentage of students entering eligible employment under 34 CFR 386.34.
Grantees must also provide assurances that they will abide by all of the administrative and performance reporting requirements associated with the RSA scholar payback program reports and will retain all the documentation, including the scholarship agreement, exit forms, and any other documentation, necessary to ensure students understand their financial liabilities under this program (34 CFR part 386).
While applicants may not hire staff or select trainees based on race or national origin/ethnicity, they may conduct outreach activities to increase the pool of eligible minority candidates. We may disqualify and not consider for funding any applicant that indicates that it will hire or train a certain number or percentage of minority candidates.
29 U.S.C. 772.
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply only to institutions of higher education (IHEs).
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2016 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
1.
2.
Under 34 CFR 75.562(c), an indirect cost reimbursement on a training grant is limited to the recipient's actual indirect costs, as determined by its negotiated indirect cost rate agreement, or eight percent of a modified total direct cost base, whichever amount is less. Indirect costs in excess of the limit may not be charged directly, used to satisfy matching or cost-sharing requirements, or charged to another Federal award.
1.
To obtain a copy via the Internet, use the following address:
To obtain a copy from ED Pubs, write, fax, or call the following: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827. FAX: (703) 605-6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1-877-576-7734.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.129B.
To obtain a copy from the program office, contact the person listed under
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit of 45 pages applies to all of the application narrative section, Part III. We will reject your application if you exceed the page limit for Part III.
However, the page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page double-spaced abstract.
If you submit optional materials such as resumes, a bibliography, or letters of support, please limit these materials to a total of no more than 30 pages.
Please note that, if you receive funding under the competition, the abstract will be made available to the public.
3.
Date of Pre-Application Webinar: Interested parties are invited to participate in a pre-application webinar. The pre-application webinar with staff from the Department will be held on January 15, 2015, at 2:00 p.m. Washington, DC time. The webinar will be recorded. For further information about the pre-application webinar, contact the person listed under
Deadline for Transmittal of Applications: March 9, 2015.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review: May 7, 2015.
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days to complete.
Information about SAM is available at SAM.gov. To further assist you with obtaining and registering your DUNS number and TIN in SAM or updating your existing SAM account, we have prepared a SAM.gov Tip Sheet, which you can find at:
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the Rehabilitation Training: Rehabilitation Long-Term Training competition, CFDA number 84.129B, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Rehabilitation Training: Rehabilitation Long-Term Training competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevents you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: RoseAnn Ashby, U.S. Department of Education, 400 Maryland Avenue SW., Room 5055, PCP, Washington, DC 20202-2800. FAX: (202) 245-7591.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.129B), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.129B), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
The goal of RSA's Rehabilitation Training: Rehabilitation Long-Term Training program is to increase the number of qualified VR personnel, including counselors and other professional staff, working in State VR or related agencies. At least 75 percent of all grant funds must be used for direct payment of student scholarships.
Grantees are required to maintain a system that safeguards the privacy of current and former scholars from the time they are enrolled in the program until they successfully meet their service obligation through qualified employment or monetary repayment. This system must ensure that scholars sign a payback agreement and an exit form when they exit the program, regardless of whether they drop out, are removed, or successfully complete the program. Specifically, each grantee is required to maintain the following scholar information:
(a) Current contact information for all students receiving scholarships, including home address, email, and a phone number (home or cell);
(b) A point of contact for each scholar in the event that the grantee is unable to contact the student. This contact must be at least 21 years of age and may be a parent, relative, spouse, partner, sibling, or guardian;
(c) Cumulative financial support granted to scholars;
(d) Scholar debt in years;
(e) Program completion date and reason for exit for each scholar;
(f) Annual documentation from the scholar's employer(s) until the scholar completes the service obligation. This documentation must include the following elements in order to verify qualified employment: Start date of employment to the present date, confirmation of full-time or part-time employment (if the scholar is working part-time the number of hours per week must be included in the documentation), type of employment, and a description of the roles and responsibilities performed on the job. This information is required for each employer if the scholar has worked in more than one setting in order to meet the service obligation.
If the scholar is employed in a related agency, the agency must also provide documentation to validate that there is a relationship with the State VR agency. This may be a formal or informal contract, cooperative agreement, memorandum of understanding, or related document;
(g) Annual documentation from the scholar's IHE to verify dates of deferral, if applicable. The documentation may be prepared by the scholar's advisor or department chair and must include: Confirmation of enrollment date, estimated graduation date, confirmation that the scholar is enrolled in a full-time course of study, and confirmation of the scholar's intent to fulfill the service obligation upon completion of the program.
Grantees are required to report annually to RSA on the data elements described above using the RSA Grantee Reporting Form, OMB number 1820-0617, an electronic reporting system supported by the RSA Management Information System (RSA MIS). In addition, grantees are required to utilize all forms required by RSA to prepare and process repayment, as well as requests for deferral and exceptions. The RSA Grantee Reporting Form collects specific data, including the number of scholars entering the rehabilitation workforce, the rehabilitation field each scholar enters, and the type of employment setting each scholar chooses (
In addition, all Rehabilitation Long-Term Training grantees must submit the following quantitative and qualitative data in an annual performance report:
(a) Program activities that occurred during each fiscal year from October 1 to March 31 and projected program activities to occur from April 1 to September 30. For subsequent reporting years, grantees confirm projections made from the prior year;
(b) Summary of academic support and counseling provided to scholars to ensure successful completion;
(c) Summary of career counseling provided to scholars upon program completion to ensure that they have support during their search for qualifying employment, as well as during their initial months of their employment. This may include but is not limited to informing scholars of professional contacts, networks, and job leads, matching scholars with mentors in the field, and connecting scholars to other necessary resources and information;
(d) Summary of partnership and coordination activities with State VR agencies and community-based rehabilitation providers. This may include but is not limited to obtaining input and feedback regarding curricula from State VR agencies and community-based rehabilitation providers; organizing internships, practicum agreements, job shadowing, and mentoring opportunities; and assessing scholars at the work site;
(e) Assistance provided to scholars who may not be meeting academic standards or who are performing poorly in a practicum or internship setting;
(f) Results of the program evaluation, as well as information describing how these results will be used to make necessary adjustments and improvements to the program;
(g) Results from scholar internship, practicum, job shadowing, or mentoring assessments, as well as information describing how those results will be used to ensure that future scholars receive all necessary preparation and training prior to program completion;
(h) Results from scholar evaluations and information describing how these results will be used to ensure that future scholars will be proficient in meeting the needs and demands of today's consumers and employers;
(i) Number of scholars who began an internship during the reporting period;
(j) Number of scholars who completed an internship during the reporting period;
(k) Number of scholars who dropped out or were dismissed from the program during the reporting period;
(l) Number of scholars receiving RSA scholarships during the reporting period;
(m) Number of scholars who graduated from the program during the reporting period;
(n) Number of scholars who obtained qualifying employment during the reporting period;
(o) Number of vacancies filled in the State VR agency with qualified counselors from the program during the reporting period;
(p) A budget and narrative detailing expenditures covering the period of October 1 through March 31 and projected expenditures from April 1 through September 30. The budget narrative must also verify progress towards meeting the 10 percent match requirement. For subsequent reporting years, grantees will confirm projections made from the prior year; and
(q) Other information, as requested by RSA, in order to verify substantial progress and effectively report program impact to Congress and key stakeholders.
5.
If you use a TDD or TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
Applications Available: January 7, 2015.
Date of Pre-Application Webinar: January 22, 2015.
Deadline for Transmittal of Applications: March 9, 2015.
Deadline for Intergovernmental Review: May 7, 2015.
These priorities are:
The full texts of the absolute priorities are included in the notice of final priorities for this program, published in the
29 U.S.C. 718(b)(2)(C).
The regulations in 34 CFR part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The Department is not bound by any estimates in this notice.
Under 34 CFR 75.562(c), an indirect cost reimbursement on a training grant is limited to the recipient's actual indirect costs, as determined by its negotiated indirect cost rate agreement, or eight percent of a modified total direct cost base, whichever amount is less. Indirect costs in excess of the limit may not be charged directly, used to satisfy matching or cost-sharing requirements, or charged to another Federal award.
In deciding whether to continue funding the Institute for the fourth and fifth years, the Department, as part of the review of the cooperative agreement, the application narrative, the partnership agreement, and annual performance reports will consider the degree to which the Institute demonstrates—
(a) Substantial progress in providing a structured training program focused on the VR process and practices and the unique skills and knowledge necessary to improve employment outcomes for American Indians with disabilities.
(b) Substantial progress in improving counseling and VR services in a culturally appropriate manner to American Indians with disabilities so that they can prepare for, and engage in, gainful employment consistent with their informed choice.
(c) Effective collaboration between the four-year IHE and the two-year community college or tribal college that demonstrates efficient and effective program and fiduciary operations.
(d) A commitment to sustain the collaboration and the structured training program after the Federal investment is completed.
1.
1.
To obtain a copy via the Internet, use the following address:
To obtain a copy from ED Pubs, write, fax, or call the following: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827. FAX: (703) 605-6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1-877-576-7734.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA number 84.315C.
To obtain a copy from the program office, contact Kristen Rhinehart-Fernandez, U.S. Department of Education, Rehabilitation Services Administration, 400 Maryland Avenue SW., Room 5027, Potomac Center Plaza (PCP), Washington, DC 20202-2800. Telephone: (202) 245-6103 or by email:
Individuals with disabilities can obtain a copy of the application package in an accessible format (
2.
Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. You must limit the application narrative to the equivalent of no more than 45 pages using the following standards:
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
In addition to the page limit on the application narrative section, you must limit the partnership agreement to the equivalent of no more than 15 pages and the abstract to the equivalent of no more than two pages. The standards listed above, which also are applicable to the application narrative, apply to these sections.
We will reject your application if you exceed the page limits, or if you apply other standards and exceed the equivalent of the page limits.
The only optional materials that will be accepted are one-page resumes for those identified as key personnel, not to exceed a total of five pages. There are no page standards associated with these optional materials. Please note that although optional materials exceeding the page limit will not result in automatic rejection of an application, our reviewers are not required to read optional materials and will not review optional materials exceeding the page limit.
Please note that any funded applicant's application abstract will be made available to the public.
3.
Date of Pre-Application Webinar: Interested parties are invited to participate in a pre-application webinar. The pre-application webinar with staff from the Department will be held at 2:00 p.m., Washington DC time, on Thursday, January 22, 2015. The webinar will be recorded. For further information about the pre-application webinar, contact the person listed under
Deadline for Transmittal of Applications: March 9, 2015.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
Deadline for Intergovernmental Review May 7, 2015.
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
a.
Applications for grants under the Capacity Building Program for Traditionally Underserved Populations—Vocational Rehabilitation Training Institute for the Preparation of Personnel in American Indian Vocational Rehabilitation Services Projects, CFDA number 84.315C, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Capacity Building Program for Traditionally Underserved Populations—Vocational Rehabilitation Training Institute for the Preparation of Personnel in American Indian Vocational Rehabilitation Services Projects competition at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: the Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number.
(This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Kristen Rhinehart-Fernandez, U.S. Department of Education, 400 Maryland Avenue SW., Room 5027, Potomac Center Plaza (PCP), Washington, DC 20202-2800. FAX: (202) 245-7592.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
b.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.315C), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202-4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
c.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.315C), 550 12th Street SW., Room 7039, Potomac Center Plaza, Washington, DC 20202-4260.
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
The goal of the Capacity Building Program for Traditionally Underserved Populations—Vocational Rehabilitation Training Institute for the Preparation of
The cooperative agreement will specify the measures that will be used to assess the grantee's performance against the goals and objectives of the project, including outcome measures and measures that reflect the quality, relevance, and usefulness of the training and TA products developed by the Institute.
In its annual and final performance report to the Department, the grant recipient will be expected to report the data outlined in the cooperative agreement that is needed to assess its performance, including, at a minimum, the following information related to the performance measures for this project:
• The number of participants enrolled in the Institute;
• The number of participants who successfully completed the series of trainings provided by the Institute; and
• The number of participants who obtained a VR certificate.
The cooperative agreement and annual report will be reviewed by RSA and the grant recipient between the third and fourth quarter of each project period. Adjustments will be made to the project accordingly in order to ensure demonstrated progress towards meeting the goal and outcomes of the project.
5.
Kristen Rhinehart-Fernandez, U.S. Department of Education, Rehabilitation Services Administration, 400 Maryland Avenue SW., Room 5027, PCP, Washington, DC 20202-2800. Telephone: (202) 245-6103 or by email:
If you use a TDD or a TTY, call the FRS, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Department of Energy.
Notice of open meeting.
This notice announces one virtual meeting of the National Coal Council (NCC). The Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, January 29, 2015, 11:00 a.m. to 12:00 p.m.
If you wish to join the meeting you must forward an email address to
Dr. Robert J. Wright, U.S. Department of Energy, 4G-036/Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585-0001; Telephone: 202-586-0429.
The draft report to be presented will be available eight days in advance (Wednesday, January 21, 2015) at the following URL:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the 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:
Environmental Protection Agency.
Notice of Meeting.
Under the Federal Advisory Committee Act, Public Law 92-463, the Environmental Protection Agency (EPA) hereby provides notice of a meeting of the Farm, Ranch, and Rural Communities Committee (FRRCC). This meeting is open to the public. Members of the public are encouraged to provide comments relevant to the specific issues being considered by the FRRCC. For additional information about registering for public comment, please refer to the
The Farm, Ranch, and Rural Communities Committee will convene on Wednesday, January 21, 2015, from 9 a.m. until 5 p.m. and will reconvene Thursday, January 22, 2015, from 9 a.m. until 3 p.m. (Eastern Standard Time).
One public comment period relevant to specific issues being considered by the FRRCC is scheduled for Thursday, January 22, 2015, from 2:30 p.m. to 3 p.m. (Eastern Standard Time). Members of the public who wish to participate during the public comment period are encouraged to pre-register by noon, (Eastern Standard Time), on Monday, January 12, 2015.
The meeting will be held at the EPA Potomac Yard Conference Center located at One Potomac Yard (South Tower Building) on the 1st Floor.
Questions or correspondence concerning this meeting should be directed to Sheritta W. Taylor, Designated Federal Officer, US EPA, Office of the Administrator (MC1101A), 1200 Pennsylvania Avenue NW., Washington, DC 20460; via email at
The FRRCC is a policy-oriented committee that provides policy advice, information, and recommendations to the EPA Administrator on a range of environmental issues and policies that are of importance to agriculture and rural communities.
The purpose of this meeting is to advance discussion of specific topics of unique relevance to agriculture such as exploring best practices to maintain soil health, the impact of soil health as it relates to air and water quality and the relationship between soil health and extreme weather events across the country, in such a way as to provide thoughtful advice and useful insights to the Agency as it crafts environmental policies and programs that affect and engage agriculture and rural communities. A copy of the meeting agenda will be posted at
Environmental Protection Agency.
Notice of tentative approval and solicitation of requests for a public hearing.
Notice is hereby given in accordance with the provision of section 1413 of the Safe Drinking Water Act, as amended, and the requirements governing the National Primary Drinking Water Regulations Implementation, 40 CFR part 142, that the Commonwealth of Virginia is revising its approved Public Water System Supervision Program. The Commonwealth has adopted the Lead and Copper Rule Short Term Revisions which will provide for better public health protection by reducing potential reproductive and developmental health risks from lead. The Environmental Protection Agency (EPA) has determined that these revisions are no less stringent than the corresponding Federal regulations. EPA is taking action to tentatively approve these program revisions. All interested parties are invited to submit written comments on this determination and may request a public hearing.
Comments or a request for a public hearing must be submitted by February 6, 2015. This determination shall become effective on February 6, 2015 if no timely and appropriate request for a hearing is received and the Regional Administrator does not elect on his own to hold a hearing, and if no comments are received which cause EPA to modify its tentative approval.
Comments or a request for a public hearing must be submitted to the U.S. Environmental Protection Agency Region III, 1650 Arch Street, Philadelphia, PA 19103-2029. Comments may also be submitted electronically to
• Drinking Water Branch (3WP21), Water Protection Division, U.S. Environmental Protection Agency Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.
• Office of Drinking Water, Virginia Department of Health, Madison Building, 6th Floor, 109 Governor Street, Room 632, Richmond, VA 23219.
George Rizzo at the Philadelphia address given above, telephone (215) 814-5781, fax (215) 814-2302, or email
All interested parties are invited to submit written comments on this determination and may request a public hearing. All comments will be considered; if necessary, EPA will issue a response. Frivolous or insubstantial requests for a hearing may be denied by the Regional Administrator. However, if a substantial request for a public hearing is made by February 6, 2015, a public hearing will be held. A request for public hearing shall include the following: (1) The name, address, and telephone number of the individual, organization, or other entity requesting a hearing; (2) a brief statement of the requesting person's interest in the Regional Administrator's determination and of information that the requesting person intends to submit at such a hearing; and (3) the signature of the individual making the request; or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
Federal Communications Commission.
Notice.
The Enforcement Bureau (the “Bureau”) debars Gregory Paul Styles from the schools and libraries universal service support mechanism (or “E-Rate Program”) for a period of three years. The Bureau takes this action to protect
Debarment commences on the date Mr. Gregory Paul Styles receives the debarment letter or January 7, 2015, whichever date comes first, for a period of three years.
Joy M. Ragsdale, Attorney Advisor, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445 12th Street SW., Washington, DC 20554. Joy Ragsdale may be contacted by telephone at (202) 418-1697 or by email at
The Bureau debarred Mr. Gregory Paul Styles from the schools and libraries service support mechanism for a period of three years pursuant to 47 CFR 54.8. Attached is the debarment letter, DA 14-1855, which was mailed to Mr. Styles and released on December 18, 2014. The complete text of the notice of debarment is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portal II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. In addition, the complete text is available on the FCC's Web site at
Re: Debarment Notice, FCC Case No. EB-IHD-14-00013502
The Federal Communications Commission (Commission) hereby notifies you that, pursuant to Section 54.8 of its rules, you are prohibited from participating in activities associated with or relating to the schools and libraries universal service support mechanism (E-Rate program) for three years from either the date of your receipt of this Notice of Debarment or of its publication in the
On August 26, 2014, the Commission's Enforcement Bureau sent you a Notice of Suspension and Initiation of Debarment Proceedings that was published in the
As discussed in the
In accordance with the Commission's debarment rules, you were required to file with the Commission any opposition to your suspension or its scope, or to your proposed debarment or its scope, no later than 30 calendar days from either the date of your receipt of the
For the foregoing reasons, you are debarred from participating in activities associated with or related to the E-Rate program for three years from the Debarment Date.
Federal Communications Commission.
Notice.
The Enforcement Bureau (the “Bureau”) debars Marvin Mitch Freeman from the schools and libraries universal service support mechanism (or “E-Rate Program”) for a period of three years. The Bureau takes this action to protect the E-Rate Program from waste, fraud, and abuse.
Debarment commences on the date Mr. Marvin Mitch Freeman receives the debarment letter or January 7, 2015, whichever date comes first, for a period of three years.
Joy M. Ragsdale, Attorney Advisor, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445
The Bureau debarred Mr. Marvin Mitch Freeman from the schools and libraries service support mechanism for a period of three years pursuant to 47 CFR 54.8. Attached is the debarment letter, DA 14-1854, which was mailed to Mr. Freeman and released on December 18, 2014. The complete text of the notice of debarment is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portal II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. In addition, the complete text is available on the FCC's Web site at
Re: Debarment Notice, FCC Case No. EB-IHD-14-00015659
The Federal Communications Commission (Commission) hereby notifies you that, pursuant to Section 54.8 of its rules, you are prohibited from participating in activities associated with or relating to the schools and libraries universal service support mechanism (E-Rate program) for three years from either the date of your receipt of this Notice of Debarment or of its publication in the
On August 26, 2014, the Commission's Enforcement Bureau sent you a Notice of Suspension and Initiation of Debarment Proceedings that was published in the
As discussed in the
In accordance with the Commission's debarment rules, you were required to file with the Commission any opposition to your suspension or its scope, or to your proposed debarment or its scope, no later than 30 calendar days from either the date of your receipt of the
For the foregoing reasons, you are debarred from participating in activities associated with or related to the E-Rate program for three years from the Debarment Date.
Federal Communications Commission.
Notice.
The Enforcement Bureau (the “Bureau”) debars Donna P. English from the schools and libraries universal service support mechanism (or “E-Rate Program”) for a period of three years. The Bureau takes this action to protect the E-Rate Program from waste, fraud, and abuse.
Debarment commences on the date Ms. Donna P. English receives the debarment letter or January 7, 2015, whichever date comes first, for a period of three years.
Joy M. Ragsdale, Attorney Advisor, Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, Room 4-C330, 445 12th Street SW., Washington, DC 20554. Joy Ragsdale may be contacted by telephone at (202) 418-1697 or by email at
The Bureau debarred Ms. Donna P. English from the schools and libraries service support mechanism for a period of three years pursuant to 47 CFR 54.8. Attached is the debarment letter, DA 14-1856, which was mailed to Ms. English and released on December 18, 2014. The complete text of the notice of debarment is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portal II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. In addition, the complete text is
December 18, 2014 DA 14-1856
Re: Debarment Notice, FCC Case No. EB-IHD-14-00015686
The Federal Communications Commission (Commission) hereby notifies you that, pursuant to Section 54.8 of its rules, you are prohibited from participating in activities associated with or relating to the schools and libraries universal service support mechanism (E-Rate program) for three years from either the date of your receipt of this Debarment Notice or of its publication in the
On August 26, 2014, the Commission's Enforcement Bureau sent you a Notice of Suspension and Initiation of Debarment Proceedings that was published in the
As discussed in the
In accordance with the Commission's debarment rules, you were required to file with the Commission any opposition to your suspension or its scope, or to your proposed debarment or its scope, no later than 30 calendar days from either the date of your receipt of the
For the foregoing reasons, you are debarred from participating in activities associated with or related to the E-Rate program for three years from the Debarment Date.
Federal Communications Commission.
Notice.
In accordance with the Federal Advisory Committee Act (FACA), this notice advises interested persons that the Federal Communications Commission's (FCC) Task Force on Optimal Public Safety Answering Point (PSAP) Architecture (Task Force) will hold its first meeting on January 26, 2015, at 1 p.m. in the Commission Meeting Room of the Federal Communications Commission, Room TW-C305, 445 12th Street SW., Washington, DC 20554.
January 26, 2015.
Federal Communications Commission, Room TW-C305 (Commission Meeting Room), 445 12th Street SW., Washington, DC 20554.
Timothy May, Federal Communications Commission, Public Safety and Homeland Security Bureau, 202-418-1463, email:
The meeting will be held on January 26th, 2015, from 1:00 p.m. to 4:00 p.m. in the Commission Meeting Room of the FCC, Room TW-305, 445 12th Street SW., Washington, DC 20554. The Task Force is a Federal Advisory Committee that will study and report findings and recommendations on PSAP structure and architecture in order to determine whether additional consolidation of PSAP infrastructure and architecture improvements would promote greater efficiency of operations, safety of life, and cost containment, while retaining needed integration with local first responder dispatch and support. On December 2, 2014, pursuant to the FACA, the Commission established the Task Force charter for a period of two years, through December 2, 2016. The Task Force will present its initial findings and recommendations to the Commission no later than April 30, 2015 unless such period is extended by consent of the Chairman of the Commission (or his designee).
Members of the general public may attend the meeting. The FCC will attempt to accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will provide audio and/or video coverage of the meeting over the Internet from the FCC's Web page at
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
11:00 a.m., Thursday, January 15, 2015.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will hear oral argument in the matter
Any person attending this oral argument 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).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
10:00 a.m., Thursday, January 15, 2015.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will hear oral argument in the matter
Any person attending this oral argument 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).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
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 February 2, 2015.
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than January 22, 2015.
A. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105-1579:
1.
Board of Governors of the Federal Reserve System, January 2, 2015.
Food and Drug Administration, HHS.
Notice; request for comments.
The Food and Drug Administration (FDA or Agency) is announcing the availability of letters containing FDA's initial determinations and feedback on safety and effectiveness data submitted to demonstrate that certain active ingredients are generally recognized as safe and effective (GRASE) and not misbranded for use in over-the-counter (OTC) sunscreen drug products (sunscreen feedback letters). We are taking this action under the Sunscreen Innovation Act (SIA).
Submit either electronic or written comments by February 23, 2015. Sponsors may submit written requests for a meeting with FDA to discuss these proposed sunscreen orders by February 6, 2015.
Submit electronic comments to
Kristen Hardin, Division of Nonprescription Drug Products, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 5491, Silver Spring, MD 20993-0002, 240-402-4246.
FDA is announcing the availability of six sunscreen feedback letters on its Web site that contain the Agency's tentative determinations and feedback on safety and effectiveness data submitted to demonstrate that certain active ingredients are GRASE and not misbranded for use in OTC sunscreen drug products. We are taking this action under the SIA (Pub. L. 113-195), enacted November 26, 2014. Before the SIA was enacted, these sunscreen feedback letters were issued to persons seeking OTC monograph status for nonprescription sunscreen active ingredients using the Time and Extent Application (TEA) process under FDA regulations in 21 CFR 330.14, and were also previously made available to the public in the docket.
The SIA amended the Federal Food, Drug, and Cosmetic Act (FD&C Act) to, among other things, provide an alternative process for FDA to review the safety and effectiveness of nonprescription sunscreen active ingredients. The SIA establishes new procedures for establishing the conditions under which sunscreens containing active ingredients that have been reviewed through the SIA process and found in a final sunscreen order to be GRASE and not misbranded may be marketed in the United States.
Section 586C(b)(3) of the FD&C Act, as added by the SIA, provides that sunscreen feedback letters issued before the SIA was enacted are deemed to be proposed sunscreen orders. Proposed sunscreen orders contain FDA's tentative determination that a nonprescription sunscreen active ingredient or combination of nonprescription sunscreen active ingredients: (A) Is GRASE and not misbranded if marketed in accordance with such order; (B) is not GRASE and is misbranded; or (C) is not GRASE and is misbranded because the data are insufficient to classify the active ingredient or combination of ingredients as GRASE and not misbranded, and additional data are necessary to allow FDA to determine otherwise. All of the proposed sunscreen orders addressed in this notice have been tentatively classified under category (C), as described in the previous sentence. Accordingly, additional data will be needed to support a determination that any or all of the active ingredients they address are GRASE and not misbranded.
The six feedback letters that are deemed to be proposed orders under the SIA are identified in Table 1. They can be viewed electronically on FDA's Web site at
Sponsors may submit a written request for a meeting with FDA to discuss any of these proposed sunscreen orders (see
Interested persons may submit either electronic comments about the proposed orders discussed in this document to
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Notice.
Through this Notice, the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of El Salvador for Temporary Protected Status (TPS) for 18 months from March 10, 2015, through September 9, 2016.
The extension allows currently eligible TPS beneficiaries to retain TPS through September 9, 2016, so long as they otherwise continue to meet the eligibility requirements for TPS. The Secretary has determined that an extension is warranted because the conditions in El Salvador that prompted the TPS designation continue to be met. There continues to be a substantial, but temporary, disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador remains unable, temporarily, to handle adequately the return of its nationals.
Through this Notice, DHS also sets forth procedures necessary for nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) to re-register for TPS and to apply for renewal of their Employment Authorization Documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of El Salvador and whose applications have been granted. Certain nationals of El Salvador (or aliens having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) At least one of the late initial filing criteria; and, (2) all TPS eligibility criteria (including continuous residence in the United States since February 13, 2001, and continuous physical presence in the United States since March 9, 2001).
For individuals who have already been granted TPS under the El Salvador designation, the 60-day re-registration period runs from January 7, 2015 through March 9, 2015. USCIS will issue new EADs with a September 9, 2016 expiration date to eligible El Salvador TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the timeframes involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on March 9, 2015. Accordingly, through this Notice, DHS automatically extends the validity of EADs issued under the TPS designation of El Salvador for 6 months, through September 9, 2015, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on Employment Eligibility Verification (Form I-9) and the E-Verify processes.
The 18-month extension of the TPS designation of El Salvador is effective March 10, 2015, and will remain in effect through September 9, 2016. The 60-day re-registration period runs from January 7, 2015 through March 9, 2015March 9, 2015. (Note: It is important for re-registrants to timely re-register during this 60-day re-registration period and not to wait until their EADs expire.)
• For further information on TPS, including guidance on the application process and additional information on eligibility, please visit the USCIS TPS Web page at
• You can also contact the TPS Operations Program Manager at the Family and Status Branch, Service Center Operations Directorate, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529-2060; or by phone at (202) 272-1533 (this is not a toll-free number).
• Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS Web site at
• Further information will also be available at local USCIS offices upon publication of this Notice.
• TPS is a temporary immigration status granted to eligible nationals of a country designated for TPS under the Immigration and Nationality Act (INA), or to persons without nationality who last habitually resided in the designated country.
• During the TPS designation period, TPS beneficiaries are eligible to remain in the United States, may not be removed, and are authorized to work and obtain EADs, so long as they continue to meet the requirements of TPS.
• TPS beneficiaries may also be granted travel authorization as a matter of discretion.
• The granting of TPS does not result in or lead to permanent resident status.
• When the Secretary terminates a country's TPS designation through a separate
On March 9, 2001, the Attorney General designated El Salvador for TPS based on an environmental disaster within that country, specifically the devastation resulting from a series of earthquakes that occurred in 2001.
Section 244(b)(1) of the INA, 8 U.S.C. 1254a(b)(1), authorizes the Secretary, after consultation with appropriate U.S. Government agencies, to designate a foreign state (or part thereof) for TPS if the Secretary finds that certain country conditions exist.
At least 60 days before the expiration of a country's TPS designation or extension, the Secretary, after consultation with appropriate Government agencies, must review the conditions in a foreign state designated for TPS to determine whether the conditions for the TPS designation continue to be met.
Over the past year, DHS and the Department of State (DOS) have continued to review conditions in El Salvador. Based on this review and after consulting with DOS, the Secretary has determined that an 18-month extension is warranted because the disruption in living conditions in affected areas of El Salvador resulting from the environmental disaster that prompted the March 9, 2001 designation persists.
El Salvador was originally designated for Temporary Protected Status following a series of major earthquakes and aftershocks in early 2001. The first, on January 13, registered at 7.6 in magnitude on the standard seismic scale; the second, on February 13, measured 6.6 in magnitude. Together they killed over 1,000 people, caused approximately 8,000 injuries, and affected approximately 1.5 million people. Of 262 municipalities in El Salvador, 165 suffered serious damage in the first quake, while the second quake hit the departments of La Paz, San Vicente, and Cuscatlán the hardest. The earthquakes caused significant damage to homes, hospitals, schools, and transportation systems.
The 2001 earthquakes damaged or destroyed 276,594 housing units. A 2012 study by the El Salvador Ministry of Economy indicated the national housing deficit was at 446,000, a profound deficit for a country of 6.1 million people. This shortage would be exacerbated by the return of thousands of Salvadoran nationals currently residing in the United States under TPS.
The National Water Institution estimated that 40 to 50 percent of the Salvadoran population lacked potable water access due to damages to the water and electrical systems in the aftermath of the 2001 earthquakes. Over 10 percent of El Salvador's total population, mostly in rural areas, still lacks access to drinking water. Water contamination and scarcity are of particular concern in the San Salvador metropolitan area, threatening human health and productivity, as well as generating social conflict. According to the El Salvador Ministry of Environment, only 5 percent of El Salvador's surface water is considered treatable for drinking purposes. El Salvador's 59 principal wetland areas have been degraded and polluted by solid waste, untreated waste water, agrochemicals, and unsustainable resource extraction practices. According to El Salvador's public water utility, over 278 million cubic meters of wastewater are produced annually.
Subsequent environmental disasters since the 2001 earthquakes have caused significant damage to infrastructure, disrupting recovery efforts. In 2005, tropical storm Stan caused widespread flooding, landslides, and destruction of homes and crops throughout the country. A series of earthquakes in western El Salvador in 2006 resulted in the temporary displacement of 2,000 families. Storms in 2009 (Ida) and 2010 (Agatha) killed over 200 people, left 78 people unaccounted for, damaged over 1,500 houses, and affected 120,000 Salvadorans. Severe infrastructural damage amounted to $343 million, of which more than half was related to roadways and bridges. In October 2011, tropical depression 12-E brought 10 days of heavy rain to El Salvador. The storm caused an estimated $840 million in damage, flooding 20,000 homes, damaging 18 roads and 21 bridges, and resulting in heavy agricultural losses. These three storms caused an estimated $1.3 billion in damage, a figure equal to 5 percent of the country's total 2012 gross domestic product. In June 2013, Tropical Storm Barry caused flooding in El Salvador, and in December 2013, the eruption of the Chaparrastique volcano located in eastern El Salvador forced thousands of people within a 2-mile radius to evacuate their homes. These environmental disasters, as well as
El Salvador is currently experiencing the effects of a severe regional drought that is impacting food security. In August 2014, the Famine Early Warning Systems Network reported that rainfall deficits in eastern areas of El Salvador began in late June 2014, and rainfall accumulation in the affected areas is 50 to 75 percent below average. The Famine Early Warning Systems Network has also stated that “[t]his dryness is the worst in 10 years, including the El Niño year of 2009,” and “. . . losses incurred by subsistence farmers located in the worst-affected areas are expected to exceed 70 percent.” In addition to the effects of the drought, a leaf rust epidemic has affected 74 percent of coffee plants in El Salvador, causing a loss of millions of dollars in coffee production, as well as the loss of over 300,000 jobs in that sector.
Economic losses from the earthquakes were reported to be as high as $2.6 billion, almost 15 percent of El Salvador's gross domestic product. El Salvador's economy continues to experience significant challenges. Most analysts expect El Salvador's gross domestic product to grow 1.6 to 1.8 percent in 2014, approximately half the rate of its regional neighbors. According to a 2013 Social Panorama of Latin America Report issued by the European Commission for Latin America and the Caribbean, almost half of all Salvadorans (45.3 percent) live in poverty. It is estimated that over a third of the country's workforce is underemployed or not able to find full-time work. In light of the highly problematic economic situation, a large influx of returning citizens at this time would overwhelm the labor market and the government's fiscal ability to extend basic services to its citizens.
Based upon this review and after consultation with appropriate Government agencies, the Secretary finds that:
• The conditions that prompted the March 9, 2001 designation of El Salvador for TPS continue to be met.
• There continues to be a substantial, but temporary, disruption in living conditions in El Salvador as a result of an environmental disaster.
• El Salvador continues to be unable, temporarily, to handle adequately the return of its nationals (or aliens having no nationality who last habitually resided in El Salvador).
• The designation of El Salvador for TPS should be extended for an additional 18-month period from March 10, 2015 through September 9, 2016.
• There are approximately 204,000 current El Salvador TPS beneficiaries who are expected to file for re-registration and may be eligible to retain their TPS under the extension.
By the authority vested in me as Secretary under INA section 244, 8 U.S.C. 1254a, I have determined, after consultation with the appropriate Government agencies, that the conditions that prompted the designation of El Salvador for TPS in 2001 continue to be met.
To register or re-register for TPS based on the designation of El Salvador, an applicant must submit each of the following two applications:
1. Application for Temporary Protected Status (Form I-821).
• If you are filing an application for late initial registration, you must pay the fee for the Application for Temporary Protected Status (Form I-821).
• If you are filing an application for re-registration, you do not need to pay the fee for the Application for Temporary Protected Status (Form I-821).
2. Application for Employment Authorization (Form I-765).
• If you are applying for late initial registration and want an EAD, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you are age 14 through 65. No fee for the Application for Employment Authorization (Form I-765) is required if you are under the age of 14 or are 66 and older and applying for late initial registration.
• If you are applying for re-registration, you must pay the fee for the Application for Employment Authorization (Form I-765) only if you want an EAD, regardless of age.
• You do not pay the fee for the Application for Employment Authorization (Form I-765) if you are not requesting an EAD, regardless of whether you are applying for late initial registration or re-registration.
You must submit both completed application forms together. If you are unable to pay for the Application for Employment Authorization (Form I-765) and/or biometrics fee, you may apply for a fee waiver by completing a Request for Fee Waiver (Form I-912) or submitting a personal letter requesting a fee waiver, and by providing satisfactory supporting documentation. For more information on the application forms and fees for TPS, please visit the USCIS TPS Web page at
Biometrics (such as fingerprints) are required for all applicants 14 years of age or older. Those applicants must submit a biometric services fee. As previously stated, if you are unable to pay for the biometric services fee, you may apply for a fee waiver by completing a Request for Fee Waiver (Form I-912) or by submitting a personal letter requesting a fee waiver, and providing satisfactory supporting documentation. For more information on the biometric services fee, please visit the USCIS Web site at
USCIS urges all re-registering applicants to file as soon as possible within the 60-day re-registration period so that USCIS can process the applications and issue EADs promptly. Filing early will also allow those applicants who may receive denials of their fee waiver requests to have time to re-file their applications before the re-registration deadline. If, however, an applicant receives a denial of his or her fee waiver request and is unable to re-
Mail your application for TPS to the proper address in Table 1.
If you were granted TPS by an Immigration Judge (IJ) or the Board of Immigration Appeals (BIA), and you wish to request an EAD, or are re-registering for the first time following a grant of TPS by an IJ or the BIA, please mail your application to the appropriate address in Table 1. Upon receiving a Notice of Action (Form I-797) from USCIS, please send an email to the appropriate USCIS Service Center handling your application providing the receipt number and stating that you submitted a re-registration and/or request for an EAD based on an IJ/BIA grant of TPS. Upon receiving a Notice of Action (Form I-797) from USCIS, please send an email to
If you are re-registering for TPS during the re-registration period and you do not need to submit any supporting documents or evidence, you are eligible to file your applications electronically. For more information on e-filing, please visit
No. USCIS will not issue interim EADs to TPS applicants and re-registrants at local offices.
Provided that you currently have TPS under the designation of El Salvador, this Notice automatically extends your EAD by 6 months if you:
• Are a national of El Salvador (or an alien having no nationality who last habitually resided in El Salvador);
• Received an EAD under the last extension of TPS for El Salvador; and
• Have an EAD with a marked expiration date of March 9, 2015, bearing the notation “A-12” or “C-19” on the face of the card under “Category.”
Although this Notice automatically extends your EAD through September 9, 2015, you must re-register timely for TPS in accordance with the procedures described in this Notice if you would like to maintain your TPS.
You can find a list of acceptable document choices on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9). You can find additional detailed information on the USCIS I-9 Central Web page at
You may present any document from List A (reflecting both your identity and employment authorization) or one document from List B (reflecting identity) together with one document from List C (reflecting employment authorization). You may present an acceptable receipt for List A, List B, or List C documents as described in the Form I-9 Instructions. An EAD is an acceptable document under “List A.” Employers may not reject a document based on a future expiration date.
If your EAD has an expiration date of March 9, 2015, and states “A-12” or “C-19” under “Category,” it has been extended automatically for 6 months by virtue of this
Even though EADs with an expiration date of March 9, 2015, that state “A-12” or “C-19” under “Category” have been automatically extended for 6 months by this
By September 9, 2015, the expiration date of the automatic extension, your employer must reverify your employment authorization. At that time, you must present any document from List A or any document from List C on Employment Eligibility Verification (Form I-9) to reverify employment authorization, or an acceptable List A or List C receipt described in the Form I-9 Instructions. Your employer should complete either Section 3 of the Employment Eligibility Verification (Form I-9) originally completed for the employee or, if this Section has already been completed or if the version of Employment Eligibility Verification (Form I-9) has expired (check the date in the upper right-hand corner of the form), complete Section 3 of a new Employment Eligibility Verification (Form I-9) using the most current version. Note that your employer may not specify which List A or List C document employees must present, and cannot reject an acceptable receipt.
No. When completing Employment Eligibility Verification (Form I-9), including re-verifying employment authorization, employers must accept any documentation that appears on the “Lists of Acceptable Documents” for Employment Eligibility Verification (Form I-9) that reasonably appears to be genuine and that relates to you or an acceptable List A, List B, or List C receipt. Employers may not request documentation that does not appear on the “Lists of Acceptable Documents.” Therefore, employers may not request proof of Salvadoran citizenship when completing Employment Eligibility Verification (Form I-9) for new hires or reverifying the employment authorization of current employees. If presented with EADs that have been automatically extended, employers should accept such EADs as valid List A documents so long as the EADs reasonably appear to be genuine and to relate to the employee. Refer to the Note to Employees section of this Notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status, or your national origin.
After September 9, 2015, employers may no longer accept the EADs that this
When using an automatically extended EAD to complete Employment Eligibility Verification (Form I-9) for a new job prior to September 9, 2015, you and your employer should do the following:
1. For Section 1, you should:
a. Check “An alien authorized to work;”
b. Write your alien number (USCIS number or A-number) in the first space (your EAD or other document from DHS will have your USCIS number or A-number printed on it; the USCIS number is the same as your A-number without the A prefix); and
c. Write the automatically extended EAD expiration date (September 9, 2015) in the second space.
2. For Section 2, employers should record the:
a. Document title;
b. Document number; and
c. Automatically extended EAD expiration date (September 9, 2015).
By September 9, 2015, employers must reverify the employee's employment authorization in Section 3 of the Employment Eligibility Verification (Form I-9).
If you are an existing employee who presented a TPS-related EAD that was
1. For Section 1, you should:
a. Draw a line through the expiration date in the second space;
b. Write “September 9, 2015” above the previous date;
c. Write “TPS Ext.” in the margin of Section 1; and
d. Initial and date the correction in the margin of Section 1.
2. For Section 2, employers should:
a. Draw a line through the expiration date written in Section 2;
b. Write “September 9, 2015” above the previous date;
c. Write “TPS Ext.” in the margin of Section 2; and
d. Initial and date the correction in the margin of Section 2.
By September 9, 2015, when the automatic extension of EADs expires, employers must reverify the employee's employment authorization in Section 3.
If you are an employer who participates in E-Verify and you have an employee who is a TPS beneficiary who provided a TPS-related EAD when he or she first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when this EAD is about to expire. Usually, this message is an alert to complete Section 3 of the Employment Eligibility Verification (Form I-9) to reverify an employee's employment authorization. For existing employees with TPS-related EADs that have been automatically extended, employers should dismiss this alert by clicking the red “X” in the “dismiss alert” column and follow the instructions above explaining how to correct the Employment Eligibility Verification (Form I-9). By September 9, 2015, employment authorization must be reverified in Section 3. Employers should never use E-Verify for reverification.
Employers are reminded that the laws requiring proper employment eligibility verification and prohibiting unfair immigration-related employment practices remain in full force. This Notice does not supersede or in any way limit applicable employment verification rules and policy guidance, including those rules setting forth reverification requirements. For general questions about the employment eligibility verification process, employers may call USCIS at 888-464-4218 (TTY 877-875-6028) or email USCIS at
For general questions about the employment eligibility verification process, employees may call USCIS at 888-897-7781 (TTY 877-875-6028) or email at
To comply with the law, employers must accept any document or combination of documents from the Lists of Acceptable Documents if the documentation reasonably appears to be genuine and to relate to the employee, or an acceptable List A, List B, or List C receipt described in the Employment Eligibility Verification (Form I-9) Instructions. Employers may not require extra or additional documentation beyond what is required for Employment Eligibility Verification (Form I-9) completion. Further, employers participating in E-Verify who receive an E-Verify case result of “Tentative Nonconfirmation” (TNC) must promptly inform employees of the TNC and give such employees an opportunity to contest the TNC. A TNC case result means that the information entered into E-Verify from Employment Eligibility Verification (Form I-9) differs from federal or state government records.
Employers may not terminate, suspend, delay training, withhold pay, lower pay or take any adverse action against an employee based on the employee's decision to contest a TNC or because the case is still pending with E-Verify. A Final Nonconfirmation (FNC) case result is received when E-Verify cannot verify an employee's employment eligibility. An employer may terminate employment based on a case result of FNC. Work-authorized employees who receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-875-6028). An employee that believes he or she was discriminated against by an employer in the E-Verify process based on citizenship or immigration status, or based on national origin, may contact OSC's Worker Information Hotline at 800-255-7688 (TTY 800-237-2515). Additional information about proper nondiscriminatory Employment Eligibility Verification (Form I-9) and E-Verify procedures is available on the OSC Web site at
While Federal Government agencies must follow the guidelines laid out by the Federal Government, State and local government agencies establish their own rules and guidelines when granting certain benefits. Each State may have different laws, requirements, and determinations about what documents you need to provide to prove eligibility for certain benefits. Whether you are applying for a Federal, State, or local government benefit, you may need to provide the government agency with documents that show you are a TPS beneficiary and/or show you are authorized to work based on TPS. Examples are:
(1) Your unexpired EAD that has been automatically extended, or your EAD that has not expired;
(2) A copy of this
(3) A copy of your Application for Temporary Protected Status Notice of Action (Form I-797) for this re-registration;
(4) A copy of your past or current Application for Temporary Protected Status Notice of Action (Form I-797), if you received one from USCIS; and/or
(5) If there is an automatic extension of work authorization, a copy of the fact sheet from the USCIS TPS Web site that provides information on the automatic extension.
Check with the government agency regarding which document(s) the agency will accept. You may also provide the agency with a copy of this
Some benefit-granting agencies use the USCIS Systematic Alien Verification for Entitlements Program (SAVE) to verify the current immigration status of applicants for public benefits. If such an agency has denied your application based solely or in part on a SAVE response, the agency must offer you the opportunity to appeal the decision in accordance with the agency's procedures. If the agency has received and acted upon or will act upon a SAVE verification and you do not believe the response is correct, you may make an InfoPass appointment for an in-person interview at a local USCIS office. Detailed information on how to make corrections, make an appointment, or submit a written request to correct records under the Freedom of Information Act can be found at the SAVE Web site at
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This notice announces modifications and clarifications to U.S. Customs and Border Protection's (CBP's) voluntary National Customs Automation Program eBond test, scheduled to deploy January 3, 2015. This test provides for the transmission in Automated Commercial Environment of electronic bond contracts (eBonds) between principals and sureties, with CBP as third-party beneficiary, for the purpose of linking those eBonds to the transactions they are intended to secure. The modifications and clarifications to CBP's eBond test concern: The method by which continuous bonds executed prior to or outside of the eBond test may be converted to eBonds by the surety and principal; a surety or principal's ability to terminate an eBond; the identification of the principal on an eBond by the filing identification number; and an email address correction.
The eBond test modifications and clarifications set forth in this notice will go into effect January 7, 2015.
Comments and/or questions concerning this notice or any aspect of the test may be submitted to CBP via email to
For policy related questions, contact Kara Welty, Chief, Debt Management Branch, Revenue Division, Office of Administration, at
In a notice published in the
In the eBond test notice published in 79 FR 70881 (also referred to in this notice as the “original eBond test notice”), CBP indicated that continuous bonds executed prior to January 3, 2015, will be accessible in the eBond system for administration purposes but will not be subject to eBond test rules. Instead, pre-January 3, 2015 continuous bonds will remain subject to the CBP bond regulations in 19 CFR part 113, and riders of such bonds must be submitted to CBP in the format and manner detailed in 19 CFR part 113. Similarly, after the eBond test commences on January 3, 2015, sureties and principals who choose not to participate in the eBond test will still be able to submit bonds to CBP in the format and manner detailed in 19 CFR part 113, and those bonds will be accessible in the eBond system for administration purposes.
This notice announces a modification to the eBond test to permit participating sureties/surety agents, acting on behalf of the sureties and principals, to convert pre-January 3, 2015 continuous bonds and other continuous bonds executed outside of the eBond test (collectively referred to hereinafter as “paper continuous bonds”) into eBonds subject to the rules set forth in this notice and the original eBond test notice. Under the terms of the original eBond test notice, a participating surety or the surety's agent may, via a CBP-approved Electronic Data Interchange (EDI), transmit limited changes to the terms and conditions of an active continuous eBond that are contractually binding on the principal(s) and surety(ies). At this time, such changes include:
(1) Transmitting an addition eBond rider (clarified below to be a User Addition eBond rider);
(2) Transmitting a deletion eBond rider (clarified below to be a User Deletion eBond rider);
(3) Transmitting a reconciliation eBond rider;
(4) Terminating a reconciliation eBond rider;
(5) Transmitting a U.S. Virgin Islands eBond rider; and
(6) Terminating the eBond.
This notice announces a modification to the eBond test whereby a participating surety or the surety's agent may also transmit, via EDI, the same types of limited changes to the terms and conditions of an active paper
In accordance with 19 U.S.C. 1623, and consistent with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001,
Because the elements of paper continuous bonds are similar to eBonds, but not identical, certain elements of the paper continuous bond will not be used as part of the converted eBond. These unused elements are: Broker Filer Code; Transaction Date; Port Code; Principal Name and Physical Address; Principal Signature; Principal Seal (or check box); Mailing Address Requested by the Surety, Surety Name and Physical Address; Surety Signature; Surety Seal (or check box); Principal Name, Co-Principal Name and Physical Address; Co-Principal Signature; Co-Principal Seal (or check box); Section III Names; Co-Surety Name and Physical Address; Co-Surety Signature; and Co-Surety Seal (or check box).
In several places in the original eBond test notice, CBP referenced the concept of an eBond or eBond rider containing listed “names.” In that document, CBP also noted, at 79 FR 70885, that the importer identification number and surety number will be the primary eBond identification markers and CBP will not be collecting the name and address of the principal or surety on the eBond as this data will be available to CBP via other components of ACE.
In this document, CBP is clarifying the eBond test terms and conditions to reflect that the “CBP filing identification number” (
• At 79 FR 70883, in the section entitled, “Terms and Conditions for eBonds,” the sentence reading “[T]he principal(s) and surety(ies) agree that any charge against the eBond under any of the listed names is as though it was made by the principal(s)” is clarified by changing the term “listed names” to “listed CBP filing identification numbers.”
• At 79 FR 70885, in the section entitled “Continuous Bonds Executed Prior to eBond Test Will Be Accessible in eBond System,” the sentence reading “[T]he importer identification number and surety number will continue to be the primary identification markers used by CBP when verifying adequate bond coverage for activities that require it,” is clarified by changing the words “importer identification number” to “CBP filing identification number” to reflect that the filing identification number is not always associated with an importer.
• At 79 FR 70884, in the section entitled, “Terms and Conditions for eBond Riders,” and subsections pertaining to “Addition” and “Deletion” eBond riders, CBP is clarifying these terms and conditions by changing the existing reference to “names” transmitted with these eBond riders to “CBP filing identification numbers” and further clarifying that these two types of eBond riders are “user” riders.
The changes are set forth below:
(1)
(2)
In the original eBond test notice, in the section entitled “Termination of an eBond” located at 79 FR 70885, CBP prescribed the manner by which a surety may electronically terminate an eBond on which it is obligated.
This notice announces a modification to the eBond test termination procedures whereby a surety wishing to terminate an eBond must notify the principal(s) at the same time notice of termination is sent to CBP. In addition, a surety may request that a termination go into effect sooner than the prescribed 15 calendar days from the date of the termination notice if the surety can establish, to the Director of the Revenue Division's satisfaction, that good cause exists for terminating the eBond in lesser time. CBP is also modifying the eBond test to permit a principal to terminate an eBond on which it is obligated by means of emailing a termination request to CBP. A principal may not terminate an eBond via EDI.
The modified eBond test terms and conditions pertaining to termination of an eBond are set forth below:
A surety may, with or without the consent of the principal(s), electronically terminate an eBond on which it is obligated. The surety must notify the principal(s) of the termination at the same time the electronic notice of termination is transmitted to CBP. The effective date of the termination must be stated in the electronic notice of termination, and must be at least 15 calendar days from the date of the electronic notice of termination, unless the surety can show to the satisfaction of the Director of the Revenue Division (RD) that good cause exists for terminating the eBond in lesser time. A request for a termination effective date that is less than 15 calendar days from the date of the electronic notice of termination must be emailed to
A request by a principal to terminate an eBond must be emailed to
The original eBond Test notice contained an erroneous email address for the contact to whom technical questions may be sent. Technical questions may be emailed to John Everett, Entry Summary, Accounts, and Revenue Branch, ACE Business Office, Office of International Trade, at the following email address:
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Katherine A. Nzive, Director Program Administration Division, Office of Asset Management and Portfolio Oversight, 202-708-2654
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35.
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; telephone 202-402-3400; email at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
The
The ICDBG program regulations are at 24 CFR part 1003. The ICDBG program requires eligible applicants to submit information to enable HUD to select the best projects for funding during annual competitions. Additionally, the information submitted is essential for HUD in monitoring grants to ensure that grantees are complying with applicable statutes and regulations and implementing activities as approved.
ICDBG applicants must submit a complete application package which includes an Application for Federal Assistance (SF-424), Applicant/Recipient Disclosure/Update Report (HUD-2880), Cost Summary (HUD-4123), and Implementation Schedule (HUD-4125). If the applicant has a waiver of the electronic submission requirement and is submitting a paper application, an Acknowledgement of Application Receipt (HUD-2993) must also be submitted. If the applicant is a tribal organization, a resolution from the tribe stating that the tribal organization is submitting an application on behalf of the tribe must also be included in the application package.
ICDBG recipients are required to submit a quarterly Federal Financial Report (SF-425) that describes the use of grant funds drawn from the recipient's line of credit. The reports are used to monitor cash transfers to the recipients and obtain expenditure data from the recipients. (24 CFR 1003.501(16))
The regulations at 24 CFR part 85 require that grantees and sub-grantees “take all necessary affirmative steps to assure that minority firms, women's business enterprises, and labor surplus area firms are used when possible” (24 CFR 85.36(e)). Consistent with these regulations, 24 CFR 1003.506(b) requires that ICDBG grantees report on these activities on an annual basis, with Contract and Subcontract Activity Report being due to HUD on October 10 of each year (HUD-2516).
The regulations at 24 CFR 1003.506 instruct recipients to submit to HUD an Annual Status and Evaluation Report (ASER) that describes the progress made in completing approved activities with a listing of work to be completed; a breakdown of funds expended; and when the project is completed, a program evaluation expressing the effectiveness of the project in meeting community development needs. The ASER is due by November 15 each year and at grant closeout.
The information collected will allow HUD to accurately audit the program.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35.
Community Oriented Policing Services, Justice.
Notice of meeting.
On December 18, 2014, President Barack Obama signed an Executive Order titled “Establishment of the President's Task Force on 21st Century Policing” establishing the President's Task Force on 21st Century Policing (“Task Force”). The Task Force seeks to identify best practices and make recommendations to the President on how policing practices can promote effective crime reduction while building public trust and examine, among other issues, how to foster strong, collaborative relationships between local law enforcement and the communities they protect. The Task Force will be holding its first public teleconference.
The meeting agenda is as follows:
Call to Order
Review of submitted recommendations
Discussion
The teleconference will be held Wednesday, January 21, 2014 from 5:00 p.m. to 7:00 p.m. Eastern Time. An opportunity will be provided to the public to comment.
Accommodations requests: To request accommodation of a disability, please contact Jessica Drake at 202-457-7771, preferably at least 10 days prior to the meeting, to give DOJ as much time as possible to process your request.
The meeting will be held by teleconference only. The teleconference number will be posted in advance of the teleconference at the Task Force Web site at
Director, Ronald L. Davis, 202-514-4229 or
Address all comments concerning this notice to
The Task Force is interested in receiving written comments including proposed recommendations from individuals, groups, advocacy organizations, and professional communities. Additional information on how to provide your comments will be posted to
Availability of Meeting Materials: The agenda and other materials in support of the teleconference will be available on the Task Force Web site at
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Li Ling Hamady, ACA Permit Officer, Division of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Or by email:
On November 19, 2014 the National Science Foundation published a notice in the
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a June 10, 2013, request from Dominion Energy Kewaunee, Inc. (DEK or the licensee), from certain power reactor security requirements. The exemption would remove the requirement that continuous communication be maintained between the security alarm stations and the control room at Kewaunee Power Station (KPS). The licensee has committed to modify its Physical Security Plan to require continuous communication between the security alarm stations and the shift manager.
January 7, 2015.
Please refer to Docket ID NRC-2014-0280 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
William Huffman, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-2046; email:
The licensee, DEK, is the holder of Renewed Facility License No. DPR-43. The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the NRC now or hereafter in effect.
The facility consists of a permanently shutdown and defueled pressurized water reactor and a general licensed independent spent fuel storage installation (ISFSI) located in Kewaunee County, Wisconsin.
By letter dated February 25, 2013 (ADAMS Accession No. ML13058A065), and in accordance with § 50.82(a)(1)(i) of Title 10 of the
In accordance with 10 CFR 73.5, “Specific exemptions,” the licensee has, by letter dated June 10, 2013 (ADAMS Accession No. ML13165A343), requested an exemption from 10 CFR 73.55(j)(4)(ii), which otherwise requires continuous communications between security alarm stations and the control room. Portions of the letter dated June 10, 2013, contain safeguards information and, accordingly, have been withheld from public disclosure. The licensee is requesting exemption from the continuous communications requirements between the control room and the security alarm stations.
The exemption request relates solely to removing the control room from the requirements specified in the regulations that direct the licensee to establish a system for continuous communications between the control room and the security alarm stations. The licensee will have a system for continuous communications between the shift manager and the alarm stations.
As specified in its June 10, 2013, application, DEK will implement changes to its Physical Security Plan that would require a system of continuous communications between the alarm stations and the shift manager/Certified Fuel Handler (CFH) instead of the control room.
The intent of 10 CFR 73.55(j)(4)(ii) is to maintain continuous effective communication capability between security alarm stations and operations staff with shift command function responsibility to ensure any necessary coordination during security events or other emergencies can be accomplished at all times. The regulation requires maintaining a system for continuous communications between the security alarm stations and the control room for an operating reactor based on the presumption that the shift command function resides in the control room. The control room at an operating reactor contains the controls and instrumentation necessary for complete supervision and response needed to ensure safe operation of the reactor and support systems during normal, off-normal, and accident conditions and, therefore, is the location of the shift command function. Following certification of permanent shutdown and removal of fuel from the reactor, operation of the reactor is no longer permitted. The control room at a permanently shutdown and defueled reactor does not perform the same function as required for an operating reactor. There are no longer any safety related systems or processes that are controlled from the control room. The primary functions of the control room at a permanently shutdown plant is to provide a central location from where the shift command function can be conveniently performed due to existing communication equipment, office computer equipment, and ready access to reference material. The control room also provides a central location from which emergency response activities are coordinated. However, the control room does not always need to be the location of the shift command function since most remaining system processes at a permanently shutdown and defueled reactor are controlled locally. At KPS, the shift manager/CFH has responsibility for the shift command function. The shift manager/CFH is the senior on-shift licensee representative and decision-maker and is responsible for the overall safety of the permanently shutdown and defueled facility and for directing the response to abnormal situations and emergencies. The requested exemption would provide the KPS shift manager/CFH the flexibility to
The NRC staff assessed the method proposed by the licensee to maintain continuous communications with the shift manager/CFH in a safety evaluation report dated April 14, 2014 (the NRC staff's safety evaluation report contains safeguards information and is, therefore, not publicly available). The NRC staff determined that the proposed method of maintaining continuous communication with the shift manager/CFH is consistent with the functional requirement of the regulation for maintaining communication with the control room. The NRC staff has concluded that upon implementing a system for continuous communications between the alarm stations and the shift manager/CFH, as documented in the licensee's Physical Security Plan, the requested exemption to 10 CFR 73.55(j)(4)(ii) will meet the intent of the regulation, regardless of the location of the shift manager/CFH.
Pursuant to 10 CFR 73.5, the Commission may, upon application of any interested person or upon its own initiative, grant such exemptions from the requirements of 10 CFR part 73 as it determines are authorized by law and will not endanger life or property or the common defense and security, and are otherwise in the public interest.
In accordance with 10 CFR 73.5, the Commission may grant exemptions from the regulations in 10 CFR part 73 as the Commission determines are authorized by law. The NRC staff has determined that granting of the licensee's proposed exemption will not result in a violation of the Atomic Energy Act of 1954, as amended, or other laws. Therefore, the exemption is authorized by law.
Removing the requirement to have a continuous communication system between the security alarm stations and the control room will not endanger life or property or the common defense and security for the reasons discussed below.
The shift manager/CFH is the senior on-shift licensee representative, is responsible for the shift command function, and directs the action of the operations staff during both normal and emergency conditions. Therefore, the shift manager/CFH is the appropriate individual to have continuous communication capability with the alarm stations. The exemption would not reduce the measures in place to protect against radiological sabotage. In addition, the NRC staff has determined that the exemption will not reduce the overall effectiveness of the KPS Physical Security Plan, Training and Qualification Plan, or Safeguards Contingency Plan. Maintaining a system of continuous communication between the alarm stations and the shift manager/CFH rather than the control room will provide the shift manager with the flexibility to leave the control room and respond to other locations onsite, as necessary, to conduct appropriate management oversight. The NRC staff has determined that maintaining continuous communication capability with the shift manager/CFH, whether in the control room or elsewhere, does not significantly change the current process that ensures that any necessary coordination during security events or other emergencies can be accomplished at all times. Continuous communication capability is essentially unchanged (other than the location of the shift manager/CFH when the communications are initiated).
Therefore, the underlying purpose of 10 CFR 73.55(j)(4)(ii) will continue to be met. The exemption does not reduce the overall effectiveness of the Physical Security Plan and has no adverse impact on DEK's ability to physically secure the site or protect special nuclear material at KPS, and therefore would not have an effect on the common defense and security. The NRC staff has concluded that the exemption would not reduce the effectiveness of security measures currently in place to protect against radiological sabotage. Therefore, removing the requirement to have continuous communication between the security alarm stations and the control room will not endanger life or property or the common defense and security.
The licensee is implementing changes to its Physical Security Plan to establish a system of continuous communication between the security alarm stations and the shift manager/CFH that is not dependent on the shift manager's location. By granting DEK's proposed exemption to remove the requirement for a continuous communication system between the security alarm stations and the control room, the shift manager/CFH can roam around the facility in an oversight role and obtain first-hand information of facility conditions and status while still maintaining continuous communication with the alarm stations. The NRC staff has concluded that there would be no decrease in the level of safety by granting this exemption and that the capability to observe conditions directly serves the public interest by assuring that the shift manager/CFH has the best possible information needed to make decisions or to communicate to the alarm stations or to offsite entities. Accordingly, the NRC staff concludes that exempting DEK from the requirement for a continuous communication system between the security alarm stations and the control room is in the public interest, provided the licensee maintains continuous communication capability between the alarm stations and the shift manager/CFH.
The NRC's approval of the exemption to security requirements belongs to a category of actions that the Commission, by rule or regulation, has declared to be a categorical exclusion, after first finding that the category of actions does not individually or cumulatively have a significant effect on the human environment. Specifically the exemption is categorically excluded from further analysis under 10 CFR 51.22(c)(25).
Under 10 CFR 51.22(c)(25), granting of an exemption from the requirements of any regulation of Chapter I to 10 CFR is a categorical exclusion provided that (i) there is no significant hazards consideration; (ii) there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; (iii) there is no significant increase in individual or cumulative public or occupational
The Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation, has determined that approval of the exemption request involves no significant hazards consideration because removing the requirement for a continuous communications system between the security alarm stations and the control room at KPS does not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The exempted security regulation is unrelated to the operation of KPS. Accordingly, there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; and no significant increase in individual or cumulative public or occupational radiation exposure. The exempted regulation is not associated with construction, so there is no significant construction impact. The exempted regulation does not concern the source term (
Therefore, pursuant to 10 CFR 51.22(b) and 51.22(c)(25), no environmental impact statement or environmental assessment need be prepared in connection with the approval of this exemption request.
Accordingly, the Commission has determined that, pursuant to 10 CFR 73.5, the exemption is authorized by law and will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the Commission hereby grants DEK exemption from the requirement of 10 CFR 73.55(j)(4)(ii) for a system of continuous communication capability with the control room, provided that DEK maintains a system for continuous communication capability with the shift manager/CFH consistent with the method described in its submittal dated June 10, 2013. This exemption is effective when the system for continuous communication between the alarm stations and the shift manager/CFH is documented in DEK's Physical Security Plan and functionally implemented.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Postal Service has filed an Annual Compliance Report on the costs, revenues, rates, and quality of service associated with its products in fiscal year 2014. Within 90 days, the Commission must evaluate that information and issue its determination as to whether rates were in compliance with title 39, chapter 36, and whether service standards in effect were met. To assist in this, the Commission seeks public comments on the Postal Service's Annual Compliance Report.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On December 29, 2014, the United States Postal Service (Postal Service) filed with the Commission, pursuant to 39 U.S.C. 3652, its Annual Compliance Report (ACR) for fiscal year (FY) 2014.
The filing begins a review process that results in an Annual Compliance Determination (ACD) issued by the Commission to determine whether Postal Service products offered during FY 2014 are in compliance with applicable title 39 requirements.
The FY 2014 ACR includes a discussion by class of each market dominant product, including costs, revenues, and volumes, workshare discounts and passthroughs responsive to 39 U.S.C. 3652(b), and FY 2014 incentive programs.
• A description of all operational changes designed to reduce costs for Standard Mail Flats in FY 2014 as required by the Commission in the FY 2010 ACD.
• A description of costing methodology or measurement improvements made to the Standard Mail Flats product in FY 2014 and an estimate of the financial effects of such changes as required by the Commission in the FY 2010 ACD.
• A statement summarizing the historical and current fiscal year subsidy of the Standard Mail Flats product and an estimated timeline for phasing out that subsidy as required by the Commission in the FY 2010 ACD.
• A detailed analysis of progress made in improving Periodicals cost coverage as required by the Commission in the FY 2013 ACD.
The Commission also invites public comment on the cost coverage matters the Postal Service addresses in its filing; service performance results; levels of customer satisfaction achieved; and such other matters that may be relevant to the Commission's review.
1. The Commission establishes Docket No. ACR2014 to consider matters raised
2. The Postal Service is directed to provide the Commission with the material listed in the Forthcoming Information section of this order no later than January 5, 2015.
3. Pursuant to 39 U.S.C. 505, the Commission appoints Tracy Ferguson as an officer of the Commission (Public Representative) in this proceeding to represent the interests of the general public.
4. Comments on the United States Postal Service's FY 2014 Annual Compliance Report to the Commission, including the Comprehensive Statement of Postal Operations and other reports, are due on or before February 2, 2015.
5. Reply comments are due on or before February 13, 2015.
6. The Secretary shall arrange for publication of this order in the
By the Commission.
Notice is hereby given that the Railroad Retirement Board will hold a meeting on January 15, 2015, 10:00 a.m. at the Board's meeting room on the 8th floor of its headquarters building, 844 North Rush Street, Chicago, Illinois 60611. The agenda for this meeting follows:
(1) Director of Programs Position
The person to contact for more information is Martha P. Rico, Secretary to the Board, Phone No. 312-751-4920.
Pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
Currently, Section VIII(a) (Responsibility of Exchange Participants) of the CTA Plan provides that each Participant will “(i) report all last sale prices relating to transactions in Eligible Securities as promptly as possible, (ii) establish and maintain collection and reporting procedures and facilities such as to assure that under normal conditions not less than 90% of such last sale prices will be reported within that period of time (not in excess of one and one-half minutes) after the time of execution as may be determined by CTA from time to time in light of experience, and (iii) designate as “late” any last sale price not collected and reported in accordance with the above-referenced procedures.”
The amendment proposes to reduce from one-and-one-half minutes to 10 seconds the maximum amount of time by which each Participant is required to report trades. In addition to reducing the time frame, the Participants propose to revise the language of the requirement so that it requires the Participants to report “as soon as practicable, but not later than 10 seconds,” after the time of execution of the trade. The amendment also proposes to remove the qualifier that called for trade reports to meet the time requirement not less than 90 percent of the time under normal conditions.
The Participants note that, during 2013, the Commission approved a FINRA rule amendment that modified FINRA's trade reporting rules to require that FINRA members report over-the-counter transactions in Eligible Securities to FINRA as soon as practicable, but no later than 10 seconds, following execution.
In addition, the Participants understand that, contemporaneously with the filing of this amendment, the Participants in the UTP Plan contemplate submitting a plan amendment that would amend the trade-reporting requirement under that plan to provide for the same trade-reporting requirements as the CTA Plan Participants propose under this Agreement.
The Participants report the vast majority of trade reports in well less than 10 seconds, so that the Plan amendment is not likely to have a practical impact on trade reporting.
Not applicable.
All of the Participants have manifested their approval of the proposed amendment by means of their execution of the Plan amendment. The Plan amendment would become operational upon approval by the Commission.
Not applicable.
The proposed amendment does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Participants do not believe that the proposed plan amendment introduces terms that are unreasonably discriminatory for the purposes of Section 11A(c)(1)(D) of the Act.
Not applicable.
Under Section IV(b) of the CTA Plan, each Participant must execute a written amendment to the CTA Plan before the amendment can become effective. The amendment is so executed.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
As a result of the amendment, the CTA Plan would require each Participant to report each trade as soon as practicable, but no more than 10 seconds from the time of the trade. In addition, each Participant would be required to establish and maintain collection and reporting procedures and facilities reasonably designed to assure that such last sale prices will be reported within not more than 10 seconds (rather than the current 90 seconds) following execution, regardless of whether they do so 90 percent of the time under normal conditions. (Currently, each Participant has 90 seconds to report 90 percent of its trades within 10 seconds following execution under normal conditions.)
Not applicable.
Not applicable.
The amendment will support the prompt reporting of transaction reports by reducing from 90 seconds to 10 seconds the maximum amount of time by which each Participant must report trades, subject to the Participants' obligation to report trades as soon as practicable.
Not applicable.
Not applicable.
Not applicable.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed amendments are consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 11A of the Securities Exchange Act of 1934 (“Act”),
Currently, section VIII(B) (Transaction Reports) of the UTP Plan provides that “Each Participant shall, during the time it is open for trading, be responsible promptly to collect and transmit to the Processor Transaction Reports in Eligible Securities executed in its Market by means prescribed herein. . . . All such Transaction Reports shall be transmitted to the Processor within 90 seconds after the time of execution of the transaction. Transaction Reports transmitted beyond the 90-second period shall be designated as `late' by the appropriate code or message.”
The amendment proposes to reduce from 90 seconds to 10 seconds the maximum amount of time by which each Participant is required to report trades. In addition to reducing the time frame, the Participants propose to change the promptly-collect-and-transmit standard to an as-soon-as-practicable standard. It would now require the Participants to “transmit all Transaction Reports as soon as practicable, but not later than 10 seconds, after the time of execution.”
In addition, the amendment would require each Participant to establish and maintain collection and reporting procedures and facilities reasonably designed to comply with the reporting requirement. This would harmonize with a similar, existing requirement under the CTA Plan.
The Participants note that, during 2013, the Commission approved a FINRA rule amendment that modified FINRA's trade reporting rules to require that FINRA members report over-the-counter transactions in Eligible Securities to FINRA as soon as practicable, but no later than 10 seconds, following execution.
In addition, the Participants understand that, contemporaneously with the filing of this amendment, the Participants in the CTA Plan contemplate submitting a plan amendment that would amend the trade-reporting requirement under that plan to provide for the same trade-reporting requirements as the UTP Plan Participants propose under this Agreement.
The Participants receive the vast majority of trade reports in well less than 10 seconds, so that the UTP Plan amendment is not likely to have a practical impact on trade reporting.
Not applicable.
All of the Participants have manifested their approval of the proposed amendment by means of their execution of the UTP Plan amendment. The UTP Plan amendment would become operational upon approval by the Commission.
Not applicable.
The proposed amendment does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Participants do not believe that the proposed UTP Plan amendment introduces terms that are unreasonably discriminatory for the purposes of section 11A(c)(1)(D) of the Act.
Not applicable.
Section IV(C)(1)(a) of the UTP Plan requires the Participants to unanimously approve the amendment. They have so approved it.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
As a result of the amendment, the UTP Plan would require each Participant to report each trade as soon as practicable, but no more than 10 seconds from the time of the trade. In addition, each Participant's members would be required to establish and maintain collection and reporting procedures and facilities such as to assure that such last sale prices will be reported within not more than 10 seconds (rather than the current 90 seconds) following execution (or such shorter period as the Participants may approve), regardless of whether they do so 90 percent of the time under normal conditions. Currently, each Participant has 90 seconds to report 90 percent of its trades within 10 seconds following execution under normal conditions.
Not applicable.
Not applicable.
The amendment will support the prompt reporting of transaction reports by reducing from 90 seconds to 10 seconds the maximum amount of time by which each Participant must receive transaction reports from its members, subject to the Participants' obligation to report trades as promptly as possible.
Not applicable.
Not applicable.
Not Applicable.
The Commission seeks general comments on Amendment No. 34. Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number S7-24-89. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to extend its program that allows transactions to take place at a price that is below $1 per option contract through January 5, 2016. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set
An “accommodation” or “cabinet” trade refers to trades in listed options on the Exchange that are worthless or not actively traded. Cabinet trading is generally conducted in accordance with the Exchange Rules, except as provided in Exchange Rule 6.54,
The Exchange has temporarily amended the procedures through January 5, 2015 to allow transactions to take place in open outcry at a price of at least $0 but less than $1 per option contract.
The purpose of the instant rule change is to extend the operation of these temporary procedures through January 5, 2016, so that the procedures can continue without interruption while CBOE considers whether to seek permanent approval of the temporary procedures.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of section 6(b) of the Act.
In particular, the Exchange believes that allowing for liquidations at a price less than $1 per option contract better facilitates the closing of options positions that are worthless or not actively trading. Further, the Exchange believes the proposal is consistent with the Act because the proposed extension is of appropriate length to allow the Exchange and the Commission to continue to assess the impact of the Exchange's authority to allow transactions to take place in open outcry at a price of at least $0 but less than $1 per option in accordance with its attendant obligations and conditions, including the process for submitting such transactions to OCC for clearing.
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that allowing for liquidations at a price less than $1 per option contract better facilitates the
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change does not make any changes to Exchange rules, but simply extends an existing temporary program. Further, the program is available to all market participants through CBOE TPHs. The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, again, the proposed rule change does not make any changes to Exchange rules, but simply extends an existing temporary program. Moreover, to the extent that the program makes CBOE a more attractive marketplace, as noted above, the program is available to all market participants through CBOE TPHs.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing rule does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission,
Under Rule 19b-4(f)(6) of the Act,
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The Exchange proposes to amend NYSE MKT Rule 500—Equities to extend the operation of the pilot program that allows “UTP Securities” to be traded on the Exchange pursuant to a grant of unlisted trading privileges. The pilot program is currently scheduled to expire on December 31, 2014; the Exchange proposes to extend it until the earlier of Commission approval to make such pilot permanent or July 31, 2015. 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 NYSE MKT Rule 500—Equities to extend the operation of the pilot program that allows “UTP Securities” to be traded on the Exchange pursuant to a grant of unlisted trading privileges.
NYSE MKT Rules 500-525—Equities, as a pilot program, govern the trading of any “UTP Securities” on the Exchange pursuant to unlisted trading privileges (“UTP Pilot Program”).
The UTP Pilot Program includes any security, other than a security that is listed on the Exchange, that (i) is designated as an “eligible security” pursuant to the “UTP Plan,”
The Exchange notes that its New Market Model Pilot (“NMM Pilot”), which, among other things, eliminated the function of specialists on the Exchange and created a new category of market participant, the Designated Market Maker (“DMM”),
Extension of the UTP Pilot Program in tandem with the NMM Pilot, both from December 31, 2014 until the earlier of Commission approval to make such pilots permanent or July 31, 2015, will provide for the uninterrupted trading of UTP Securities on the Exchange on an unlisted trading privileges basis and thus continue to encourage the additional utilization of, and interaction with, the Exchange, and provide market participants with improved price discovery, increased liquidity, more competitive quotes and greater price improvement for UTP Securities.
The proposed change is not otherwise intended to address any other issues and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange. In particular, the Exchange believes that its proposal to extend the UTP Pilot Program is consistent with (i) section 6(b) of the Act,
Specifically, the Exchange believes that extending the UTP Pilot Program would provide for the uninterrupted trading of UTP Securities on the Exchange on an unlisted trading privileges basis and thus continue to encourage the additional utilization of, and interaction with, the Exchange, thereby providing market participants with additional price discovery, increased liquidity, more competitive quotes and potentially greater price improvement for UTP Securities. Additionally, under the UTP Pilot Program, UTP Securities trade on the Exchange pursuant to rules governing the trading of Exchange-Listed securities that previously have been approved by the Commission. Accordingly, this proposed rule change would permit the Exchange to extend the effectiveness of the UTP Pilot Program in tandem with the NMM Pilot, which the Exchange has similarly proposed to extend until the earlier of Commission approval to make such pilot permanent or July 31, 2015.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition. For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting the services it offers and the requirements it imposes to remain competitive with other U.S. equity 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 has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6) normally may not become operative prior to 30 days after the date of filing. However, Rule 19b-4(f)(6)(iii)
The Commission believes that waiver of the 30-day operative delay period is consistent with the protection of investors and the public interest. Specifically, the Commission believes that the proposal would allow the pilot to continue uninterrupted, thereby avoiding any potential investor confusion that could result from the temporary interruption in the pilot program. For these reasons, the Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, and designates the proposed rule change to be operative on December 31, 2014.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq Rule 4761 addresses the treatment of quotes/orders in securities that are the subject of issuer corporate actions related to a dividend, payment or distribution. The rule applies to any trading interest that is carried on the Nasdaq Market Center book overnight. As a general matter, Nasdaq cancels open quotes/orders in the event of any corporate action related to a dividend, payment or distribution, on the ex-date of the action. The cancellation occurs immediately prior to the opening of trading at 4 a.m. on the ex-date of the corporate action, and the member receives a cancellation notice, so that it can, if it desires, reenter the order at the commencement of trading on the ex-date.
Prior to 2013, Nasdaq Rule 4761 provided for a complex variety of adjustments of quotes and orders carried on the Nasdaq book overnight; depending on the nature of the
The proposal will expand the rule also to provide for adjustment in the case of stock dividends and combined cash dividends/stock dividends. The proposal reflects the conclusion, based on member feedback, that actions resulting in the distribution of additional stock should be treated similarly, regardless of whether they are denominated as forward stock splits or stock dividends. Nasdaq will make members aware of the effective date of the proposed change by the issuance of a widely disseminated Equity Trader Alert.
Under the current rule, a member may designate that all orders with a time-in-force of good-till-cancelled
(1) Cash Dividend. If an issuer is paying a cash dividend, the price of an order to buy is reduced by the amount of the sum of all dividends payable, rounded up to the nearest whole cent; provided, however, that there will be no adjustment if the sum of all dividends is less than $0.01. For example, if the sum of all dividends is $0.381, the price of the order will be reduced by $0.39. An order to sell will be retained but will receive no price adjustment.
(2) Forward Stock Split. If an issuer is implementing a forward stock split, the order is cancelled if its size is less than one round lot. If the order's size is greater than one round lot, (i) the size of the order is multiplied by the ratio of post-split shares to pre-split shares, with the result rounded downward to the nearest whole share, and (ii) the price of the order will be multiplied by the ratio of pre-split shares to post-split shares, with the result rounded down to the nearest whole penny in the case of orders to buy and rounded up to the nearest whole penny in the case of orders to sell.
Under the change proposed in this filing, stock dividends will be treated in the same manner as forward stock splits. Thus, any corporate action in which additional shares are issued to holders of outstanding shares will be treated in the manner described above.
For example, if a member has entered a good-till-cancelled order to buy 375 shares at $10.95 per share and the issuer implemented a split or dividend under which an additional 1.25 shares would be issued for each share outstanding, the size of the order would be adjusted to 843 shares (375 × 2.25/1 = 843.75, rounded down to 843) and the price of the order would be adjusted to $4.86 per share ($10.95 per share × 1/2.25 = $4.8667 per share, rounded down to $4.86 per share). An order to sell at the same price and size would be adjusted to 843 shares with a price of $4.87 per share ($4.8667 per share, rounded up).
(3) Combination of Cash Dividend and Forward Stock Split or Stock Dividend. Under the current rule, if an issuer is implementing a cash dividend and a forward stock split on the same date, the adjustments described above will both be applied, in the order described in the notice of the corporate actions received by Nasdaq.
As is currently the case, changes to open orders will continue to be effected immediately prior to the opening of the System at 4:00 a.m. on the ex-date of the applicable corporate action. Open orders that are retained are re-entered by the System (as adjusted above) immediately prior to the opening of the System, such that they will retain time priority over new orders entered at or after 4:00 a.m.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. Specifically, by offering market participants additional options with regard to management of open orders, the change has the potential to enhance Nasdaq's competitiveness with respect to other trading venues, thereby promoting greater competition. Moreover, the change does not burden competition in that it does not restrict the ability of members to enter and update trading interest in Nasdaq.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-NASDAQ-2014-126. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On November 5, 2014, Fixed Income Clearing Corporation (“FICC”), National Securities Clearing Corporation (“NSCC”), and The Depository Trust Company (“DTC,” together with FICC and NSCC, “Operating Subsidiaries”) filed with the Securities and Exchange Commission (“Commission”) advance notices SR-FICC-2014-810, SR-NSCC-2014-811 and SR-DTC-2014-812 (“Advance Notices”), pursuant to section 806(e)(1) of the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
Section 806(e)(1)(G) of the Clearing Supervision Act provides that the Operating Subsidiaries may implement the changes proposed in the Advance Notices if they have not received an objection to the proposed changes within 60 days of the later of (i) the date that the Commission receives the Advance Notices or (ii) the date that any
Pursuant to section 806(e)(1)(H) of the Clearing Supervision Act, the Commission may extend the review period of an advance notice for an additional 60 days, if the changes proposed in the advance notice raise novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension.
Here, as the Commission has not requested any additional information, the date that is 60 days after the Operating Subsidiaries filed the Advance Notices with the Commission is January 4, 2015. However, the Commission finds it appropriate to extend the review period of the Advance Notices, as amended, for an additional 60 days under section 806(e)(1)(H) of the Clearing Supervision Act.
Accordingly, the Commission, pursuant to 806(e)(1)(H) of the Clearing Supervision Act,
By the Commission.
Social Security Administration (SSA).
Proposed New Routine Use and Updated Retention and Disposal.
Pursuant to the Privacy Act of 1974, as amended, we are issuing public notice of our intent to add a new routine use to, and update the retention and disposal schedule of, an existing system of records entitled: Representative Disqualification, Suspension and Non-Recognition Information File, (60-0219). This system was last published in the
We invite public comment on this proposal. In accordance with 5 U.S.C. 552a(e)(4) and (e)(11), the public is given a 30-day period in which to submit comments. Therefore, please submit any comments by February 6, 2015.
The public, Office of Management and Budget (OMB), and Congress may comment on this publication by writing to the Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, Room 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401 or through the Federal e-Rulemaking Portal at
Jasson Seiden, Government Information Specialist, Privacy Implementation Division, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, Room 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, telephone: (410) 597-4307, Email:
In accordance with 5 U.S.C. 552a(r), we have provided a report to OMB and Congress on the proposed new routine use and update to the retention and disposal section.
Representative Disqualification, Suspension and Non-Recognition Information File
17. To a Federal court, State court, administrative tribunal, bar disciplinary authority or other authority, by the Office of the General Counsel, as necessary, to permit these authorities to investigate and conduct proceedings relating to potential professional disciplinary actions or other measures relating to the authorities' regulation of professional conduct.
We retain and destroy this information in accordance with National Archives and Records Administration approved authorities. We will destroy those cases in which the agency receives an allegation of misconduct but determines that the representative did not violate SSA's Rules of Conduct and Standards of Responsibility two years after the investigation ends, in accordance with SSA's agency specific records schedule, N1-047-10-004/I.E.1. We will destroy all other cases 25 years after closure, in accordance with N1-047-10-004/I.E.2. We will erase or destroy records in electronic form and shred records in paper form.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of Unified Carrier Registration Plan Board of Directors meeting.
The meeting will be held on January 22, 2015, from 12:00 Noon to 3:00 p.m., Eastern Standard Time.
This meeting will be open to the public via conference call. Any interested person may call 1-877-422-1931, passcode 2855443940, to listen and participate in this meeting.
Open to the public.
The Unified Carrier Registration Plan Board of Directors (the Board) will continue its work in developing and implementing the Unified Carrier Registration Plan and Agreement and to that end, may consider matters properly before the Board.
Mr. Avelino Gutierrez, Chair, Unified Carrier Registration Board of Directors at (505) 827-4565.
Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, subpart B), notice is hereby given of the actions on special permits applications in (October to October 2014). The mode of transportation involved are identified by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft. Application numbers prefixed by the letters EE represent applications for Emergency Special Permits. It should be noted that some of the sections cited were those in effect at the time certain special permits were issued.
Office of Foreign Assets Control, Treasury Department.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is publishing the names of 9 persons whose property and interests in property are blocked pursuant to one or more of the following authorities: Executive Order (E.O.) 13553, E.O. 13622, or E.O. 13628. OFAC is also publishing revised information on OFAC's list of Specially Designated
OFAC's actions described in this notice were effective December 30, 2014.
Associate Director for Global Targeting, tel.: 202/622-2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622-2490, Assistant Director for Licensing, tel.: 202/622-2480, 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).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
On December 30, 2014, OFAC blocked the property and interest in property of the following 7 persons pursuant to E.O. 13622, “Authorizing Additional Sanctions With Respect to Iran.”
1. AMERI, Teymour (a.k.a. AMERI, Teymur; a.k.a. BARAKI, Teimur Ameri; a.k.a. BARAKY, Teymur Ameri; a.k.a. BARKI, Teymur Ameri); DOB 12 Jul 1958 (individual) [EO13622].
2. SEIFI, Asadollah (a.k.a. SAYFI, Esdaleh; a.k.a. SEIFY, Asadollah); DOB 04 Apr 1965 (individual) [EO13622].
3. YASINI, Seyed Kamal (a.k.a. YASINI, Sayyed Kamal; a.k.a. YASINI, Seyyed Kamal); DOB 23 Sep 1956; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Passport H95629553 (Iran); National ID No. 1229838619 (individual) [EO13622].
4. ZEIDI, Hossein (a.k.a. ZEIDI, Hosein; a.k.a. ZEIDI, Hossein Mansour); DOB 11 Sep 1965; citizen Saint Kitts and Nevis; citizen Saint Vincent and the Grenadines; Former Citizenship Country Iran; Passport RE0003553 (Saint Kitts and Nevis); National ID No. 444169 (United Arab Emirates) (individual) [EO13622].
5. QULANDARY, Azizullah Asadullah (a.k.a. QALANDARI, Azizabdullah); DOB 06 May 1978; POB Ghazni, Afghanistan; citizen Afghanistan; Passport OR306200 (Afghanistan); National ID No. 83669179 (United Arab Emirates) (individual) [EO13622].
6. NASIRBEIK, Anahita; DOB 10 Jan 1983; nationality Iran; Additional Sanctions Information—Subject to Secondary Sanctions; Passport A5190428 (Iran) (individual) [EO13622].
1. BELFAST GENERAL TRADING LLC, Room 1602 Twin Tower Building, Baniyas Rd, Dubai, United Arab Emirates [EO13622].
On December 30, 2014, OFAC blocked the property and interest in property of the following 1 person pursuant to E.O. 13553, “Blocking Property of Certain Persons With Respect to Serious Human Rights Abuses by the Government of Iran and Taking Certain Other Actions.”
1. ABYSSEC, Madar Square, Boulvar-e-Mirdamad, Tehran, Iran; Additional Sanctions Information—Subject to Secondary Sanctions [IRAN-HR].
On December 30, 2014, OFAC blocked the property and interest in property of the following 1 person pursuant to E.O. 13628, “Authorizing the Implementation of Certain Sanctions Set Forth in the Iran Threat Reduction and Syria Human Rights Act of 2012 and Additional Sanctions With Respect to Iran.”
1. DOURAN SOFTWARE TECHNOLOGIES, Gha'em Magham Farahani St., Sho'a Square, Khadri St, Block 20, Tehran, Iran; Additional Sanctions Information—Subject to Secondary Sanctions [IRAN-TRA].
On December 30, 2014, OFAC published revised information on the SDN List to reflect new names or other information for 30 vessels previously identified as blocked property of one or more persons whose property or interests in property are blocked pursuant to E.O. 13382.
1. ARDAVAN (f.k.a. CHAPAREL; f.k.a. HAKIM; f.k.a. IRAN HAKIM) Bulk Carrier 53,100DWT 31,117GRT Iran flag (IRISL); Former Vessel Flag Moldova; Vessel Registration Identification IMO 9465863 (vessel) [NPWMD].
2. ARIES (f.k.a. ELVIRA; f.k.a. FILBERT; f.k.a. GRACEFUL) Bulk Carrier 76,000DWT 41,226GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9369722 (vessel) [NPWMD].
3. ARSHAM (f.k.a. CHASTITY; a.k.a. IRAN SHAAFI; a.k.a. SHAAFI) Bulk Carrier 53,000DWT 32,474GRT Iran flag (IRISL); Former Vessel Flag Malta; Vessel Registration Identification IMO 9386500 (vessel) [NPWMD].
4. ARTAVAND (f.k.a. DORSAN; f.k.a. IRAN KHORASAN; f.k.a. KHORASAN) Bulk Carrier 72,622DWT 39,424GRT Iran flag (IRISL); Former Vessel Flag Malta; Vessel Registration Identification IMO 9193214 (vessel) [NPWMD].
5. ARTMAN (f.k.a. BAAGHI) Bulk Carrier 53,457DWT 32,474GRT Iran flag (IRISL); Former Vessel Flag Tanzania; Vessel Registration Identification IMO 9405930 (vessel) [NPWMD].
6. ARVIN (f.k.a. BLUEBELL; f.k.a. EGLANTINE; f.k.a. IRAN GILAN) Bulk Carrier 63,400DWT 39,424GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9193202 (vessel) [NPWMD].
7. AVANG (f.k.a. CHAPLET; f.k.a. IRAN RAHIM; f.k.a. RAHIM) Bulk Carrier 53,100DWT 31,117GRT Iran flag (IRISL); Former Vessel Flag Malta; Vessel Registration Identification IMO 9465746 (vessel) [NPWMD].
8. AZARGOUN (f.k.a. ARMIS; f.k.a. IRAN ZANJAN; f.k.a. VISEA) Container Ship 33,850DWT 25,391GRT Iran flag (IRISL); Former Vessel Flag Tanzania; Vessel Registration Identification IMO 9283019 (vessel) [NPWMD].
9. BAHJAT (f.k.a. BAANI) Bulk Carrier 53,500DWT 32,474GRT Iran flag (IRISL); Former Vessel Flag Moldova; Vessel Registration Identification IMO 9405954 (vessel) [NPWMD].
10. BASKAR (f.k.a. AALI) Bulk Carrier 53,500DWT 32,474GRT Iran flag (IRISL); Former Vessel Flag Moldova; Vessel Registration Identification IMO 9405942 (vessel) [NPWMD].
11. BATIS (f.k.a. AZIM; f.k.a. CHAPMAN; f.k.a. IRAN AZIM) Bulk Carrier 53,100DWT 31,117GRT Iran flag (IRISL); Former Vessel Flag Malta; Vessel Registration Identification IMO 9465760 (vessel) [NPWMD].
12. BEHDAD (f.k.a. BRILLIANCE; f.k.a. CLOVER; f.k.a. DORITA; f.k.a. IRAN BRILLIANCE; f.k.a. MULBERRY) General Cargo 24,065DWT 16,621GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9051636 (vessel) [NPWMD].
13. BEHSHAD (f.k.a. BLANCA; f.k.a. LIMNETIC; f.k.a. MAGNOLIA; f.k.a. SEA FLOWER) General Cargo 23,176DWT 16,694GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9167289 (vessel) [NPWMD].
14. ELYANA (f.k.a. EVITA; f.k.a. GOLDENROD; f.k.a. IRAN LUCKY LILY; f.k.a. LUCKY LILY) General Cargo 22,882DWT 15,670GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9165827 (vessel) [NPWMD].
15. GOLAFRUZ (f.k.a. DIANTHE; f.k.a. HORSHAM; f.k.a. IRAN BAM) Bulk Carrier 73,664DWT 40,166GRT Iran flag (IRISL); Former Vessel Flag Barbados; Vessel Registration Identification IMO 9323833 (vessel) [NPWMD].
16. GOLSAR (f.k.a. CARMELA; f.k.a. IRAN AZARBAYJAN; f.k.a. NAFIS; f.k.a. ZAWA) Bulk Carrier 72,642DWT 39,424GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9193185 (vessel) [NPWMD].
17. GULAFSHAN (f.k.a. ATLANTIC; f.k.a. DREAMLAND; f.k.a. IRAN DREAMLAND) Bulk Carrier 43,302DWT 25,770GRT Iran flag (IRISL); Former Vessel Flag Hong Kong; Vessel Registration Identification IMO 8320183 (vessel) [NPWMD].
18. JAIRAN (f.k.a. CAMELLIA; f.k.a. CATALINA; f.k.a. IRAN SEA BLOOM; f.k.a.
19. KIAZAND (f.k.a. CHARIOT; f.k.a. IRAN KARIM; f.k.a. KARIM) Bulk Carrier 53,100DWT 31,117GRT Iran flag (IRISL); Former Vessel Flag Malta; Vessel Registration Identification IMO 9465758 (vessel) [NPWMD].
20. MAHNAM (f.k.a. ATENA; f.k.a. CONSUELO; f.k.a. IRAN YAZD; f.k.a. LANCELIN) Bulk Carrier 72,642DWT 40,609GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9213387 (vessel) [NPWMD].
21. NAGHMEH (f.k.a. APOLLO; f.k.a. IRAN DESTINY; f.k.a. IRAN NAVAB) Bulk Carrier 43,329DWT 25,768GRT Iran flag (IRISL); Former Vessel Flag Hong Kong; Vessel Registration Identification IMO 8320145 (vessel) [NPWMD].
22. NEGAR (f.k.a. ELICIA; f.k.a. GARLAND; f.k.a. IRAN LUCKY MAN; f.k.a. LUCKY MAN) General Cargo 22,882DWT 15,670GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9165839 (vessel) [NPWMD].
23. NESHAT (f.k.a. BEGONIA; f.k.a. IRAN PRETTY SEA (KHUZESTAN); f.k.a. LAVENDER; f.k.a. PRETTY SEA) General Cargo 23,116DWT 16,694GRT Iran flag (IRISL); Former Vessel Flag Moldova; Vessel Registration Identification IMO 9167277 (vessel) [NPWMD].
24. PARSHAD (f.k.a. CHIMES; f.k.a. IRAN VAAFI; f.k.a. VAAFI) Bulk Carrier 53,000DWT 32,474GRT Iran flag (IRISL); Former Vessel Flag Tanzania; Vessel Registration Identification IMO 9387786 (vessel) [NPWMD].
25. RONAK (f.k.a. ANIL; f.k.a. DANDY; f.k.a. IRAN DANDY) Bulk Carrier 43,279DWT 25,768GRT Iran flag (IRISL); Former Vessel Flag Hong Kong; Vessel Registration Identification IMO 8320157 (vessel) [NPWMD].
26. SHABGOUN (f.k.a. ALVA; f.k.a. IRAN SABALAN; f.k.a. SABALAN) Container Ship 66,900DWT 53,453GRT Iran flag (IRISL); Former Vessel Flag Sierra Leone; Vessel Registration Identification IMO 9346524 (vessel) [NPWMD].
27. SHADFAR (f.k.a. ADMIRAL; f.k.a. DAIS; f.k.a. IRAN DAIS) Bulk Carrier 43,406DWT 25,768GRT Iran flag (IRISL); Former Vessel Flag Hong Kong; Vessel Registration Identification IMO 8309696 (vessel) [NPWMD].
28. TABANDEH (f.k.a. ATRIUM; f.k.a. IRAN HAMZEH) Bulk Carrier 43,288DWT 25,770GRT Iran flag (IRISL); Former Vessel Flag Hong Kong; Vessel Registration Identification IMO 8320171 (vessel) [NPWMD].
29. TERMEH (f.k.a. ACENA; f.k.a. CELESTINA; f.k.a. IRAN KERMANSHAH) Bulk Carrier 75,249DWT 40,609GRT Iran flag (IRISL); Former Vessel Flag Bolivia; Vessel Registration Identification IMO 9213399 (vessel) [NPWMD].
30. WARTA (f.k.a. ALIM; f.k.a. CHAIRMAN; f.k.a. IRAN ALIM) Bulk Carrier 53,100DWT 31,117GRT Iran flag (IRISL); Former Vessel Flag Tanzania; Vessel Registration Identification IMO 9465849 (vessel) [NPWMD].
U.S. Office of Personnel Management.
Notice of proposed rulemaking.
The U.S. Office of Personnel Management (OPM) is issuing a Notice of Proposed Rulemaking to make changes to the Federal Employees Health Benefits Acquisition Regulation (FEHBAR). These changes would: Define which subscriber groups may be included for consideration as similarly sized subscriber groups (SSSGs); require the SSSG to be traditional community rated; establish that traditional community-rated Federal Employees Health Benefits (FEHB) plans must select only one rather than two SSSGs; and make conforming changes to FEHB contract language to account for the new medical loss ratio (MLR) standard for most community-rated FEHB plans.
Comments are due on or before March 9, 2015.
Send written comments to Delon Pinto, Senior Policy Analyst, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 4312, 1900 E Street NW., Washington, DC; or FAX to (202) 606-4640 Attn: Delon Pinto. You may also submit comments using the
Delon Pinto, Senior Policy Analyst, at
The U.S. Office of Personnel Management is issuing a notice of proposed rulemaking to update the Federal Employees Health Benefits Acquisition Regulation to accommodate the new FEHB specific medical loss ratio (MLR) requirement for most community-rated plans as well as to update the similarly sized subscriber group (SSSG) requirement for traditional community-rated plans.
The Patient Protection and Affordable Care Act, Pub. L. 111-148, was enacted on March 23, 2010; the Health Care and Education Reconciliation Act, Pub. L. 111-152, was enacted on March 30, 2010 (these are collectively known as the “Affordable Care Act”). In April 2012, OPM issued a final rule establishing an FEHB specific MLR requirement to replace the SSSG comparison requirement for most community rated FEHB plans (77 FR 19522). The FEHB specific MLR rules are based on the medical loss ratio standard established by the Affordable Care Act and defined by the U.S. Department of Health and Human Services, the U.S. Department of Labor, and the U.S. Department of Treasury in 26 CFR part 54, 29 CFR part 2590, 45 CFR part 146, and 45 CFR part 158. Community-rated FEHB plans were permitted to elect to follow the FEHB specific MLR requirements instead of the SSSG requirements for calendar year 2012. Beginning with the 2013 calendar year, the FEHB specific MLR requirements were mandatory for all community-rated carriers except those that are State-mandated to use traditional community rating (TCR). State mandated TCR plans will continue to be subject to the SSSG comparison requirements.
This proposed rule makes three changes to the requirements for SSSGs. In the past, OPM has required that plans identify two non-FEHB subscriber groups (employer groups covered by an issuer) that are closest in size to the FEHB group and, if either or both of those groups received a discounted rate, the carrier must provide the largest discount to FEHB. This proposed rule defines the entities whose groups may be selected for comparison as an SSSG. In addition, this rule states any SSSG must also be rated TCR in order to maintain alignment between the TCR-rated FEHB group and the subscriber group used for comparison. Last, OPM is requiring plans to identify one, rather than two, SSSG subscriber groups used for the comparison. OPM considers it unnecessary to require more than one comparison group if the SSSG must also be rated TCR for the reasons set forth below.
TCR plans are those that, usually by State law, are required to set the same rates for all subscriber groups regardless of the health risks and other characteristics of any specific group. Under TCR, an FEHB group must be charged the same premium as all other groups in its service area that receive the same set of benefits. The health plan cannot adjust premiums for a specific group to reflect the healthcare utilization characteristics of that specific group.
Since the TCR premium does not necessarily reflect the experience of a specific group, an FEHB specific MLR requirement is not appropriate. However, if a State-mandated TCR carrier has no other groups that are TCR, and therefore no SSSG, the carrier will be subject to the FEHB specific MLR requirements. In that situation, applying the FEHB specific MLR requirement is appropriate.
This proposed regulation identifies which SSSGs are available for comparison under 48 CFR 1602.170-13. A subscriber group purchasing healthcare benefits from an entity may be an SSSG if the entity is the carrier, a division or subsidiary of the carrier, a separate line of business or qualified separate line of business of the carrier, or if the entity maintains a contractual arrangement with the carrier to provide healthcare benefits. If the entity is any of the preceding, any of its subscriber groups may be included as an SSSG so long as the entity reports financial statements on a consolidated basis with the carrier or shares, delegates, or otherwise contracts with the carrier, any portion of its workforce that involves the management, design, pricing, or marketing of the healthcare product.
The FEHBAR contains language required in all FEHB contracts with health insurance carriers. In the April 2, 2012 final rule, OPM did not update all of the FEHBAR contract language to account for the new FEHB-specific MLR requirement. Omitted from that regulation were some changes, described below, to 48 CFR 1652.215-70, “Rate Reduction for Defective Pricing or Defective Cost or Pricing Data,” to account for the new rules.
48 CFR 1652.215-70 describes how a contracting officer at OPM may make an offset from premiums if pricing or cost and pricing data are defective. This proposed rule adds a provision stating that such an offset can be made if a Carrier, which is not mandated by the State to use traditional community rating, has developed FEHB rates inconsistent with the FEHB-specific MLR requirement. This proposed rule also adds a provision that simple interest must be paid to the Government when an MLR penalty is assessed as a result of an audit finding by the OPM Office of the Inspector General (OIG). This is not a policy change, but a conforming change so all FEHB
The April 2, 2012 final rule included two different “Certificates of accurate cost or pricing data” in 48 CFR 1615.406-2: One for SSSG pricing, and one for MLR pricing. Previously there was only one certificate for all carriers. This proposed rule changes some references from “certificate” to “certificates” to reflect this change.
This proposed rule includes two technical corrections that correct inadvertent errors from earlier amendments to chapter 16 of the FEHBAR.
In the June 2011 interim final rule, the word “issuer” was used erroneously in place of the word “carrier” in two places. Per chapter 89 title 5 U.S. Code, OPM is authorized to contract with carriers. This technical correction is made in 48 CFR 1602.170-14(a) and 1652.216-70(b)(2)(i).
This proposed rule also clarifies, in 48 CFR 1652.216-70(b), how community-rated carriers must develop their FEHB rates. Previously, this section erroneously stated that carriers should “base their rating methodology on the MLR threshold.” The corrected language states that all community-rated plans must develop the FEHB's rates using their State-filed rating methodology or, if not required to file with the State, their standard written and established rating methodology.
OPM certifies that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects health insurance carriers in the FEHB Program.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. OPM has examined the impact of this proposed rule as required by Executive Order 12866 and Executive Order 13563, which 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 must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not considered a major rule because there will be no increased costs to Federal agencies, Federal Employees, or Federal retirees in their health insurance premiums.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles, and responsibilities of State, local, or tribal governments.
Government employees, Government procurement, Health insurance, Reporting and recordkeeping requirements.
U.S. Office of Personnel Management.
For the reasons set forth in the preamble, OPM proposes to amend chapter 16 of title 48 CFR (FEHBAR) as follows:
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
(a) A
(1) As of the date specified by OPM in the rate instructions, has a subscriber enrollment closest to the FEHBP subscriber enrollment;
(2) Uses traditional community rating; and
(3) Meets the criteria specified in the rate instructions issued by OPM.
(b) Any group with which an entity enters into an agreement to provide health care services is a potential SSSG (including groups that are traditional community rated and covered by separate lines of business, government entities, groups that have multi-year contracts, and groups having point-of-service products) except as specified in paragraph (c) of this section.
(1) An entity's subscriber groups may be included as an SSSG if the entity is any of the following:
(i) The carrier;
(ii) A division or subsidiary of the carrier;
(iii) A separate line of business or qualified separate line of business of the carrier; or
(iv) An entity that maintains a contractual arrangement with the carrier to provide healthcare benefits.
(2) A subscriber group covered by an entity meeting any of the criteria under paragraph (b)(1) of this section may be included for comparison as a SSSG if the entity meets any of the following criteria:
(i) It reports financial statements on a consolidated basis with the carrier; or
(ii) Shares, delegates, or otherwise contracts with the carrier, any portion of its workforce that involves the management, design, pricing, or marketing of the healthcare product.
(c) The following groups must be excluded from SSSG consideration:
(1) Groups the carrier rates by the method of retrospective experience rating;
(2) Groups consisting of the carrier's own employees;
(3) Medicaid groups, Medicare-only groups, and groups that receive only excepted benefits as defined at section 9832(c) of title 26, United States Code;
(4) A purchasing alliance whose rate-setting is mandated by the State or local government;
(5) Administrative Service Organizations (ASOs);
(6) Any other group excluded from consideration as specified in the rate instructions issued by OPM.
(d) OPM shall determine the FEHBP rate by selecting the lowest rate derived by using rating methods consistent with those used to derive the SSSG rate.
(e) In the event that a State-mandated TCR carrier has no SSSG, then it will be subject to the FEHB specific MLR requirement.
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
(c) * * *
(2) For contracts with fewer than 1,500 enrollee contracts for which the FEHB Program premiums for the contract term will be at or above the threshold at FAR 15.403-4(a)(1), OPM will require the carrier to submit its rate proposal, utilization data, and a certificate of accurate cost or pricing data required in 1615.406-2. In addition, OPM will require the carrier to complete the proposed rates form containing cost and pricing data, and the Community-Rate Questionnaire, but will not require the carrier to send these documents to OPM. The carrier will keep the documents on file for periodic auditor and actuarial review in accordance with 1652.204-70. OPM will perform a basic reasonableness test on the data submitted. Rates that do not pass this test will be subject to further OPM review.
(3) * * *
(i) * * *
(A) For contracts with 1,500 or more enrollee contracts for which the FEHB Program premiums for the contract term will be at or above the threshold at FAR 15.403-4(a)(1), OPM will require the carrier to provide the data and methodology used to determine the FEHB Program rates. OPM will also require the data and methodology used to determine the rates for the carrier's SSSG. The carrier will provide cost or pricing data required by OPM in its rate instructions for the applicable contract period. OPM will evaluate the data to ensure that the rate is reasonable and consistent with the requirements in this chapter. If necessary, OPM may require the carrier to provide additional documentation.
(B) Contracts will be subject to a downward price adjustment if OPM determines that the Federal group was charged more than it would have been charged using a methodology consistent with that used for the SSSG. Such adjustments will be based on the rate determined by using the methodology (including discounts) the carrier used for the SSSG.
(4) Contracts will be subject to a downward price adjustment if OPM determines that the Federal group was charged more than it would have been charged using a methodology consistent with that used for the similarly-sized subscriber group (SSSG). Such adjustments will be based on the rate determined by using the methodology (including discounts) the carrier used for the SSSG.
This is to certify that, to the best of my knowledge and belief: (1) The cost or pricing data submitted (or, if not submitted, maintained and identified by the carrier as supporting documentation) to the Contracting officer or the Contracting officer's representative or designee, in support of the __* FEHB Program rates were developed in accordance with the requirements of 48 CFR Chapter 16 and the FEHB Program contract and are accurate, complete, and current as of the date this certificate is executed; and (2) the methodology used to determine the FEHB Program rates is consistent with the methodology used to determine the rates for the carrier's Similarly Sized Subscriber Group.
* Insert the year for which the rates apply.
5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.
(a) If any rate established in connection with this contract was increased because:
(1) The Carrier submitted, or kept in its files in support of the FEHBP rate, cost or pricing data that were not complete, accurate, or current as certified in one of the Certificates of Accurate Cost or Pricing Data (FEHBAR 1615.406-2);
(2) The Carrier submitted, or kept in its files in support of the FEHBP rate, cost or pricing data that were not accurate as represented in the rate reconciliation documents or MLR Calculation;
(3) The Carrier developed FEHBP rates for traditional community-rated plans with a rating methodology and structure inconsistent with that used to develop rates for a similarly sized subscriber group (see FEHBAR 1602.170-13) as certified in the Certificate of Accurate Cost or Pricing Data for Community-Rated Carriers;
(4) The Carrier, who is not mandated by the State to use traditional community rating, developed FEHBP rates with a rating methodology and structure inconsistent with its State-filed rating methodology (or if not required to file with the State, their standard written and established rating methodology) or inconsistent with the FEHB specific medical loss ratio (MLR) requirements (see FEHBAR 1602.170-13); or
(5) The Carrier submitted or, kept in its files in support of the FEHBP rate, data or information of any description that were not complete, accurate, and current—then, the rate shall be reduced in the amount by which the price was increased because of the defective data or information.
(c) When the Contracting Officer determines that the rates shall be reduced and the Government is thereby entitled to a refund or that the Government is entitled to a MLR penalty, the Carrier shall be liable to and shall pay the FEHB Fund at the time the overpayment is repaid or at the time the MLR penalty is paid—
(1) Simple interest on the amount of the overpayment from the date the overpayment was paid from the FEHB Fund to the Carrier until the date the overcharge is liquidated. In calculating the amount of interest due, the quarterly rate determinations by the Secretary of the Treasury under the authority of 26 U.S.C. 6621(a)(2) applicable to the periods the overcharge was retained by the Carrier shall be used;
(2) A penalty equal to the amount of overpayment, if the Carrier knowingly
(3) Simple interest on the MLR penalty from the date on which the penalty should have been paid to the FEHB Fund to the date on which the penalty was or will be actually paid to the FEHB fund. The interest rate shall be calculated as specified in paragraph (c)(1) of this clause.
(b) * * *
(2) Effective January 1, 2013 all community-rated plans must develop the FEHBP's rates using their State-filed rating methodology or, if not required to file with the State, their standard written and established rating methodology. A carrier who mandated by the State to use traditional community rating will be subject to paragraph (b)(2)(ii) of this clause. All other carriers will be subject to paragraph (b)(2)(i) of this clause.
(i) The subscription rates agreed to in this contract shall meet the FEHB-specific MLR threshold as defined in FEHBAR 162.170-14. The ratio of a plan's incurred claims, including the carrier's expenditures for activities that improve health care quality, to total premium revenue shall not be lower than the FEHB-specific MLR threshold published annually by OPM in its rate instructions.
(ii) The subscription rates agreed to in this contract shall be equivalent to the subscription rates given to the carrier's similarly sized subscriber group (SSSG) as defined in FEHBAR 1602.170-13. The subscription rates shall be determined according to the carrier's established policy, which must be applied consistently to the FEHBP and to the carrier's SSSG. If the SSSG receives a rate lower than that determined according to the carrier's established policy, it is considered a discount. The FEHBP must receive a discount equal to or greater than the carrier's SSSG discount.
(3) If subject to paragraph (b)(2)(ii) of this clause, then:
(i) If, at the time of the rate reconciliation, the subscription rates are found to be lower than the equivalent rates for the SSSG, the carrier may include an adjustment to the Federal group's rates for the next contract period, except as noted in paragraph (b)(3)(iii) of this clause.
(ii) If, at the time of the rate reconciliation, the subscription rates are found to be higher than the equivalent rates for the SSSG, the carrier shall reimburse the Fund, for example, by reducing the FEHB rates for the next contract term to reflect the difference between the estimated rates and the rates which are derived using the methodology of the SSSG, except as noted in paragraph (b)(3)(iii) of this clause.
(iii) Carriers may provide additional guaranteed discounts to the FEHBP that are not given to the SSSG. Any such guaranteed discounts must be clearly identified as guaranteed discounts. After the beginning of the contract year for which the rates are set, these guaranteed FEHBP discounts may not be adjusted.
(7) Carriers may provide additional guaranteed discounts to the FEHBP. Any such guaranteed discounts must be clearly identified as guaranteed discounts. After the beginning of the contract year for which the rates are set, these guaranteed FEHBP discounts may not be adjusted.
(8) Carriers may not impose surcharges (loadings not defined based on an established rating method) on the FEHBP subscription rates or use surcharges in the rate reconciliation process. If the carrier is subject to the SSSG rules and imposes a surcharge on the SSSG, the carrier cannot impose the surcharge on FEHB.
Office of Personnel Management.
Proposed rule.
The U.S. Office of Personnel Management (OPM) is issuing a proposed rule to amend the Federal Employees Health Benefits (FEHB) Program regulations regarding enrollment options following the termination of a plan or plan option.
OPM must receive comments on or before March 9, 2015.
Send written comments to Chelsea Ruediger, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 4312, 1900 E Street NW., Washington, DC 20415. You may also submit comments using the
Chelsea Ruediger at (202) 606-0004.
When a plan or plan option in the Federal Employees Health Benefits (FEHB) Program terminates, OPM provides the enrollees of that plan or plan option a time period in which they may elect to enroll in a new plan or plan option. This proposed rule clarifies the actions that OPM and employing agencies may take when an enrollee fails to make an enrollment election during the time period provided.
Current regulation ends an employee's enrollment in the FEHB Program if he or she fails to make an enrollment election during the time period provided by OPM following a plan termination. This proposed regulation amends 5 CFR 890.301 to require the employing office to enroll automatically these employees into the lowest-cost nationwide plan option based on the enrollee share of the cost of a self only enrollment. Under the proposed regulation, a plan will not be considered the lowest-cost nationwide plan option if it is a High Deductible Health Plan (HDHP) or if it requires a membership fee or an association fee.
For annuitants, current regulation provides that individuals who fail to make an enrollment election during the time provided by OPM following a plan termination shall be considered to be enrolled in the option of the Blue Cross and Blue Shield Service Benefit Plan that OPM determines most closely approximates the terminated plan. The proposed regulation amends 5 CFR 890.306 to provide that these annuitants will be enrolled into the lowest-cost nationwide plan option that is available to the individual based on the same criteria listed above.
Current regulation provides that when a plan discontinuation occurs due to a disaster, employees and annuitants who fail to make an enrollment election within 60 days of the disaster, as announced by OPM, shall be considered to be enrolled in the Standard Option of the Blue Cross and Blue Shield Service Benefit Plan. The proposed rule amends the regulation to provide that these individuals will be enrolled into the lowest-cost nationwide plan option that is available to the individual based on the same criteria listed above. It also provides belated enrollment authority for individuals who, for causes beyond
Since 2004, OPM has allowed up to three plan options under a plan.
Conforming edits have been made to 5 CFR 890.806 for former spouses and 5 CFR 890.1108 for enrollees in temporary continuation of coverage status.
We are seeking comment on these provisions.
OPM has reviewed this proposed rule for PRA implications and have determined that it does not apply to this action.
OPM has examined the impact of this proposed rule as required by Executive Order 12866 and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. After completing this analysis, OPM has determined that this rule is not considered a major rule.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only impacts options available for FEHB enrollees when the plan or plan option in which they are enrolled terminates.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles, and responsibilities of State, local, or tribal governments.
Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement.
U.S. Office of Personnel Management.
Accordingly, OPM proposes to amend title 5, Code of Federal Regulations, part 890 as follows:
5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061; Pub. L. 111-148, as amended by Pub. L. 111-152.
(i) * * *
(4) * * *
(ii) If the whole plan is discontinued, an employee who does not change the enrollment within the time set in paragraph (i)(4)(i) of this section will be enrolled in the lowest-cost nationwide plan option, as defined in paragraph (n) of this section;
(iii) If one or more options of a plan are discontinued, an employee who does not change the enrollment will be enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP).
(iv) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, an employee must change the enrollment within 60 days of the disaster, as announced by OPM. If an employee does not change the enrollment within the time frame announced by OPM, the employee will be enrolled in the lowest-cost nationwide plan option, as defined in paragraph (n) of this section. The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;
(v) An employee who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in paragraph (n) of this section, may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section.
(n) OPM will annually determine the lowest-cost nationwide plan option calculated based on the enrollee share of the cost of a self only enrollment. The plan option identified may not be a High Deductible Health Plan (HDHP) or an option from a health benefits plan that charges an association or membership fee.
(l) * * *
(4) * * *
(ii) If a plan discontinues all of its existing options, an annuitant who does not change his or her enrollment is deemed to have enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n); except when the annuity is insufficient to pay the withholdings, then paragraph (q) of this section applies.
(iii) If one or more options of a plan are discontinued, an annuitant who does not change the enrollment will be enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP). In the event that the annuity is insufficient to pay the withholdings, then paragraph (q) of this section applies;
(iv) After an involuntary enrollment under paragraph (l)(4)(ii) or (iii) of this section becomes effective, the annuitant may change the enrollment to another option of the plan into which he or she
(v) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, an annuitant must change the enrollment within 60 days of the disaster, as announced by OPM. If an annuitant does not change the enrollment within the time frame announced by OPM, the annuitant will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n). The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;
(vi) An annuitant who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in § 890.301(n), may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section.
(j) * * *
(4) * * *
(ii) If the whole plan is discontinued, a former spouse who does not change the enrollment within the time set will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n);
(iii) If one or more options of a plan are discontinued, a former spouse who does not change the enrollment will be enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP);
(iv) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, the former spouse must change the enrollment within 60 days of the disaster, as announced by OPM. If a former spouse does not change the enrollment within the time frame announced by OPM, the former spouse will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n). The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;
(v) A former spouse who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in § 890.301(n), may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section.
(h) * * *
(4) * * *
(ii) If the whole plan is discontinued, an enrollee who does not change the enrollment within the time set will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n);
(iii) If one or more options of a plan are discontinued, an enrollee who does not change the enrollment will enrolled in the remaining option of the plan, or in the case of a plan with two or more options remaining, the lowest-cost remaining option that is not a High Deductible Health Plan (HDHP);
(iv) If the discontinuance of the plan, whether permanent or temporary, is due to a disaster, the enrollee must change the enrollment within 60 days of the disaster, as announced by OPM. If the enrollee does not change the enrollment within the time frame announced by OPM, the enrollee will be enrolled in the lowest-cost nationwide plan option, as defined in § 890.301(n). The effective date of enrollment changes under this provision will be set by OPM when it makes the announcement allowing such changes;
(v) An enrollee who is unable, for causes beyond his or her control, to make an enrollment change within the 60 days following a disaster and is, as a result, enrolled in the lowest-cost nationwide plan as defined in § 890.301(n), may request a belated enrollment into the plan of his or her choice subject to the requirements of paragraph (c) of this section.
Office of Personnel Management.
Proposed rule.
The United States Office of Personnel Management (OPM) is issuing a proposed rule to amend the Federal Employees Health Benefits (FEHB) Program regulations to clarify the conditional nature of FEHB Program benefits and benefit payments under the plan's coverage as subject to a carrier's entitlement to subrogation and reimbursement recovery, and therefore, that such entitlement falls within the preemptive scope of the U.S.C. FEHB contracts must include a provision incorporating the carrier's subrogation and reimbursement rights and FEHB plan brochures must explain the carrier's subrogation and reimbursement policy.
Comments are due on or before February 6, 2015.
Send written comments to Marguerite Martel, Senior Policy Analyst, Planning and Policy Analysis, U.S. Office of Personnel Management, Room 4312, 1900 E Street NW., Washington, DC; or FAX to (202) 606-4640 Attn: Marguerite Martel. You may also submit comments using the
Marguerite Martel at
The FEHB Act, as codified at 5 U.S.C. 8902(m)(1) provides: “The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans.” This proposed regulation reaffirms that a covered individual's entitlement to FEHB benefits and benefit payments is conditioned upon, and limited by, a carrier's entitlement to subrogation and reimbursement recoveries pursuant to a subrogation or reimbursement clause in the FEHB contract. This proposed regulation also reaffirms that a FEHB carrier's rights and responsibilities
Currently, and consistent with longstanding practice, FEHB Program contracts and the applicable statement of benefits (brochures) generally require carriers to seek reimbursement and/or subrogation recoveries, and covered individuals to reimburse the plan in the event of a third party recovery, in accordance with the terms of their FEHB contracts. The funds received by experience-rated carriers from these recoveries are required to be credited to the Employees Health Benefits Fund established by 5 U.S.C. 8909, held by the Treasury of the United States. For experience-rated carriers and most community-rated carriers, subrogation and reimbursement recoveries serve to lower subscription charges for individuals enrolled in the Federal Employees Health Benefits Program. These recoveries occur when an enrollee who is injured obtains benefits from his or her FEHB Program plan and either (1) the carrier recovers payment for those benefits from a third party as a subrogee of the enrollee or (2) the enrollee recovers payment for those benefits from a third party and the terms of the plan require the enrollee, as a result of recovery, to reimburse the carrier for benefits initially paid.
As OPM explained in carrier letter 2012-18 (June 18, 2012), and as this proposed regulation would reaffirm, the carrier's right to subrogation and/or reimbursement recovery is a condition of the payments that enrollees are eligible to receive for benefits, and a limitation on their entitlement to the provision of these benefits. Subrogation and reimbursement clauses in turn relate to the nature, provision, and extent of coverage or benefits (and the payment of benefits) by making those payments conditional upon a right to subrogation or reimbursement of equivalent amounts, either from a third-party, or from the enrollee, in the event a third party is obligated to pay for the same injury or illness. The carrier's right to pursue these recoveries therefore falls within the purview of 5 U.S.C. 8902(m)(1), and supersedes state laws that relate to health insurance or health plans.
Interpreting subrogation and reimbursement clauses to fall within Section 8902(m)(1) is consistent with the definition of subrogation and reimbursement described above and their relationship to benefits and the payment of benefits. This interpretation also furthers Congress's goals of reducing health care costs and enabling uniform, nationwide application of FEHB contracts. The FEHB program insures approximately 8.2 million federal employees, annuitants, and their families, a significant proportion of whom are covered through nationwide fee-for-service plans with uniform rates. The government pays on average approximately 70% of Federal employees' plan premiums. 5 U.S.C. 8906(b), (f). The government's share of FEHB premiums in 2014 was approximately $33 billion, a figure that tends to increase each year. OPM estimates that FEHB carriers were reimbursed by approximately $126 million in subrogation recoveries in that year. Subrogation recoveries translate to premium cost savings for the federal government and FEHB enrollees. These cost savings are consistent with Congress's intent as expressed in the legislative history of the 1998 amendment to 5 U.S.C. 8902(m)(1), indicating that Congress intended 5 U.S.C. 8902(m)(1) to “prevent carriers' cost-cutting initiatives from being frustrated by State laws,” H. Rept. No. 105-374 at 9, 105th Cong., 1st Sess. (1997), and with uniform administration and cost-savings principles first envisioned as major goals of Congress as it initially enacted the FEHBA in 1959. See, H.R. Rep No. 86-957, 86th Cong. 1st Sess. (1959).
In addition to its cost-savings goals, OPM recognizes a strong federal interest in national uniformity in coverage and benefits to include uniform administration of the FEHB program across state lines. This principle encompasses the need to apply uniform rules that affect the rights and obligations of enrollees in a given plan without regard to where they live. Disuniform application of FEHB contract terms as they apply to enrollees in different states is administratively burdensome, gives rise to uncertainty and litigation, and results in treating enrollees differently, although enrolled in the same plan and paying the same premium. It is OPM's understanding that Congress enacted the preemption provision to avoid such disparities, and to enhance the ability of the Federal Government to offer its employees a program of health benefits governed by a uniform set of legal rules.
This proposed rule also clarifies that where a covered individual challenges a carrier's right of subrogation and reimbursement, that challenge is not a “claim,” which current OPM regulations define as “a request for payment of a health-related bill” or the “provision of a health-related service or supply.” 5 CFR 890.101. Because subrogation and reimbursement challenges are not claims, they are not subject to the disputed claims process set forth at 5 CFR 890.105, 890.107.
The proposed rule adds definitions of subrogation and reimbursement to 5 CFR 890.101. In addition, the regulation replaces the current section 890.106, which is no longer needed due to creation of the Civilian Board of Contract Appeals. The proposed section 890.106 defines an FEHB carrier's right to subrogation and reimbursement in accordance with this part. As the Federal agency with regulatory authority over the FEHB Program, OPM has consistently taken the position that the FEHB Act preempts state laws that restrict or prohibit FEHB Program carrier reimbursement and/or subrogation recovery efforts, and we continue to maintain this position.
OPM is issuing proposed rule-making that further clarifies this provision of law.
OPM has examined the impact of this proposed rule as required by Executive Order 12866 and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not considered a major rule because there will be a minimal impact on costs to Federal agencies.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation only affects health insurance benefits of Federal employees and annuitants. Executive Order 12866.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule restates existing rights, roles and responsibilities of State, local, or tribal governments.
Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professions, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement.
U.S. Office of Personnel Management.
Accordingly, OPM proposes to amend title 5, Code of Federal Regulations, part 890 as follows:
5 U.S.C. 8913; Sec. 890.301 also issued under sec. 311 of Pub. L. 111-03, 123 Stat. 64; Sec. 890.111 also issued under section 1622(b) of Pub. L. 104-106, 110 Stat. 521; Sec. 890.112 also issued under section 1 of Pub. L. 110-279, 122 Stat. 2604; 5 U.S.C. 8913; Sec. 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; Sec. 890.102 also issued under sections 11202(f), 11232(e), 11246 (b) and (c) of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061; Pub. L. 111-148, as amended by Pub. L. 111-152.
(a) * * *
(a) All health benefit plan contracts shall provide that the Federal Employees Health Benefits (FEHB) carrier is entitled to pursue subrogation and reimbursement recoveries, and shall have a policy to pursue such recoveries in accordance with the terms of this section.
(b) In any health benefits plan that contains a subrogation or reimbursement clause, including contracts entered into before the effective date of this regulation, benefits and benefit payments are extended to a covered individual on the condition that the FEHB carrier may pursue and receive subrogation and reimbursement recoveries if such benefits or benefit payments are for an injury or illness that is the responsibility of a third party. FEHB carriers' right to pursue and receive subrogation and reimbursement recoveries constitutes a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan's coverage.
(c) Contracts shall provide that the FEHB carriers' rights to pursue and receive subrogation or reimbursement recoveries arise upon the occurrence of the following:
(1) The covered individual has received benefits or benefit payments as a result of an illness or injury; and
(2) The covered individual has accrued a right of action against a third party for causing that illness or injury; or has received a judgment, settlement or other recovery on the basis of that illness or injury; or is entitled to receive compensation or recovery on the basis of the illness or injury, including from insurers of individual (non-group) policies of liability insurance that are issued to and in the name of the enrollee or a covered family member.
(d) A FEHB carrier's exercise of its right to pursue and receive subrogation or reimbursement recoveries does not give rise to a claim within the meaning of § 890.101 and is therefore not subject to the disputed claims process set forth at § 890.105.
(e) Any subrogation or reimbursement recovery on the part of a FEHB carrier shall be effectuated against the recovery first (before any of the rights of any other parties are effectuated) and is not impacted by how the judgment, settlement, or other recovery is characterized, designated, or apportioned.
(f) Pursuant to a subrogation or reimbursement clause, the FEHB carrier may recover directly from the covered individual all amounts received by or on behalf of the covered individual by judgment, settlement, or other recovery from any third party or its insurer, or the covered individual's insurer, to the extent of the amount of benefits that have been paid or provided by the carrier.
(g) Any contract must contain a provision incorporating the carrier's subrogation and reimbursement rights as a condition of and a limitation on the nature of benefits or benefit payments and on the provision of benefits under the plan's coverage. The corresponding health benefits plan brochure must contain an explanation of the carrier's subrogation and reimbursement policy.
(h) A carrier's rights and responsibilities pertaining to subrogation and reimbursement under a FEHB contract relate to the nature, provision, and extent of coverage or benefits (including payments with respect to benefits) within the meaning of 5 U.S.C. 8902(m)(1). These rights and responsibilities are therefore effective notwithstanding any state or local law, or any regulation issued thereunder, which relates to health insurance or plans.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS issues a proposed rule to implement cost recovery fee programs for the Western Alaska Community Development Quota (CDQ) Program for groundfish and halibut, and three limited access privilege programs: The American Fisheries Act (AFA), Aleutian Islands Pollock, and Amendment 80 Programs. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes and requires the collection of cost recovery fees for the CDQ Program and limited access privilege programs. Cost recovery fees recover the actual costs directly related to the management, data collection, and enforcement of the programs. The Magnuson-Stevens Act mandates that cost recovery fees not exceed 3 percent of the annual ex-vessel value of fish harvested by a program subject to a cost recovery fee. This action is intended to promote the goals and objectives of the Magnuson-Stevens Act, the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP), and other applicable laws.
Comments must be received no later than February 6, 2015.
You may submit comments on this document, identified by NOAA-NMFS-2014-0031, by any of the following methods:
•
•
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS at the above address and by email to
Electronic copies of the Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA) prepared for this action are available from
Karen Palmigiano, 907-586-7228.
NMFS manages the groundfish fisheries in the Federal exclusive economic zone (EEZ) of the Bering Sea and Aleutian Islands Management Area (BSAI) under the FMP. The North Pacific Fishery Management Council prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801
The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut through regulations established under the authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). The IPHC promulgates regulations governing the halibut fishery under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Convention). The IPHC's regulations are subject to approval by the Secretary of State with the concurrence of the Secretary of Commerce (Secretary). NMFS publishes the IPHC's regulations as annual management measures pursuant to 50 CFR 300.62. The Halibut Act, at sections 773c (a) and (b), provides the Secretary with general responsibility to carry out the Convention and the Halibut Act.
The primary statutory authority for this proposed action is section 304(d) of the Magnuson-Stevens Act. Section 304(d) of the Magnuson-Stevens Act specifies that the Secretary is authorized and shall collect a fee to recover the
Relevant to section 304(d)(2)(A)(i), and the specific programs to which this proposed action would apply, section 3 of the Magnuson-Stevens Act defines a “limited access privilege” as including “an individual fishing quota.” Section 3 of the Magnuson-Stevens Act defines “individual fishing quota” as “a Federal permit under a limited access system to harvest a quantity of fish, expressed by a unit or units representing a percentage of the total allowable catch of a fishery that may be received or held for exclusive use by a person. Such term does not include community development quotas as described in section 305(i).” The Magnuson-Stevens Act and Federal regulations further define the terms “permit,” “limited access system,” “total allowable catch,” and “person.”
Federal regulations at 50 CFR 679.2 define a “permit” as “documentation granting permission to fish.” Section 3 of the Magnuson-Stevens Act defines “limited access system” as “a system that limits participation in a fishery to those satisfying certain eligibility criteria or requirements contained in a fishery management plan or associated regulation.”
Federal regulations at § 679.20 define the process for establishing a “total allowable catch” (TAC) on an annual basis for each groundfish fishery managed under the FMP. Each year, NMFS publishes a final rule to implement an annual harvest specification establishing a TAC amount for each groundfish fishery managed under the FMP. For the most recent example of the annual harvest specifications, see the final 2014 and 2015 harvest specifications (79 FR 12108, March 4, 2014). Each year, the IPHC establishes an annual catch limit that represents the TAC in the commercial halibut fishery pursuant to its authority under the Convention. The annual catch limit is adopted by the IPHC each year, and the Secretary of State of the United States, with the concurrence of the Secretary, can accept annual management measures adopted by the IPHC. If accepted, NMFS publishes the annual management measures adopted by the IPHC pursuant to 50 CFR 300.62. For the most recent example of the annual catch limit, see the 2014 annual management measures (79 FR 13906, March 12, 2014).
Section 3 of the Magnuson-Stevens Act defines “person” as “any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any such government.”
These definitions mean that the Secretary is authorized and required to collect a cost recovery fee for fisheries in which the person receiving a permit to harvest a percentage of the TAC is an individual or some other type of non-individual entity, including a corporation, partnership, or fishery cooperative. Further, these definitions mean that the Secretary is authorized and required to collect a cost recovery fee for limited access systems established under section 303A of the Magnuson-Stevens Act, as well as individual fishing quotas that are not established under section 303A of the Magnuson-Stevens Act. The programs that would be subject to a cost recovery fee under this proposed action were not established under the provisions of section 303A of the Magnuson-Stevens Act, but would be subject to a cost recovery fee under the provisions applicable to individual fishing quota programs.
Section 304(d)(2)(A) of the Magnuson-Stevens Act authorizes and requires the Secretary to collect a cost recovery fee for limited access privilege programs. By definition under section 3 of the Magnuson-Stevens Act, limited access privilege programs include individual fishing quota programs. By definition under the Magnuson-Stevens Act, the AFA Program, Aleutian Islands Pollock Program, and Amendment 80 Program are individual fishing quota programs, because: (1) NMFS issues permits as part of a limited access system established under each of these programs; (2) these permits allow the harvest of a quantity of specific fisheries representing a portion of the TAC of the fisheries managed under each of these programs; and (3) these permits are received or held for exclusive use by specific persons as defined for each of these programs. Therefore, NMFS proposes to implement cost recovery fees for these programs as authorized and required in section 304(d)(2) of the Magnuson-Stevens Act. Sections III and IV of this preamble provide additional detail on the specific fisheries subject to cost recovery fees, the portions of the TACs allocated as a limited access privilege, the permits issued, and the persons receiving the permits for each of these limited access privilege programs.
NMFS also considered implementing a cost recovery fee program, under section 304(d) of the Magnuson-Stevens Act, for the BSAI Pacific cod allocation to the hook-and-line catcher/processors that are part of the Freezer Longline Coalition Cooperative. However, the BSAI Pacific cod allocation to the hook-and-line catcher/processors does not currently meet the definition of a limited access privilege program because the Freezer Longline Coalition Cooperative does not have an exclusive harvest privilege. This issue is addressed under the “Additional Alternatives Considered” heading in section V of this preamble.
Section 304(d)(2)(ii) of the Magnuson-Stevens Act provides the Secretary with the authority and requirement to collect fees to recover costs from the CDQ Program for fisheries in which a percentage of the TAC of a fishery is allocated to the CDQ Program. Section 305(i) of the Magnuson-Stevens Act authorizes the CDQ Program and specifies the annual percentage of the TAC allocated to the CDQ Program in each directed fishery of the BSAI. Section 305(i) also specifies the method for further apportioning the TAC allocated to the CDQ Program to specific persons,
Sections 304(d)(2)(B) and (C) of the Magnuson-Stevens Act specify an upper limit on cost recovery fees, when the fees must be collected, and where the fees must be deposited. Section 304(d)(2)(B) provides that the fee shall not exceed three percent of the ex-vessel value of fish harvested under either a limited access privilege program or a CDQ program that allocates a percentage of the TAC of a fishery to such a program. NMFS does not have the
Section 304(d)(2)(B) also states that the cost recovery fee must be collected at either the time of the landing, filing of a landing report, or sale of such fish during the fishing season, or in the last quarter of the calendar year in which the fish were harvested. NMFS proposes that all fees for all four programs included in this action would be due annually by December 31 of the calendar year in which the landings were made. This complies with the requirements of section 304(d)(2)(B). Section 304(d)(2)(C) requires that all fees be deposited in the Limited Access System Administration Fund, which was established under section 305(h)(5)(B). NMFS proposes to collect all fees electronically in U.S. dollars by automated clearing house, credit card, or electronic check drawn on a U.S. bank account. Those fees would be deposited in the Limited Access System Administration Fund. Sections III and IV of this preamble provide further details on how the fees will be assessed and collected for each of the limited access privilege programs and the CDQ Program.
NMFS has determined that cost recovery fee provisions in section 303A do not apply to the cost recovery fee program proposed in this rule, specifically the requirements in section 303A(e). The CDQ Program is not a limited access privilege program as defined in section 3 of the Magnuson-Stevens Act. Therefore, section 303A(e) does not apply to the CDQ Program.
Section 303A(e) also does not apply to the AFA, Aleutian Islands Pollock, and Amendment 80 Programs. NMFS based this determination on section 303A(i) of the Magnuson-Stevens Act. Section 303A(i) states: “[t]he requirements of this section [303A] shall not apply to any quota program, including any individual quota program, cooperative program, or sector allocation for which a Council has taken final action or which has been submitted by a Council to the Secretary, or approved by the Secretary, within 6 months after the date of enactment of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006.” The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 was enacted on January 12, 2007 (Public Law 109-479). Therefore, a quota program, including any individual quota program, cooperative program, or sector allocation is not subject to the requirements of section 303A(e) if a Council took final action on the program, a Council submitted the program, or the program was approved by the Secretary before July 10, 2007. All three of the limited access privilege programs included in this proposed rule were either recommended by the North Pacific Fishery Management Council, or approved by the Secretary and implemented prior to July 10, 2007.
The AFA Program was approved by the Secretary as an FMP amendment on February 27, 2002, and implemented in a final rule on December 30, 2002 (67 FR 79692, December 30, 2002). The Aleutian Islands Pollock Program was approved by the Secretary as an FMP amendment on February 9, 2005 and implemented as a final rule on March 1, 2005 (70 FR 9856, March 1, 2005). The North Pacific Fishery Management Council took final action to recommend the Amendment 80 Program on June 9, 2006. Additional detail on the North Pacific Fishery Management Council's final action to recommend the Amendment 80 Program is found in the final rule implementing the Amendment 80 Program (72 FR 52668, September 14, 2007). Therefore, the requirements of section 303A(e) of the Magnuson-Stevens Act do not apply to the AFA, the Aleutian Islands Pollock, or the Amendment 80 Program.
Although the AFA, Aleutian Islands Pollock, and Amendment 80 Programs were not established under the authority of section 303A of the Magnuson-Stevens Act, they do meet the definition of a “limited access privilege” under section 3 of the Magnuson-Stevens Act. A “limited access privilege” includes an “individual fishing quota.” The AFA, Aleutian Islands Pollock, and Amendment 80 Programs meet the definition of an “individual fishing quota” under section 3 of the Magnuson-Stevens Act. Specifically, under each of these programs, NMFS issues “a Federal permit under a limited access system to harvest a quantity of fish, expressed by a unit or units representing a percentage of the total allowable catch of a fishery that may be received or held for exclusive use by a person.”
To summarize, the Magnuson-Stevens Act specifies the following with respect to the collection of cost recovery fees:
• Fees must be collected for all limited access privilege programs;
• Fees must be collected for the CDQ Program;
• Fees must recover actual costs directly related to management, data collection, and enforcement of the programs;
• Fees must not exceed three percent of the ex-vessel value of a fish harvested under a program subject to cost recovery;
• Fees are in addition to any other fees charged under the Magnuson-Stevens Act;
• Fees must be deposited in the Limited Access System Administrative Fund (LASAF) in the U.S. Treasury; and
• Fees must be collected at either the time of a legal landing, filing of a landing report, or sale of such fish during a fishing season or in the last quarter of the calendar year in which the fish is harvested.
For more detail on the Secretary and NMFS' authority to implement cost recovery fees, please see section 1.1 of the RIR/IRFA.
NMFS has previously established cost recovery fee programs to implement the requirements of section 304(d)(2) of the Magnuson-Stevens Act. The specific fisheries, the NMFS Region where those cost recovery fee programs were implemented, and the date the cost recovery fee programs were implemented, are provided in Table 1. For a more detailed discussion of these programs, see section 1.8.2 of the RIR/IRFA.
The U.S. Government Accountability Office (GAO) examined cost recovery fee programs in 2005 (March 2005, GAO Report to Congressional Requestors GAO-05-24, available at
The GAO report examined the Halibut and Sablefish IFQ Program and found that NMFS was recovering the costs of management and enforcement, as required by the Magnuson-Stevens Act (see p. 4 of GAO-05-241). The GAO report noted that the Magnuson-Stevens Act does not define “actual costs” as directly related to the management and enforcement of an “individual fishing quota” program. The GAO report noted that actual costs could be interpreted as the full costs of managing an individual fishing quota program rather than those costs that are directly attributable to the implementation of an individual fishing quota program (
One of the two key recommendations of the GAO report is that NOAA should establish cost recovery fee programs as required and authorized by section 304(d)(2) of the Magnuson-Stevens Act for all management programs to which they would apply. The other recommendation was to develop guidance as to which costs are to be recovered and, when actual information is unavailable, how to estimate the costs (see p. 22 of GAO-05-241).
NOAA has established policy guidance to define the methods for determining costs and implementing cost recovery fee programs for limited access privilege programs (November 2007, NOAA Technical Memorandum NMFS-F/SPO-86, available at
It is NOAA policy to compute and recover from participants only the incremental operating costs associated with limited access privilege programs. . . . The relevant costs to recover are the incremental costs,
NOAA has determined that recovering incremental costs is appropriate because the Magnuson-Stevens Act specifies collection of a fee to recover the actual costs directly related to the management, data collection, and enforcement of limited access privilege program or the CDQ Program. Incremental costs refer only to the costs that are added because of the implementation of a limited access privilege program or the CDQ Program. For example, a fishery stock assessment would be required whether or not a limited access privilege program or CDQ Program existed. Under section 304(d)(2) of the Magnuson-Stevens Act, NMFS is not authorized to recover costs from non-limited access privilege program or non-CDQ Program fishery participants. Therefore, having participants in the limited access privilege programs or the CDQ Program pay fees to cover the costs of a stock assessment would not be consistent with current NOAA policy. However, if specific permits, monitoring and catch accounting provisions, or enforcement requirements are needed to manage, collect data, or enforce a limited access privilege program or CDQ Program, it would be appropriate to recover fees for those costs. See the “Reimbursable Costs” section of this preamble for additional detail on the costs subject to cost recovery fee collection. This proposed action is intended to be consistent with the recommendations of the 2005 GAO report and established NOAA policy on cost recovery fee programs.
The following sections provide a brief background on each of the programs for which NMFS proposes to implement a cost recovery fee program. For a more detailed description of each of these programs, please see section 1.5 of the RIR/IRFA.
On October 21, 1998, the President signed into law the AFA, which was Title II-Fisheries, Subtitles I and II, within the Omnibus Appropriations Bill FY 1999, Public Law 105-277. The AFA, as enacted in 1998, is available on the NMFS Alaska Region Web site:
NMFS allocates the Bering Sea pollock TAC to the AFA Program as a directed fishery allowance after subtracting the CDQ Program allocation of 10 percent of the TAC, and after subtracting a portion of the TAC as an incidental catch allowance to accommodate the incidental catch of pollock in non-pollock directed fisheries (
Section 208 of the AFA determined which vessels and which processors were eligible to participate in the inshore sector, the catcher/processor sector, and the mothership sector. NMFS issued AFA permits to 112 catcher vessels, 21 catcher/processors, and three mothership vessels. Section 210 of the AFA allowed the formation of fishery cooperatives in each AFA sector. Under a fishery cooperative, the members of a cooperative agree to divide the pollock allocation that the cooperative members. The AFA, in section 210(b), specifically regulated the formation of inshore cooperatives for catcher vessels. A catcher vessel with an AFA inshore endorsement has a choice of participating in the open access sector, and delivering pollock to any AFA inshore processor, or contributing its catch history to a cooperative, and delivering at least 90 percent of its pollock catch to the processor associated with the cooperative (AFA section 210(b); 50 CFR 679.4(l)(6)). Participants in the AFA open access sector would not be subject to cost recovery under this proposed rule because these persons do not receive an exclusive harvest privilege. Currently, all AFA vessels harvest and deliver pollock through a cooperative, rather than in open access.
Seven inshore cooperatives have formed. The amount of pollock allocated to an inshore cooperative is based on the amount of harvests of the members of the cooperative specified under section 206(b) of the AFA. For additional information on AFA inshore allocations, see NMFS Alaska Region Web site,
A cooperative has formed in the catcher/processor sector to harvest the exclusive harvest allocation provided to this sector. Participants in the catcher/processor sector have a joint agreement called the “Cooperative Agreement between Offshore Pollock Catchers' Cooperative and Pollock Conservation Cooperative” (AFA Offshore Joint Cooperative) to facilitate efficient harvest management and accurate harvest accounting between the participants in the catcher/processor sector. The AFA Offshore Joint Cooperative is defined under annual cooperative reports submitted to NMFS (Cooperative Reports, NMFS Alaska Region Web site,
The owners of all 19 catcher vessels eligible to deliver to a mothership in the Bering Sea pollock fishery have joined a single cooperative to coordinate harvests. This cooperative harvests the exclusive harvest allocation provided to the mothership sector as specified under section 206(b) of the AFA. For additional detail see the Cooperative Reports, NMFS Alaska Region Web site,
Section 1.5.3 of the RIR/IRFA and the final rule implementing the AFA provide more detailed information (67 FR 79692, December 30, 2002). The amounts of the Bering Sea pollock TAC currently allocated to each AFA cooperative and sector are specified in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).
Originally, the AFA applied to the directed pollock fishery in the entire BSAI (section 205(4), section 205(6), section 205(10) of original AFA). The BSAI consists of the Bering Sea subarea and the Aleutian Islands subarea (see regulatory definitions in § 679.2). In 2004, Congress separated the management of pollock between the Bering Sea and Aleutian Islands pursuant to the requirements of the Consolidated Appropriations Act of 2004 (Public Law 108-199). Under the requirements of the Consolidated Appropriations Act of 2004, NMFS allocates an exclusive harvest allocation representing a portion of the Aleutian Islands subarea pollock TAC to the Aleut Corporation.
NMFS implemented the requirements of the Consolidated Appropriations Act of 2004 with Amendment 82 to the FMP in 2005 (70 FR 9856, March 1, 2005). Regulations implementing Amendment 82 define the amount of pollock TAC that may be allocated in the Aleutian Islands subarea and how the Aleut Corporation may harvest its portion of this allocation. The Aleutian Islands pollock TAC is allocated to the Aleut Corporation for a directed pollock fishery after subtracting the CDQ Program allocation of 10 percent of the TAC, and after subtracting an incidental catch allowance to accommodate the incidental catch of pollock in non-pollock directed fisheries.
Prior to 2015, NMFS prohibited directed fishing for pollock inside Steller sea lion critical habitat in the Aleutian Islands as a measure to protect the endangered Steller sea lion (68 FR 204, January 2, 2003). Pollock in the Aleutian Islands occurs primarily inside Steller sea lion critical habitat. These closures of critical habitat in the Aleutian Islands to directed fishing precluded directed fishing in the Aleutian Islands. Therefore, prior to 2015, the allocation to the Aleut Corporation was not fully harvested and was reallocated each year to the Bering Sea pollock fishery. NMFS has implemented new regulations that allow directed fishing for pollock within critical habitat in the Aleutian Islands (79 FR 70286, November 25, 2014). This may provide additional harvest opportunities for the Aleut Corporation.
Section 1.5.3 of the RIR/IRFA and the final rule implementing the Aleutian Islands Pollock Program provide more detailed information (70 FR 9856, March 1, 2005). The amount of the Aleutian Islands pollock TAC currently allocated to the Aleut Corporation and reallocation to the Bering Sea is specified in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).
Amendment 80 to the FMP identified participants using trawl catcher/processors in the BSAI who are active in groundfish fisheries other than Bering Sea pollock (
The Amendment 80 program created Amendment 80 quota share based on the historic catch of quota share species by Amendment 80 vessels, facilitated the development of cooperative arrangements (Amendment 80 cooperatives) among quota shareholders, and assigned an exclusive harvest privilege for a portion of the TAC of quota share species for participants in Amendment 80 cooperatives. The Amendment 80 Program also allocates crab and halibut prohibited species catch (PSC) limits to constrain bycatch of these species while Amendment 80 vessels harvest groundfish. The Amendment 80 Program added sideboard limits to protect other fisheries from the potential adverse effects arising from the exclusive harvest privileges provided under the Amendment 80 Program.
NMFS identified 28 catcher/processor vessels that are eligible to participate in the Amendment 80 Program and NMFS has issued quota share based on the historic catch of these vessels. NMFS has issued Amendment 80 quota share to 27 eligible persons. One person who owns an eligible catcher/processor did not elect to apply for and receive Amendment 80 quota share and would not be subject to the provisions of this proposed rule because this person does not receive an exclusive harvest privilege for a portion of the Amendment 80 species TACs. Amendment 80 quota shareholders may annually elect to form a cooperative with other Amendment 80 quota shareholders to receive an exclusive harvest privilege for the portion of Amendment 80 species TACs resulting from the cooperative member's aggregated quota share holdings. This “cooperative quota” (CQ) is the amount of Amendment 80 species TACs dedicated for exclusive use by that cooperative.
Annually, each Amendment 80 quota shareholder elects to participate either in a cooperative or the limited access fishery. Participants in the limited access fishery do not receive an exclusive allocation for a portion of the TACs allocated to the Amendment 80 Program. Participants in the Amendment 80 limited access fishery would not be subject to cost recovery under this proposed rule because these persons do not receive an exclusive harvest privilege. Since 2011, all quota shareholders have participated in one of two cooperatives. (For additional detail see Cooperative Reports, NMFS Alaska Region Web site,
Section 1.5.1 of the RIR/IRFA and the final rule implementing the Amendment 80 Program provide more detailed information (72 FR 52668, September 14, 2007). The allocations of Amendment 80 species TACs to each of the Amendment 80 cooperatives are provided in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014).
The CDQ Program was implemented by NMFS in 1992 (57 FR 46133, October 7, 1992). Since the implementation of the CDQ Program, Congress has amended the Magnuson-Stevens Act to define specific allocations to the CDQ Program, as well as eligibility to participate in the CDQ Program.
A total of 65 villages are authorized under section 305(i)(1)(D) of the Magnuson-Stevens Act to participate in the CDQ Program. Six CDQ groups represent these villages. The CDQ groups include the Aleutian Pribilof Island Community Development Association (APICDA), the Bristol Bay Economic Development Corporation (BBEDC), the Central Bering Sea Fishermen's Association (CBSFA), the Coastal Villages Region Fund (CVRF), the Norton Sound Economic Development Corporation (NSEDC), and the Yukon Delta Fisheries Development Association (YDFDA). CDQ groups manage and administer CDQ allocations and use the revenue derived from the harvest of their CDQ allocations to fund economic development activities and provide employment opportunities on behalf of the villages they represent. See section 1.5.2 of the RIR/IRFA for additional information on the CDQ Program.
Section 305(i)(B) of the Magnuson-Stevens Act specifies the proportion of the crab, groundfish, and halibut TACs in the BSAI allocated to the CDQ Program. Section 305(i)(C) of the Magnuson-Stevens Act specifies the proportion of the overall CDQ Program allocations assigned to each CDQ group. The proportion of the CDQ Program allocations of each species assigned to each of the six CDQ groups is described in a final rule defining the regulation of the CDQ Program (71 FR 51804, August 31, 2006). Each year, NMFS publishes the specific annual allocations of CDQ groundfish and halibut TACs to each CDQ group on the Alaska Region Web site at
NMFS first allocates crab, halibut and groundfish TACs to the CDQ Program, and then apportions the remaining TAC among other non-CDQ fishery participants. Because CDQ crab allocations are already subject to a cost recovery fee program (70 FR 10174, March 2, 2005), they are not addressed further in this preamble. The groundfish species and species groups currently allocated to the CDQ Program, and that would be subject to this proposed cost recovery fee program, are specified in the final 2014 and 2015 harvest specifications for the BSAI groundfish fisheries (79 FR 12108, March 4, 2014). The process for allocating halibut TACs to the CDQ Program is described in a final rule implementing the Halibut and Sablefish IFQ Program (58 FR 59375, November 9, 1993). The allocation of halibut to the CDQ Program varies by halibut management area and ranges from 20 to 100 percent of the area TACs.
The fishery resources allocated to the CDQ Program and the CDQ groups are under Federal jurisdiction, and NMFS remains primarily responsible for groundfish and halibut CDQ fisheries management. However, the State of Alaska (State) also retains some management responsibility for the CDQ Program. The State may incur costs in the management and enforcement of the CDQ Program that would be subject to a cost recovery fee. Section 304(d)(2)(C)(ii) of the Magnuson-Stevens Act provides that NMFS transfer up to 33 percent of any cost recovery fee collected for the CDQ Program “in order to reimburse such State for actual costs directly incurred in the management and enforcement of [the CDQ Program].” This proposed rule anticipates that the State may apply to NMFS for reimbursement of its management and enforcement costs. The potential costs subject to reimbursement are described in section 1.5.2 of the RIR/IRFA and the “CDQ Program” section of this preamble.
Section 305(i)(1)(G) of the Magnuson-Stevens Act designates specific administrative oversight responsibilities for the CDQ Program to an Administrative Panel. Section 305(i)(1)(G) specifies that the Administrative Panel shall coordinate and facilitate activities of the CDQ groups and administer those aspects of the CDQ Program not otherwise addressed in section 305(i)(1), including economic development aspects of the CDQ Program. Currently, the Western Alaska Community Development Association (WACDA) serves as the
As described in the “Statutory Authority” section of this preamble, cost recovery is the process by which NMFS would recover the actual costs associated with the management, data collection, and enforcement (also referred to as program costs) of the CDQ, AFA, Aleutian Islands Pollock, and Amendment 80 Programs. These program costs would be recovered annually through a fee paid by persons who hold a permit granting an exclusive harvesting privilege for a portion of the TAC in a fishery subject to cost recovery.
NMFS proposes to calculate the cost recovery fee for fish species that are allocated as exclusive harvest privileges under the CDQ groundfish and halibut, AFA, Aleutian Islands Pollock, and Amendment 80 Programs as a percentage of the ex-vessel value of allocated fish species harvested by the participants in each program. The cost recovery fee percentage would be determined annually by the Regional Administrator of the NMFS Alaska Region and published in a
Section 304(d)(2)(B) of the Magnuson-Stevens Act specifies that a cost recovery fee “shall be collected at either the time of the landing, filing of a landing report, or sale of such fish during a fishing season or in the last quarter of the calendar year in which the fish is harvested.” NMFS proposes to collect the cost recovery fee for the CDQ groundfish and halibut, AFA, Aleutian Islands Pollock, and Amendment 80 Programs by December 31 of each year, which is in the last quarter of the calendar year in which the fish were harvested. NMFS would notify each permit holder of their calculated fee liability for the fishing year by December 1 each year in which the landings were made. Each permit holder would be responsible for submitting the fee to NMFS by December 31 of the year in which the landings were made. The fee liability payment would need to be submitted to NMFS electronically by the December 31 deadline.
This approach is consistent with other cost recovery fee programs implemented by NMFS. Annual collection of cost recovery fees minimizes the administrative burden on fishery participants and NMFS by limiting fee assessment and collection to one time per year rather than requiring assessment and collection at the time of each landing or at multiple times throughout the year. The use of electronic payment of cost recovery fees would reduce the administrative costs of processing payments, and provides an efficient method for permit holders to submit fees. In addition, all of the permit holders subject to a cost recovery fee regularly report to NMFS using electronic means and it is a submission method readily available to them. The details of the proposed procedures for the collection of cost recovery fees for the CDQ, AFA, Aleutian Islands Pollock, and Amendment 80 Programs are discussed in detail below in the “Proposed Action” section of this preamble.
To calculate the annual fee liability for each permit holder in the CDQ, AFA, Aleutian Islands Pollock, and Amendment 80 Programs, NMFS would (1) calculate the standard price for each fishery species allocated under a program; (2) calculate the ex-vessel value of each fishery species allocated under a program by multiplying the standard price by the total amount of landings in each fishery under a program; (3) calculate the total ex-vessel value of all fisheries landed under a program by adding together the ex-vessel values of each fishery species under a program; (4) calculate the total program cost by adding together the costs of managing each fish species under a program; (5) calculate a fee percentage (not to exceed three percent of the ex-vessel value of fish harvested under any such program) for a program by dividing total program costs by the total ex-vessel value for all fishery species under a program; and (6) calculate the fee amount that will be assessed for each permit holder by multiplying the fee percentage by the permit holder's total ex-vessel value of the fishery landings under a program. The final figure would be the annual fee owed by each permit holder.
An effective cost recovery fee program requires using existing data or collecting additional data to calculate species ex-vessel values, using a standardized methodology to assess program costs, assigning the appropriate fee to each person holding a permit, and ensuring that fees are submitted in full and on time. The primary components of the cost recovery fee programs proposed in this action include defining the: (1) Person and permit subject to cost recovery fee liability; (2) fee percentage; (3) ex-vessel value; (4) ex-vessel prices; (5) information sources; (6) reimbursable costs; (7) fee liability notice and submission method; (8) payment compliance; and (9) annual reporting. Each of these components is discussed in the following sections of the preamble.
To implement a cost recovery fee program, NMFS must identify the person and permit that are subject to the fee liability. As described above in the “Statutory Authority” section, the Magnuson-Stevens Act definition of “person” includes any individual, corporation, partnership, association, or other non-individual entity. The permit is the documentation that grants a person an exclusive harvest privilege.
In each of the cost recovery fee programs proposed in this action there is documentation that grants a person permission to fish for a certain percentage or specific amount of the TACs allocated to that program. The person receiving the exclusive harvesting privilege and the nature of the permit providing that privilege is different for each of the proposed cost recovery fee programs, as shown in Table 2. A more detailed description of the person and permit that would be subject to cost recovery for each program is provided in the “Proposed Action” section of this preamble.
In addition to specifying the person subject to cost recovery, NMFS would require program participants to designate an individual who would be responsible for submitting the cost recovery fee to NMFS. A more detailed description of this proposed requirement is provided in section IV of this preamble.
Section 304(d)(2) of the Magnuson-Stevens Act specifies that a cost recovery fee may not exceed three percent of the ex-vessel value of the fish harvested under the fisheries subject to cost recovery. Sections 1.8.4, 1.8.5, and 1.8.6 of the RIR/IRFA estimate the cost recovery fee percentage for the CDQ, AFA, Aleutian Islands Pollock, and Amendment 80 Programs based on estimated ex-vessel revenue and program costs from 2010 through 2013. The estimated annual cost recovery fee percentages for the proposed cost recovery fee programs range from a minimum of 0.29 percent of the ex-vessel value of Bering Sea pollock allocated to AFA inshore cooperatives to a maximum of 1.62 percent of the ex-vessel value of fisheries allocated to Amendment 80 cooperatives. To reach the maximum fee percentage, program costs would have to increase significantly or fishery revenue would need to decline significantly. NMFS does not anticipate increases in management costs or declines in fishery revenue by amounts large enough to reach the three percent level in the foreseeable future in any of the proposed cost recovery fee programs.
The cost recovery fee percentage for a cost recovery program would be equal to the program costs divided by the ex-vessel value of the fishery species covered by that program. The program costs would be the program costs for the most recent Federal fiscal year, and the ex-vessel value of the fishery species is the ex-vessel value of the landings subject to the cost recovery fee liability for the current calendar year. Under the proposed regulations, the fee percentage is calculated using the program costs from the most recent Federal fiscal year. Specifically, a cost recovery fee program participant would be required to pay their fee by December 31 of a calendar year, based on the costs incurred for management, data collection, and enforcement of that program from October 1 of the previous calendar year through September 30 of the current calendar year.
NMFS intends to use this accounting method to ensure that program costs associated with the management, data collection, and enforcement of a limited access privilege program and the CDQ Program can be reviewed, by NMFS, prior to the time that the cost recovery fee is due. It would also reduce administrative burden and costs to track program costs as they currently accrue and are debited from specific accounts, on a Federal fiscal year basis. NMFS would calculate and publish the fee percentage for the CDQ groundfish and halibut, AFA and Aleutian Islands Pollock, and Amendment 80 Programs in the
The ex-vessel value of fish harvested under a permit would equal the sum of all payments of monetary worth made for the sale of raw, unprocessed catch of the species subject to cost recovery. This would include any retroactive payments (
For example, if a retroactive payment is received after the initial payment was made at the time of landing, but during the same calendar year in which the landing was made, the cost recovery fee for those retroactive payments also would be due by December 31 of the year in which the landings were made. If retroactive payments are received by permit holders during the year following the calendar year when those fish were landed, then cost recovery fees associated with those post-season retroactive payments would be due by December 31 of the calendar year the retroactive payments were received and be subject to the cost recovery fee in effect for the calendar year in which the retroactive payment was made. This method for calculating ex-vessel value is similar to the method used in the cost recovery fee program for the Rockfish Program (76 FR 81248, December 27, 2011). Section 1.7.2 of the RIR/IRFA provides additional detail on the calculation of ex-vessel value and retroactive payments.
NMFS would use standard prices rather than actual prices to calculate the ex-vessel value of landings for each fishery species. A standard price would be determined using information on landings purchased (volume) and ex-vessel value paid (value). The processors of fish harvested under the CDQ groundfish and halibut, AFA, Aleutian Islands Pollock, and Amendment 80 Programs would provide this information. NMFS would annually summarize volume and value information for landings of all fishery species subject to cost recovery in order to estimate a standard price for each fishery species, except for rock sole.
Rock sole is allocated to and harvested by vessels participating in the Amendment 80 and CDQ Programs. Rock sole volume and value reports would be reported once each year, but
Use of a standard price is not precluded under section 304(d)(2) of the Magnuson-Stevens Act. NMFS uses a standard price in the cost recovery fee programs for the Crab Rationalization Program and the Rockfish Program. The use of an actual price would require that the permit holder or a designated representative document all landings and prices for fishery species subject to cost recovery. This additional documentation can impose additional costs on permit holders to document and retain information on all landings and prices. The cost recovery fee program for the Halibut and Sablefish IFQ Program allows permit holders to use either standard or actual prices. However, very few Halibut and Sablefish IFQ permit holders have used actual prices. Based on that experience, NMFS proposes to use a standard price in all cost recovery fee programs proposed under this action. NMFS would publish the standard prices by fishery species in the
NMFS proposes three methods for collecting and aggregating volume and value data to calculate standard prices. The first method would implement data collection using two new volume and value reports to calculate standard prices for all fishery species other than halibut and pollock. The second method would use data already collected under the IFQ Buyer Report to calculate standard prices for halibut. The third method would use data already collected under the Commercial Operator's Annual Report (COAR) to calculate standard prices for pollock. NMFS proposes to implement the two new volume and value reports for fishery species other than halibut and pollock because sufficient information is not otherwise available on a timely basis from other sources to determine a standard price paid by processors for a fishery species subject to cost recovery. This approach minimizes the cost and burden of recordkeeping and reporting requirements on fishery participants.
In developing the proposed rule, NMFS held public workshops in Anchorage, AK, and Seattle, WA, in 2013 to receive input from affected industry participants on appropriate methods for calculating the standard price for specific fishery species (78 FR 25426, May 1, 2013). Participants in these public workshops supported the methods proposed for calculating the standard price in this rule. The following sections of the preamble describe the methods NMFS would use to collect and aggregate volume and value data to calculate standard prices and ex-vessel values.
Two types of new volume and value reports would be required under the proposed action—a Pacific Cod Ex-Vessel Volume and Value Report and a First Wholesale Volume and Value Report.
This proposed rule would require shoreside processors, designated on a Federal Processor Permit (FPP), and motherships, designated on a Federal Fisheries Permit (FFP), that process landings of either CDQ Pacific cod or BSAI Pacific cod harvested by a vessel using trawl gear to submit a Pacific Cod Ex-vessel Volume and Value Report. The Pacific Cod Ex-vessel Volume and Value Report would require shoreside processors and motherships to submit information including the total pounds of Pacific cod purchased, the total gross ex-vessel value paid by gear type (trawl and fixed gear), as well as identifying information for the processor (
The information submitted would be used by NMFS to calculate an annual standard price for Pacific cod for Amendment 80 cooperatives and CDQ groups. NMFS would calculate a separate standard price for Pacific cod harvested by trawl gear and Pacific cod harvested by fixed gear. The fixed gear standard price would apply to all landings made by vessels subject to cost recovery and using hook-and-line, jig, or pot gear. A standard price would be determined for trawl and fixed gear separately because the ex-vessel value of Pacific cod can differ between trawl and fixed gear (see section 1.7.2.2 of the RIR/IRFA for additional detail).
The standard price for trawl gear would be used for Amendment 80 cooperatives and for trawl vessels harvesting Pacific cod allocated to CDQ groups. The standard price for fixed gear would be used for vessels harvesting Pacific cod for CDQ groups using hook-and-line, jig, or pot gear. Because Amendment 80 cooperatives only harvest Pacific cod using trawl gear, NMFS does not anticipate using a standard price derived from fixed gear vessels for Amendment 80 cooperatives.
The second type of new volume and value report that would be required is the First Wholesale Volume and Value Report. A First Wholesale Volume and Value Report would be used to collect volume and value data for all fishery species of groundfish allocated to the Amendment 80 and CDQ Program except for fixed gear sablefish, halibut, Pacific cod, and pollock. Section 1.7 of the RIR/IRFA lists each fishery species that would be subject to the requirements of a First Wholesale Volume and Value Report. The instructions on the First Wholesale Volume and Value Report would also list these species on an annual basis.
This proposed rule would require that Amendment 80 vessel owners submit a First Wholesale Volume and Value Report. NMFS would use data from Amendment 80 vessels to calculate standard prices for species covered by the First Wholesale Volume and Value Report because these species are harvested primarily, if not almost exclusively, by Amendment 80 vessels (see Section 1.7.2.1 of the RIR/IRFA for additional detail). The First Wholesale Volume and Value Report would require information on the fishery species and pounds harvested, the first wholesale value of the fishery species, as well as identifying information for the catcher/processor (
The data from the First Wholesale Volume and Value Report would satisfy requirements in section 304(d)(2) of the Magnuson-Stevens Act that cost recovery fees be based on the ex-vessel value of fish. The First Wholesale Volume and Value Report would be used to obtain volume and value information for directed fisheries where fishery species are harvested and processed exclusively, or almost exclusively, by trawl catcher/processors. For these fishery species, there is no reliable ex-vessel price generated from the sale of fish from a harvester to a processor. Therefore, the ex-vessel price for those fishery species must be estimated. An ex-vessel price can be estimated by using information on the first wholesale price. The first wholesale price is the market price of the primary processed fishery product.
Since the late 1990s, the Alaska Fisheries Science Center (AFSC) has imputed an ex-vessel price for fish from the first wholesale price based on a fraction of the processed-product price. The imputed ex-vessel price, also referred to as the proxy price, is the value of processed products from catcher/processor vessels divided by the retained round-weight (unprocessed weight) of catch and multiplied by a factor of 0.4 to correct for the value added to the fish product by processing. Processed product values and round weights would be derived from the First Wholesale Volume and Value reports submitted by Amendment 80 vessels. A more detailed discussion of the methods for determining a proxy price can be found in section 1.7.2 of the RIR/IRFA prepared for this action.
The reporting period for the Pacific Cod Ex-vessel Volume and Value Report and the First Wholesale Volume and Value Report would be from January 1 to October 31. These reports would be due on November 10. NMFS proposes this time period to allow enough time for submitter to prepare the reports and for NMFS to prepare the standardized prices to be published in the
The standard price for the entire calendar year for species subject to cost recovery fees other than fixed-gear sablefish, halibut, and pollock would be based on volume and value data from January 1 through October 31. NMFS expects these data would provide an accurate ex-vessel price for fish harvested in November and December for several reasons. First, for many fisheries, effort in November and December subsides. Therefore, landings in those fisheries in November and December represent a small proportion of overall annual harvests. For example, landings of Atka mackerel, sablefish, Pacific cod, and Pacific ocean perch have generally concluded by October 31 and few landings are made in November and December relative to the rest of the year. Second, NMFS reviewed information from existing data sources, such as the COAR, and determined that ex-vessel values for fishery species proposed for cost recovery do not differ substantially in November and December relative to ex-vessel values prior to October. Therefore, even if data were collected from landings in November and December it would not be expected to have a substantive effect on the annual estimate of ex-vessel price for a fishery species (See Section 1.7.2.2 of the Analysis for additional detail). Although rock sole prices do fluctuate during a calendar year, NMFS would be collecting data during the first quarter of the year (from January 1 through March 31) and from the remainder of the year (April 1 through October 31) to reflect those intra-annual variations in prices. In the specific case of rock sole, prices after April 1 and through October 31 are relatively constant and similar to prices in November and December. Therefore, collecting data on rock sole prices after October would not provide additional detail needed to establish a standard price for rock sole for the last three quarters of the year (April through December 31). Finally, during public workshops, NMFS discussed limiting the volume and value reporting period to the first ten months of the year (January 1 through October 31). Members of the industry that participated in the public workshops did not raise concerns about this approach. NMFS notes that it would continue to monitor ex-vessel prices received through the COAR, as well as through feedback from affected industry participants. If needed, NMFS can adjust the reporting period in the future through subsequent rulemaking to reflect any variations in prices that may be observed.
NMFS currently requires participants in the Halibut and Sablefish IFQ Program to submit a cost recovery fee based on either actual prices, or standard prices, for IFQ halibut and sablefish. Standard prices are determined based on information from an IFQ Buyer Report (see § 679.5(l)(7)(i)). An IFQ Buyer Report is required from each IFQ registered buyer that operates as a shoreside processor and that receives and purchases IFQ halibut or sablefish or CDQ halibut. The IFQ Buyer Report includes information regarding volume and value of IFQ halibut and sablefish and CDQ halibut landings by month, port, and IFQ registered buyer.
The IFQ Buyer Report is based upon a reporting period from October 1 of the previous year to September 30 of the current year. The IFQ Buyer Report is due on October 15 each year. NMFS proposes using the standard prices calculated from the IFQ Buyer Report for the Halibut and Sablefish IFQ Program to establish standard prices and ex-vessel values for CDQ halibut and fixed gear sablefish by month. NMFS would use standard prices and ex-vessel values calculated from information already required to be submitted under current regulations to avoid duplication with other data collection programs, and eliminate the costs and burden associated with developing a new data collection method for establishing standard prices and ex-vessel value for the CDQ fisheries. NMFS would be able to determine a standard prices and ex-vessel values for the CDQ halibut and fixed-gear sablefish fisheries harvested from October 1 of the previous calendar year through September 30 of the current year and provide that information to CDQ groups by December 1 of the current calendar year as part of their annual fee liability statement.
NMFS proposes to use the COAR to determine the standard price and ex-
Because data from the COAR are not available until November following the calendar year in which they are collected, they are not suitable for use for establishing a standard price where values change substantially from year to year. Section 1.7.2.2.1 of the RIR/IRFA notes that aggregate prices of pollock do not change substantially from year to year, particularly when aggregated over an entire calendar year as proposed in this rule. Therefore, COAR data collected in the previous calendar year could effectively be used to establish a standard price for BSAI pollock fisheries during the current calendar year.
Because the aggregate prices of pollock tend to remain stable from year-to-year, the quantity of harvest is the most significant factor in determining the ex-vessel value of pollock. Therefore, NMFS does not anticipate that using standard prices calculated from the COAR would substantively affect the amount of cost recovery fees an AFA cooperative or the Aleut Corporation would have to pay if the fee liability is not expected to exceed three percent of the standard ex-vessel value. As noted earlier, NMFS does not expect the fee for the AFA or Aleutian Island Pollock Programs to exceed three percent in the foreseeable future. Since the estimates of the cost recovery fees are less than the three-percent limit, the precision of the data used to establish the standard price and the standard ex-vessel value will have negligible impact on the fee liability that would be paid by each entity.
Input from members of the affected industry during the public workshops indicated that they support using annual COAR data to estimate prices for the AFA and Aleutian Islands pollock fisheries, even though it would require that previous year's prices are used to establish a standard ex-vessel value. The use of COAR data to establish a standard ex-vessel value for the BSAI pollock fisheries would provide a reasonable method to establish a standard price, would avoid duplication with existing data collection programs, and eliminate the costs and burden associated with developing a new data collection method. The standard price, as calculated using COAR data from AFA inshore processors, would be used to determine the standard price for all AFA and Aleutian Islands pollock landings. For more information on the COAR, please see
NMFS proposes to recover the incremental costs associated with the management, data collection, and enforcement of the CDQ groundfish and halibut, AFA, Aleutian Islands pollock, and Amendment 80 Programs. As described above in the “Statutory Authority” section of this preamble, this is consistent with NOAA policy for implementing cost recovery fee programs. Section 1.8.3 of the RIR/IRFA and Tables 1-34 and 1-35 in the RIR/IRFA includes detailed information about the types of costs that NMFS incurs in the management of the CDQ groundfish and halibut, AFA, Aleutian Islands pollock, and Amendment 80 Programs. These types of incremental costs that NMFS incurs are summarized in Table 3 below.
NMFS does not currently account for incremental costs for each of these programs, because there is not a cost recovery fee program in place for these programs. NMFS has provided estimates of costs for managing the AFA, Aleutian Islands pollock, Amendment 80, and CDQ groundfish and halibut Programs based on the best available information, but lacks information to provide more precise estimates. NMFS would provide a detailed accounting of costs once this rule became effective, if approved.
NMFS would capture the incremental costs of managing the fisheries through an established accounting system that allows NMFS to track labor, travel, and procurement. This process is described in Section 1.8.3 of the RIR/IRFA. This accounting system for management costs is consistent with the methods NMFS uses to account for costs in the Halibut and Sablefish IFQ Program, Crab Rationalization Program, and Rockfish Program.
Once the incremental costs for the most recent Federal fiscal year are identified, that amount is recovered from all permit holders in the program. NMFS would adjust the total management costs, annually, to account for any adjustments or payments received during the previous calendar
During public workshops held on this proposed action, participants in some fisheries that would be subject to a cost recovery fee requested that NMFS consider crediting, or reducing, the cost recovery fee for expenses that participants incur to cooperatively manage and monitor harvests. NMFS acknowledges that industry has taken an active role in establishing industry-based measures to coordinate and communicate information in fisheries for which participants receive an exclusive harvest privilege for a portion of the TAC, particularly in fisheries that utilize harvest cooperatives. However, regardless of these industry-based measures, NMFS has identified actual costs that it incurs that are directly related to the management, data collection, and enforcement of these programs.
Expenses that industry incurs that directly reduce the NMFS' costs for implementing and maintaining the program would reduce the cost recovery fee. That is, NMFS would not assess a fee for any costs it does not incur due to changes in fishing patterns with the implementation of a limited access privilege program. Section 1.8 of the RIR/IRFA provides additional detail on costs that are due to the implementation of the AFA, Aleutian Islands Pollock, Amendment 80, and CDQ Programs including the establishment of new permitting, regulatory provisions, monitoring requirements, data management, and other costs.
Each year by December 1, NMFS would send each permit holder or their designated representative a fee liability summary letter for the fees required for that year. The fee liability summary letter would calculate each permit holders' fee liability. The fee liability would be calculated by NMFS based on: (1) The standard price determined by using data from the applicable volume and value report, IFQ Buyer Report, or the COAR; (2) the total amount of landings by a permit holder from January 1 through November 30 of that year; (3) NMFS's estimate of landings for a permit holder from December 1 through December 31 of that year; and (4) and NMFS' actual costs from October 1 of the previous calendar year through September 30 of the current calendar year. The total cost recovery fee would need to be submitted electronically to NMFS no later than December 31 of the calendar year in which the landings were made.
Because the fee liability notice would be sent on December 1, and the fee liability is assessed through the end of the year (December 31), NMFS would estimate landings for each permit holder that would be made between December 1 and December 31. NMFS would provide an estimate of landings between December 1 and December 31 because it is not possible to prepare and provide a fee liability notice to each permit holder for landings through December 31, and require payment from each permit holder before fishing begins on January 1 of the following year.
NMFS notes that estimates of landings would only be required for some of the fisheries subject to a cost recovery fee. In the case of the AFA and Aleutian Islands Pollock Programs, directed fishing for pollock is prohibited after November 1 (see regulations at § 679.23(e)(2)(ii)), therefore there would be no need to estimate landings from December 1 through December 31. Some CDQ fisheries are closed prior to December 1, including Atka mackerel, fixed-gear sablefish, and halibut (see regulations at § 679.23(e)(4)(iii)). Therefore, there would be no additional landings in December for these fisheries, and an estimate of landings would not be required from December 1 through December 31.
For other Amendment 80 and CDQ groundfish fisheries (
Any actual landings from December 1 through December 31 that were less than the estimated landings during this period would be accounted for in reporting for the following year and would result in a credit to the permit holder and would be deducted from the permit holder's fee liability for the following year. Any actual landings that were greater than the estimated landings would be accounted for in reporting for the following year and would result in a debit to the permit holder and would be added to the permit holder's fee liability for the following year. Section 1.10 of the RIR/IRFA also describes how NMFS would adjust the fee liability for a permit holder from one year to the next to account for differences in actual and estimated landings from December 1 through December 31.
A permit holder would incur a fee liability for all fish that is landed and debited against the permit authorizing the permit holder to land fish in a program subject to cost recovery. This proposed rule would require a permit holder to designate a representative who would be responsible for submitting this payment to NMFS on or before the due date of December 31 of the year in which the landings were made. NMFS notes that the permit holder must self-collect the amount due for all landings on his or her permit(s). NMFS advises program participants subject to cost recovery to ensure that adequate funds are retained on an annual basis to ensure that the fee liability can be paid. For example, during the first year of implementation, it may be advisable for the permit holder to retain a fixed percentage of the value of ex-vessel prices paid to harvesters for CDQ groundfish and halibut, AFA, Aleutian Islands Pollock, and Amendment 80 species throughout the year. This would ensure that the permit holder could pay the required fees for fishing during the calendar year when the fee is due on December 31 of that calendar year. The “Proposed Action” section of this preamble provides estimates of the range of fee percentages that may be required for each of the cost recovery fee programs, and could be used as a basis to establish a reasonable amount for each permit holder to retain.
This proposed rule would require a permit holder to designate a representative to submit the fee on the permit holder's behalf. Any permit holder who has incurred a fee liability would be required to pay the fee
This proposed rule would establish an exception to this general requirement for the full payment of a cost recovery fee liability for the AFA Offshore Joint Cooperative. During public workshops prior to the development of this proposed rule, participants in the AFA Offshore Joint Cooperative noted the challenges of adequately coordinating among all members of their cooperative given the relatively large numbers of participants in the AFA Offshore Joint Cooperative. Industry participants suggested that withholding the entire Bering Sea pollock directed fishery allocation to the AFA Offshore Joint Cooperative if a complete and timely payment is not received would not be an appropriate management response. NMFS proposes that if the designated representative for the AFA Offshore Joint Cooperative has made a timely payment to NMFS of an amount less than the fee liability NMFS estimated, NMFS may choose to issue a quota allocation corresponding to the same percentage of the cost recovery fee received from the cooperative or group. For example, if only 90 percent of the fee liability were received on a timely basis, NMFS would only issue 90 percent of the Bering Sea pollock directed fishery TAC to the AFA Offshore Joint Cooperative.
NMFS does not propose to extend this provision to AFA inshore cooperatives, or the AFA mothership cooperative, because participants in other AFA cooperatives did not raise similar concerns about coordination. NMFS would not propose to extend this same provision to the Amendment 80 or CDQ Programs because these programs receive allocations from more than one species, and determining which allocation to withhold due to a partial payment is not possible. In addition, NMFS has not received a request from participants in the Amendment 80 or CDQ Programs to establish such a provision. NMFS specifically requests comment on the need and applicability of this proposed provision for the AFA Offshore Joint Cooperative.
If a permit holder or designated representative fails to submit full payment for their cost recovery fee liability by December 31 of the year in which the landings were made, under this proposed rule, NMFS could 1) at any time thereafter send an initial administrative determination (IAD) to the permit holder or designated representative stating their fee liability; and 2) disapprove any application to transfer quota to or from the permit holder or group which receives an annual allocation. The IAD would state that the permit holder's estimated fee liability due from the permit holder had not been paid. Any such formal determination may be appealed.
NMFS has recently established a National Appeals Office (NAO) located at NMFS Headquarters in Silver Spring, Maryland. In 2014, NMFS adopted rules of procedure for NAO appeals in 15 CFR part 906 (79 FR 7056, February 6, 2014). The appeal procedures in 15 CFR part 906 are mandatory for appeals in limited access privilege programs developed under section 303A of the Magnuson-Stevens Act. None of the programs subject to cost recovery in this proposed rule were developed under section 303A of the Magnuson-Stevens Act, and appeals are not required to be heard under the procedural rules at 15 CFR part 906. NMFS may, however, use the NAO to review appeals in programs where NAO does not have mandatory jurisdiction. NMFS proposes that the NAO review any appeals submitted under the provisions of this proposed action. These appeals would use NAO procedural rules.
Under NAO procedural rules, an applicant, a permit holder in this case, who appeals an IAD would not receive a permit designating an exclusive harvest privilege for a portion of the TAC in limited access privilege program or CDQ fisheries until the appeal was resolved in the applicant's favor. Finally, upon final agency action, NMFS may continue to prohibit issuance of permits or quota allocation for any subsequent calendar years until NMFS receives full payment of any unpaid fees. If payment is not received within 30 days after final agency action, the agency may pursue collection of the unpaid fees.
Upon issuance of final agency action, payment submitted to NMFS in excess of any cost recovery fee liability determined to be due by the final agency action will be returned to the permit holder unless he or she requests the agency to credit the excess amount against the permit holder's future cost recovery fee liability. Payment processing fees may be deducted from any fees returned to the permit holder or designated representative.
Administrative fees may be assessed if the account drawn on to pay cost recovery fee liability has insufficient funds, or if the account is delinquent. Additionally, interest would begin accruing the day after the due date up until payment is received. The interest rate is set annually by the Department of Treasury. If payment has not been received 90 days after the due date, NMFS may also assess a one-time penalty fee of six percent of the amount owned.
NMFS would annually publish a report for each of the proposed cost recovery fee programs about the performance of the program. The annual report would provide information regarding the amount of the fees received by NMFS, the disposition of the fees, and the program costs used in determining the fee for the previous year. The annual report is consistent with the reports NMFS provides for the three other cost recovery fee programs implemented in the Alaska Region.
The proposed action would implement a cost recovery fee program for the AFA, Aleutian Islands Pollock, Amendment 80, and CDQ groundfish and halibut Programs. The following sections provide additional detail on the primary components of each of the proposed cost recovery fee programs, and a discussion of the estimated reimbursable costs and cost recovery fees for each program. A detailed description of each proposed cost recovery fee program can be found in section 1.10 of the RIR/IRFA.
As described in the “American Fisheries Act Program” section of this preamble, the AFA allocates the Bering Sea pollock TAC to three sectors—catcher/processor, mothership, and inshore. Each of these sectors created one or more cooperatives to promote the rational and orderly harvest and processing of pollock (see Table 5 of this preamble). Because management costs can differ among these three sectors, NMFS proposes to assess management fees for the each of the AFA sectors separately. These are explained in greater detail in Table 7 of this preamble, and section 1.8.6 of the RIR/IRFA.
NMFS proposes adding regulations at § 679.61(e)(1)(vi) that require each AFA cooperative include a requirement that lists the obligations of members of a cooperative to ensure the full payment of all AFA fee liabilities that may be due. This proposed regulation does not proscribe the specific measures that an AFA cooperative may choose to
The AFA Offshore Joint Cooperative would be subject to an AFA cost recovery fee. The AFA Offshore Joint Cooperative receives an exclusive harvest privilege of up to 99.5 percent of the TAC allocated to the catcher/processor sector. As noted earlier in this preamble, the one statutorily defined catcher/processor participant who is not a member of the AFA Offshore Joint Cooperative is not subject to an AFA cost recovery fee. The individual responsible for submitting the cost recovery fee for the catcher/processor sector would be the AFA Offshore Joint Cooperative's designated representative.
The AFA Mothership Fleet Cooperative would be subject to an AFA cost recovery fee. The AFA Mothership Fleet Cooperative receives an exclusive harvest privilege for the AFA mothership sector. All participants in the AFA mothership sector are members of the AFA Mothership Fleet Cooperative. The individual responsible for submitting the cost recovery fee for the mothership sector is the Mothership Fleet Cooperative's designated representative.
AFA inshore sector cooperatives would be subject to an AFA cost recovery fee. The AFA Inshore Catcher Vessel Cooperative Permit (see § 679.5(l)(6)) lists the AFA catcher vessels and processors that are members of an inshore cooperative and the percentage of the AFA inshore sector allocation that a cooperative receives. The individual responsible for submitting the cost recovery fee for each inshore cooperative would be the designated cooperative representative identified in a cooperative's application for an AFA Inshore Catcher Vessel Cooperative Permit.
Table 4 summarizes the information used to determine standard prices, any additional reporting requirement, calculation of the standard ex-vessel value, the person responsible for submitting the fee payment, and submittal requirements and deadlines for each AFA cooperative.
The annual Aleutian Islands pollock TAC is allocated to the Aleut Corporation. The representative designated by the Aleut Corporation would be responsible for submitting the cost recovery fee. The CEO of the Aleut Corporation is the designated representative, unless the Aleut Corporation Board of Directors notifies the Regional Administrator in writing of an alternate designated representative. Table 5 summarizes the information used to determine standard prices, any additional reporting requirement, calculation of the standard ex-vessel value, the person responsible for submitting the fee payment, and submittal requirements and deadlines for each AFA cooperative.
Table 6 provides a summary of AFA and Aleutian Islands pollock gross ex-vessel revenue, recoverable costs, and what the resulting cost recovery fee percentage would have been for 2009 through 2013. Recoverable costs are based on management costs estimated to be incurred by several divisions within the Alaska Region of NMFS, NOAA Office of Law Enforcement (NMFS OLE), and the NMFS Observer Program (Observer Program). NMFS notes that recoverable costs were not identified in the RIR/IRFA for the Alaska Department of Fish and Game (ADF&G), the Alaska Fisheries Science Center (AFSC), or the North Pacific Fishery Management Council. NMFS notes that a directed fishery for Aleutian Islands pollock has not occurred since the implementation of the Aleutian Islands Pollock Program in 2005, and NMFS has reallocated the available allocation of Aleutian Islands pollock to the Bering Sea fishery. Because the directed pollock fishery in the Bering Sea is managed under the AFA, the revenues and costs from the reallocated Aleutian Islands pollock are associated with the AFA. This means that during this time period, the recoverable costs would have been associated with the AFA Program. Those revenues and costs are described in Table 6 of this preamble. If directed pollock fishing occurs in the Aleutian Islands in future years, NMFS would assess the Aleut Corporation a cost recovery fee for the directed Aleutian Islands pollock fishery.
If the same fee percentage were applied to all AFA sectors, the fee would have ranged from a high of 0.58 percent in 2010 to a low of 0.29 percent in 2012. Because the management costs associated with the AFA catcher/processor, inshore, and mothership sectors are known to vary, Table 6 provides estimates of the cost recovery fee percentage when it is established for each sector—catcher/processor (C/P), mothership (MS), and inshore. Those data indicate that the catcher/processor sector would pay a greater cost recovery fee than the mothership or inshore sector. The catcher/processor sector would pay a greater cost recovery fee percentage because enforcement and observer program costs are greater for that sector, relative to the others. Additional detail on the costs associated with each of the AFA sectors is provided in section 1.8.6 of the RIR/IRFA.
In each year considered in Table 6, the fee percentage for each sector was less than 0.75 percent of the ex-vessel value of the fishery. This means that AFA program costs would need to increase by a minimum of 400 percent,
BSAI ex-vessel pollock prices will be derived from the COAR. The rationale for using the COAR has been described earlier in this preamble. Pollock standard prices would be the average ex-vessel price for the year. The average ex-vessel price, calculated using the inshore sectors' COAR data, would be used to determine the annual standard price for all AFA, Aleutian Islands, and CDQ pollock landings. The assessment of fees for pollock harvested by CDQ Groups is described in the “CDQ Cost Recovery Fee Program” section of this preamble. The inshore price would be used as a standard price for all BSAI pollock landings because it provides an ex-vessel price based on the sale of pollock, rather than imputing an ex-vessel price from wholesale value to estimate a standard price.
Once the standard price has been calculated, NMFS would determine the fee percentages and announce the percentage in a
NMFS issues the CQ permit to an Amendment 80 cooperative based on an annual CQ permit application submitted by each Amendment 80 cooperative. The Amendment 80 CQ permit application specifies the cooperative's designated representative. The Amendment 80 cooperative's designated representative would be responsible for submitting the cost recovery fee for the cooperative under this proposed action. Amendment 80 quota shareholders who do not choose to join an Amendment 80 cooperative may participate in the Amendment 80 limited access fishery. The Amendment 80 limited access fishery does not meet the definition of a limited access privilege program, and participants in that fishery would not be subject to a cost recovery fee. Since 2011, all 27 catcher/processors participating in the Amendment 80 Program are members of one of two cooperatives—the Alaska Seafood Cooperative or the Alaska Groundfish Cooperative. No Amendment 80 quota shareholders have elected to participate in the limited access fishery.
NMFS proposes adding regulations at § 679.91(b)(4)(vii) that would require that Amendment 80 cooperative agreements list the obligations of Amendment 80 cooperative members to ensure full payment of cost recovery fees among their members. This proposed regulation does not proscribe the specific provisions that Amendment 80 cooperatives may choose to ensure full payment of cost recovery fees among their members, but it does require that those provisions are listed in the cooperative agreement. This requirement is intended to encourage and facilitate coordination among Amendment 80 cooperative members for the timely and complete payment of fees. As noted earlier in this preamble, NMFS implemented a similar requirement in the Rockfish Program, and is proposing similar provisions for the AFA and Amendment 80 cooperatives.
Table 7 summarizes the information used to determine standard prices, any additional reporting requirement, calculation of the standard ex-vessel value, the person responsible for submitting the fee payment, and submittal requirements and deadlines for each Amendment 80 cooperative.
Table 8 provides an estimate of the management costs subject to the cost recovery program, gross ex-vessel revenue from fishery species allocated to the Amendment 80 Program, and estimates of the cost recovery fee percentages from 2010 through 2013. Total management costs subject to a cost recovery fee were estimated to be approximately $1.36 million per year. Recoverable fees are estimated based on management costs incurred by several divisions within the Alaska Region of NMFS, NMFS OLE, AFSC, and the
Based on the estimated gross ex-vessel revenue from the fishery species subject to a cost recovery fee under the Amendment 80 Program, vessels in the Amendment 80 Program generated between $84 million and $112 million of ex-vessel value per year during the period analyzed. Relative to the estimated recoverable costs, these ex-vessel values result in a cost recovery fee ranging from 1.22 percent to 1.62 percent, depending on the year, to generate $1.36 million to cover reimbursable management costs. In each year considered in Table 8, the cost recovery fee was estimated to be less than 1.7 percent of the estimated ex-vessel value landed by the Amendment 80 cooperatives. Based on these percentages, the cost of managing the Amendment 80 Program would need to double, or revenue would need to decrease by half before the maximum fee of three percent of ex-vessel value would be reached. Therefore, the fee percentage that would be implemented for this program is expected to be small.
To generate timely standard prices NMFS would collect first wholesale data on round (unprocessed) pounds and value from the First Wholesale Volume and Value Report. Annual standard prices will be used for all Amendment 80 species except rock sole. As noted earlier in this preamble, two standard prices will be estimated for rock sole, one for the first quarter (from January 1 through March 31), and one for the remainder of the year (April 1 through December 31). Standard prices and the cost recovery fee percentage will be reported in a
This proposed rule defines each CDQ group as the person subject to cost recovery fees for CDQ groundfish and halibut fisheries. The designated representative of a CDQ group is the individual responsible for remitting payment for their CDQ group (see Table 9 of this preamble).
NMFS annually allocates a portion of groundfish and halibut TACs to the CDQ groups as described above in the “CDQ Program” section of this preamble. NMFS annually publishes the allocations of groundfish and halibut TACs to each CDQ group on the Alaska Region Web site at
In developing this proposed action, NMFS considered defining the Administrative Panel authorized in section 305(i)(1)(G) as the person subject to cost recovery fees for CDQ groundfish and halibut fisheries. Under this option, NMFS would submit a single cost recovery fee liability notice for all CDQ Program cost recovery fees to WACDA, the entity currently serving as the Administrative Panel for the CDQ Program. NMFS did not select this approach because it would not be consistent with the current management structure of the CDQ groundfish and halibut fisheries. As described earlier in the “CDQ Program” section of this preamble and in section 1.5.2.1 of the
Table 9 summarizes the information used to determine standard prices, any additional reporting requirement, calculation of the standard ex-vessel value, the person responsible for submitting the fee payment, and submittal requirements and deadlines for each CDQ group.
NMFS, NMFS OLE, the Observer Program, and ADF&G all contribute to the management of the CDQ Program. Table 10 provides a summary of the management costs subject to the cost recovery fee program, gross ex-vessel revenue from species allocated to the CDQ Program, and estimates of the cost recovery fee percentages from 2010 through 2013. Fees were estimated to be about $0.63 million per year, at current levels. These fees included the costs of developing reports on halibut landings, providing support for information systems (
The CDQ Program fee percentage was estimated to range from 0.73 percent to 1.33 percent per year from 2010 through 2013. The estimated fee percentage for 2013 was less than 1.0 percent of the gross ex-vessel value of species directly allocated to the CDQ Program. In each year, considered in Table 10, the fee percentage was less than 1.4 percent. Based on these percentages, the cost of managing the CDQ Program would need to double, or revenue would need to decrease by half before the maximum fee of three percent of ex-vessel value would be reached. Therefore, the fee percentage that would be implemented for this program is expected to be small.
NMFS would calculate cost recovery fees for CDQ halibut and fixed gear sablefish based on the standard prices calculated and reported by NMFS for the Halibut and Sablefish IFQ Program cost recovery fee. NMFS would use the IFQ Buyer Report to determine standard prices for CDQ halibut and sablefish. NMFS determined that IFQ standard prices would be appropriate for CDQ halibut and sablefish because buyers of CDQ halibut and sablefish are required by § 679.5(l)(7)(i) to submit the IFQ Buyer Report. Therefore, price data for CDQ halibut and sablefish are already reported. The standard prices for pollock allocations harvested by CDQ groups would be derived from the COAR data. The standard prices for Pacific cod allocations harvested by CDQ groups would be derived from the Pacific Cod Ex-vessel Volume and Value Report. The standard prices for the remaining CDQ groundfish species, other than Pacific cod, pollock, halibut, and fixed gear sablefish, would be derived from the First Wholesale Volume and Value Report.
Pursuant to section 305(d) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined this proposed rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. Copies of the RIR/IRFA prepared for this proposed rule are available from NMFS (see
The IRFA for this proposed action describes the action, why this action is being proposed, the objectives and legal basis for the proposed rule, the type and number of small entities to which the proposed rule would apply, and the projected reporting, recordkeeping, and other compliance requirements of the proposed rule. It also identifies any overlapping, duplicative, or conflicting Federal rules and describes any significant alternatives to the proposed rule that would accomplish the stated objectives of the Magnuson-Stevens Act and other applicable statues and that would minimize any significant adverse economic impact of the proposed rule on small entities. The description of the proposed action, its purpose, and its legal basis are described in the preamble and are not repeated here.
This proposed rule would directly regulate six CDQ groups that support and manage the activities of the CDQ communities. The groups include the Aleutian Pribilof Island Community Development Association, the Bristol Bay Economic Development Corporation, the Central Bering Sea Fishermen's Association, the Coastal Villages Region Fund, the Norton Sound Economic Development Corporation, and the Yukon Delta Fisheries Development Association. These groups represent 65 villages and maintain a non-profit status. Each of the CDQ groups is organized as an independently owned and operated not-for-profit entity and none is dominant in its field; consequently, each is a “small entity” under the Small Business Administration's definition for “small organization”. Section 2.6 of the IRFA prepared for this proposed rule provides more information on these entities.
In addition, this action would regulate Amendment 80 and AFA cooperatives, and the vessels that are harvesting exclusive harvest privileges under the Amendment 80 and AFA programs; The Aleut Corporation; and processors and motherships that receive CDQ Pacific cod deliveries and trawl-caught Pacific cod. The Small Business Administration defines a small commercial finfish fishing entity as one that has annual gross receipts, from all activities of all affiliates, of less than $20.5 million (79 FR 33647, July 14, 2014). None of these entities are considered to be small entities based on the SBA's size standard.
The Magnuson-Stevens Act requires that those participating in limited access privilege programs and the CDQ Program pay up to three percent of the ex-vessel value of the fish they are allocated to cover specific costs that are incurred by the management agencies as a direct result of implementing the programs. Given the specific requirements of the Magnuson-Stevens Act to implement a cost recovery fee, no other alternatives would accomplish the stated objective.
NMFS considered and analyzed a range of specific options to determine standard prices for calculating standard ex-vessel value data, due dates for volume and value reports, and fee submission, as described in the IRFA. NMFS selected those options that would minimize reporting burden and costs on small entities consistent with the stated objective when possible.
For the options to determine standard prices for calculating standard ex-vessel value data, NMFS considered options to use COAR data to determine standard prices and standard ex-vessel values for all species subject to cost recovery, but did not select that option for species other than BSAI pollock because COAR data is not an accurate data source for species where the price changes on a year-by-year basis. NMFS did select options that minimized reporting requirements on small entities by using existing data sources (
For the provision setting the deadline date for two new reports that would be required under this proposed rule: The Pacific Cod Ex-Vessel Volume and Value Report and the First Wholesale Volume and Value Report, NMFS considered December 1 for the due date for volume and value reports, as well as whether or not the volume and value reports should aggregate all prices for the year. NMFS selected November 1 for the submission of reports, because it provided the most current data available while still allowing fee liabilities to be calculated on a timely basis so they could be sent out by December 1. For the fee submission deadline, NMFS considered selecting an earlier (November 30) and later fee submission due date (January 15), but ultimately selected December 31 to ensure all fees for all landings are included for each year. These dates would also minimize the potential impact on small entities relative to other dates considered.
NMFS also considered implementing a cost recovery fee for the Freezer Longline Coalition Cooperative (FLCC). NMFS considered this alternative because initial analysis indicated that the FLCC exclusively harvested the allocation assigned to the hook-and-line catcher/processor sector (79 FR 12108, March 4, 2014). However, vessels that are not part of the FLCC harvest a portion of the allocation assigned to hook-and-line catcher/processor sector. A limited number of vessels harvest Pacific cod as hook-and-line catcher/processors within State waters and are not required to use an FFP or License Limitation Program license. These State water harvests are deducted from the proportion of the BSAI Pacific cod TAC assigned to the hook-and-line catcher/processor sector. The harvest by these vessels is deducted from the Federal TAC and is not subject to limitation by NMFS. Therefore, the FLCC does not have an exclusive harvest privilege for a proportion of the TAC assigned to hook-and-line catcher/processor sector, and the FLCC is not considered a limited access privilege program for purposes of this proposed action. NMFS will continue to review the status of the FLCC, and would implement a cost recovery fee program for the FLCC in the future, if applicable.
This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). NMFS has submitted these requirements to OMB for approval. The requirements are listed below by OMB collection number.
With this action, the observer fee submittal (15 minutes) is removed from this collection and added to the new fee collection.
With this action, this IFQ Cost Recovery collection is removed and superseded by the new cost recovery collection.
Public reporting burden per response is estimated to average four hours for Cooperative Contract.
With this action, the Rockfish volume and value form (two hours) is removed from this collection.
Public reporting burden per response is estimated to average two hours for Application for Amendment 80 Cooperative Quota.
With this action, the Crab Rationalization Program Cost Recovery collection is removed and superseded by the new cost recovery collection.
Public reporting burden per response is estimated to average one minute for cost recovery fee or observer fee submission; five minutes for value and volume report; four hours for appeals.
Estimates for public reporting burden include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding: Whether these proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS at the
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. All currently approved NOAA collections of information may be viewed at:
Alaska, Cost recovery, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:
16 U.S.C. 773
(u)
(ii)
(iii)
(iv)
(B)
(v)
(2)
(ii)
(B) The first reporting period of the First Wholesale Volume and Value Report for rock sole shall extend from January 1 to March 31, and the second reporting period shall extend from April 1 to October 31.
(iii)
(iv)
(B)
(v)
(c) * * *
(6) For a shoreside processor designated on an FPP, or a mothership designated on an FFP, that processes landings of either CDQ Pacific cod or BSAI Pacific cod harvested by a vessel using trawl gear to fail to submit a timely and complete Pacific Cod Ex-vessel Volume and Value Report as required under § 679.5(u)(1).
(d) * * *
(8) Fail to submit a timely and complete CDQ cost recovery fee submission form and fee as required under § 679.33.
(k) * * *
(9) Fail to submit a timely and complete AFA cost recovery fee submission form and fee as required under § 679.66.
(l) * * *
(6) Fail to submit a timely and complete Aleutian Islands pollock cost recovery fee submission form and fee as required under § 679.67.
(o) * * *
(4) * * *
(vii) Fail to submit a timely and complete Amendment 80 cost recovery fee submission form and fee as required under § 679.95.
(9)
(a)
(i) Subsequent transfer, under § 679.31(c), of a CDQ allocation by a CDQ group does not affect the CDQ group representative's liability for noncompliance with this section.
(ii) Changes in amount of a CDQ allocation to a CDQ group do not affect the CDQ group representative's liability for noncompliance with this section.
(2)
(3)
(ii)
(iii)
(iv)
(b)
(2)
(ii)
(iii)
(A)
(
(
(
(B)
(C)
(D)
(
(
(c)
(2)
(i)
(A) The catch to which the CDQ groundfish and halibut cost recovery fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection, and enforcement of the CDQ Program for groundfish and halibut.
(ii)
DPC = the direct program costs for the CDQ Program for groundfish and halibut for the most recent Federal fiscal year (October 1 through September 30) with any adjustments to the account from payments received in the previous year.
V = total of the CDQ standard ex-vessel value of the catch subject to the CDQ fee liability for the current year.
(3)
(ii)
(4)
(5)
(ii) The CDQ fee liability assessed to a CDQ group will be based on the proportion of the standard ex-vessel value of CDQ groundfish and halibut debited from a CDQ group's allocation relative to all CDQ groups during a calendar year as determined by NMFS.
(iii) NMFS will provide a CDQ fee liability summary letter to each CDQ group representative by December 1 of each year. The summary will explain the CDQ fee liability determination including the current fee percentage, and details of CDQ pounds debited from the CDQ group allocations by permit, species, date, and prices.
(d)
(2) If a CDQ group representative fails to submit full payment for its CDQ fee liability by the date described in paragraph (a)(3) of this section, the Regional Administrator may:
(i) At any time thereafter send an IAD to the CDQ group representative stating that the CDQ group's estimated fee liability, as indicated by his or her own submitted information, is the CDQ fee liability due from the CDQ group.
(ii) Disapprove any application to transfer CDQ to or from the CDQ group in accordance with § 679.31(c).
(3) If a CDQ group fails to submit full payment by December 31, no allocations of CDQ groundfish and halibut will be issued to that CDQ group for the following calendar year.
(4) Upon final agency action determining that a CDQ group representative has not paid the CDQ fee liability due for that CDQ group, the Regional Administrator may continue to prohibit issuance of allocations of CDQ groundfish and halibut for that CDQ group for any subsequent calendar years until NMFS receives the unpaid fees. If payment is not received by the 30th day after the final agency action, the agency may pursue collection of the unpaid fees.
(e)
(f)
(g)
(h)
(c) * * *
(1)
(e) * * *
(1) * * *
(vi) List the obligations of members of a cooperative, governed by § 679.61, to ensure the full payment of all AFA fee liabilities that may be due.
(a)
(ii) The person designated as the representative of the listed AFA catcher/processors and high seas catcher vessels that deliver to them at the time of a Bering Sea pollock landing.
(iii) The person designated as the representative of the AFA mothership cooperative at the time of a Bering Sea pollock landing.
(2)
(ii) Changes in the membership in a cooperative, such as members joining or departing during the relevant year, or changes in the holdings of AFA permits of those members do not affect the cooperative representative's liability for noncompliance with this section.
(3)
(4)
(ii)
(iii)
(iv) Payment method. Payment must be made electronically in U.S. dollars by automated clearing house, credit card, or electronic check drawn on a U.S. bank account.
(b)
(2)
(ii)
(iii)
(A) Landed pounds of Bering Sea pollock;
(B) Total ex-vessel value of Bering Sea pollock; and
(C) Price adjustments, including retroactive payments.
(c)
(2)
(i) Factors. NMFS will use the following factors to determine the fee percentages:
(A) The catch to which the AFA pollock cost recovery fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection, and enforcement of the directed AFA pollock fisheries.
(ii) Methodology. NMFS will use the following equations to determine the AFA fee percentage: 100 × DPC/V, where:
DPC = the direct program costs for the directed AFA pollock fisheries for the most recent fiscal year (October 1 through September 30) with any adjustments to the account from payments received in the previous year.
V = total of the standard ex-vessel value of the catch subject to the AFA fee liability for the current year.
(iii) Direct program costs will be calculated separately for:
(A) AFA inshore cooperatives;
(B) The cooperative representing the listed AFA catcher/processors and high seas catcher vessels that deliver to them; and
(C) The AFA mothership cooperative.
(3)
(ii)
(4)
(5)
(ii) The AFA fee liability assessed to an AFA inshore cooperative will be based on the proportion of the AFA fee liability of Bering Sea pollock debited from that AFA Inshore cooperative's AFA pollock fishery allocation relative to all AFA inshore cooperatives during a calendar year as determined by NMFS.
(iii) The AFA fee liability assessed to the cooperative of listed AFA catcher/processors and high seas catcher vessels that deliver to them will be based on the
(iv) The AFA fee liability assessed to the AFA mothership cooperative will be based on the proportion of the standard ex-vessel value of Bering Sea pollock debited from this cooperative's AFA pollock fishery allocation during a calendar year as determined by NMFS.
(v) NMFS will provide a fee liability summary letter to all AFA cooperative representatives by December 1 of each year. The summary will explain the AFA fee liability determination including the current fee percentage and details of Bering Sea pollock pounds debited from the AFA pollock fishery allocation by permit, species, date, and prices.
(d)
(2) The AFA mothership cooperative will not receive any Bering Sea pollock allocation until the cooperative representative submits full payment of that cooperative's AFA fee liability.
(3) AFA catcher/processor joint cooperative underpayment (i) The cooperative for listed AFA catcher/processors and high seas catcher vessels that deliver to them will not receive any Bering Sea pollock allocation until the cooperative representative submits full payment of that cooperative's AFA fee liability at the time of a Bering Sea pollock landing, except as provided in paragraph (d)(3)(ii) of this section.
(ii) If the cooperative representing the listed AFA catcher/processors and high seas catcher vessels that deliver to them pays only a portion of its AFA fee liability, the Regional Administrator may release a portion of the cooperative's Bering Sea pollock allocation equal to the portion of the fee liability paid.
(4) If an AFA cooperative representative fails to submit full payment for the AFA fee liability by the date described in paragraph (a)(4) of this section, the Regional Administrator may at any time thereafter send an IAD to the AFA cooperative representative stating that the cooperative's estimated fee liability, as indicated by his or her own submitted information, is the AFA fee liability due from the AFA cooperative representative.
(5) If an AFA cooperative representative fails to submit full payment for AFA fee liability by the date described at paragraph (a)(4) of this section, no Bering sea pollock allocation will be provided to that AFA cooperative for the following calendar year, except as provided in paragraph (d)(3) of this section.
(6) Upon final agency action determining that an AFA cooperative representative has not paid that cooperative's AFA fee liability, the Regional Administrator may continue to prohibit issuance of a directed Bering Sea pollock allocation for that cooperative for any subsequent calendar years until NMFS receives the unpaid fees. If payment is not received by the 30th day after the final agency action, the agency may pursue collection of the unpaid fees.
(e)
(f)
(g)
(h)
(a)
(2)
(3)
(ii)
(iii)
(iv)
(b)
(2)
(ii)
(iii)
(A) Landed pounds of Aleutian Islands pollock;
(B) Total ex-vessel value of Aleutian Islands pollock; and
(C) Price adjustments, including retroactive payments.
(c)
(2)
(i)
(A) The catch to which the Aleutian Islands pollock cost recovery fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection, and enforcement of the Aleutian Islands directed pollock fishery.
(ii)
DPC = the direct program costs for the Aleutian Islands directed pollock fishery for the most recent fiscal year (October 1 through September 30) with any adjustments to the account from payments received in the previous year.
V = total of the standard ex-vessel value of the catch subject to the Aleutian Islands pollock fee liability for the current year.
(3)
(ii)
(4)
(5)
(ii) NMFS will provide a fee liability summary letter to the Aleut Corporation by December 1 of each year. The summary will explain the fee liability determination including the current fee percentage, and details of Aleutian Islands pollock pounds debited from the Aleutian Islands directed pollock fishery allocation by permit, species, date, and prices.
(d)
(2) If the Aleut Corporation's designated representative fails to submit full payment for Aleutian Islands pollock fee liability by the date described in paragraph (a)(3) of this section, the Regional Administrator may at any time thereafter send an IAD to the Aleut Corporation's designated representative stating that the estimated fee liability, as indicated by his or her own submitted information, is the Aleutian Islands pollock fee liability due from the Aleut Corporation.
(3) If the Aleut Corporation's designated representative fails to submit full payment by the Aleutian Islands pollock fee liability payment deadline described at paragraph (a)(3) of this section, no Aleutian Islands directed pollock fishery allocation will be issued to the Aleut Corporation for that calendar year.
(4) Upon final agency action determining that the Aleut Corporation has not paid its Aleutian Islands pollock fee liability, the Regional Administrator may continue to prohibit issuance of the Aleutian Islands directed pollock fishery allocation for any subsequent calendar years until NMFS receives the unpaid fees. If payment is not received by the 30th day after the final agency action, the agency may pursue collection of the unpaid fees.
(e)
(f)
(g)
(h)
(b) * * *
(4) * * *
(vii)
(A) How the Amendment 80 cooperative intends to catch its CQ; and
(B) The obligations of Amendment 80 QS holders who are members of an Amendment 80 cooperative to ensure the full payment of Amendment 80 fee liabilities that may be due.
(h) * * *
(3) * * *
(a)
(i) Subsequent transfer of Amendment 80 CQ or Amendment 80 QS held by Amendment 80 cooperative members;
(ii) Non-renewal of an Amendment 80 CQ permit; or
(iii) Changes in the membership in an Amendment 80 cooperative, such as members joining or departing during the relevant year, or changes in the amount of Amendment 80 QS holdings of those members.
(2)
(3)
(ii)
(iii)
(iv) Payment method. Payment must be made electronically in U.S. dollars by automated clearing house, credit card, or electronic check drawn on a U.S. bank account.
(b)
(2)
(ii)
(iii)
(A)
(B)
(
(
(c)
(2)
(i)
(A) The catch to which the Amendment 80 cost recovery fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the management, data collection, and enforcement of the Amendment 80 Program.
(ii)
DPC = direct program costs for the Amendment 80 Program for the most recent fiscal year (October 1 through September 30) with any adjustments to the account from payments received in the previous year.
V = total of the standard ex-vessel value of the landings subject to the Amendment 80 fee liability for the current year.
(3)
(ii)
(4)
(5) F
(ii) The Amendment 80 fee liability assessed to an Amendment 80 CQ permit holder will be based on the proportion of the standard ex-vessel value of Amendment 80 species debited from an Amendment 80 CQ permit holder relative to all Amendment 80 CQ permit holders during a calendar year as determined by NMFS.
(iii) NMFS will provide a fee liability summary letter to all Amendment 80 CQ permit holders by December 1 of each year. The summary will explain the fee liability determination including the current fee percentage, and details of Amendment 80 species CQ pounds debited from Amendment 80 CQ allocations by permit, species, date, and prices.
(d)
(2) If an Amendment 80 CQ permit holder fails to submit full payment for its Amendment 80 fee liability by the date described in paragraph (a)(3) of this section, the Regional Administrator may:
(i) At any time thereafter send an IAD to the Amendment 80 cooperative's representative stating that the Amendment 80 CQ permit holder's estimated fee liability, as indicated by his or her own submitted information, is the Amendment 80 fee liability due from the Amendment 80 CQ permit holder.
(ii) Disapprove any application to transfer Amendment 80 CQ to or from the Amendment 80 CQ permit holder in accordance with § 679.91(g).
(3) If an Amendment 80 cooperative representative fails to submit full payment by the Amendment 80 fee liability payment deadline described at paragraph (a)(3) of this section:
(i) No Amendment 80 CQ permit will be issued to that Amendment 80 cooperative for the following calendar year; and
(ii) No Amendment 80 CQ will be issued based on the Amendment 80 QS held by the members of that Amendment 80 cooperative to any other CQ permit for that calendar year.
(4) Upon final agency action determining that an Amendment 80 CQ permit holder has not paid his or her Amendment 80 fee liability, the Regional Administrator may continue to prohibit issuance of an Amendment 80 CQ permit for any subsequent calendar years until NMFS receives the unpaid fees. If payment is not received by the 30th day after the final agency action, the agency may pursue collection of the unpaid fees.
(e)
(f)
(g)
(h)
The Secretary of the Department of the Treasury, as Chairperson of the Financial Stability Oversight Council.
Notice of proposed rulemaking.
The Secretary of the Treasury (the “Secretary”), as Chairperson of the Financial Stability Oversight Council, is proposing rules (the “Proposed Rules”) to implement the qualified financial contract (“QFC”) recordkeeping requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Act” or the “Dodd-Frank Act”). The Act provides that if the federal primary financial regulatory agencies do not prescribe joint final or interim final regulations requiring financial companies to maintain records with respect to QFCs to assist the Federal Deposit Insurance Corporation (“FDIC”) as receiver for a covered financial company to exercise its rights and fulfill its obligations under the Act within 24 months of the enactment of the Act, the Chairperson of the Financial Stability Oversight Council (the “Council”) shall prescribe, in consultation with the FDIC, such regulations. The Secretary, as Chairperson of the Council, is proposing the Proposed Rules in consultation with the FDIC because the federal primary financial regulatory agencies did not so prescribe joint final or interim final regulations. The Proposed Rules would require recordkeeping with respect to positions, counterparties, legal documentation and collateral. This information is necessary to assist the FDIC as receiver to: Fulfill its obligations under the Dodd-Frank Act in deciding whether to transfer QFCs; assess the consequences of decisions to transfer, disaffirm or repudiate, or allow the termination of, QFCs with one or more counterparties; determine if any financial systemic risks are posed by the transfer, disaffirmance or repudiation, or termination of such QFCs; and otherwise exercise its rights under the Act. The Secretary is requesting comment on all aspects of the Proposed Rules.
Written comments must be received by April 7, 2015.
Submit comments electronically through the Federal eRulemaking Portal:
Monique Rollins, Acting Deputy Assistant Secretary for Capital Markets; Patricia Kao, Director, Office of Financial Institutions Policy: (202) 622-4948.
The Dodd-Frank Act was enacted on July 21, 2010.
• A bank holding company;
• A nonbank financial company supervised by the Board of Governors of the Federal Reserve System (“Board”);
• Any company that is predominantly engaged in activities that the Board has determined are financial in nature or incidental thereto for purposes of section 4(k) of the Bank Holding Company Act of 1956 (“BHC Act”);
• Any subsidiary of such financial company that is itself predominantly engaged in activities that the Board has determined are financial in nature or incidental thereto for purposes of section 4(k) of the BHC Act, other than an insured depository institution or an insurance company.
The Title II orderly liquidation mechanism is modeled in part on
Title II includes provisions, set forth at section 210(c)(8), concerning the QFCs held by covered financial companies. A “QFC” is a securities contract, commodities contract, forward contract, repurchase agreement, swap agreement, or any similar agreement that the FDIC determines by regulation, resolution, or order to be a qualified financial contract;
The treatment afforded to QFCs under Title II parallels the treatment afforded to them under section 11(e) of the FDIA.
After its appointment as receiver and prior to 5 p.m. on the following business day, the FDIC has three options for a QFC to which a covered financial company is a party:
(1) Transfer the QFC to another financial institution;
(2) Retain the QFC within the receivership and allow the counterparty to terminate; or
(3) Retain the QFC within the receivership and disaffirm or repudiate the QFC and pay compensatory damages.
In order to assess the options that would be available following its appointment as receiver, the FDIC needs detailed information about the covered financial company's QFCs. Section 210(c)(8)(H) therefore requires that the Federal primary financial regulatory agencies, as defined in the Act
As the PFRAs did not prescribe such regulations by the statutory deadline, the Secretary, as Chairperson of the Council, in consultation with the FDIC, is publishing the Proposed Rules. As described in greater detail below, the Proposed Rules would apply to a “records entity,” which is defined in the Proposed Rules to include certain types of financial companies that are parties to an open QFC or guarantee, support, or are linked to an open QFC and that meet certain size or other thresholds (such as risk, complexity, and interconnectedness), or other conditions or are certain affiliates in the same corporate group as a financial company that meets these thresholds or conditions (referred throughout this release as “affiliated financial companies”) and that are party to an open QFC or that guarantee, support, or are linked to an open QFC of an affiliate.
The Proposed Rules would require these records entities to maintain detailed information about their QFC positions and be capable of providing this information to their PFRAs within 24 hours of request by their PFRAs. This would assist the FDIC in resolving financial companies that may be subject to an orderly liquidation under Title II of the Dodd-Frank Act based on consideration of such financial companies' size, risk, complexity, leverage, frequency and dollar amount of QFCs and interconnectedness to the financial system, and any other factors deemed appropriate.
The Proposed Rules also would allow the Secretary to issue conditional or unconditional general and specific exemptions from one or more requirements in the rule as the Secretary determines to be necessary or appropriate, including whether application of one or more requirements of the rule would not be necessary to achieve the purpose of the rule. The issuance of a conditional or unconditional exemption would be consistent with section 210(c)(8)(H)(iv) of the Act which provides that the regulations required by section 210(c)(8)(H)(i) differentiate among financial companies, as appropriate, by taking into consideration a number of factors. Specifically, the Secretary would consider whether to grant an exemption after receiving a recommendation from the FDIC, prepared in consultation with the applicable PFRAs, that takes into consideration the financial company's or financial companies' size, risk, complexity, leverage, frequency and dollar amount of QFCs, and interconnectedness to the financial system and any other factors deemed necessary or appropriate.
The proposed recordkeeping requirements of the Proposed Rules are based, in part, on 12 CFR part 371, Recordkeeping Requirements for Qualified Financial Contracts,
The recent financial crisis demonstrated that management of QFC positions, including steps undertaken to close out such positions, can be an important element of a resolution strategy which, if not handled properly, may magnify market instability. The recordkeeping requirements of the Proposed Rules are designed to ensure that the FDIC, as receiver of a covered financial company, will have comprehensive information about the QFC portfolio maintained by such financial company subject to orderly resolution, and to enable the FDIC to plan the rapid and orderly resolution of a financial company's QFC portfolio in the event of insolvency. The Proposed Rules are also designed to provide the FDIC with information necessary for the FDIC as receiver to comply with the statutory requirements for the transfer, disaffirmance, or repudiation of the QFCs of a financial company, within any applicable time periods mandated under Title II of the Dodd-Frank Act.
The Secretary is publishing this notice of proposed rulemaking in light of his responsibilities under section 210(c)(8)(H) of the Dodd-Frank Act. The Secretary is seeking comment on all aspects of the Proposed Rules.
The Proposed Rules provide that the compliance date for most of the provisions will be the day that is 270 days after a records entity becomes subject to the final rule. Thus, for entities that would be subject to the final rule on its effective date, the compliance date would be the day that is 270 days after the effective date of the final rule (which is 330 days after the date of publication). However, one aspect of the Proposed Rules will require compliance in 60 days. Specifically, on the effective date of the final rule, a records entity must provide up-to-date contact information to the FDIC and each of its PFRAs. A financial company that becomes a records entity after the effective date of the final rule would be required to provide such contact information within 60 days of becoming a records entity.
A QFC is a type of financial contract and is defined in section 210(c)(8) of the Act. As further described below, QFCs are treated differently than other types of contracts in the event of the failure of a financial company.
Under section 210(c)(8), QFCs include five specific types of financial contracts: securities contracts, commodity contracts, forward contracts, repurchase agreements, and swap agreements.
The filing of a bankruptcy petition or the appointment of the FDIC as receiver triggers an automatic stay that precludes a party to most types of contracts with an insolvent company from taking actions under that contract.
After its appointment as receiver and prior to the close of the 5 p.m. window, the FDIC has three options in managing a covered financial company's QFC portfolio. With respect to all of the covered financial company's QFCs with a particular counterparty, and its affiliates, the FDIC may:
(1) Transfer the QFCs to another institution, including a bridge financial company established by the FDIC;
(2) Retain the QFCs within the receivership and allow the counterparty to terminate; or
(3) Retain the QFCs within the receivership, disaffirm or repudiate the QFCs, and pay compensatory damages.
If the receiver repudiates the QFCs, it must pay actual direct compensatory damages,
In order to assess by 5 p.m. on the business day following the date of its appointment as receiver of a financial company its options to retain and allow the counterparty to terminate, retain and disaffirm or repudiate, or transfer QFCs, the FDIC needs detailed information about the company's QFCs. To make a well-informed decision on these three options, the FDIC needs access to the information required to be maintained under the Proposed Rules. The information must be sufficient to allow the FDIC to estimate the financial and operational impact on the covered financial company or its affiliated financial companies of the receiver's decision to transfer, repudiate or retain the QFCs. It must also allow the FDIC to assess the potential impact that such decisions may have on the financial markets as a whole.
Under the Act, the FDIC as receiver has additional powers with respect to contracts of subsidiaries or affiliates of a covered financial company that are guaranteed or otherwise supported by or linked
Under Title II, the FDIC may become receiver for financial companies of a substantial size or complexity. These large and complex companies and certain of their affiliates that enter into QFCs may hold large and complex portfolios of QFCs. Such financial companies and their affiliates often have counterparties that are themselves members of large, complex, and interconnected corporate financial groups. Therefore QFCs tend to increase the interconnectedness of the financial system and systemic risk. They are also an important and integral component of a Title II resolution, presenting multiple challenges to an orderly liquidation process. Given the limited post-receivership time frame allowed by Title II for the FDIC to make decisions regarding QFCs, it is important that the FDIC has adequate time to obtain QFC data, conduct necessary analysis, and make informed decisions on a QFC portfolio.
Therefore, the Secretary in consultation with the FDIC is proposing the Proposed Rules described below. The Proposed Rules are similar to the FDIC's Part 371 but the information requirements of the Proposed Rules are more extensive. Unlike the FDIC's Part 371 (which requires that only banks in “troubled condition” maintain records of QFCs) the Proposed Rules do not contain such a “troubled financial condition” trigger. The recordkeeping requirements of the Proposed Rules have been informed by the FDIC's experience in dealing with multiple QFC portfolios of insured depository institutions. The data requirements were also informed by efforts to standardize regulatory data.
Given the short time frame for the FDIC to make decisions regarding a QFC portfolio of significant size or complexity, the Proposed Rules would also require the use of an updated and standardized format to allow the FDIC to obtain and process the large amount of QFC information quickly. In the absence of updated and standardized information, it is possible that QFCs could be left in the receivership, when transfer to a solvent financial institution or a bridge financial company would be a preferred course of action. The absence of QFC data may reduce the FDIC's flexibility in managing the QFC portfolio, and may increase systemic risk.
However, to reduce the burdens on financial companies, the Proposed Rules provide that upon receipt of a written recommendation from the FDIC, prepared in consultation with the primary financial regulatory agencies for the applicable records entities, the Secretary may grant conditional or unconditional exemptions as the Secretary determines to be necessary or appropriate. Such exemptions could include a conditional exemption to allow for a different recordkeeping format than that set forth in the Proposed Rules. For example, financial companies are required to report some QFC data to swap data repositories (“SDRs”),
The following section describes the requirements in the Proposed Rules and the rationale underlying the requirements. The Proposed Rules set forth the general requirements for financial companies, while the detailed lists of the records that would be required to be maintained are provided in the Appendix in the Proposed Rules.
The Proposed Rules are organized into four parts:
• Section 148.1 Scope, purpose, effective date, and compliance dates
• Section 148.2 Definitions
• Section 148.3 Form, availability and maintenance of records
• Section 148.4 Content of records
The Appendix in the Proposed Rules list the records that would be required to be maintained and provide the file structure for the QFC recordkeeping requirements. The Appendix is organized as follows:
• Table A-1—Position-Level Data
• Table A-2—Counterparty Collateral Data
• Table A-3—Legal Agreements
• Table A-4—Collateral Detail Data
The discussion in this section of the release is based on the organization of the Proposed Rules and the Appendix is discussed in a separate subsection below. The Secretary asks questions and solicits comment in each subsection with respect to the related parts of the Proposed Rules or the Appendix.
Section 148.1(a) of the Proposed Rules defines the scope of the rules and provides that the rules apply to each financial company that is a “records entity.” Section 148.1(b) explains the purpose of the rules. Section 148.1(c) sets forth the rule's effective and compliance dates. The Proposed Rules are discussed below, followed by the Secretary's questions regarding their subject matter.
The scope of the Proposed Rules is established by certain key definitions which determine the entities that would be subject to the rules. Specifically section 148.1(a) of the Proposed Rules provides that the rules would apply to any “financial company” that is a “records entity” as those terms are defined in the Proposed Rules. The definitions of “financial company,” “records entity,” and other related definitions are explained below, followed by an illustrative discussion of the records entities within a U.S. bank holding company structure, a summary of the application of the Proposed Rules to clearing organizations, and a discussion of the records entities that may come within the scope section of the Proposed Rules.
• Financial companies that are not incorporated or organized under U.S. federal or state law;
• Farm Credit System institutions;
• Governmental entities, and regulated entities under the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (“FHA”);
• Insured depository institutions.
• A bank holding company;
• A nonbank financial company supervised by the Board;
• Any company that is predominantly engaged in activities that the Board has determined are financial in nature or incidental thereto for purposes of section 4(k) of the BHC Act; and
• Any subsidiary (other than an insured depository institution or insurance company) of such financial company where such subsidiary is predominantly engaged in activities that the Board has determined are financial in nature or incidental thereto for purposes of section 4(k) of the BHC Act.
A “records entity” is defined in section 148.2(l) of the Proposed Rules as a financial company that: is not an exempt entity; is a party to an open QFC, or guarantees, supports or is linked to an open QFC; and meets one of the following requirements: (a) Is determined pursuant to 12 U.S.C. 5323 (Title I of the Dodd-Frank Act) to be an entity that could pose a threat to the financial stability of the United States; (b) Is designated pursuant to 12 U.S.C. 5463 (Title VIII of the Dodd-Frank Act) as a financial market utility
The Secretary has adequately considered the factors referenced in section 210(c)(8)(H)(iv) in developing the scope of the definition of records entity. The Secretary has decided to include in the scope of the definition of records entity those financial companies that: (1) the Council determines could pose a threat to U.S. financial stability; (2) the Council designates as systemically important financial market utilities; and (3) financial companies that have at least $50 billion in assets, for several reasons. First, the factors the Council must consider in designating a nonbank financial company as posing a threat to financial stability under section 113 of the Act, or a financial market utility as systemically important under section 804, are similar to the factors listed in section 210(c)(8)(H)(iv). The Council may make a determination under section 113 if it finds that material financial distress at the nonbank financial company, or the nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the nonbank financial company could pose a threat to the financial stability of the United States.
The Secretary also believes that the $50 billion threshold is a useful means for identifying entities that are of a sufficient size that they could potentially be considered for orderly liquidation under Title II, and therefore should be incorporated in the definition of a records entity. A $50 billion asset threshold has been separately established for similar purposes under the Dodd-Frank Act.
Finally, a nonbank financial company supervised by the Board, a designated financial market utility, or a financial company (including a bank holding company) with total assets of $50 billion or more are the types of financial companies that potentially would be the most likely to be considered for orderly liquidation under Title II. Therefore, the Secretary proposes including this set of financial companies in the definition of records entity for purposes of the Proposed Rules. The definition of records entity is thus designed to reduce recordkeeping burdens by only capturing those financial companies with QFC positions for which the FDIC is most likely to be appointed as receiver. It does not, however, capture an entity, such as an investment adviser, that acts as agent on behalf of a client and is not a party to or does not support, guarantee or is not otherwise linked to that client's QFC. These criteria would serve to exclude from the scope of the rule small financial company corporate groups that are unlikely to be subject to the orderly liquidation authority of Title II.
(1) An insured depository institution as defined in 12 U.S.C. 1813(c)(2);
(2) A subsidiary of an insured depository institution that is not a functionally regulated subsidiary as defined in 12 U.S.C. 1844(c)(5), a security-based swap dealer as defined in 15 U.S.C. 78c(a)(71), or a major security-based swap participant as defined in 15 U.S.C. 78c(a)(67); or
(3) A financial company that is not a party to a QFC and controls only exempt entities as defined in clause (1) of this definition.
The terms “linked” and “guarantees, supports” are also used to define the financial companies that are records entities under the Proposed Rules. A financial company that guarantees or supports open QFCs would be a records entity, provided that the other conditions of the definition are met, because its exposure is connected to the exposure of the financial company that is the counterparty to the QFC. A
Including affiliated financial companies as records entities under the Proposed Rules is necessary: (1) To assist the FDIC in exercising its right to enforce contracts of subsidiaries and affiliates under section 210(c)(16), and fulfilling its obligations under section 210(c)(9) and section 210(c)(10) with respect to the timing and notification of the transfer of any guarantee or other support and related assets and liabilities in connection with any agreement or transaction referred to in any such QFC; and (2) to assist the FDIC in fulfilling its obligations under section 210(c)(9) and section 210(c)(10) in the event the FDIC is appointed as receiver of an affiliated financial company. In connection with the transfers and notifications under section 210(c)(9) and section 210(c)(10), the FDIC will need the same information with respect to such QFCs (including guaranteed or supported QFCs) of an affiliate as it does with respect to QFCs to which the financial company was a party.
The definition of “control” is provided in the FDIA, which in turn, refers to the definition provided in the BHC Act, 12 U.S.C. 1841(a). The Proposed Rules would define “control” to include a company that directly or indirectly or acting through one or more persons owns, controls, or has the power to vote 25 percent or more of any class of voting securities of the company, controls in any manner the election of a majority of the directors or trustees of the company, or must consolidate another entity for financial or regulatory reporting purposes. The first two prongs of this definition are consistent with the BHC Act definition. The third prong reflects the fact that, in certain situations, a controlling interest may be achieved through arrangements that do not involve voting interests,
Figure 1 below illustrates how the definition of financial company affects whether various affiliates in a U.S. holding company corporate group would qualify under the Proposed Rules as records entities based on the application of the definition of financial company in the Dodd-Frank Act and the Proposed Rules. The holding company and some affiliates would qualify as records entities as shown below, while the other affiliates would not.
The Proposed Rules would not exclude from their scope any records entity that is a clearing organization with respect to derivatives cleared for its members. As part of fulfilling its responsibilities, a clearing organization must keep, on a near real-time basis, thorough and well-organized records of the contracts with each of its members. The FDIC, as receiver for a clearing organization under Title II, would have access to this information to analyze clearing organization positions. Taking into consideration a clearing organization's functions and that its role is to interpose itself between counterparties to transactions, some of the data elements that would be required by the Proposed Rules may not be relevant for clearing organizations. The Appendix to the Proposed Rules provides that a records entity may leave an entry blank or insert N/A in a data field that does not apply to a given QFC transaction or agreement.
Accordingly, the Secretary seeks comment on the following: (i) Whether the Proposed Rules should provide a different set of data requirements for clearing organizations and/or for centrally cleared transactions; (ii) whether such different data elements should contain fields in addition to those included in Tables A-1 through A-4 of the Appendix in the Proposed Rules, should exclude some of the fields listed in Tables A-1 through A-4, or some combination of the two; and (iii) whether any required data set should be maintained in a form or fashion different from the format contained in the Proposed Rules. The Secretary seeks comment on whether, and if so, how best to modify those data elements and general recordkeeping requirements set forth in the Proposed Rules with respect to clearing organizations and/or centrally cleared transactions. For example, should the Secretary establish a different set of data elements, data format, or other general recordkeeping requirements for clearing organizations and/or centrally cleared transactions? If yes, how should the format and the content of data fields listed in Tables 1-4 of the Appendix in the Proposed Rules be modified for clearing organizations? Which fields should be deleted, modified, or replaced with other data fields? Are there any data fields that should be added for clearing organizations and/or centrally cleared transactions?
Upon the written recommendation of the FDIC, prepared in consultation with the primary financial regulatory agencies for the applicable records entities, the Secretary may also issue exemptions of general applicability to address the issues that are relevant to clearing organizations. In addition, the Secretary notes that for data elements and recordkeeping requirements that
The “scope” subsection of the Proposed Rules provides that the rules apply to each entity that qualifies as a records entity. Section 210(c)(8)(H) of the Dodd-Frank Act gives the Secretary broad flexibility in determining the scope of the recordkeeping requirements based on factors that are deemed necessary or appropriate in order to assist the FDIC as a receiver for a covered financial company in being able to exercise its rights and fulfill its obligations under section 210(c)(8), (9) or (10) of the Dodd-Frank Act. Section 210(c)(8)(H) also requires the regulations to differentiate among financial companies, as appropriate, by taking into consideration their size, risk, complexity, leverage, frequency and dollar amount of QFCs, and interconnectedness to the financial system and any other factors deemed appropriate. As discussed earlier, the Secretary has complied with these requirements.
The Secretary anticipates that records entities would include the following types of financial companies (i) broker-dealers, investment advisers, investment companies,
Section 148.1(b) of the Proposed Rules provides that the purpose of the rules is to establish QFC recordkeeping requirements for a records entity in order to assist the FDIC as receiver for a covered financial company.
Section 148.1(c) of the Proposed Rules provides that the rule would become effective 60 days after publication of the final rule in the
If during the one-year period such financial company becomes subject to the rules again, even for a short period of time, the one-year period would be re-calculated from that later time. A financial company that becomes subject to the rules again after it had ceased recordkeeping would be required to comply with the requirements of the rule within 90 days. The Proposed Rules specify that the 90-day period commences on the date a financial company becomes subject to these rules as a records entity.
1. Is the scope of the Proposed Rules adequate? Should additional entities be subject to the rule? Please provide specific details supporting these views.
2. Is the initial compliance date of 270 days adequate? If it is too long, please explain how records entities would be able to meet a shorter initial compliance date? If it is too short, please explain why a longer period would be necessary to comply with the rule.
3. Is the rolling 12-month baseline for a financial company to cease being a records entity adequate? Please provide specific details if it is inadequate. Is the subsequent compliance date of 90 days adequate? Please provide specific details if it is inadequate.
4. Should each affiliate of a corporate group that meets the records entity definition under section 148.2(l)(3)(iv) of the Proposed Rules be required to maintain records, or should the parent company aggregate records for all open QFCs that any such affiliate in the consolidated corporate group is a party to or guarantees, supports, or is linked? Should there be one recordkeeping requirement for an entire corporate group by the top tier holding company? Are there any barriers to the parent company obtaining the necessary information from such subsidiaries and affiliates? Should the parent company be required to maintain records for the QFCs at its foreign subsidiaries and
5. Should a records entity also be required to maintain records with respect to QFCs of affiliates that are linked to such entity? Should such records entity be responsible for obtaining from its affiliates or subsidiaries all information necessary to enable such records entity to maintain records with respect to QFCs of affiliates that are linked to it? Is there a different way the FDIC could obtain information about linked QFCs? Would the information provided in Table A-3 to the Appendix be sufficient to identify such linkages? How would such recordkeeping be handled if the affiliate is not a financial company or is an exempt entity?
6. Would the current definitions provide for adequate recordkeeping for QFCs at foreign affiliates of U.S. records entities (recognizing that such foreign affiliates would not be records entities)? If not, should the record maintenance requirements be altered?
7. Is the scope of the definition of “exempt entity” adequate? What changes, if any, should be made to the definition of “exempt entity?” Are there other entities that should be included in the definition of “exempt entity”? Are there entities that should be excluded from the definition of “exempt entity”? Should the rules exempt other entities based on the number of QFC counterparties, QFC notional amounts, QFC mark-to-market values as of a particular date, or some other criteria? If so, at what levels should such exemptions be set? Please provide any data or other analyses that support this view. Should there be any other form of de minimis exemption?
8. Should the rules provide additional categorization or tiering of financial companies based on other criteria? What should such other criteria be? Would financial company or QFC portfolio leverage be relevant? Should the dollar amount of the QFC portfolio or the frequency of trading be used to differentiate among financial companies? Please provide specific explanations of how such criteria would be applied together with an explanation of whether such criteria would help, be neutral to, or interfere with, the FDIC's ability to resolve a QFC portfolio. Please provide specific details on the relevance of such criteria toward the orderly liquidation authority goal of reducing systemic risk.
9. Should the Secretary further differentiate among financial companies or their corporate groups by their size, risk, complexity, leverage, frequency and dollar amount of QFCs, or interconnectedness to the financial system? Should any other factors be considered? Should the Secretary adopt different criteria? Please provide specific details on any factors to be considered or criteria proposed, including an explanation on why such factors would help, be neutral to, or interfere with, the FDIC's ability to resolve a QFC portfolio.
10. Should the Secretary have considered the factors referenced in section 210(c)(8)(H)(iv) in a different way than discussed above? Should the Secretary not rely on the Council's designations? If so, how should the Secretary consider those factors? Should any other factors be considered?
11. Is the scope of the Proposed Rules sufficiently clear with respect to subsidiaries of insured depository institutions? If not, how should the scope of the Proposed Rules be clarified? Should all subsidiaries of insured depository institutions be included in the scope of the Proposed Rules?
12. Is it appropriate to include affiliates and other entities that might not be designated as systemically important, or that might not have total assets equal to or greater than $50 billion, within the scope of the Proposed Rules? If not, how should the scope of the Proposed Rules be narrowed? For example, should affiliates be included only if they themselves are designated as systemically important or have total assets equal to or greater than $50 billion? How would this affect the FDIC's ability to exercise its rights under the Act and fulfill its obligations under section 210(c)(8), (9), or (10), as receiver? Conversely, should the scope of the Proposed Rules regarding affiliates be broadened? Are there any affiliates that would not fall within the scope of the Proposed Rules that should? If so, why?
13. Does the definition of “control” adequately capture those entities that should be defined as affiliates for purposes of the rules? Should the definition of “control” be modified and, if so, how? For example, should the definition be the same as the definition of “control” under the BHC Act?
14. Should financial companies that guarantee or support QFC positions be required to maintain records on such QFCs if such QFCs qualify for treatment under section 210(c)(16)? If not, how would the recordkeeping of such QFCs be handled?
15. Should there be any additional data to avoid duplication of records of guaranteed, supported or linked QFCs if the related affiliate also is a records entity and maintains records with respect to such QFCs?
16. Is the criterion in the definition of records entity in section 148.2(l)(3)(iii) of the Proposed Rules appropriate? Should the calculation of $50 billion in total assets exclude non-proprietary assets that are included on a balance sheet under accounting rules, such as certain types of client assets under management required to be included on an investment adviser's balance sheet? Is it appropriate for some financial companies or corporate groups with less than $50 billion in total assets to not be required to maintain records?
17. On what basis should investment advisers that are to be included as records entities be identified? Should the advisers be required to file fiscal year-end balance sheets and should their status as records entities be based on information contained in these balance sheets?
18. Are there any other entities for which the rules need not apply? If so, which entities, and why?
19. Should swap dealers and major swap participants be required to maintain records under the rules irrespective of the size and other requirements of the definition of records entity?
20. Is the inclusion in the Proposed Rules of clearing organizations or other financial market utilities that are designated as systemically important appropriate? What issues should the Secretary consider when addressing recordkeeping requirements with respect to clearing organizations or other financial market utilities? What records do clearing organizations currently maintain for QFCs? Are they different from the records required in the Appendix to the Proposed Rules? Are they different from those maintained by counterparties in bilateral QFC transactions? If so, should a different framework for QFC records be considered for clearing organizations than for other records entities? Should a different set of data requirements be considered for clearing organizations? Should such different data set contain fields in addition to those included in Tables A-1 through A-4 of the Appendix, exclude some of the fields
21. Should the recordkeeping requirements for centrally-cleared transactions differ from those for non-centrally-cleared transactions? If so, should such requirements include data fields in addition to those included in Tables A-1 through A-4 of the Appendix, exclude some of the fields listed in Tables A-1 through A-4 of the Appendix, or some combination of the two?
22. Are there special considerations regarding a clearing organization resolution that should be reflected in the rule? In particular, what records of a clearing organization would be useful to the FDIC as receiver? Is this different from the records that are needed for the resolution of other types of financial companies under Title II? If so, how should recordkeeping requirements be modified to address appropriately a clearing organization or other financial market utility resolution?
23. Is it appropriate, if a registered investment company has multiple series, to deem each series of the company to be a separate financial company for purposes of the rules? If not, why not?
24. Should the rules apply to an investment adviser acting as agent for its client with respect to a QFC if the adviser otherwise is not a party to, does not support, does not guarantee, or is not linked to the client's QFC?
In addition to the definitions described in detail above in reference to the scope of the Proposed Rules, certain additional terms are defined in the Proposed Rules to describe a records entity's recordkeeping obligations. The term “counterparty” would be defined as any natural person or entity (or separate non-U.S. branch of any entity)
The term “primary financial regulatory agency” would consist of the Federal banking agencies, the CFTC, FHFA and the SEC and would be defined by reference to the definition of “primary financial regulatory agency” in the Dodd-Frank Act.
25. Should the proposed definition of counterparty be modified to exclude some affiliated entities? If so, which affiliated entities should be excluded and why?
26. Would the proposed definitions result in duplication of data or positions? If so, how could such duplication be removed?
27. Is there an alternative means of introducing transparency for inter-affiliate transactions other than including affiliates in the definition of counterparty? How would the recordkeeping requirements need to be modified to accomplish this goal?
28. Should other terms used in the Proposed Rules be defined? If so which ones? Please include support for any suggested definition or clarification to definitions supplied.
29. Are the Proposed Rules' definitions appropriate? Would there be any additional definitions, modifications or considerations that would be helpful?
Section 148.3(a)(1) of the Proposed Rules would require that a records entity maintain all records in electronic form in the format set forth in the Appendix to the Proposed Rules. All records entities in a corporate group would be required to be able to generate data in the same data format and use the same counterparty identifiers to enable the aggregation of all records entities in the corporate group. In addition, the use of such counterparty identifiers would enable the data to be aggregated by counterparty, thus permitting the FDIC to understand the exposure of the entire corporate group to a given counterparty. The FDIC will use the aggregation of counterparty positions to determine the effects of termination or transfer of QFCs. Although the Proposed Rules specify a recordkeeping format, the Secretary recognizes the need to build-in flexibility for an alternate recordkeeping format. Therefore, Section 148.3(c) of the Proposed Rules provides that the Secretary may grant conditional or unconditional exemptions from compliance with one or more of the requirements of the rule. An exemption with regard to the recordkeeping format requirements could be conditioned upon the records entity keeping the records in an alternate format that enables the FDIC to exercise its rights under the Act and fulfill its obligations under section 210(c)(8), (9), or (10) of the Act.
Section 148.3(a)(1) of the Proposed Rules would require that all records be capable of being transmitted electronically to a records entity's PFRA and the FDIC. This requirement would impose a recordkeeping burden but not a reporting burden on records entities. In order to comply with the rule, a records entity would need to ensure that it is able to comply with the recordkeeping requirements of the rules for all cross-border transactions.
These proposed requirements are necessary and appropriate in order to assist the FDIC as receiver. Transparency with respect to all QFC positions is necessary to enable the FDIC as receiver to rapidly dispose of the QFC portfolio or perform on the QFCs and minimize the potential for disorderly liquidation of the covered financial company and increased systemic risk. Accordingly, the FDIC should have detailed and complete information available to it with respect to all QFCs of a records entity and its affiliated financial companies, without delay, on the date of appointment. As discussed above, given the short time frame for FDIC decisions, it may be difficult to obtain and analyze a large amount of information unless it is readily available to the FDIC in an updated and standardized format that enables the FDIC to carry out the required financial and legal analysis in an expeditious and efficient manner. Furthermore, absent electronic access to the complete records of a records entity and the ability to view such information in the context of the records entity's booking practices, governing law, and organizational structure, the FDIC may
Section 148.3(a)(2) of the Proposed Rules would require that each records entity maintain records for all QFCs to which it is a party, including inter-affiliate QFCs to which it is a party. Each records entity also would be required to maintain records for all QFCs that are guaranteed or supported by such records entity.
Section 148.3(a)(3) of the Proposed Rules would require that each records entity provide a point of contact to enable its PFRA and the FDIC to contact the records entity with respect to the rule, and to update this information within 30 days of any change. Because the FDIC, after being appointed as receiver, will have very little time to update QFC information and make decisions with respect to QFCs, the FDIC must work cooperatively with personnel in charge of QFCs at each records entity who can provide greater context for the data, including the records entity's booking practices, governing law, and organizational structure.
Section 148.3(a)(4) of the Proposed Rules would require that each records entity that is regulated by a PFRA be capable of providing all QFC records specified in the rules to its PFRA within 24 hours of request. This requirement would impose a recordkeeping burden but not a reporting burden on records entities. A PFRA could exercise its own authority by imposing a 24 hour reporting requirement on a records entity for the QFC records maintained under the rule, and by sharing such records with the FDIC. The Secretary recognizes that many financial companies may not currently have the capability to provide all QFC records in the required format within a 24-hour time period. Nevertheless, because of timing constraints set forth in Title II, the FDIC must become familiar with the types and formats of QFC data maintained by records entities to be able to comply with the statutory deadlines upon receivership and to be able to exercise its rights under the Act. In addition, the records entity must be able to generate the records in the formats specified in the rules quickly, generally overnight, to refresh the information provided to regulators. These formats or records may also be used by the FDIC both to refine receivership processes with respect to the evaluation of QFCs of financial companies and their corporate groups, and to familiarize itself with the QFCs of the records entities in a given corporate group.
30. Are the proposed requirements that records entities in a corporate group be able to maintain the records in the same data format and use the same counterparty identifiers to enable the aggregation of the data across all records entities in the corporate group or by counterparty reasonable?
31. Are there any other procedures that should be addressed by the rules which may help streamline data production? For example, some records entities may have a very large volume of QFC records. Could this raise practical considerations in the electronic transmission of such records?
32. Are there particular methods that would best address record maintenance and data requirements for inter-affiliate transactions and cross-border transactions? Should there be specific requirements for such transactions? Should records entities be exempted from any part of the recordkeeping requirements in the Proposed Rules for such transactions?
33. Should the Proposed Rules set forth a standard data specification that would require common data structures and content for data submitted for each corporate group?
34. What types of consents, if any, would a records entity need to obtain from counterparties outside of the United States in order to comply with the recordkeeping requirements in the Proposed Rules? Would records entities be able to comply with the rules if they are unable to get such consents? Are there any alternatives to the Proposed Rules that would allow the records entity to maintain the records and have the capability to provide the data to its PFRA?
35. Should the chief compliance officer for registered investment advisers and the officers of registered investment companies be deemed to be the point of contact under the rules? If not, who should the point of contact be for each of these entities?
36. The Proposed Rules currently contemplate requiring a records entity that is regulated by a PFRA to be capable of providing to such PFRA, within 24 hours of request, the required records. The records entity must also be capable of transmitting electronically the required records to such PFRA and the FDIC. Should the rule provide for the PFRAs to make actual requests? If so, should anyone other than the PFRA (
Section 148.3(b) of the Proposed Rules would require that each records entity maintain the capacity to produce QFC records on a daily basis based on previous end-of-day records and values. This provision would not require that the records entity update all values daily in the ordinary course of business. Rather, it would require that the records entity have the capacity to do so upon request. Some data elements set forth in Tables A-1 through A-4 of the Appendix may not generally be updated daily. However, since all data items must be updated to enable the FDIC as receiver to exercise its rights under the Act and fulfill its obligations under sections 210(c)(8), (9), or (10) within the limited time frame afforded by the Act, each records entity would need to maintain the capacity to update the data elements to current values within a 24-hour period. To the extent the electronic recordkeeping system produces data that is more current than previous end-of-day records and values (
When a records entity uses an affiliate or a third party to maintain the records required under the Proposed Rules, it would be the responsibility of the records entity to ensure that records maintained by the affiliate or third party can be provided to the PFRA within 24 hours of a request.
Each records entity also would be required to be able to generate historical end-of-day records of open QFC positions, and any other QFC positions needed to generate data based on end-of-day records and values, for a period of at least the preceding five business days. Historical data are important as a measure of the day-to-day volatility of the given positions, and such data may help the FDIC calculate portfolio values on the business day after the appointment of the receiver.
With respect to record retention, the proposed requirement for a records entity to maintain records would generally apply to records and values with respect to open QFC positions and any other QFC positions needed to generate information based on end-of-day records and values for at least the five business days prior to the date of a request.
37. Are the record maintenance requirements of the Proposed Rules sufficiently clear? If not, what additional requirements should be adopted?
38. Is the five-day retention period for required historical data sufficient? If a different period would be more appropriate, please provide support for your recommendation.
39. In the case of records entities that use affiliates or third-party service providers to maintain their records, is it appropriate for the records entity to be responsible for providing the records within 24 hours of a request, rather than the affiliate or third-party service provider?
40. Should the records be retained for a period shorter or longer than that set forth in the Proposed Rules based on the status of an open QFC? What are the potential benefits or costs of a shorter or longer period for record retention?
Section 148.3(c) of the Proposed Rules would permit the Secretary to grant two types of exemptions from the rules. Any exemptions granted pursuant to the rules may be subject to conditions. The Proposed Rules provide that, upon written request by a records entity, the FDIC, in consultation with the PFRAs for the records entity, may recommend that the Secretary grant a specific exemption from compliance with one or more of the requirements of the rules. For example, if a records entity is a subsidiary of a national bank, but is also registered as a major swap participant and a major security-based swap participant, the FDIC, in consultation with the OCC, SEC and CFTC, could recommend that the Secretary issue an exemption because the OCC is the primary banking regulator while the SEC and the CFTC have oversight authority over the entity by virtue of it being a major swap participant and a major security-based swap participant. As another example, if a records entity is a financial company that does not collect certain types of QFC recordkeeping data in the ordinary course of its business, the FDIC, in consultation with the relevant PFRAs, could recommend that the Secretary issue a specific exemption from certain data requirements of the rules, if the FDIC believes such data omissions are warranted under the particular circumstances.
The Secretary would also be permitted to issue exemptions that have general applicability upon receipt of a recommendation from the FDIC, in consultation with the PFRAs for the applicable records entities. For example, the FDIC, in consultation with the PFRAs, could recommend that the Secretary issue an exemption informing all records entities that some data elements required by Tables A-1 through A-4 of the Appendix are not relevant for a particular type of QFC.
The Secretary considered authorizing the FDIC and the PFRAs to jointly grant specific and general exemptions, because the PFRAs are familiar with the operations of the records entities, and because the FDIC as the intended user of the QFC recordkeeping would be affected by the granting of any exemption. However, the Act does not appear to authorize the Secretary, as Chairperson of the Council, to sub-delegate decision making authority to other agencies. Instead, the Secretary is turning directly to the FDIC and indirectly to the PFRAs for recommendations on whether to grant specific or general exemptions. The Secretary will consider any FDIC recommendation that carefully considers the factors contained in section 210(c)(8)(H)(iv) of the Act.
Section 210(c)(8)(H) of the Dodd-Frank Act gives the Secretary broad flexibility in determining the scope of the records entities based on, as appropriate, the financial companies' size, risk, complexity, leverage, frequency, and dollar amount of QFCs and interconnectedness to the financial system. The Secretary also may consider other factors deemed appropriate, which the Secretary believes should include whether the application of one or more requirements of the Proposed Rules is not necessary to achieve the purpose of the rule. As noted previously, in determining whether to grant any exemptions permitted under the rule, the Secretary expects to take into consideration with respect to financial companies their size, risk, complexity, leverage, frequency and dollar amount of QFCs, interconnectedness to the financial system, and any other factors deemed necessary or appropriate, including whether the application of one or more requirements of the rule is not necessary to achieve the purpose of the rule.
Moreover, some records entities are subject to separate recordkeeping rules promulgated by the CFTC and SEC and may in the future be subject to additional recordkeeping requirements promulgated by other U.S. and non-U.S. agencies. The exemption provisions set forth in the Proposed Rules are designed to enable the rules to work in conjunction with the CFTC's, SEC's and other regulatory recordkeeping requirements as well as any global or local standard adopted after the publication of the final rule, as they would provide the ability for the Secretary to be flexible in taking such requirements and standards into account. Although section 148.3(a)(1) of the Proposed Rules specify a standard format for recordkeeping, the Secretary, upon receipt of a recommendation from the FDIC made in consultation with the appropriate PFRAs, could exempt records entities from this requirement on the condition that they maintain electronic records maintained in a swap data repository or internally in a different format. The format of proposed Tables A-1 through A-4 of the Appendix therefore, should not complicate appropriate recordkeeping, so long as the information set forth in the Appendix can be provided to the FDIC in a manner that allows the FDIC to properly analyze and aggregate the data. Records entities could build upon the mandatory data templates of the swap data repositories and augment and/or hyperlink the data to create the totality of the information requested. A records entity could also help the FDIC, upon appointment as receiver, analyze internal databases by providing the personnel necessary to manipulate internal databases. Because the PFRA for a records entity and the FDIC must work with and understand the data, a records entity would need an exemption
The Proposed Rules also would empower the Secretary, in consultation with the FDIC, to grant extensions of time with respect to compliance with the recordkeeping requirements. It is anticipated that such extensions of time would apply when records entities first become subject to the rules and likely would not be used to lengthen the time periods specified in the maintenance and updating requirements of the rules. Extensions of time may also be appropriate on a limited basis with respect to being capable of providing full records because of unforeseen technical issues.
41. Is the scope of the exemptions appropriate as written?
42. The Proposed Rules would allow the Secretary, upon receipt of a written recommendation from the FDIC, to issue general or specific exemptions based on factors the Secretary determines to be necessary or appropriate. Is the prerequisite of an FDIC recommendation appropriate? For example, in the case of a records entity request for a specific exemption, should the Secretary proceed in determining whether to grant or deny the request if the FDIC does not submit its recommendation within a reasonable period of time? If yes, should the FDIC and/or the PFRAs be consulted in some other manner? Is the FDIC's consultation with the relevant PFRAs in preparing the written recommendation appropriate? If not, should the relevant PFRA be involved in some other manner? For example, should a recommendation be made jointly by the FDIC and the relevant PFRA, or should they each submit separate recommendations to the Secretary? Are the factors the FDIC would be required to consider in making its recommendation appropriate?
43. Should the Secretary delegate decision making authority to the FDIC, the PFRAs, or both with regard to granting general or specific exemptions and extensions of time? If so, please explain the authority by which the Secretary could make such a delegation.
44. How should the PFRAs' separate rulemaking and exemptive authority be used in conjunction with exemptions under this rulemaking?
45. What is the volume and nature of exemption requests that commenters believe are likely to be requested?
46. Should the final rule exempt categories of financial companies? If so, which categories should be exempted and why? Alternatively, should the final rule exempt certain categories of financial companies only from certain provisions of the rules but require them to comply with others? Please specify the conditions and factors to be considered for each such exemption.
47. Should clearing organizations or other financial market utilities be exempted from recordkeeping under the rule? Please explain in detail why current recordkeeping requirements for clearing organizations and other financial market utilities are sufficient to enable the FDIC to conduct the orderly liquidation of clearing organizations or financial market utilities.
48. What conditions, if any, should be included in a clearing organization exemption? Should it suffice that a clearing organization coordinates with its members that are records entities to ensure that appropriate records are kept?
49. Is it feasible for data to be maintained in a standardized format? Should specific format exemptions be included in the final rule, in particular for formats used by common QFC reporting repositories (
50. Should the provisions addressing form and availability of data be further detailed?
51. Should the rule specify a process for requesting exemptions and extensions of time? If so, what should this process be?
Section 148.4(a) of the Proposed Rules would require each records entity to maintain all data required by Tables A-1 through A-4 of the Appendix, as well as additional information that is needed to be able to understand affiliated relationships among records entities and counterparties. Records entities may currently maintain such data; however, they might not be maintaining it in the manner or format in the Proposed Rules. By presenting the data elements in the form of an Appendix, the Secretary has sought to maintain a parallel with the FDIC's Part 371 QFC Recordkeeping rules, and to provide an easy means of separating the data into their relevant categories. As stated below, the Appendix corresponds to position level data, counterparty exposure data, legal agreement data, and collateral data. Where appropriate, each table in the appendix also gives an example of each data element and describes the relevance of such data in the context of an FDIC receivership.
For the purpose of QFC recordkeeping, each records entity would be required to treat its affiliates, including affiliated clearing organizations or other financial market utilities, as third-party counterparties and maintain complete records of all inter-affiliate QFCs. The Proposed Rules would require a records entity to use a unique counterparty identifier to identify each of its counterparties. The records entity would be required to assign a separate unique counterparty identifier to each legal entity and each non-U.S. branch or office of a legal entity that transacts business as a separate branch or division to enable the FDIC to analyze cross-border QFC activity. The unique counterparty identifier also would facilitate the aggregation of positions by counterparty as well as the aggregation by corporate group. The ability of records entities to incorporate unique identifiers for each counterparty is likely to vary significantly depending on the number and types of counterparties, and if the counterparties are currently identified and tracked within the records entity's systems.
Authorities from around the world, including the FDIC, have established a global legal entity identifier (“LEI”) system, with oversight effected by a Regulatory Oversight Committee (“ROC”), comprised of those same authorities, in order to coordinate and oversee a global system of legal entity identification. In June 2014, a Swiss non-profit foundation (the “Global LEI Foundation”) was established with the intention for it to provide operational governance and management over Local Operating Units (“LOUs”) that will issue LEIs.
Before the Global LEI Foundation was established, the ROC created an interim system by which those with pre-LEIs (LEIs compliant with various ROC principles) issued by ROC-endorsed LOUs would be sufficient to satisfy the regulatory requirements of ROC member authorities.
As a result, unique LEIs were already being issued prior to the operational governance and management of the system by the Global LEI Foundation
To the extent that the LEI or pre-LEI does not allow branches to be separately identified, the records entity would be required to include additional identifiers to enable the FDIC to segment the QFC activity both across the corporate group and by jurisdiction, as treatment of a QFC varies based on the law governing the QFC and/or the location of the collateral.
To that end, financial companies would need to maintain the capacity to generate QFC information in a common data format, at a minimum, within each corporate group, and, ideally, among financial companies. To facilitate the resolution of QFC portfolios, the FDIC needs to analyze such data upon appointment as receiver under Title II by working collaboratively with the PFRAs. The standardized data format would reduce the time and effort needed by the FDIC to perform the analysis and facilitate comparison of QFC data across financial companies with large complex QFC portfolios.
A records entity also would be required to maintain electronic copies of all agreements that govern the QFC transactions, as well as credit support documents related to such QFC transactions. As noted previously, electronic records are necessary or appropriate to assist the FDIC as receiver to quickly analyze QFC positions and make prompt decisions with respect to such QFCs, and to minimize the potential for disorderly liquidation of the covered financial company and increased systemic risk. These copies would need to be maintained in full-text searchable electronic form, and would be required to include master agreements and annexes, confirmations, master netting agreements, credit support annexes, guarantees, net worth maintenance agreements, security interest agreements, and other related agreements, if any. Similarly, the Proposed Rules would require records entities to keep full-text searchable copies of all assignment or novation documents to enable the FDIC to determine the appropriate counterparties for the various QFC positions.
The Proposed Rules would require that each records entity also maintain a list of vendors directly supporting the QFC-related activities and the contact information for such vendors. Section 148.4(a) of the Proposed Rules would also require that each records entity maintain certain additional information with respect to its current QFC portfolio, including information about the risk metrics used to monitor the QFC portfolios and contact information for each risk manager. The maintenance of such information would enable the FDIC to contact a risk manager or vendor quickly in the event that the FDIC requires additional information that is not currently included among the required data. Furthermore, maintaining risk manager contact information and a vendor list is unlikely to be overly burdensome because most financial companies are likely to already maintain similar information in the ordinary course of business.
52. Are the proposed requirements related to unique counterparty identifiers sufficient to enable compliance with the rules?
53. Is it necessary or appropriate for a records entity to maintain full-text searchable electronic copies of all agreements governing QFC transactions? If not, are there any viable alternatives to this?
54. Is it necessary or appropriate for a records entity to maintain risk metrics used to monitor the QFC portfolio, risk manager contact information, and a list of vendors that directly support the QFC related activities of the records entity? If not, are there any viable alternatives to this?
55. Should the rule include additional guidance with respect to form, content and format of the records required? If so, how?
56. Should the rule specify a data standard (or language, or specification,
57. Should data elements be interoperable among affiliated records entities and among financial company groups? If so, discuss which standard(s) should be considered, and why? If the rule should not include such a requirement to use a standard for the QFC data, will the complexity and quantity of data hinder the ability of the FDIC to use the QFC data for the purposes described in the rule?
As described previously, the Proposed Rules would organize the detailed QFC recordkeeping requirements into an appendix of four tables: (1) Position-level data set forth in Table A-1; (2) counterparty collateral data set forth in Table A-2; (3) legal agreements related data set forth in Table A-3; and (4) collateral detail data set forth Table A-4. The information that would be required by Tables A-1 through A-4 is largely self-explanatory and contains examples as well as narrative explanations of the applications. Some of the data fields, such as the unique counterparty identifiers for the records entity and the counterparty, are used in each table to help link the data among the tables.
The Appendix specifies that a records entity may leave an entry blank, or may insert “N/A” for any data fields that do not apply to a given QFC transaction or agreement. For example, if a QFC is not guaranteed, data fields that relate to a guarantee agreement would not need to be filled in, so long as those guarantee-related fields that required a Y/N (“Yes/No”) answer are completed where appropriate. Similarly, if QFCs with a counterparty are not collateralized, there would be no need to maintain collateral information with respect to that counterparty.
Table A-1 would set forth position-level data that enable the FDIC to evaluate a records entity's exposure to its counterparties. The FDIC would also use these data to evaluate the effects of the receiver's determination to transfer, disaffirm or repudiate, or retain QFCs. In addition, position-level information would assist the receiver or any transferee to comply with the terms of the QFCs and reduce the likelihood of inadvertent defaults. For example, a unique position identifier would allow for the tracking and separation of positions maintained by the records entity, and the identifier also would be consistent with the CFTC- and SEC-mandated data that need to be reported to SDRs.
The unique booking unit or desk identifier is intended to serve to further segment the data provided by the
Counterparties to records entities often trade QFCs under the terms of a single master agreement or similar governing document. Each master agreement may contain non-standard legal provisions that govern the relationship of the parties. In certain cases, counterparties may maintain multiple master agreements with the same records entity. For the FDIC to accurately assess the effect of transfer or termination of QFC positions on the financial stability of the derivatives and other financial markets, such QFC positions would need to be aggregated under the relevant corresponding agreements or governing documents at each level permitted by the documents. To the extent the master agreements are subject to further cross-product or multi-party netting, such “master-master agreements” also would need to be identified. All master agreements are included in the QFC definition under the Act and would be required to be treated as QFCs for all purposes under the Proposed Rules. The data that would be maintained must enable the FDIC to not only aggregate and disaggregate positions at the level of each counterparty, affiliate, and agreement, but also to determine the overall effect of the FDIC's decisions for each of the counterparty's and the records entity's corporate groups.
Table A-1 would also require the records entity to maintain information with respect to any loan or other obligation that relates to a QFC. For example, the counterparty to a swap with a records entity may have entered into the swap to hedge the interest rate exposure on amounts borrowed from an affiliate of the records entity, where both the loan and the swap are secured by one mortgage on the property. This information is necessary to enable the FDIC to evaluate both the loan and the swap. The information that would be maintained with respect to related obligations includes a reference number of the obligation and information about the borrower, lender and any other material terms of the related obligation.
Table A-2 would require a records entity to maintain counterparty aggregate exposures and collateral data for all QFCs entered into by a records entity with a counterparty. For such data, the records entity would need to demonstrate the ability to maintain itemized records of collateral by counterparty, which also would allow for the aggregation of collateral based on the netting rights of the counterparty and its affiliates. The data would need to take into account enforceability of netting in an insolvency close-out situation in specific jurisdictions, in addition to contractual payment netting outside an insolvency or receivership.
The information in Table A-2 would need to be maintained at each level of netting under a master agreement. For example, if a master agreement includes Annexes that require intermediate netting under each Annex, the net exposures under each Annex would need to be maintained separately. The data would need to identify whether multi-party or cross-product netting is contemplated among affiliates in a corporate group and provide exposure data taking into account such multi-party or cross-product netting. To the extent netting is not enforceable in an insolvency of the records entity or the counterparty, the positions that cannot be netted in an insolvency would not need to be netted for the purpose of Table A-2. This information would allow counterparty-level data to be segregated by records entity and counterparty. The use of the term “counterparty” would also include each affiliate in a records entity's corporate group that is a counterparty to an inter-affiliate QFC.
The title and name of each master agreement, master netting agreement, and accompanying governing documentation relating to counterparty positions, would enable the FDIC as receiver to identify the related agreement and review the contractual provisions governing the counterparty relationship.
The primary objective of proposed Table A-2 is to identify exposure of the records entity to each counterparty and its affiliates, as well as the exposure that counterparties might have to the records entity. This information would enable the FDIC to determine the effects of transfer or termination of QFCs with a given counterparty and the potential risk of contagion in the financial markets. Therefore, the data would need to be aggregated only to the extent permitted under the governing agreements and applicable law. Such information also would provide relative concentrations of risk with counterparties under each applicable agreement. A records entity could also transact QFCs for hedging or other purposes with the various affiliates within a group, which may include cross-border positions that cannot be netted. In order to assess the true exposure of an entity, the FDIC as receiver must have a full understanding of the aggregate QFC position by including all inter-affiliate transactions in its evaluations. This information also would be needed to assess cross-border risk and collateral availability as well as the likely systemic or practical implication of transferring QFC positions.
Table A-2 would require comprehensive collateral information, including market value of collateral, location of collateral, and any custodial and segregation arrangements. Collateral excess or deficiency positions as well as collateral thresholds and valuation discounts also would need to be provided. The creditworthiness of counterparties that might not be able to return rehypothecated collateral represents an additional risk to a QFC transaction. Conversely, if the records entity is able to rehypothecate collateral, the records entity may create additional risks for its counterparties. Table A-2 would require identification of the collateral status and a notation whether collateral posted to a counterparty is subject to re-hypothecation. This information would enable the FDIC as receiver to comply with the law and transfer QFC obligations together with the related collateral.
Table A-3 would require the maintenance of legal agreement data for each QFC agreement or master agreement between each records entity
Counterparties to records entities often trade QFCs under the terms of a master agreement (for example, an ISDA master agreement) coupled with other governing documentation. Therefore, it is important that the legal agreement(s) between the records entity and counterparty be identified by name and any unique identifier information. Such agreement(s) outline the legal terms of the transaction, including relevant governing law, and will assist the receiver in determining a definitive course of action. The records entity would need to identify the relevant governing law. The records entity also would need to include a list and description of any events of default or termination events that are in addition to those specified in the form of agreement used, as well as a list and description of events of default or termination events that have been removed by mutual agreement. In addition, each records entity would need to specify all “specified financial condition clauses” that are part of a given agreement, as well as the entity to which such QFCs are linked.
To the extent a counterparty does not use a specific industry standard form, the records entity could either prepare this information by reference to the standard form or by providing a list and description of all relevant events of default or termination events. This information would assist the receiver in planning a course of action and in determining whether there are any events that trigger the counterparty's right to terminate the agreement.
Because the receiver has a limited period of time in which to evaluate QFC provisions, the availability of the legal agreements in fully searchable electronic form is of utmost importance. In particular, the identification of any support by or linkage to a parent entity or affiliate and the identification of any transfer restrictions and non-standard covenants would enable the FDIC as receiver to evaluate the treatment of QFCs under such contracts in an orderly liquidation of the records entity or its affiliate under Title II of the Act
Table A-4 would expand on the information set forth in Table A-2. Each records entity would be required to maintain collateral detail data both with respect to collateral received and with respect to collateral posted. Such information would need to be maintained on a counterparty-by-counterparty basis. In addition, the data would need to include collateral information for each records entity. The collateral information would need to be capable of aggregation for the records entity's corporate group, as well as the counterparty's corporate group to the extent required or permitted by any applicable netting agreements. The data in this Table, together with the data in Table A-2, would allow the FDIC to better understand the QFC portfolio risk, and to model various QFC transfer or termination scenarios.
58. Is it reasonable for the Proposed Rules to require collateral detail data both with respect to collateral received and collateral posted, on a counterparty-by-counterparty basis? Is it reasonable for the Proposed Rules to require data that include collateral information for each records entity? If not, what are the viable alternatives?
59. Are there any additional records that should be maintained by a records entity? If so, what additional categories or fields should be included? Please be specific in identifying data to be maintained.
60. Do the recordkeeping requirements sufficiently capture information regarding QFCs that are linked to the records entity? Do the recordkeeping requirements sufficiently capture information regarding QFCs that are guaranteed or otherwise supported by the records entity?
61. In the event that only some portion of the QFC records need to be capable of being produced immediately, should fewer data elements be required?
62. Please comment on the general nature and scope of records proposed to be maintained Should some records be further explained? How does the nature and scope of records compare to other QFC recordkeeping requirements (
63. Are there any impediments to maintaining the records proposed to be required? How should these impediments be resolved? Please specify why the unavailability of a record would or would not create impediments to the transfer or repudiation of the affected QFCs.
64. Should different records or data be required to be maintained by records entities based on entity types?
65. Are any of the proposed recordkeeping requirements not necessary or appropriate to assist the FDIC as receiver? If not, why not? Are some records not necessary or appropriate based on the entity type of the records entity? Would any of the contemplated records or data result in undue burden on records entities?
66. Do the proposed recordkeeping requirements overlap or conflict with any existing or proposed regulatory requirements applicable to various entities that would qualify as records entities? If so, how should any conflicting or overlapping requirements be addressed? Specifically, do the proposed recordkeeping requirements overlap with or conflict with the proposed recordkeeping rules applicable to broker-dealers and security-based swap dealers (SBSD)?
67. If there are QFCs between a records entity and a counterparty that are of the type that typically would be covered by two or more different types of master agreements, should a different schedule be required for each such different type of QFC?
68. What would be the most efficient method of obtaining information as to changes affecting individual positions, as well as changes to Master Agreements pursuant to annexes, changes to annexes, other amendments and protocols?
69. What would be the most efficient way to account for inter-affiliate positions while avoiding duplication of position reporting? Should the position-level data require a unique counterparty identifier and counterparty name for the counterparty to related inter-affiliate position(s) with non-records entities in the corporate group or with non-affiliates?
70. In order to enable the FDIC as receiver to meet pending margin calls for all companies in a corporate group, should a records entity be required to provide information as to collateral deficiencies, after giving effect to pending margin calls, of each subsidiary that is not a records entity? Should a records entity also be required to provide information as to the location of collateral provided in connection with such subsidiaries' positions or other additional information with respect to the positions of such subsidiaries?
71. Table A-1 of the Appendix requires position-level data that identifies whether the purpose of such positions is for hedging or trading, and if the purpose of a position is for hedging, Table A-1 requires a general description of the hedge (
72. The recordkeeping requirement for the reference number of any related loan data, if applicable, in Table A-1 to the Appendix serves a similar purpose as the requirement to identify the particular purpose of a position. To the extent a QFC is related to a specific loan or loans held by the covered financial company in receivership or an affiliate, it may be beneficial to transfer or retain in the receivership the QFC and the related loan or loans in conjunction with each other where, in the case of a transfer, the bridge financial company does not end up holding a QFC without also holding directly or indirectly the related loan or loans. For example, the covered financial company may have issued a loan along with a related interest rate swap, and in the case of resolution, it might be beneficial to transfer to the bridge financial company, or terminate, together the interest rate swap and the underlying loan. To the extent a QFC position has a related loan or loans, would it be appropriate for a records entity to include the reference number for any related loan? Would it be appropriate for a records entity to include the legal name of the records entity that is lender of related loan as required in the position-level data?
73. As specified in Tables A-1 and A-2, records entities are also required to maintain the industry code for each counterparty by using either the Global Industry Classification (GIC) code or the Standard Industrial Classification (SIC) code. Each of these two codes uses four digits to identify the primary business of an entity, and is designed to facilitate uniformity and comparability in the collection, presentation, and analysis of data. By having access to a GIC or SIC code for each counterparty, the FDIC will be better positioned to estimate the financial and operational impact of its decisions to transfer, disaffirm or repudiate, or retain QFCs in the receivership, and will be better able to assess the potential impact (“knock-on effects”) that such decisions may have on the financial markets as a whole and particularly on individual sectors of the economy. Is the use of a GIC or SIC code appropriate? Are there alternative codes that would better assist the FDIC?
74. Table A-4 to the Appendix requires recordkeeping in the form of a “yes or no” on whether the collateral for a particular position is segregated and a brief description of such segregation. This information is necessary for the FDIC to decide whether to transfer QFCs. If the FDIC as receiver decides to transfer all QFCs between the covered financial company in receivership and a specific counterparty, the Act requires the FDIC to transfer all property or collateral securing such QFCs.
75. Is there a different format for maintaining the records that would improve the receiver's ability to evaluate QFC portfolios? How do the proposed formatting requirements affect a records entity's ability to generate the records in the time frames provided for in the Proposed Rules? Are there any other requirements relating to formatting or transmission of records that the Secretary should consider?
The Regulatory Flexibility Act (the “RFA”) (5 U.S.C. 601
Instead of requiring all financial companies to maintain records with respect to QFCs, the Secretary is narrowing the scope of the Proposed Rules to a smaller subset of financial companies. As a threshold matter, the Secretary is proposing to exclude from the scope of the Proposed Rules financial companies that do not meet one of the following three criteria: (1) Are designated pursuant to section 113 of the Act (12 U.S.C. 5323) to be a nonbank financial company that could pose a threat to the financial stability of the United States; (2) are designated pursuant to Section 804 of the Act (12 U.S.C. 5463) as a financial market utility that is, or is likely to become, systemically important; or (3) have total assets equal to or greater than $50 billion. Since the Act's enactment in 2010, eleven financial companies have been designated by the Council under categories (1) and (2), and the Secretary's understanding is that each of those designated companies has revenues in excess of the Small Business Administration's (“SBA”) revised standards for small entities, which went into effect on July 22, 2013. Moreover, the Secretary, as Chairperson of the Council, does not expect that any small entities will be designated by the Council in the foreseeable future.
The RFA requires agencies either to provide an initial regulatory flexibility analysis with a proposed rule or to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities. In accordance with section 3(a) of the RFA, the Secretary has reviewed the Proposed Rules. While the Secretary believes that the Proposed Rules likely would not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605(b)), the Secretary does not have complete data at this time to make this determination, particularly with regard to affiliated financial companies. Therefore, an Initial Regulatory Flexibility Analysis has been prepared in accordance with 5 U.S.C. 603.
The Secretary also requests that commenters quantify the number of small entities, if any, that would be subject to the Proposed Rules, describe the nature of any impact on small entities, and provide empirical and other data to illustrate and support the number of small entities subject to the Proposed Rules and the extent of any impact. After reviewing the comments received during the public comment period, the Secretary will consider whether to conduct a final regulatory flexibility analysis.
The Secretary is proposing a regulation to implement section 210(c)(8)(H) of the Act, as required by the Act. Section 210(c)(8)(H) provides that, if the federal primary financial regulatory agencies do not prescribe joint final or interim final regulations requiring financial companies to maintain records with respect to QFCs to assist the FDIC as receiver for a covered financial company to exercise its rights and fulfill its obligations under certain provisions of the Act within 24 months of the enactment of the Act, the Secretary, as Chairperson of the Council, shall prescribe, in consultation with the FDIC, such regulations.
The Proposed Rules would require records entities to maintain detailed information about their QFC positions and be capable of providing this information to their PFRAs within 24 hours of request. The Proposed Rules include, among other things, recordkeeping requirements with respect to position-level data, counterparty-level data, legal documentation data, and collateral-level data. These requirements would assist the FDIC in resolving financial companies that may be subject to orderly liquidation under Title II of the Act. Specifically, these data are necessary to enable the FDIC as receiver of a covered financial company in deciding whether to: (1) Transfer the covered financial company's QFCs under section 210(c)(9) and (10) of the Act within the narrow time window afforded by the Act; (2) retain such QFCs within the receivership and allow a counterparty to terminate the QFCs; (3) retain the QFCs within the receivership and disaffirm or repudiate the QFCs; (4) exercise its rights to enforce certain QFCs of subsidiaries and affiliates under section 210(c)(16) within the narrow time window afforded under section 210(c)(10) of the Act;
As discussed above, the Proposed Rules would only affect large financial companies and certain of their affiliates that meet the definition of a records entity. The Secretary proposes that the recordkeeping requirements in the Proposed Rules be applicable to all affiliated financial companies in a large corporate group that meet the definition of records entity, regardless of their size, because an exemption for small entities would significantly impair the FDIC's right to enforce certain QFCs of affiliates of covered financial companies under section 210(c)(16) of the Act. Such enforcement may be necessary for the FDIC to preserve the critical operations of these affiliated financial companies.
Based on current information and discussions with several of the PFRAs who are familiar with financial
As discussed in more detail above, the Proposed Rules impose certain recordkeeping requirements on records entities. A records entity is required to maintain all records described in section 148.4 of the Proposed Rules in electronic form and be able to generate data in the format set forth in the Appendix to the Proposed Rules. The Proposed Rules include, among other things, recordkeeping requirements with respect to position-level data, counterparty-level data, legal documentation data, and collateral-level data. Additionally, such records shall be capable of being transmitted electronically to the records entity's PFRAs.
Based on discussions with several of the PFRAs who are familiar with financial company operations and have experience supervising financial companies with QFCs portfolios, the Secretary believes that records entities should already be maintaining most of these QFC records as part of their ordinary course of business. However, the Secretary recognizes that the Proposed Rules' form and availability requirements may impose additional costs and burdens on records entities. To help reduce these costs and burdens, section 148.3(c) of the Proposed Rules provides the Secretary with the ability to grant general and specific exemptions from compliance with one or more of the requirements of the Proposed Rules under certain circumstances. For example, the exemption provisions set forth in the Proposed Rules are designed to enable the rules to work in conjunction with the CFTC's, SEC's and other regulatory recordkeeping requirements, as they would provide the ability for the Secretary to be flexible in taking such requirements into account. Although section 148.3(a)(1) of the Proposed Rules specifies a standard format for recordkeeping, the Secretary, upon receipt of recommendation from the FDIC made in consultation with the appropriate PFRAs, could exempt records entities from this requirement on the condition that they maintain electronic records maintained in a swap data repository or internally in a different format. Therefore, the format of proposed Tables A-1 through A-4 of the Appendix should not complicate appropriate recordkeeping, so long as the information set forth in the Appendix can be provided to the FDIC in a manner that allows the FDIC to properly analyze and aggregate the data. The Proposed Rules further provide the Secretary with the authority to grant extensions of time for compliance purposes.
The Secretary seeks information and comment on any costs, compliance requirements, or changes in operating procedures arising from application of the Proposed Rules on small entities.
The Secretary does not believe that any Federal rules duplicate or conflict with the Proposed Rules. The Proposed Rules may overlap with certain CFTC and SEC recordkeeping requirements. However, the Secretary believes the Proposed Rules are necessary to assist the FDIC as receiver for a covered financial company in deciding whether to: (1) Transfer the covered financial company's QFCs under section 210(c)(9) and (10) of the Act within the narrow time window afforded by the Act; (2) retain such QFCs within the receivership and allow a counterparty to terminate the QFCs; (3) retain the QFCs within the receivership and disaffirm or repudiate the QFCs; (4) exercise its rights to enforce certain QFCs of subsidiaries and affiliates under section 210(c)(16) within the narrow time window afforded under section 210(c)(10) of the Act; and (5) assess the consequences of decisions to transfer, disaffirm or repudiate, or retain QFCs, including the potential impact that such decisions may have on the financial markets as a whole. Additionally, the exemption provisions set forth in the Proposed Rules are designed to enable the rules to work in conjunction with the CFTC's and SEC's recordkeeping requirements, as they would provide the ability for the Secretary to be flexible in taking such requirements into account.
The Secretary seeks comment regarding any other statutes or regulations that would duplicate, overlap, or conflict with the Proposed Rules.
The Secretary is unaware of any appropriate alternatives to the Proposed Rules, other than those included and discussed in the Proposed Rules, that accomplish the stated objectives of the Proposed Rules and that minimize any significant economic impact of the Proposed Rules on small entities. The Secretary requests comment on whether there are ways to reduce the burdens associated with the recordkeeping requirements on small entities associated with the Proposed Rules.
The collection of information requirements in the Proposed Rules have been submitted by the Secretary to the Office of Management and Budget (“OMB”) for review in accordance with the Paperwork Reduction Act of 1995 (the “PRA”), 44 U.S.C. 3507(d). Comments on the collection of information should be sent to the Office of Management and Budget, Attention: Desk Officer for the Department of Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Department of Treasury at the addresses previously specified herein. Comments on the information collection should be submitted no later than March 9, 2015. Comments are specifically requested concerning:
(1) Whether the proposed information collection is necessary for the proper performance of agency functions,
(2) The accuracy of the estimated burden associated with the proposed collection of information, including the validity of the methodology and assumptions used (see below);
(3) How to enhance the quality, utility, and clarity of the information required to be maintained;
(4) How to minimize the burden of complying with the proposed information collection, including the application of automated collection techniques or other forms of information technology;
(5) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to maintain the information; and
(6) Estimates of (i) the number of financial companies subject to the Proposed Rules, (ii) the number of records entities that are parties to an open QFC or guarantee, support, or are linked to an open QFC, and (iii) the number of affiliated financial companies that are parties to an open QFC or guarantee, support, or are linked to an open QFC of an affiliate.
The collection of information in the Proposed Rules is in §§ 148.3 and 148.4 and in Tables A-1, A-2, A-3, and A-4 of the Appendix. The collection of information is required by section 210(c)(8)(H) of the Act, which mandates that the Secretary prescribe regulations requiring financial companies to maintain records with respect to QFCs to assist the FDIC as receiver for a covered financial company in being able to exercise its rights under the Act and fulfill its obligations under section 210(c)(8), (9) or (10) of the Act.
The Proposed Rules implement these requirements by requiring that a records entity maintain all records specified in the Proposed Rules in electronic form and be capable of generating and transmitting data electronically to such records entity's PFRAs and the FDIC. The Proposed Rules require that a records entity be capable of providing QFC records to its PFRA within 24 hours of the request of such PFRA. The Proposed Rules set forth various recordkeeping requirements with respect to, among other things, position-level data, counterparty-level data, legal documentation data (including copies of agreements governing QFC transactions and open confirmations), collateral level data, a list of affiliates of counterparties and of the records entity, a list of vendors supporting QFC-related activities, risk metrics used to monitor the QFC portfolio, and risk manager contact information for each portfolio that includes QFCs.
The Proposed Rules also provide that a records entity may request in writing a specific exemption from the Proposed Rules, and may also request an extension of time with respect to compliance with the recordkeeping requirements.
The Secretary estimates that approximately 140 large corporate groups, and each of their respective affiliated financial companies that is a party to an open QFC or guarantees, supports or is linked to an open QFC of an affiliate and is not an “exempt entity”, will meet the definition of records entity in section 148.2(l). This list of large corporate groups likely includes bank holding companies, nonbank financial companies determined pursuant to section 113 of the Act to be an entity that could pose a threat to the financial stability of the United States, financial market utilities designated pursuant to Section 804 of the Act as a financial market utility that is, or is likely to become, systemically important; broker-dealers registered with the SEC under section 15 of the Securities and Exchange Act of 1934; investment advisers registered with the SEC under section 203 of the Investment Advisers Act of 1940 and unregistered investment advisers; investment companies registered with the SEC under section 8 of the Investment Company Act of 1940; insurers; real estate investment trusts; and finance companies. The Proposed Rules would also apply to these large corporate groups' affiliated financial companies (regardless of their size) if an affiliated financial company otherwise qualifies as a “records entity” and is not an “exempt entity” under the Proposed Rules.
The Secretary estimates that these large corporate groups collectively have 23,325 affiliated financial companies that may qualify as records entities based on discussions and consultations with the PFRAs who are familiar with financial company operations and have experience supervising financial companies with QFC portfolios. Because there is no information available to determine how many of these affiliated financial companies are a party to an open QFC or guarantee, support, or are linked to an open QFC of an affiliate, and thus would qualify as records entities, the Secretary has assumed that all 23,325 affiliated financial companies would qualify as record entities. The Secretary recognizes that, based on a number of factors, the actual total number of respondents may differ significantly from these estimates and requests comment on the total number of respondents.
The Secretary's initial recordkeeping, reporting, data retention, and records generation burden estimates are based on discussions with the PFRAs regarding their prior experience with initial burden estimates for other recordkeeping systems. The Secretary also considered the burden estimates in rulemakings with similar recordkeeping and reporting requirements.
In order to comply with the Proposed Rules, each of the large corporate group respondents will need to set up its network infrastructure to collect data in the required format. This will likely impose a one-time initial burden on the large corporate group respondents in connection with the necessary updates to their recordkeeping systems, such as systems development or modifications. The initial burden for each large corporate group respondent to set up its network infrastructure will depend largely on whether the financial companies already hold and maintain QFC data in an organized electronic format, and if so, whether the data currently resides on entirely different systems rather than on one centralized system. Large corporate group respondents may need to amend internal procedures, reprogram systems, reconfigure data tables, and implement compliance processes. Moreover, they may need to standardize the data and create records tables to match the format required by the Proposed Rules. However, this initial burden is mitigated to some extent because QFC data is likely already retained in some form by each respondent in the ordinary course of business.
As discussed above, the Proposed Rule also applies to certain affiliated financial companies of the large corporate group respondents. The Proposed Rules will likely impose a one-time initial burden on the affiliated financial companies in connection with necessary updates to their recordkeeping systems, such as systems development or modifications. These burdens will vary widely among affiliated financial companies. Their initial burden will depend largely on whether the affiliated financial companies already hold and maintain QFC data in an organized electronic format, and if so, whether the data currently resides on entirely different systems rather than on one centralized system.
The Secretary believes that the large corporate groups subject to the Proposed Rules are likely to rely on centralized systems for their QFC activities that will perform most of the recordkeeping requirements set forth herein. The entity responsible for this centralized system will likely operate and maintain a technology shared services model with the majority of the technology applications, systems, and data shared by the multiple affiliated financial companies within the corporate group. Therefore, the Proposed Rules will impose the most significant burden on the entities responsible for these centralized systems within the large corporate group respondents, and not the affiliated financial companies. The affiliated financial companies will likely have a much lower burden because they can utilize the technology and network infrastructure operated and maintained by the entity responsible for the centralized system at their respective large corporate group. Similarly, the Secretary believes that the affiliated financial companies will rely on the entities responsible for the centralized systems to perform the reporting requirements under section 148.3(c)(2) and (3).
Similarly, the Secretary believes that affiliated financial companies will rely on large corporate group respondents to submit requests for extensions of time, specific exemptions, or both.
The initial and annual recordkeeping burden is imposed by the Act, which requires that the Secretary prescribe regulations requiring financial companies to maintain records with respect to QFCs to assist the FDIC as receiver of a covered financial company in being able to exercise its rights under the Act and fulfill its obligations under section 210(c)(8), (9), or (10) of the Act.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by OMB.
It has been determined that the Proposed Rules are a significant regulation as defined in section 3(f)(1) of Executive Order 12866, as amended. Accordingly, the Proposed Rules have been reviewed by OMB. The Regulatory Assessment prepared by the Secretary for the Proposed Rules is provided below.
The rulemaking is required by the Dodd-Frank Act to implement the QFC recordkeeping requirements of section 210(c)(8)(H) of the Act. Section 210(c)(8)(H) generally provides that if the PFRAs do not prescribe joint final or interim final regulations requiring financial companies to maintain records with respect to QFCs within 24 months from the date of enactment of the Act, the Chairperson of the Council shall prescribe such regulations in consultation with the FDIC. The Secretary, as Chairperson of the Council, is proposing the Proposed Rules in consultation with the FDIC because the PFRAs did not prescribe such joint final or interim final regulations. The recordkeeping required in the Proposed Rules is necessary to assist the FDIC as receiver to exercise its rights and fulfill its obligations under section 210(c)(8), (9), and (10) of the Dodd-Frank Act, by enabling it to assess the consequences (including any financial systemic risks) of decisions to transfer, disaffirm or repudiate, or allow the termination of, QFCs with one or more counterparties.
The recent financial crisis has demonstrated that management of QFC positions, including steps undertaken to close out such positions, can be an important element of a resolution strategy which, if not handled properly, may magnify market instability. Large, interconnected financial companies may hold very large positions in QFCs involving numerous counterparties. A disorderly unwinding of these QFCs, including the rapid liquidation of collateral, could cause severe negative consequences for not only the counterparties themselves but also U.S. financial stability.
In order for the FDIC to effectuate an orderly liquidation of a covered financial company under Title II and thereby minimize systemic risk, the FDIC would need to make appropriate decisions regarding whether to transfer QFCs to a bridge financial company or other solvent financial institution or leave QFCs in the covered financial company in receivership. It may not be possible for the FDIC to fully analyze a large amount of QFC information in the short time frame afforded by Title II, unless such information is readily available to the FDIC in a standardized format designed to enable the FDIC to conduct the analysis in an expeditious manner.
In assessing the need for these recordkeeping requirements, we have reviewed two categories of academic literature. As highlighted above, one of the potential channels through which the disorderly unwinding of these QFCs could cause severe negative consequences for both the counterparties themselves and U.S. financial stability is through the rapid liquidation of collateral. The disorderly failure of a financial company with a large QFC portfolio may lead QFC counterparties to exercise their contractual remedies and rights by closing out positions and liquidating collateral, while also potentially increasing uncertainty in both derivatives and asset markets. This could lead to lower asset prices, decrease the availability of funding, and increase the likelihood that other financial companies also are forced to liquidate assets. To assess the potential impact of rapid liquidations, or “fire sales,” we have reviewed economic studies of fire sales among financial companies. Second, while there is limited academic literature specifically focused on the cost of a disorderly unwinding of a large, complex financial company's QFC portfolio, there has been recent literature analyzing the cost of the Lehman Brothers bankruptcy in
The economic literature on financial company fire sales offers insight on their potential internal and external impacts. While not directly addressing QFCs, the fire sale literature can be applied to the potential impact of the rapid liquidation of QFC collateral that might occur in a disorderly unwinding of a large QFC portfolio.
Shleifer and Vishny (2011) believe that before the September 2008 Lehman Brothers bankruptcy most specialist buyers, including most financial companies, were active in the market, but after the Lehman bankruptcy most of them were unwilling to buy assets, causing security prices to plunge, and prompting fund withdrawals, collateral calls, and self-reinforcing fire sales. This cycle of price collapses and deleveraging increased the fragility of the financial system, and disrupted financial intermediation. The next major section discusses the Lehman failure in more detail.
At the time of a fire sale both seller and non-seller financial companies may curtail their lending, thereby imposing additional social costs associated with reduced financial intermediation. Shleifer and Vishny (2010)
On the borrower side, Campello et al. (2010)
Numerous researchers have provided broad estimates of the economic costs of the 2007-09 financial crisis (see GAO (2013)
The net worth of Lehman Brothers derivative positions at the time of bankruptcy totaled $21 billion, with 96 percent representing over-the-counter (OTC) positions.
We use a framework that divides costs associated with derivatives resolution into private costs and public (external) costs. Private costs consist of direct losses to derivatives counterparties from unrecovered claims, indirect costs to derivatives counterparties from loss of hedged positions, costs to other Lehman Brothers creditors in the bankruptcy proceeding due to reductions in recovery values resulting from the termination and settlement of OTC derivatives, and litigation and administrative expenses. While we find no literature that assesses the public costs directly attributable to the resolution of Lehman's derivatives portfolio, below we examine the literature assessing the public impact of Lehman's failure more broadly.
While rigorous estimates of the value of each cost element listed above would be ideal, in reality we are constrained by a lack of publicly available data. Therefore, this section combines qualitative descriptions of costs with limited quantitative information when available, in an effort to provide insight on the costs of resolving Lehman's QFC portfolio under the bankruptcy proceedings.
Johnson and Mamun (2012)
Dumontaux and Pop (2012)
The economic literature on financial asset fire sales maintains that such events are more systemically harmful when occurring during industry-wide periods of distress, making mitigating these costs a public policy concern. The Lehman Brothers bankruptcy and the resulting QFC terminations occurred during a crisis period, and might have imposed widespread private and public costs. We do not compare the Lehman bankruptcy costs to the alternative of potential resolution costs under a counterfactual case had Title II of the Dodd-Frank Act been in effect at the time of the Lehman bankruptcy filing.
The FDIC promulgated 12 CFR part 371, Recordkeeping Requirements for Qualified Financial Contracts (“Part 371”), pursuant to section 11(e)(8)(H) of the FDIA.
Based on staff-level discussions with the PFRAs who are familiar with financial company operations and have experience supervising financial companies with QFC portfolios, the Secretary believes that the large corporate groups that would be subject to the Proposed Rules should already be maintaining most or all of the QFC records required under the Proposed Rules as part of their ordinary course of business. In order for these large corporate groups to effectively manage their QFC portfolios, they need to have robust recordkeeping systems in place. For example, large corporate groups that trade derivatives out of several distinct legal entities need to have detailed records, including counterparty identification, position-level data, collateral received and posted, and contractual requirements, in order to effectively manage their portfolio, perform on contracts, and monitor risks. However, it is unlikely that these large corporate groups are maintaining the QFC records in the standardized format prescribed by the Proposed Rules and as set forth in the Appendix to the Proposed Rules.
The Secretary considered alternative forms of the proposed rules, but believes that the current form is the best
In developing the definition of a records entity, the Secretary took into consideration factors such as financial company size, risk, complexity, leverage, frequency and dollar amount of QFCs, and interconnectedness to the financial system, as well as other factors described herein. The Secretary included the following entities within the scope of the definition of a records entity: Financial companies that have at least $50 billion in assets, financial companies that the Council determines could pose a threat to U.S. financial stability, and financial companies that the Council designates as systemically important financial market utilities.
The Secretary believes that the $50 billion asset threshold is a useful means for identifying entities that are of a sufficient size that they could potentially be considered for orderly liquidation under Title II, and therefore should be incorporated in the definition of a records entity. A $50 billion asset threshold has been separately established for similar purposes under the Dodd-Frank Act.
The Secretary considered alternative criteria in developing the definition of a records entity, such as including financial companies that have more than $10 billion in assets. This threshold, which would have captured more financial companies that potentially might be considered for orderly liquidation under Title II, has been used in other regulatory requirements. For example, the Dodd-Frank Act requires certain financial companies with more than $10 billion in total consolidated assets to conduct annual stress tests.
However, the Secretary determined that while it is possible that financial companies with more than $10 billion and less than $50 billion in total assets potentially would be considered for orderly liquidation under Title II, $50 billion was a more appropriate threshold. Including all financial companies with over $10 billion in total assets would substantially increase the number of financial companies subject to recordkeeping requirements, many of which would likely not be considered for orderly liquidation under Title II. A financial company (including a bank holding company) with total assets of $50 billion or more, is the type of financial company that potentially would be the most likely to be considered for orderly liquidation under Title II. The definition of records entity is thus designed to reduce recordkeeping burdens on smaller financial companies by only capturing those financial companies with QFC positions for which the FDIC is most likely to be appointed as receiver.
The Secretary seeks comment on the following questions: Is the scope of the Proposed Rules adequate? Should additional or different criteria be used to define a records entity? If so, what criteria would be appropriate? For example, should the rules exempt certain entities based on the number of QFC counterparties, QFC notional amounts, or QFC mark-to-market values as of a particular date? If so, at what levels should such exemptions be set? Should there be any other form of de minimis exemption from these criteria? Please provide specific explanations of how such criteria would be applied together with an explanation of whether such criteria would affect the FDIC's ability to resolve a QFC portfolio.
The Secretary determined, after consulting with the FDIC, that requiring each records entity to maintain the data included in Tables A-1 through A-4 of the Appendix to the Proposed Rules is necessary to assist the FDIC in being able to effectively exercise its rights under the Act and fulfill its obligations under section 210(c)(8), (9), or (10) of the Act. To facilitate the resolution of QFC portfolios, the FDIC needs to analyze such data and, upon being appointed as receiver under Title II, effectuate decisions with respect to the exercise of such rights. The information must be sufficient to allow the FDIC to estimate the financial and operational impact on the covered financial company and its counterparties, or affiliated financial companies, of the FDIC's decision to transfer, disaffirm or repudiate, or retain the QFCs. It must also allow the FDIC to assess the potential impact that such decisions may have on the financial markets as a whole.
The position-level data included in Table A-1 to the Appendix is intended to enable the FDIC to evaluate a records entity's exposure to its counterparties. The FDIC would also use these data to evaluate the effects of the receiver's determination to transfer, disaffirm or repudiate, or retain QFCs. In addition, position-level information would assist the receiver or any transferee to comply with the terms of the QFCs and reduce the likelihood of inadvertent defaults. For example, a unique position identifier would allow for the tracking and separation of positions maintained by the records entity.
The primary objective of proposed Table A-2 to the Appendix is to identify exposure of the records entity to each counterparty and its affiliates, as well as the exposure that counterparties might have to the records entity. This information would enable the FDIC to determine the effects of transfer or termination of QFCs with a given counterparty and the potential risk of contagion in the financial markets. Table A-2 would also require comprehensive collateral information, including market value of collateral, location of collateral, and any custodial and segregation arrangements. Collateral excess or deficiency positions as well as collateral thresholds and valuation discounts also would need to be maintained. This information would enable the FDIC as receiver to evaluate counterparty relationships and determine if the receivership would benefit from retaining and repudiating QFCs with certain counterparties. It would also enable the FDIC as receiver to comply with the requirements of the Act by transferring QFC obligations together with the related collateral.
Table A-3 to the Appendix would require the maintenance of legal agreement data for each QFC agreement or master agreement between each records entity and counterparty. Because the receiver has a limited period of time in which to evaluate QFC provisions, the availability of the legal
Table A-4 to the Appendix would require each records entity to maintain collateral detail data both with respect to collateral received and with respect to collateral posted on a counterparty-by-counterparty basis. The data in this Table, together with the data in Table A-2, would allow the FDIC to better understand the QFC portfolio risk, and to model various QFC transfer or termination scenarios.
As indicated above, the proposed recordkeeping requirements of the Proposed Rules are similar to the FDIC's Part 371 but the information requirements of the Proposed Rules are more extensive. The Secretary considered reducing recordkeeping burden by aligning the requirements more closely with those of the FDIC's Part 371. However, the Secretary determined, in consultation with the FDIC, that additional recordkeeping beyond that required by Part 371 would be needed for the FDIC to resolve a financial company with significant QFC positions under Title II. In particular, the FDIC will need this additional information to analyze the QFC portfolio and determine whether to transfer, disaffirm or repudiate, or retain the QFCs during the one business day stay and to perform the obligations under the QFCs, including meeting collateral requirements. For example, the proposed position-level and counterparty-level data included in Tables A-1 and A-2 to the Appendix would require recordkeeping for inter-affiliate transactions, which was not included in Part 371. Recordkeeping with respect to inter-affiliate QFCs is necessary to enable the FDIC to quickly understand all QFC linkages in a corporate group and to evaluate the potential systemic effects of FDIC decisions. Table A-2, the counterparty collateral data, is also more extensive than the FDIC's Part 371 due to the inclusion of pending margin calls in the calculation of the excess or deficiency of the counterparty's collateral. This will assist the FDIC in meeting the obligations under the QFCs, including certain clearing organization margin calls. The Table A-3 legal agreements, which were not included in Part 371, are necessary to enable the FDIC as receiver to evaluate the treatment of QFCs under such contracts, including any support by or linkage to a parent entity or affiliate and the identification of any transfer restrictions and non-standard covenants. Table A-4 includes additional collateral detail data, such as the collateral jurisdiction, the collateral segregation status, and whether the collateral may be subject to re-hypothecation by the counterparty. These additional data are necessary to enable the FDIC to assess risks associated with the collateral and improve the FDIC's ability to analyze various QFC transfer or termination scenarios. For example, for cross-border transactions, this information would help the FDIC evaluate the availability of collateral in different jurisdictions and the related close-out risks if the receiver cannot arrange for the transfer of QFC positions under local law.
Because the information requirements of the Proposed Rules are more extensive than Part 371, the Secretary, in consultation with the FDIC, has also proposed to allow for a longer compliance period than the compliance period set forth under Part 371. An insured depository institution subject to the FDIC's Part 371 recordkeeping requirements must comply within 60 days of notification.
The Secretary seeks comment on the following questions: Are any of the proposed recordkeeping requirements not necessary or appropriate to assist the FDIC as receiver? Please include the rationale for why these requirements are not necessary or appropriate. Should the determination on whether some records are not necessary or appropriate be based on the type of records entity? Would any of the contemplated records (including any of the data fields in the appendix) or data result in unnecessary burden on records entities? Are there ways to further align the recordkeeping requirements set forth herein with the requirements of other recordkeeping and reporting rules to reduce regulatory burden (
The Secretary determined that requiring records entities to have the capacity to maintain and generate QFC records in the uniform, standardized format set forth in the Appendix to the Proposed Rules is necessary to assist the FDIC in being able to effectively exercise its rights under the Act and fulfill its obligations under section 210(c)(8), (9), or (10) of the Act. Specifically, when the FDIC is appointed as receiver of a covered financial company, the covered financial company's QFC counterparties are prohibited from exercising their contractual right of termination until 5 p.m. (eastern time) on the first business day following the date of appointment. After its appointment as receiver and prior to the close of the aforementioned 5 p.m. deadline, the FDIC has three options in managing a covered financial company's QFC portfolio. Specifically, with respect to all of the covered financial company's QFCs with a particular counterparty and all its affiliates, the FDIC may: (1) Transfer the QFCs to a financial institution, including a bridge financial company established by the FDIC; (2) retain the QFCs within the receivership and allow the counterparty to exercise contractual remedies to terminate the QFCs; or (3) retain the QFCs within the receivership, disaffirm or repudiate the QFCs, and pay compensatory damages. If the FDIC transfers the QFCs to a financial institution, the counterparty may not terminate the QFCs solely by reason of the covered financial company's financial condition or insolvency or the appointment of the FDIC as receiver. If the FDIC does not transfer the QFCs and does not repudiate such QFCs, the counterparty may exercise contractual remedies to terminate the QFCs and assert claims for payment from the covered financial company and may have rights to liquidate the collateral pledged by the covered financial company.
The Secretary considered reducing recordkeeping burdens by requiring the maintenance of non-standardized records. After consulting with the FDIC, the Secretary determined that this alternative may reduce the FDIC's flexibility in managing the QFC portfolio, increase systemic risk, and impair the FDIC's ability as receiver to manage the assets of the covered financial company in terms of
However, while the Proposed Rules specify a standardized recordkeeping format, the Secretary also recognizes the need to provide flexibility for possible alternate recordkeeping formats if they are sufficient to meet the needs of the FDIC. The Proposed Rules provide the Secretary with the discretion to grant conditional or unconditional exemptions from compliance with one or more of the requirements of the Proposed Rules, which could include exemptions to the standardized recordkeeping format. For example, a conditional exemption could be granted if an alternate format, such as one used for a separate recordkeeping requirement, would still allow the FDIC to manipulate and analyze the data to determine the effect of FDIC decisions under Title II with respect to a covered financial company's QFC portfolio and enable the FDIC to fulfill its obligations under section 210(c)(8), (9), or (10) of the Act within the narrow time window afforded by section 210(c)(10) of the Act.
Instead of requiring all financial companies to maintain records with respect to QFCs, the Secretary is limiting the scope of the Proposed Rules to a smaller subset of financial companies. Discretion to do so is afforded under section 210(c)(8)(H)(iv) of the Act, which authorizes differentiation among financial companies by taking into consideration, among other things, their size and risk. The Secretary is exercising this discretion to exclude from the scope of the Proposed Rules financial companies that do not meet one of the following three criteria: (1) Are designated pursuant to section 113 of the Act (12 U.S.C. 5323) to be a nonbank financial company that could pose a threat to U.S. financial stability; (2) are designated pursuant to section 804 of the Act (12 U.S.C. 5463) as a financial market utility that is, or is likely to become, systemically important; or (3) have total assets equal to or greater than $50 billion. Since the Act's enactment in 2010 through 2013, eleven financial companies have been designated by the Council under categories (1) and (2), and the Secretary's understanding is that each of those designated companies has revenues in excess of the Small Business Administration's revised size standards for small entities. As a result, the Proposed Rules would only apply to large corporate groups (including a large corporate group's affiliated financial companies, regardless of their size, if the affiliated financial company is a party to an open QFC or guarantees, supports or is linked to an open QFC of an affiliate and is not an “exempt entity” under the Proposed Rules).
The types of financial companies that would qualify as records entities under the Proposed Rules include: Bank holding companies, savings and loan holding companies, broker-dealers, derivatives clearing organizations, payment and settlement systems, and registered clearing agencies. The Secretary proposes that the recordkeeping requirements in the Proposed Rules apply to all affiliated financial companies in a large corporate group that meet the definition of records entity, regardless of their size, because a broad exemption for small entities could significantly impair the FDIC's ability to enforce certain QFCs of affiliates of covered financial companies under section 210(c)(16) of the Act within the narrow time window afforded by section 210(c)(10) of the Act.
Based on discussions with the PFRAs who are familiar with financial company operations and have experience supervising financial companies with QFC portfolios, the Secretary believes that the costs of implementing the Proposed Rules may be mitigated by the fact that records entities should be maintaining most of the QFC records required by the Proposed Rules as part of their ordinary course of business. However, the Secretary recognizes that the Proposed Rules' standardized form and availability requirements may impose costs and burdens on records entities. In order to comply with the Proposed Rules, each of the approximately 140 large corporate groups that the Secretary estimates would be subject to the recordkeeping requirements will need to have network infrastructure to maintain data in the required format. The Secretary expects that this will likely impose one-time initial costs on each large corporate group in connection with necessary updates to their recordkeeping systems, such as systems development or modifications. The initial costs to set up network infrastructure will depend on whether a large corporate group already holds and maintains QFC data in an organized electronic format, and if so, whether the data currently reside on different systems rather than on one centralized system. Large corporate groups may need to amend internal procedures, reprogram systems, reconfigure data tables, and implement compliance processes. Moreover, they may need to standardize the data and create tables to match the format required by the Proposed Rules. However, the Secretary believes that the large corporate groups that would be subject to the Proposed Rules are likely to rely on existing centralized systems for recording and reporting QFC activities to perform most of the recordkeeping and reporting requirements set forth herein. The entity within the corporate group responsible for this centralized system will likely operate and maintain a technology shared services model with the majority of technology applications, systems, and data shared by the affiliated financial companies within the large corporate group. Therefore, the Proposed Rules will likely impose the most significant costs on the entities responsible for the centralized systems within the large corporate group, and not on the affiliated financial companies. The affiliated financial companies will likely have much lower costs because they can utilize and rely upon the technology and network infrastructure operated and maintained by the entity responsible for the centralized system within the large corporate group.
It is estimated that the initial recordkeeping burden for all records entities will be approximately 62,063 hours with a total one-time initial cost
With regard to reporting burdens under the Proposed Rules, a records entity may request in writing an extension of time with respect to compliance with the recordkeeping requirements or a specific exemption from the recordkeeping requirements. The total estimated annual reporting burden under the Proposed Rules will be approximately 3,500 hours with a total annual cost of approximately $542,500. The estimated average hourly rate for recordkeepers to comply with the annual reporting burden is approximately $155 per hour based on the U.S. Department of Labor, Bureau of Labor Statistics' national occupational employment statistics and wage statistics, dated May 2012.
The Secretary seeks comment on whether the cost estimates are reasonable.
As noted earlier, QFCs tend to increase the interconnectedness of the financial system and systemic risk, and the recent financial crisis demonstrated that the management of QFC positions can be an important element of a resolution strategy which, if not handled properly, may magnify market instability. The recordkeeping requirements of the Proposed Rules are designed to ensure that the FDIC, as receiver of a covered financial company, will have comprehensive information about the QFC portfolio of such financial company subject to orderly resolution, and enable the FDIC to carry out the rapid and orderly resolution of a financial company's QFC portfolio in the event of insolvency, for example, by transferring QFCs to a bridge financial company within the narrow time window afforded by the Act. Given the short time frame for FDIC decisions regarding a QFC portfolio of significant size or complexity, the Proposed Rules would require the use of an updated and standardized format to allow the FDIC to process the large amount of QFC information quickly. In the absence of updated and standardized information, it is conceivable that, for example, the FDIC could leave QFCs in the receivership when transferring to a bridge financial company or other solvent financial institution would have been the preferred course of action had better information been available. Specifically, if the FDIC does not transfer the QFCs and does not repudiate such QFCs, counterparties may terminate the QFCs and assert claims for payment from the covered financial company and may have rights to liquidate the collateral pledged by the covered financial company. Because a large, interconnected financial company can often hold very large positions in QFCs involving numerous counterparties, the disorderly unwinding of QFCs, including the rapid liquidation of collateral, could cause severe negative consequences for U.S. financial stability. The FDIC as receiver may also wish to make sure that affiliates of the covered financial company continue to perform their QFC obligations in order to preserve the critical operations of the covered financial company and its affiliates. In such cases, the FDIC may need to arrange for additional liquidity, support or collateral to the affiliates to enable them to meet collateral obligations and generally perform their QFC obligations.
While there could be significant benefits from the Proposed Rules, such benefits are difficult to quantify, as the Proposed Rules are only one component of the orderly liquidation authority and the benefits of the Proposed Rules would only be realized upon such authority being exercised. In addition, implementation of the Dodd-Frank Act will: (1) Subject large, interconnected financial companies to stronger supervision, and as a result, reduce the likelihood of their failure; and (2) blunt the impact of any such failure on U.S. financial stability and the economy. For example, bank holding companies with total consolidated assets of $50 billion or more and nonbank financial companies supervised by the Board are subject to supervisory and company-run stress tests to help the Board and the company measure the sufficiency of capital available to support the company's operations throughout periods of stress.
Nevertheless, one way to gauge the potential benefits of the Proposed Rules is to examine the effect of the recent financial crisis on the real economy and how the Title II orderly liquidation authority as a whole will help reduce the probability or severity of a future financial crisis. For example, in a 2013 Government Accountability Office (GAO) report, GAO stated that there is some research that suggests that U.S. output losses associated with the 2007-2009 financial crisis could range from several trillion dollars to over $10 trillion.
However, as discussed above, even if the benefits of preventing future financial crises are significant, it is difficult to quantify what portion of such benefits would be attributable to any single provision of the Dodd-Frank Act, let alone those benefits directly attributable to the Proposed Rules. For example, GAO also noted that such benefits are not assured and will depend on, among other things, how regulators implement the provisions.
Executive Order 13563 also directs the Secretary to develop a plan, consistent with law and resources and regulatory priorities, to conduct a periodic retrospective analysis of significant regulations to determine whether such regulations should be modified, streamlined, expanded, or repealed so as to make the regulations more effective and less burdensome. The Secretary expects to conduct a retrospective analysis not later than seven years after the effective date of the rule. This review will consider whether the recordkeeping requirements are necessary or appropriate to assist the FDIC as receiver in being able to exercise its rights under the Act and fulfill its obligations under section 210(c)(8), (9), or (10) of the Dodd-Frank Act, and may result in proposed amendments to the rule. For example, the Secretary will review whether the data set forth in Tables A-1 through A-4 to the Appendix are necessary or appropriate to assist the FDIC as receiver, and/or whether maintaining additional, less, or different data is necessary or appropriate. The Secretary seeks comment on the following question: Is it appropriate for the Secretary to conduct the “lookback review” not later than seven years after the effective date of the rule, or would a different period be preferable?
Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Department of the Treasury proposes to add part 148 to 31 CFR chapter I to read as follows:
31 U.S.C. 321(b) and 12 U.S.C 5390(c)(8)(H).
(a)
(b)
(c)
(d)
(2)
For purposes of this part:
(1) Directly or indirectly or acting through one or more other persons owns, controls, or has the power to vote 25 percent or more of any class of voting securities of another entity;
(2) Controls in any manner the election of a majority of the directors or trustees of another entity; or
(3) Must consolidate another entity for financial or regulatory reporting purposes.
(1) An insured depository institution as defined in 12 U.S.C. 1813(c)(2);
(2) A subsidiary of an insured depository institution that is not a functionally regulated subsidiary as defined in 12 U.S.C. 1844(c)(5), a security-based swap dealer as defined in 15 U.S.C. 78c(a)(71) or a major security-based swap participant as defined in 15 U.S.C. 78c(a)(67); or
(3) A financial company that is not a party to a QFC and controls only exempt entities as defined in paragraphs (1) and (2) of this definition.
(1) Guarantee, indemnify, or undertake to make any loan or advance;
(2) Undertake to make capital contributions; or
(3) Be contractually obligated to provide any other financial assistance.
(1) A change in the financial condition or the insolvency of a financial company;
(2) The appointment of the FDIC as receiver for the financial company or any actions incidental thereto, including, without limitation, the filing of a petition seeking judicial action with respect to the appointment of the FDIC as receiver for the financial company or the issuance of recommendations or determination of systemic risk;
(3) The exercise of rights or powers by the FDIC as receiver for the financial company, including, without limitation, the appointment of the Securities Investor Protection Corporation (SIPC) as trustee in the case of a financial company that is a covered broker or dealer and the exercise by SIPC of its rights and powers as trustee;
(4) The transfer of assets or liabilities to a bridge financial company or other qualified transferee;
(5) Any actions taken by the FDIC as receiver for the financial company to effectuate the liquidation of the financial company; or
(6) Any actions taken by or on behalf of the bridge financial company to operate and terminate the bridge financial company, including the dissolution, conversion, merger or termination of the bridge financial company or actions incidental or related thereto. Without limiting the foregoing, a specified financial condition clause includes a “walkaway clause” as defined in 12 U.S.C. 5390(c)(8)(F)(iii) or any regulations promulgated thereunder.
(i) Is not an exempt entity;
(ii) Is a party to an open QFC or guarantees, supports or is linked to an open QFC; and
(iii) (A) Has been determined pursuant to 12 U.S.C. 5323 to be an entity that could pose a threat to the financial stability of the United States;
(B) Has been designated pursuant to 12 U.S.C. 5463 as a financial market utility that is, or is likely to become, systemically important;
(C) Has total assets equal to or greater than $50 billion; or
(D) Is:
(
(
(2) For the purpose of this definition, “total assets” means the total assets reported in the most recent year-end audited consolidated statement of financial condition of the applicable financial company filed with its primary financial regulatory agency, or, for financial companies not required to file such statements, the total assets shown on the consolidated balance sheet of the financial company for the most recent fiscal year end.
(a)
(i) For all affiliated records entities in the corporate group; and
(ii) By counterparty, for all records entities in a corporate group.
(2)
(3)
(4)
(b)
(2)
(3)
(c)
(2)
(3)
(i) A statement of the reasons why the records entity cannot comply by the deadline for compliance; and
(ii) A plan for achieving compliance during the requested extension period.
(a)
(1) The position-level data listed in Table A-1 in the appendix of this part.
(2) The counterparty collateral data listed in Table A-2 in the appendix of this part.
(3) The legal agreements information listed in Table A-3 in the appendix of this part.
(4) The collateral detail data listed in Table A-4 in the appendix of this part.
(5) Any written data or information that is not listed in Tables A-1 through A-4 in the appendix to this part that the records entity is required to provide to an SDR, the CFTC, the SEC or any non-U.S. regulator with respect to any QFC, for any period that such data or information is required to be maintained by its primary financial regulatory agency.
(6)(i) For each counterparty that is not an affiliate of the records entity, a list specifying all other counterparties that are members of the same corporate group as the counterparty and that are parties to open QFCs with the records entity or guarantee, support or are linked to such QFCs, as well as an organizational chart that explains the affiliate relationships of such counterparties. Such list shall include the unique counterparty identifier for each counterparty in the counterparty's corporate group. The unique counterparty identifier shall be based on the global legal entity identifier issued by:
(A) Utilities endorsed by the Regulatory Oversight Committee, whose charter was set forth by the Finance Ministers and Central Bank Governors of the Group of Twenty and the Financial Stability Board; or
(B) Utilities endorsed or otherwise governed by the Global LEI Foundation, but must include additional identifiers in the event one counterparty transacts with the records entity as separate non-U.S. branches or divisions, as appropriate to enable the FDIC to aggregate or disaggregate the data for each counterparty and for the counterparty's corporate group as necessary to determine the effects of potential QFC transfers or terminations, including the effects of any ring-fencing with regard to any such non-U.S. branch or division.
(ii) All records entities in a corporate group must use the same unique counterparty identifier for each counterparty.
(7) A list of all affiliates of the records entity that are parties to open QFCs or guarantee, support or are linked to open QFCs, as well as an organizational chart that explains the affiliate relationships for such records entities. Such list shall specify which affiliates are counterparties to inter-affiliate QFCs with such records entity for which the records entity is required to maintain records pursuant to this part. Such list shall include the unique counterparty identifier for each affiliated counterparty in the records entity's corporate group as set forth in paragraph (a)(6) of this section.
(8) Full-text searchable copies of all agreements that govern QFC transactions between the records entity and each counterparty, including without limitation, master agreements and annexes, supplements, or other modifications with respect to the agreements.
(9) Copies of the active or “open” confirmations, if the position has been confirmed or the trade acknowledgment if the position has not been confirmed.
(10) Full-text searchable copies of all credit support documents including, but not limited to, any credit support annexes, any guarantees, keep-well agreements, or net worth maintenance agreements that are relevant to one or more QFCs.
(11) Full-text searchable copies of all assignment or novation documents, if applicable, including documents which confirm that all required consents, approvals, or other conditions precedent for such assignment or novation have been obtained or satisfied.
(12) A list of vendors directly supporting the QFC-related activities of the records entity and the vendors' contact information.
(13) Risk metrics used to monitor the QFC portfolio, including without limitation, credit risk, market risk and liquidity risk measures.
(14) Risk manager contact information for each portfolio that includes QFCs.
In maintaining the records required under this part, a records entity may leave an entry