Agricultural Marketing Service
Animal and Plant Health Inspection Service
Rural Business-Cooperative Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Air Force Department
Army Department
Navy Department
Federal Energy Regulatory Commission
Children and Families Administration
Food and Drug Administration
Coast Guard
Fish and Wildlife Service
Surface Mining Reclamation and Enforcement Office
Occupational Safety and Health Administration
Copyright Royalty Board
Institute of Museum and Library Services
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Maritime Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Agricultural Marketing Service, USDA.
Final rule.
This rule amends the general regulations for Federal fruit, vegetable, and specialty crop marketing agreements and marketing orders (orders) and allows such programs to conduct meetings and vote using electronic means of communication.
Effective May 17, 2018.
Melissa Schmaedick, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, Post Office Box 952, Moab, UT 84532; Telephone: (202) 557-4783, Fax: (435) 259-1502, or Julie Santoboni, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202)720-8938, or Email:
This final rule is issued under the general regulations for Federal marketing agreements and orders (7 CFR part 900), effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”
The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 12866, 13563, and 13175. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See the Office of Management and Budget's (OMB) Memorandum titled, “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.
This final rule authorizes administrative bodies of Federal fruit, vegetable, and specialty crop orders that currently do not have authority to conduct meetings using electronic communication means to do so.
This action also stipulates that each program follow its respective quorum and voting requirements when conducting meetings via electronic communication. Lastly, this action allows administrative bodies to recommend, subject to approval by the Secretary of Agriculture (Secretary), new requirements specific to meetings and verifying votes made at meetings conducted other than in-person.
Adding this authority increases operating efficiencies by adding flexibility to the methods by which meetings may be held and decisions made. Additionally, time and travel costs of attending meetings will be reduced. Of the 29 fruit, vegetable, and specialty crop orders currently in effect, six either do not have authority to meet other than in person or are limited specifically to phone or mail voting as alternatives.
This final rule establishes agency rules of practice and procedure. Under the Administrative Procedure Act (APA), prior notice and opportunity for comment are not required for the promulgation of agency rules of practice and procedure. 5 U.S.C. 553 (b)(3)(A). Only substantive rules require publication 30 days prior to their effective date. 5 U.S.C. 553 (d). Therefore, this final rule is effective upon publication in the
In addition, because prior notice and opportunity for comment are not required to be provided for this final rule, this rule is exempt from the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.
USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
Administrative practice and procedure, Freedom of information, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth above, 7 CFR part 900 is amended as follows:
7 U.S.C. 601-674 and 7 U.S.C. 7401.
Notwithstanding any other provisions of a marketing order in this part, administrative bodies of fruit, vegetable, and specialty crop marketing orders, and their committees/subcommittees may, upon due notice to all members and the public:
(a) Conduct meetings by any means of communication available, electronic or otherwise, that effectively assembles members and the public, and facilitates open communication.
(b) Vote by any means of communication available, electronic or otherwise; Provided, That votes cast are verifiable and that quorum and other procedural requirements of each respective marketing order are met.
(c) With the approval of the Secretary, each administrative body may prescribe any additional procedures necessary to carry out the objectives of paragraphs (a) and (b) of this section.
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the Virus-Serum-Toxin Act regulations concerning records and reports. This change requires veterinary biologics licensees and permittees to record and submit reports concerning adverse events associated with the use of biological products they produce or distribute. The information that must be included in the adverse event reports submitted to the Animal and Plant Health Inspection Service (APHIS) will be provided in separate guidance documents. These records and reports will help ensure that APHIS can provide complete and accurate information to consumers regarding adverse reactions or other problems associated with the use of licensed biological products.
Effective June 18, 2018.
Dr. Donna L. Malloy, Section Leader, Operational Support, Center for Veterinary Biologics Policy, Evaluation, and Licensing, VS, APHIS, 4700 River Road Unit 148, Riverdale, MD 20737-1231; (301) 851-3426.
The Virus-Serum-Toxin Act regulations in 9 CFR part 116 (referred to below as the regulations) contain requirements for maintaining detailed records of information necessary to give a complete accounting of all the activities within a veterinary biologics establishment. These records include records and reports for unfavorable or unintended events that occur in animals after the use of a biological product.
On September 4, 2015, we published in the
The purpose of VICH is to harmonize technical requirements for veterinary medicinal products (both pharmaceuticals and biologics). As a VICH member, the Animal and Plant Health Inspection Service (APHIS) provides expertise on veterinary biological products and participates in efforts to enhance harmonization. Both APHIS and the animal health industry are committed to seek scientifically based harmonized technical requirements for the development and use of veterinary biological products. VICH Guideline GL42: Pharmacovigilance: Data Elements for Submission of Adverse Events Reports specifically addresses the information that should be included when submitting adverse event reports.
We solicited comments concerning our proposal for 60 days ending November 3, 2015. We received four comments by that date. They were from industry associations, a manufacturer of veterinary biologics, and a private citizen. The commenters were generally supportive of the proposed rule but asked some questions and raised some concerns about the provisions. These comments are discussed below by topic.
One commenter stated that the current system for detecting safety issues with products has historically worked well. The commenter did not believe there have been significant safety issues that have not been detected in a timely fashion.
APHIS agrees with the commenter that the existing system has worked well. However, we believe that this rule will significantly improve the existing system by enhancing our ability to monitor the observed performance of veterinary biologics. For example, currently each veterinary biologics manufacturer makes an independent determination concerning whether an adverse event report raises questions regarding purity, safety, potency, efficacy, preparation, testing, or distribution, and when and in what manner such a report of the adverse event will be provided to APHIS. Thus, without explicit reporting requirements concerning adverse events, reports that may signal problems concerning the use of veterinary biological products may not all be submitted to APHIS or may not be submitted in a timely manner.
One commenter noted that the only VICH guideline specifically referenced in the proposed rule is VICH GL42. The commenter stated that where the final rule, guidance documents, or APHIS practice touches upon the subject matter in the VICH guidelines, APHIS should look to all the VICH guidelines to harmonize definitions and practices to the furthest extent possible. The commenter specifically mentioned VICH GL24, Pharmacovigilance of Veterinary Medicinal Products: Management of Adverse Event Reports as one which APHIS should consider when establishing future regulations or guidelines.
APHIS agrees that consistency with all relevant VICH guidelines is important. In the proposed rule, we referenced GL42 because we were proposing to add definitions to 9 CFR part 101 which are consistent with definitions found in this guideline. In future actions, however, we will reference all VICH guidelines regarding pharmacovigilance. We will also review all VICH guidelines associated with pharmacovigilance and consider them when developing future guidance documents, and will provide an opportunity for the industry to review and comment on any such documents.
One commenter stated that this rule should not be implemented until APHIS has the capability to receive submissions electronically. The commenter further stated that in establishing this capability APHIS should utilize the VICH Guidelines for the Electronic Standards for Transfer of Data, and Data Elements for Submission of Adverse Event Reports (VICH GL42, 30, and 35).
APHIS agrees on the importance of electronic submission and we will prioritize the development of an electronic submission portal. However we do not agree that this rule should not be implemented until we have the capacity to receive electronic submissions. As noted above by another commenter, the current system for detecting safety signals with products has historically worked well. APHIS has, and will continue to have, the capability to receive adverse event information by phone, fax, email, etc. It is important to implement this rule in order to clarify specific reporting requirements and to harmonize with international standards. Since we already receive adverse event reports, we do not believe it is necessary to wait for the development of an electronic submission portal.
One commenter stated that the same adverse event may be reported separately by two or more parties, such as the veterinarian and animal owner. The commenter stated that APHIS should ensure that it has the capability to detect any duplicate reports.
We agree with the commenter and will work to develop internal systems to detect duplicate reports.
One commenter recommended that APHIS engage the industry in substantial discussion relative to the method and process it will use for signal detection and trend analysis and signal assessment and management. The commenter stated that government and industry have the same goal of marketing pure, potent, safe, and effective products and industry is open to maintaining a partnership in signal detection, trend analysis, and risk management.
APHIS agrees with the commenter and will continue to engage with industry as future guidance is developed.
One commenter asked for clarification of APHIS expectations on the maintenance of pharmacovigilance data and practices when a facility is inspected.
Proposed § 116.9(a) provides that records must be maintained for 3 years after the date that the adverse event report is received.
One commenter asked for clarification on the aspects of the adverse event data that will be subject to the Freedom of Information Act (FOIA) and/or routinely made available on the APHIS website. The commenter stated that they expected that FOIA requests for this data will be received and that this data has tremendous potential for misuse. The commenter strongly suggested that if the data is made available on the APHIS website, information should also be provided about the limitations on interpreting the data.
In general, if APHIS receives a FOIA request for publicly available information, we do not need to supply the information to the requester. Instead, we provide guidance on where the information is available and how often it is updated. If the FOIA request is for specific data that is not available publicly, then we are mandated to supply the information in its entirety without redaction. If it is information owned by a biologics manufacturer, then APHIS will send the FOIA request and responsive records to the manufacturer for review and redaction, if the responsive records contain confidential business information or trade secrets.
Because the adverse event reports we receive are voluntary, APHIS has not yet made summary reports available to the public. We are aware that the number of adverse event reports received are a very small percentage of what is occurring in the field. After mandatory adverse event reporting is implemented, APHIS will make summary reports publicly available on the APHIS website. APHIS is working to determine the specifics on how often those reports are published and what explanatory information is included.
Though we have not finalized a process to manage this data publicly, we do agree with the commenter about the limitations on interpreting the data when made public. For example, comparing products by the prevalence of adverse event cases reported can be misleading if one does not consider the number of animals exposed for each respective product. Prior to implementing the process for public disclosure of the data, we will explore the method that best serves all veterinary biologics stakeholders. Included in this will be the review and consideration of how the Food and Drug Administration handles their pharmacovigilance data.
One commenter recommended that APHIS remove the adverse event reporting restrictions on the licenses for conditionally licensed products. The commenter also recommended that APHIS engage with State veterinarians and inform them that adverse events will be made public and that the industry should not be required by the State to provide additional reports.
APHIS intends to engage with State veterinarians and other public groups to advise them of the availability of adverse event reports on the APHIS website. However, we will not remove adverse reporting restrictions on licenses because there may be specific issues associated with a product that require clarification on the license.
One commenter noted that the definition of an
The commenter is correct that for diagnostic kits a “failure in product performance” refers to a verified failure of the product itself, and would not include reports associated with equipment failure or technical errors. We will clarify this in guidance documents.
In the proposed rule, we estimated that each report would require 0.33 hours to generate and submit. One commenter stated that this estimate is too low. The commenter stated that any formal communication with a regulatory agency requires fact-checking and review, which add to the time required to generate the report. The commenter stated that they believe that a minimum of two full-time equivalent hours would be required for a simple report, with 4 to 6 hours being a likely average for all reports.
APHIS recognizes the variability in the time that it will take to gather, review, assess, and report adverse event cases to the agency. For example, the type of product (vaccine, diagnostic test kits, etc.) can have a significant influence in the respective time required to process a case. The reporting time would also vary depending on whether a licensee/permittee submits cases individually or batches multiple ones in a single submission. Therefore, considering the variability of processing adverse event reports for licensees/permittees, we would agree that a more accurate estimate of burden would be a range of 1 to 3 hours.
One commenter stated that the proposed definition of
VICH GL24, which refers to all veterinary medicinal products (VMP), defines an adverse event as “any observation in animals, whether or not considered to be product-related, that is unfavorable and unintended and that occurs after any use of VMP (off-label and on-label uses). Included are events related to a suspected lack of expected efficacy according to approved labeling or noxious reactions in humans after being exposed to VMP(s).”
We proposed to define an
One commenter stated that the definition of
APHIS agrees with the commenter. We have amended the definition of
One commenter noted that an
APHIS agrees that this could be clearer. In cases where specific information regarding an animal identity is not readily available, we consider the species for which the product was used to be the minimum information for an “identifiable animal.”
One commenter noted that the terms
APHIS intends to define these terms in guidance documents that will be made available for review and comment by the industry and public before they are finalized. APHIS will work with the industry to develop guidance on these topics as the need arises.
One commenter asked for clarification that APHIS is seeking spontaneous reports of adverse events, and not the results that could occur in clinical trials or other studies that would already be reported to APHIS in a study report, or adverse events that may be reported in the literature.
The commenter is correct. Adverse event reports should address events that occur in field use of the product, not the results of clinical trials.
One commenter stated that, in § 116.9(b)(1), “immediate” should be interpreted to mean “within 3 business days” to be consistent with Veterinary Services Memorandum 800.57 “Market Suspensions.” The commenter stated that this would allow time for preliminary investigation. The commenter also stated that APHIS should replace the term “immediate” with “3 business days” in this section, as well as in § 116.5(b).
APHIS agrees that it is practical to interpret “immediately” as “within 3 business days” and will clarify this in guidance documents, which will be needed to establish a consistent application to the interpretation of a serious event. The requirement in § 116.9(b)(1) is consistent with the established requirement in § 116.5(b), so we are making no changes to either paragraph.
One commenter recommended that APHIS eliminate the 15 business day reporting requirement and any use of the concepts of “product‐related”, “serious”, and “expected” for case management timelines. The commenter stated that even if these are eliminated, APHIS would still receive those adverse event reports that impact the purity, potency, safety, or efficacy of the product on a 3 business day basis, and its ability to react very quickly to the most urgent situations would not be compromised. The commenter suggested that all other reports be submitted on the 90 calendar day requirement, which would provide sufficient time for a thorough investigation. A second commenter stated that a 90 day reporting period is too brief a period of time to submit reports; many of which will have nothing to report. The commenter suggested changes in the length of the reporting period over time
APHIS agrees with the first commenter that serious and unexpected adverse events will be reported immediately within 3 business days and
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.
This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the
We are amending the Virus-Serum-Toxin Act regulations concerning records and reports. This change would require veterinary biologics licensees and permittees to record and submit reports concerning adverse events associated with the use of biological products they produce or distribute. The type of information that must be included in the adverse event reports submitted to APHIS would be provided in separate guidance documents.
We are taking this action in order to limit the harm to animals due to adverse events related to a product's purity, safety, potency, efficacy, preparation, testing, or distribution. Current regulations may hinder APHIS from taking expeditious action in cases where veterinary biologics are unsatisfactory.
For animal owners, the monetary benefits of the proposal are difficult to estimate because they would depend on unknowable factors—the significance or gravity of the harm that would be avoided with the rule in effect, and the number and value of animals thereby protected. Manufacturer costs to comply with the proposed rule are expected be minimal; most establishments that would be affected already maintain recordkeeping systems for adverse event reports that capture most if not all of the information that would be required. Most of the establishments that would be affected by the proposed rule are small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies where they are necessary to address local disease conditions or eradication programs. However, where safety, efficacy, purity, and potency of biological products are concerned, it is the Agency's intent to occupy the field. This includes, but is not limited to, the regulation of labeling. Under the Act, Congress clearly intended that there be national uniformity in the regulation of these products. There are no administrative proceedings which must be exhausted prior to a judicial challenge to the regulations under this rule.
This rule does not significantly or uniquely affect the communities of Indian Tribal governments. The rule does not impose any mandate on Tribal governments or impose any duties on these entities. Thus, no further action is required under Executive Order 13175.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2483.
Animal biologics.
Animal biologics, Reporting and recordkeeping requirements.
Accordingly, we are amending 9 CFR parts 101 and 116 as follows:
21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
(1) An identifiable reporter;
(2) An identifiable animal;
(3) An identifiable biologic product; and
(4) One or more adverse events.
21 U.S.C. 151-159; 7 CFR 2.22, 2.80, and 371.4.
(a) * * *
(3) Records (other than disposition records and adverse event records) required by this part must be completed by the licensee, permittee, or foreign manufacturer, as the case may be, before any portion of a serial of any product may be marketed in the United States or exported.
All records (other than disposition records and adverse event records) required by this part must be completed by the licensee, permittee, or foreign manufacturer before any portion of a serial of any product may be marketed in the United States or exported. All records must be retained at the licensed or foreign establishment or permittee's place of business for a period of 2 years after the expiration date of a product or longer as may be required by the Administrator.
(a) Licensees and permittees must maintain a detailed record for every adverse event report the licensee or permittee receives for any biological product it produces or distributes. These records shall be maintained for a period of 3 years after the date the adverse event report is received. The adverse event report form and guidance on how to complete it, including guidance specific to the various information blocks on the form, is available on the APHIS website at
(b) A report of all adverse events reports received by a licensee or permittee must be compiled and submitted to the Animal and Plant Health Inspection Service. The frequency of report submission is as follows:
(1) Immediate notification is required if at any time there are indications that raise questions regarding the purity, safety, potency, or efficacy of a product, or if it appears that there may be a problem regarding the preparation, testing, or distribution of a product.
(2) Adverse event reports determined by the licensee or permittee to be product-related, serious, and unexpected must also be reported immediately.
(3) All other adverse event reports must be reported within 90 calendar days of the date the report was first received.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are superseding Airworthiness Directive (AD) 2018-09-10 for all CFM International S.A. (CFM) Model CFM56-7B engines. AD 2018-09-10 required initial and repetitive inspections of the concave and convex sides of the fan blade dovetail to detect cracking and replacement of any blades found cracked. This AD requires the same initial and repetitive inspections but revises the compliance time for the initial inspections of certain higher-risk fan blades. This AD was prompted by a recent engine failure due to a fractured fan blade that resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. We are issuing this AD to address the unsafe condition on these products.
This AD is effective June 1, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 1, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of May 14, 2018 (83 FR 19176, May 2, 2018).
We must receive any comments on this AD by July 2, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this final rule, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email:
You may examine the AD docket on the internet at
Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
We issued AD 2018-09-10, Amendment 39-19267 (83 FR 19176, May 2, 2018), (“AD 2018-09-10”), for all CFM model CFM56-7B engines. AD 2018-09-10 required initial and repetitive inspections of the concave and convex sides of the fan blade dovetail to detect cracking and replacement of any blades found cracked. AD 2018-09-10 resulted from a recent event involving an engine failure due to a fractured fan blade leading to the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization and prompting an emergency descent. One passenger fatality occurred as a result. We issued AD 2018-09-10 to prevent failure of the fan blade due to cracking, which could lead to an engine in-flight shutdown (IFSD), uncontained release of debris, damage to the airplane, and possible airplane decompression.
Since we issued AD 2018-09-10, an investigation of this event has determined new methods for identifying applicable parts as well as the need to reduce the compliance time for certain fan blades. Therefore, this AD requires inspection of higher risk fan blades, identified using one of the methods in CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018, within 30 days from the effective date of the AD. The remaining fan blades must be inspected within 90 days from the effective date of the AD or prior to accumulating 20,000 flight cycles. We are issuing this AD to address the unsafe condition on these products.
We reviewed CFM SB CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018, and Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B Engine Shop Manual (ESM), Revision 57, dated January 15, 2018. CFM SB CFM56-7B S/B 72-1033, Revision 01, describes procedures for performing an ultrasonic inspection (USI) of the affected fan blades. Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B ESM, describes procedures for performing an eddy current inspection (ECI) of the affected fan blades. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We also reviewed CFM SB CFM56-7B S/B 72-1019, dated March 24, 2017, and Revision 1, dated June 13, 2017; CFM SB CFM56-7B S/B 72-1024, dated July 26, 2017; and CFM SB CFM56-7B S/B 72-1033, dated April 20, 2018, and General Electric Field Support Technology (FST) procedure 2370, dated December 9, 2016. These SBs and the FST provide information on performing the USI.
We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires initial and repetitive ultrasonic or eddy current inspection of certain fan blades and, if they fail the inspection, their replacement with parts eligible for installation.
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because certain fan blades must be inspected, and, if needed, replaced before further flight. Failure to inspect and replace these parts within the required compliance times could lead to failure of the fan blades, engine IFSD, uncontained release of debris, damage to the airplane, and possible airplane decompression. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 3,716 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective June 1, 2018.
This AD replaces AD 2018-09-10, Amendment 39-19267 (83 FR 19176, May 2, 2018).
This AD applies to CFM International S.A. (CFM) CFM56-7B20, CFM56-7B22, CFM56-7B22/B1, CFM56-7B24, CFM56-7B24/B1, CFM56-7B26, CFM56-7B26/B2, CFM56-7B27, CFM56-7B27A, CFM56-7B26/B1, CFM56-7B27/B1, CFM56-7B27/B3, CFM56-7B20/2, CFM56-7B22/2, CFM56-7B24/2, CFM56-7B26/2, CFM56-7B27/2, CFM56-7B20/3, CFM56-7B22/3, CFM56-7B22/3B1, CFM56-7B24/3, CFM56-7B24/3B1, CFM56-7B26/3, CFM56-7B26/3B1, CFM56-7B26/3B2, CFM56-7B27/3, CFM56-7B27/3B1, CFM56-7B27/3B3, CFM56-7B27A/3, CFM56-7B26/3F, CFM56-7B26/3B2F, CFM56-7B27/3F, CFM56-7B27/3B1F, CFM56-7B20E, CFM56-7B22E, CFM56-7B22E/B1, CFM56-7B24E, CFM56-7B24E/B1, CFM56-7B26E, CFM56-7B26E/B1, CFM56-7B26E/B2, CFM56-7B27AE, CFM56-7B27E, CFM56-7B27E/B1, CFM56-7B27E/B3, CFM56-7B26E/F, CFM56-7B26E/B2F, CFM56-7B27E/F, and CFM56-7B27E/B1F engine models.
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by a recent engine failure due to a fan blade fracture leading to the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. One passenger fatality occurred as a result. We are issuing this AD to prevent failure of the fan blade. The unsafe condition, if not addressed, could result in failure of the fan blade, the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent.
Comply with this AD within the compliance times specified, unless already done.
(1) Perform an ultrasonic inspection (USI) or eddy current inspection (ECI) of the concave and convex sides of the fan blade dovetail as follows:
(i) Within 30 days after the effective date of this AD, perform an initial inspection of the fan blades identified using the criteria in Planning Information, either paragraph 1.C.2.(a), 1.C.2.(b), or 1.C.2.(c), of CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018.
(ii) For all fan blades not inspected in accordance with paragraph (g)(1)(i) of this AD, perform an initial inspection prior to accumulating 20,000 flight cycles on the fan blade or within 90 days from the effective date of this AD, whichever occurs later.
(iii) Thereafter, repeat this inspection no later than 3,000 cycles since the last inspection.
(iv) Use the Accomplishment Instructions, paragraphs 3.A.(3)(a) through (i), of CFM SB CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018, to perform a USI or use the instructions in Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018, to perform an ECI.
(2) If any unserviceable indication, as specified in the applicable service information in paragraph (g)(1)(iv) of this AD, is found during the inspections required by paragraph (g) of this AD, replace the fan blade before further flight with a part eligible for installation.
Do not install any replacement fan blade unless it meets one of the following criteria:
(1) The replacement fan blade has fewer than 20,000 cycles since new, or;
(2) The replacement fan blade has been inspected in accordance with paragraph (g) of this AD.
For the purpose of this AD, a “replacement fan blade” is a fan blade that is being installed into an engine from which it was not previously removed. Removing and reinstalling a fan blade for the purpose of relubrication is not subject to the Installation Prohibition of this AD.
(1) You may take credit for the USI required by paragraph (g) of this AD, if those
(2) You may take credit for an ECI using the instructions in Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B Engine Shop Manual, earlier than Revision 57, dated January 15, 2018.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(3)(i) and (k)(3)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(3) The following service information was approved for IBR on June 1, 2018.
(i) CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, Revision 01, dated May 9, 2018.
(ii) Reserved.
(4) The following service information was approved for IBR on May 14, 2018 (83 FR 19176, May 2, 2018).
(i) Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018.
(ii) Reserved.
(5) For CFM service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email:
(6) You may view this service information at the FAA, Engine and Propeller Standards Branch, Policy and Innovation Division, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace extending upward from 700 feet or more above the surface at Hamilton Municipal Airport (formerly Elisha Payne Airport), Hamilton, NY, to accommodate airspace reconfiguration due to the decommissioning of the Georgetown VHF omni-directional radio range tactical air navigation aid (VORTAC), and cancellation of the VORTAC approach. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also updates the geographic coordinates of the airport, and updates the airport name.
Effective 0901 UTC, July 19, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Av, College Park, GA 30337; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Hamilton Municipal Airport, Hamilton, NY, to support IFR operations at the airport.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet or more above the surface within an 11.2-mile radius (increased from a 6.5-mile radius) of Hamilton Municipal Airport, Hamilton, NY, due to the decommissioning of the Georgetown VORTAC, and cancellation of the VOR approach. The changes enhance the safety and management of IFR operations at the airport.
The geographic coordinates of the airport also are adjusted to coincide with the FAA's aeronautical database, and the airport name is updated to Hamilton Municipal Airport from Elisha Payne Airport.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within an 11.2-mile radius of Hamilton Municipal Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class D airspace, and Class E surface area airspace at Greenwood-Leflore Airport, Greenwood, MS, by making an editorial change to the legal descriptions replacing “Airport-Facility Directory” with the term “Chart Supplement”. This action also removes the part-time Notice to Airmen (NOTAM) language from Class E airspace designated as an extension to Class D airspace. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at the airport. This action also updates the geographic coordinates of the airport in the Class designations noted in this proposal to coincide with the FAA's aeronautical database. Also, this action corrects the geographic coordinates published in the proposal incorrectly.
Effective 0901 UTC, July 19, 2018. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave, College Park, GA 30337; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D and Class E airspace at Greenwood-Leflore Airport, Greenwood, MS, to support IFR operations under standard instrument approach procedures at the airport.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2016. FAA Order 7400.11B is publicly available as listed in the
This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends Class D airspace, and Class E surface area airspace at Greenwood-Leflore Airport, Greenwood, MS, by making an editorial change to the legal descriptions replacing “Airport-Facility Directory” with the term “Chart Supplement”.
Also, this action removes the part-time NOTAM language from the Class E airspace designated as an extension to a Class D surface area.
Additionally, the geographic coordinates of the airport, in the above airspace areas, and the Class E airspace area extending upward from 700 feet above the surface, are adjusted to coincide with the FAA's aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 2,700 feet MSL within a 4.4-mile radius of Greenwood-Leflore Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective dates and times will thereafter be continuously published in the Chart Supplement.
Within a 4.4-mile radius of Greenwood-Leflore Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface within 1.4 miles each side of the Sidon VORTAC 079° radial, extending from the 4.4-miles radius of Greenwood-Leflore Airport to 4 miles east of the VORTAC.
That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of That That airspace That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Greenwood-Leflore Airport and within 1.2 miles each side of the Sidon VORTAC 079° radial, extending from the 6.9-mile radius to 2 miles each side of the VORTAC.
Bureau of Industry and Security, Commerce.
Final rule.
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) by adding thirty-three (33) persons to the Unverified List (“UVL”) and adding an additional address for one (1) person currently listed on the UVL. The thirty-three persons are being added to the UVL on the basis that BIS could not verify their
This rule is effective May 17, 2018.
Kevin Kurland, Director, Office of Enforcement Analysis, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482-4255 or by email at
The Unverified List, found in Supplement No. 6 to Part 744 to the EAR, contains the names and addresses of foreign persons who are or have been parties to a transaction, as that term is described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR, and whose
There are occasions where, for a number of reasons, end-use checks cannot be completed. These include reasons unrelated to the cooperation of the foreign party subject to the end-use check. For example, BIS sometimes initiates end-use checks and cannot find a foreign party at the address indicated on export documents, and cannot locate the party by telephone or email. Additionally, BIS sometimes is unable to conduct end-use checks when host government agencies do not respond to requests to conduct end-use checks, are prevented from scheduling such checks by a party to the transaction other than the foreign party that is the proposed subject of the end-use check, or refuse to schedule them in a timely manner. Under these circumstances, although BIS has an interest in informing the public of its inability to verify the foreign party's
Furthermore, BIS sometimes conducts end-use checks but cannot verify the
As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, reexporters, and transferors to obtain (and keep a record of) a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement.
Requests for removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of UVL listings will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of its
This rule adds thirty-three (33) persons to the UVL by amending Supplement No. 6 to Part 744 of the EAR to include their names and addresses. BIS adds these persons in accordance with the criteria for revising the UVL set forth in § 744.15(c) of the EAR. The new entries consist of eleven persons located in China, twelve in Russia, five in the United Arab Emirates, two in Canada, and one person located in each of the following countries: Estonia, Finland, and Pakistan. Each listing is grouped within the UVL by country with each party's name(s) listed in alphabetical order under the country; each entry includes available alias(es) and address(es), as well as the
This rule also adds one additional address for one person currently listed on the UVL, Ling Ao Electronic Technology Co. Ltd, a.k.a. Voyage Technology (HK) Co., Ltd., a.k.a. Xuan
Shipments (1) removed from license exception eligibility or that are now subject to requirements in § 744.15 of the EAR as a result of this regulatory action; (2) eligible for export, reexport, or transfer (in-country) without a license before this regulatory action; and (3) on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on May 17, 2018, pursuant to actual orders, may proceed to that UVL listed person under the previous license exception eligibility or without a license so long as the items have been exported from the United States, reexported or transferred (in-country) before June 18, 2018. Any such items not actually exported, reexported or transferred (in-country) before midnight on June 18, 2018 are subject to the requirements in § 744.15 of the EAR in accordance with this regulation.
Since August 21, 2001, the Export Administration Act of 1979, as amended, has been in lapse. However, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013), and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017) has continued the EAR in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701
1. Executive Orders 13563 and 12866 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866.
2. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable to this rule, which is adding 33 persons to the UVL and adding a new address for one (1) other person currently listed on the UVL, because this regulation involves a military or foreign affairs function of the United States under 5 U.S.C. 553(a)(1). BIS implements this rule to protect U.S. national security or foreign policy interests by requiring a license or, where no license is required, a UVL statement for items being exported, reexported, or transferred (in country) involving a party or parties to the transaction who are listed on the UVL. If this rule were delayed to allow for notice and comment and a delay in effective date, the entities being added to the UVL by this action and the entity now receiving exports from the United States at an additional address would continue to be able to receive items without additional oversight by BIS and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, publishing a proposed rule would give these parties notice of the U.S. Government's intention to place them on the UVL or amend their current entry on the UVL, and create an incentive for these persons to accelerate receiving items subject to the EAR in furtherance of activities contrary to the national security or foreign policy interests of the United States, and/or take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing once a final rule was published.
Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
3. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This rule slightly increases public burden in a collection of information approved by OMB under control number 0694-0088, which authorizes, among other things, export license applications. The removal of license exceptions for listed persons on the Unverified List will result in increased license applications being submitted to BIS by exporters. Total burden hours associated with the Paperwork Reduction Act and OMB control number 0694-0088 are expected to increase minimally, as the suspension of license exceptions will only affect transactions involving persons listed on the Unverified List and not all export transactions. Because license exceptions are restricted from use, this rule decreases public burden in a collection of information approved by OMB under control number 0694-0137 minimally, as this will only affect specific individual listed persons. The increased burden under 0694-0088 is reciprocal to the decrease of burden under 0694-0137, and results in no change of burden to the public. This rule also increases public burden in a collection of information under OMB control number 0694-0122, as a result of the exchange of UVL statements between private parties, and under OMB control number 0694-0134, as a result of appeals from persons listed on the UVL for removal of their listing. The total increase in burden hours associated with both of these collections is expected to be minimal, as they involve a limited number of persons listed on the UVL.
4. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:
50 U.S.C. 4601
The additions and revisions read as follows:
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA or Agency) is publishing this final order to exempt certain surgical apparel from premarket notification requirements, subject to conditions and limitations. FDA is limiting the exemption to single-use, disposable respiratory protective devices (RPD) used in a healthcare setting and worn by healthcare personnel during procedures to protect both the patient and the healthcare personnel from the transfer of microorganisms, body fluids, and particulate material. These devices, commonly referred to as N95 filtering facepiece respirators (FFRs) and surgical N95 respirators (herein collectively referred to as N95s) are currently regulated by FDA under product code MSH. This exemption will decrease regulatory burden on the medical device industry and will eliminate private costs and expenditures required to comply with certain Federal regulations. All other class II devices classified under FDA's surgical apparel classification regulation continue to be subject to premarket notification requirements. FDA is also amending the codified language for the surgical apparel devices classification regulation to reflect this final determination.
This order is effective May 17, 2018.
Aftin Ross, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave, Bldg. 66, Rm. 5402, Silver Spring, MD 20993, 301-796-5679, email:
Section 510(k) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360(k)) and the implementing regulations, 21 CFR part 807, subpart E, require persons who intend to market a new device to submit and obtain clearance of a premarket notification (510(k)) containing information that allows FDA to determine whether the new device is “substantially equivalent” within the meaning of section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a legally marketed device that does not require premarket approval.
The 21st Century Cures Act (Pub. L. 114-255) (Cures Act) was signed into law on December 13, 2016. Section 3054 of the Cures Act amended section 510(m) of the FD&C Act. As amended, section 510(m)(2) of the FD&C Act provides that, 1 calendar day after the date of publication of the final list under paragraph (1)(B), FDA may exempt a class II device from the requirement to submit a report under section 510(k) of the FD&C Act upon its own initiative or a petition of an interested person, if FDA determines that a report under section 510(k) is not necessary to assure the safety and effectiveness of the device. To do so, FDA must publish in the
There are a number of factors FDA may consider to determine whether a 510(k) is necessary to provide reasonable assurance of the safety and effectiveness of a class II device. These factors are discussed in the January 21, 1998,
FDA, upon its own initiative, is exempting N95 filtering facepiece respirators (FFRs) and surgical N95 respirators (herein collectively referred to as N95s) from 510(k), subject to the conditions and limitations described in this section. FDA considers N95s to be a subset of “surgical apparel” intended to be worn by healthcare personnel to protect both the patient and the healthcare personnel from transfer of microorganisms, body fluids, and particulate material. As a result, these devices fall under the generic name “surgical apparel” and are classified in § 878.4040(b)(1) (21 CFR 878.4040(b)(1)). In the
FDA has a Memorandum of Understanding (MOU) with the Centers for Disease Control and Prevention (CDC), acting through its National Institute for Occupational Safety and Health (NIOSH), regarding oversight of N95s (Ref. 2). This agreement outlines the structure through which both Agencies will regulate N95s exempt from 510(k). The MOU between NIOSH and FDA is now effective as part of this final order.
Although FDA and CDC share a common public health mission, the Agencies have different statutory authorities and the distinct terminology could lead to confusion among stakeholders. In order to clearly identify the devices that are subject to this document, as well as the corresponding MOU, the following definitions are provided for the devices that are now exempt.
The N95 FFR is a single-use disposable, half-mask respiratory protective device that covers the user's airway (nose and mouth) and offers protection from particulate materials at an N95 filtration efficiency level per 42 CFR 84.181. Such an N95 FFR used in a healthcare setting is a class II device, regulated by FDA under § 878.4040.
The surgical N95 respirator is a single-use, disposable respiratory protective device used in a healthcare setting that is worn by HCP during procedures to protect both the patient and HCP from the transfer of microorganisms, body fluids, and particulate material at an N95 filtration efficiency level per 42 CFR 84.181. The surgical N95 respirator is also a class II device, regulated by FDA under § 878.4040.
In the
In response to the November 2017 proposed order announcing FDA's intent to exempt N95s from 510(k) requirements, FDA received submissions from four commenters—two from regulated industry, one from an industry association, and one from a consumer. Three commenters supported the implementation of the MOU with the CDC, acting through NIOSH, regarding oversight of N95s and exemption from 510(k) for this device type. FDA agrees with the three commenters that the exemption from 510(k) requirements will streamline the oversight of N95s without compromising the public health.
One commenter requested that these devices still be subject to 510(k) requirements to ensure safety of people using the disposable respiratory protective devices. Further, the commenter indicated that FDA's proposal should not be finalized because the sterility of these devices can greatly affect those working in the health field and patients being treated, and if these devices are not properly inspected or regulated, diseases could spread more easily from person to person. The commenter noted that because these devices will be used by surgical staff, it is even more important that the devices be inspected because surgery can involve open wounds or open body cavities, making it easier to spread disease or bodily fluids.
FDA notes in response to this commenter that N95s subject to this exemption from 510(k) are not provided sterile to the user. While FDA has exempted these devices from 510(k), the scientific evidence necessary to legally market N95s within this exemption has not changed. The majority of this testing has traditionally been reviewed by NIOSH. The conditions and limitations of exemption that FDA has identified in section V of this final order and § 878.4040(b)(1) will provide reasonable assurance of safety and effectiveness for N95s. Unless an N95 meets the mutually agreed upon threshold evaluation criteria and approval criteria and has NIOSH approval, the device would still be subject to 510(k) review. Accordingly, FDA did not modify the exemption or conditions and limitations of exemption proposed for N95s in response to this comment.
As described in the MOU, the following conditions must be met for N95s to be 510(k) exempt: (1) application submitted to NIOSH is determined not to exceed the CDC's and FDA's mutually agreed upon threshold evaluation criteria and (2) such applicants must have met approval criteria and have NIOSH approval. N95s with applications that meet the mutually agreed upon threshold evaluation criteria and approval criteria and remain approved by NIOSH are exempt from FDA's 510(k) requirements. Unless an N95 meets the mutually agreed upon threshold evaluation criteria and approval criteria and has NIOSH approval, the device is subject to 510(k) review; this includes devices with applications pending NIOSH review, as well as devices with no submitted applications. The threshold evaluation criteria are
N95s are the only devices included within the scope of the MOU. As such, this exemption only applies to devices currently regulated by FDA under product code MSH. This exemption does not affect any other subset of surgical apparel classified under § 878.4040. In addition to being subject to the general limitations to the exemptions found in 21 CFR 878.9 and the conditions of exemption identified in this final order, these devices will also remain subject to current good manufacturing practices and other general controls under the FD&C Act. An exemption from the requirement of 510(k) does not mean that the device is exempt from any other statutory or regulatory requirements, unless such exemption is explicitly provided by order or regulation.
This exemption will decrease regulatory burdens on the medical device industry and will eliminate private costs and expenditures required to comply with Federal regulations. Specifically, regulated industry will no longer have to invest time and resources in 510(k)s, including preparation of documents and data for submission to FDA, payment of user fees associated with 510(k) submissions, and responding to questions and requests for additional information from FDA during 510(k) review for devices in this exempted device type, subject to the conditions and limitations of the exemption.
This order refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart, E have been approved under OMB control number 0910-0120.
The following references are on display in the Dockets Management Staff (see
1. FDA Guidance, “Procedures for Class II Device Exemptions from Premarket Notification, Guidance for Industry and CDRH Staff,” February 19, 1998, available at
2. “Memorandum of Understanding Between the Food and Drug Administration, Center for Devices and Radiological Health, and the Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, National Personal Protective Technology Laboratory,” available at
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(b)
(i) The user contacting components of the device must be demonstrated to be biocompatible.
(ii) Analysis and nonclinical testing must:
(A) Characterize flammability and be demonstrated to be appropriate for the intended environment of use; and
(B) Demonstrate the ability of the device to resist penetration by fluids, such as blood and body fluids, at a velocity consistent with the intended use of the device.
(iii) NIOSH approved under its regulation.
Department of State.
Final rule; stay.
The Department of State published a final rule in the
Effective May 17, 2018, §§ 50.7(d), 50.11(b), 51.4(g)(1) and (8), 51.60(h) and (i), 51.62, 51.65, 51.66, and 51.70 through 51.74, are stayed until June 10, 2018.
Anita Mody, Office of Legal Affairs, Passport Services, (202) 485-6500,
The Department of State published a final rule on May 11, 2018 (83 FR 21872), which provided that the rule was effective on the date of publication. This document provides a stay of the amendments in that rule until 30 days after the date of the May 11, 2018, publication. The Regulatory Analysis published with that final rule is unchanged by this publication.
Citizenship and naturalization.
Administrative practice and procedure, Drug traffic control,
Accordingly, for the reasons set forth above, the changes to 22 CFR parts 50 and 51 are stayed as follows:
22 U.S.C. 2651a; 8 U.S.C. 1104 and 1401 through 1504.
8 U.S.C. 1504; 18 U.S.C. 1621, 2423; 22 U.S.C. 211a, 212, 212a, 212b, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2721, 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of P.L. 103-317, 108 Stat. 1760]; E.O. 11295, FR 10603; Pub. L. 114-119, 130 Stat. 15; Sec. 1 of P.L. 109-210, 120 Stat. 319; Sec. 2 of P.L. 109-167, 119 Stat. 3578; Sec. 5 of P.L. 109-472, 120 Stat. 3554; P.L. 108-447, Div. B, Title IV 118 Stat. 2896; P.L. 108-458, 118 Stat. 3638, 3823.
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval and required amendments.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, in part, an amendment to the Missouri regulatory program (Missouri program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Missouri proposed revisions to its coal Ownership and Control Rules. Missouri intends to revise its program to be no less effective than the Federal regulations and to improve operational efficiency.
The effective date is June 18, 2018.
Len Meier, Division Chief, Alton Field Division, Office of Surface Mining Reclamation and Enforcement, 501 Belle Street, Suite 216, Alton, IL 62002. Telephone: (618) 463-6460. Email:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Missouri program on November 21, 1980. You can find background information on the Missouri program, including the Secretary's findings, the disposition of comments, and conditions of approval, in the November 21, 1980,
By letter dated February 18, 2014 (Administrative Record No. MO-679), Missouri sent us an amendment to its program under SMCRA (30 U.S.C. 1201
We announced receipt of the proposed amendment in the May 20, 2014,
The following are the findings we made concerning Missouri's amendment
Missouri revised paragraphs (1)(B)1 and 3, and subsections (2)(A) and (4)(C) of this part to clarify the information that must be provided in the permit application. We find that Missouri's revisions makes the regulations no less effective than the corresponding Federal regulations at 30 CFR 778.11(c), 778.12(a), 778.14(a), and 778.16(c), respectively. Therefore, we approve these revisions.
OSMRE found that Missouri did not revise its regulations to include a counterpart to 30 CFR 778.11(b)(4), which requires information to be provided for, “[e]ach business entity in the applicant's and operator's organizational structure, up to and including the ultimate parent entity of the applicant and operator.” Additionally, paragraphs (1)(B) and (1)(C) require names and addresses for certain individuals on the application, but do not require telephone numbers, which is inconsistent with the requirements of 30 CFR 778.11(d)(1). We find that these omissions make Missouri's regulations in this section inconsistent with the corresponding Federal regulations at 30 CFR 778.11(b)(4) and (d)(1).
Missouri revised subsection (7)(C) of this part by adding “operator” in conjunction with the term “applicant” as an additional person on which permit application information must be collected. We find that Missouri's revision makes its regulations no less effective than the corresponding Federal regulations at 30 CFR 773.14. Therefore, we approve Missouri's revision.
Missouri revised subsections (8)(M) and (N) of this part by including requirements regarding lands eligible for remining and applicant eligibility as criteria for permit approval or denial. We find that Missouri's revisions make its regulations no less effective than the corresponding Federal regulations at 30 CFR 785.25 and 773.15(n), respectively. Therefore, we approve Missouri's revisions.
Missouri added paragraph (11)(A)4 and revised subsection (B) in this part regarding when the regulatory authority will consider a provisionally issued permit to be improvidently issued, under what conditions the permits will be suspended or rescinded if found to be improvidently issued, and the suspension and rescission procedures. We find that Missouri's revisions make its regulations no less effective than the corresponding Federal regulations at 30 CFR 773.21 through 773.23. Therefore, we approve Missouri's revisions.
Missouri revised subsections (1)(B) and (2)(A) of this part to clarify who must be identified and who must provide compliance information in a permit application. We find that Missouri's revisions make its regulations no less effective than the corresponding Federal regulations at 30 CFR 778.11 and 778.14, respectively. Therefore, we are approving Missouri's revisions.
OSMRE found that Missouri did not revise its regulations to include a counterpart to 30 CFR 778.11(b)(4), which requires information to be provided for, “[e]ach business entity in the applicant's and operator's organizational structure, up to and including the ultimate parent entity of the applicant and operator.” Additionally, paragraphs (1)(B) and (1)(C) require names and addresses for certain individuals on the application, but do not require telephone numbers, which is inconsistent with the requirements of 30 CFR 778.11(d)(1). We find that these omissions make Missouri's regulations in this section inconsistent with the corresponding Federal regulations at 30 CFR 778.11(b)(4) and (d)(1).
Missouri revised subsection (6)(G) of this part by clarifying who is notified following the issuance of a cessation order. We find that Missouri's revision will make its regulations no less effective than the corresponding Federal regulations at 30 CFR 843.11(g). Therefore, we are approving Missouri's revision.
Missouri also revised subsection (6)(H) of this part regarding post permit issuance information requirements. We find that Missouri's revision is substantively the same as the corresponding Federal regulations at 30 CFR 774.12. Therefore, we are approving Missouri's revision.
Missouri revised subsection (5)(B) of this part by increasing the minimum civil penalty amount assessed each day from not less than $750 to not less than $1,025. We find that Missouri's revision is substantively the same as the corresponding Federal regulations at 30 CFR 845.15(b). Therefore, we are approving Missouri's revision.
We asked for public comments on the amendment, but did not receive any.
On April 2, 2014, pursuant to 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Missouri program (Administrative Record No. MO-679.01). We did not receive any comments.
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On April 2, 2014, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment (Administrative Record No. MO-679.01), but neither the SHPO nor ACHP responded to our request.
Based on the above findings, we are:
1. Approving, in part, the amendment Missouri sent us on February 18, 2014;
2. not approving 10 CSR 40-6.030 and 40-6.100, pertaining to the 30 CFR 778.11(b)(4) requirement for applicant and operator information provided in the permit application, and requiring Missouri to submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, at 30 CFR 925.16(v); and
3. not approving 10 CSR 40-6.030(1)(B)-(C) and 40-6.100(1)(B)-(C), pertaining to the 30 CFR 778.11(d)(1) requirement to include telephone numbers for certain individuals in the permit application, and requiring Missouri to submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, at 30 CFR 925.16(w).
To implement this decision, we are amending the Federal regulations at 30 CFR part 925, which codify decisions concerning the Missouri program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. SMCRA requires consistency of State and Federal standards.
This rulemaking does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.
Pursuant to Office of Management and Budget (OMB) Guidance dated October 12, 1993, the approval of state program amendments is exempted from OMB review under Executive Order 12866.
The Department of the Interior has reviewed this rule as required by Section 3(a) of Executive Order 12988. The Department has determined that this
This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132 because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Missouri program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in Section 2 and 3 of the Executive Order and with the principles of cooperative federalism as set forth in SMCRA. See,
In accordance with Executive Order 13175, we have evaluated the potential effects of this rulemaking on Federally-recognized Indian tribes and have determined that the rulemaking does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.
Executive Order 13211 of May 18, 2001, requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rulemaking is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.
This rulemaking does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
This rulemaking does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rulemaking is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rulemaking: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rulemaking will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.
Intergovernmental relations, Surface mining, Underground mining.
For the reasons set out in the preamble, 30 CFR part 925 is amended as set forth below:
30 U.S.C. 1201
(v) By November 19, 2018, Missouri shall submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, that will add a counterpart to 30 CFR 778.11(b)(4), pertaining to the requirement for applicant and operator information provided in the permit application, at 10 CSR 40-6.030 and 10 CSR 40-6.100.
(w) By November 19, 2018, Missouri shall submit a proposed amendment, or a description of an amendment to be proposed, along with a timetable for enactment, that will add a counterpart to 30 CFR 778.11(d)(1), pertaining to the requirement to include telephone numbers for certain individuals in the permit application, at 10 CSR 40-6.030(1)(B)-(C) and 10 CSR 40-6.100(1)(B)-(C).
Department of the Navy (DoN), DoD.
Final rule.
This final rule removes DoD's regulation requiring naval personnel to provide support to dependents. It has been determined that the content of this part is internal DoD policy, and while that policy is publicly available, the part should be removed.
This rule is effective on May 17, 2018.
CDR Amanda Myers, 703-697-1311.
It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's website.
This part is proprietary or of unique interest to the Department of the Navy. The Military Personnel Manual (MILPERSMAN) (for the Navy) (available at
This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.
Alimony, Child support, Claims, Military personnel, Wages.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the Oregon regional haze State Implementation Plan (SIP) submitted by the state on July 18, 2017. Oregon submitted its Regional Haze Progress Report (“progress report” or “report”) and a negative declaration stating that further revision of the existing regional haze SIP is not needed at this time. Oregon submitted both the progress report and the negative declaration in the form of implementation plan revisions as required by federal regulations. The progress report addresses the federal Regional Haze Rule requirements under the Clean Air Act to submit a report describing progress in achieving reasonable progress goals established for regional haze and a determination of the adequacy of the state's existing plan addressing regional haze.
This final rule is effective June 18, 2018.
The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2017-0482. All documents in the docket are listed on the
Jeff Hunt at (206) 553-0256, or
Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.
On March 19, 2018, the EPA proposed to approve Oregon's Regional Haze Progress Report (83 FR 11927). An explanation of the Clean Air Act requirements, a detailed analysis of the submittal, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for the proposal ended April 18, 2018.
We received three comments on the rulemaking. After reviewing the comments, we have determined that the comments are outside the scope of our proposed action and fail to identify any material issue necessitating a response. For more information, please see our memorandum included in the docket for this action.
The EPA is approving the Oregon Regional Haze Progress Report, submitted on July 18, 2017, as meeting the applicable requirements of the Clean Air Act and the federal Regional Haze Rule, as set forth in 40 CFR 51.308(g). The EPA has determined that the existing regional haze SIP is adequate to meet the state's visibility goals and requires no substantive revision at this time, as set forth in 40 CFR 51.308(h). We have also determined that Oregon fulfilled the requirements in 40 CFR 51.308(i) regarding state coordination with Federal Land Managers.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air 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 Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because actions such as SIP approvals are exempted under Executive Order 12866;
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because 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 and is also not approved to apply 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 16, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).
Environmental protection, 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
For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of pyroxasulfone and its metabolites in or on vegetable, tuberous and corm, subgroup 1C; vegetable, bulb, group 3-07; and potatoes, granules/flakes. K-I Chemical USA, Inc. requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective May 17, 2018. Objections and requests for hearings must be received on or before July 16, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0787, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0787 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 16, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0787, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Because the January 26, 2018, document identified the K-I Chemical petition by the wrong petition number, EPA published another document in the
Based upon review of the data supporting the petition, EPA has modified the levels at which some of the tolerances are being established and also modified some of the crop definitions. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for pyroxasulfone including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with pyroxasulfone follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The toxicology database for pyroxasulfone is adequate for evaluating and characterizing toxicity and selecting endpoints for purposes of this risk assessment. Pyroxasulfone acute toxicity to mammals is low by all routes of exposure. Subchronic and chronic oral studies in mice, rats and dogs produced a variety of effects including cardiac toxicity (increased cardiomyopathy), liver toxicity (centrilobular hepatocellular hypertrophy, histopathological and/or clinical pathological indicators), kidney toxicity (nephropathy), neurotoxicity (impaired hind limb function, ataxia, tremors, sciatic nerve lesions, axonal/myelin degeneration in the sciatic nerve and spinal cord sections), skeletal muscle myopathy, urinary bladder mucosal hyperplasia, and urinary bladder transitional cell papillomas. Minimal to mild cardiac myofiber degeneration and local inflammation were also seen in a rat dermal toxicity study. Neurotoxicity was also seen in a developmental neurotoxicity study in rats (decreased brain weight, decreased thickness of the hippocampus, corpus callosum and cerebellum in offspring). Dogs appear to be the most sensitive species to the neurotoxic effects of pyroxasulfone. Immunotoxicity studies in rats and mice show no evidence of immunotoxic effects from pyroxasulfone.
There is evidence of fetal and offspring susceptibility in the developmental neurotoxicity study in rats as effects occurred in the absence of maternal toxicity. There is no concern for reproductive toxicity. Pyroxasulfone is classified as “Not Likely to be Carcinogenic to Humans” at doses that do not cause crystals with subsequent calculi formation resulting in cellular damage of the urinary tract. The Agency has determined that the quantification
Specific information on the studies received and the nature of the adverse effects caused by pyroxasulfone as the no-observed-adverse effect level (NOAEL) and lowest-observed adverse effect level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a RfD—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see use
A summary of the toxicological endpoints for pyroxasulfone used for human risk assessment is shown in the Table 1 of this unit.
1.
i.
Such effects were identified for pyroxasulfone. In estimating acute dietary exposure, EPA used food consumption data from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Survey/What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA assumed 100 percent crop treated (PCT) and tolerance-level residues adjusted for metabolites which are not in the tolerance expression.
ii.
iii.
iv.
2.
Based on the Pesticide Root Zone Model Ground Water (PRZM version 3.122)/Exposure Analysis Modeling System-Superseded (EXAMS version 2.98.04), the estimated concentrations of pyroxasulfone in surface water were minimal, and the highest estimated drinking water concentrations (EDWCs) of pyroxasulfone residues were from a Tier II PRZM-GW modeling at an application rate of 0.267 lbs active ingredient/Acre for registered crops. The same EDWCs have been used for the current human health dietary risk assessment. The EDWCs for peak concentration (used in the acute assessment) and 30-year average concentration (used in the chronic assessment) were 0.210 and 0.174 mg/L (ppm), respectively. Water residues were incorporated in the Dietary Exposure Evaluation Model—Food Commodity Intake Database (DEEM-FCID) into the food categories “water, direct, all sources” and “water, indirect, all sources.”
3.
Pyroxasulfone is not registered for any specific use patterns that would result in residential exposure.
4.
EPA has not found pyroxasulfone to share a common mechanism of toxicity with any other substances, and pyroxasulfone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that pyroxasulfone does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website
1.
2.
3.
i. The toxicity database for pyroxasulfone is complete.
ii. Available data indicates that pyroxasulfone produces neurotoxic effects in rats. The toxicity database includes specific acute and subchronic neurotoxicity tests, as well as a DNT study. Although the DNT indicated offspring are more sensitive to neurotoxic effects of pyroxasulfone, the dose-response is well characterized for neurotoxicity and a NOAEL is identified; therefore, there is no residual uncertainty with regard to neurotoxic effects for which a 10X must be retained.
iii. Evidence of increased susceptibility of fetuses and offspring was seen in a DNT study in rats and a developmental study in rabbits following
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to pyroxasulfone in drinking water. These assessments will not underestimate the exposure and risks posed by pyroxasulfone.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
Although short-term and intermediate-term adverse effects were identified, pyroxasulfone is not registered for any use patterns that would result in residential exposure. Therefore, EPA relies on the chronic dietary risk assessment for evaluating short-term and intermediate-term risk for pyroxasulfone.
4.
5.
Adequate enforcement methodology (high performance liquid chromatography/triple quadrupole mass spectrometry (LC/MS/MS) methods) are available to enforce the tolerance expression.
These methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for pyroxasulfone in any of the proposed commodities.
The vegetable, tuberous and corm, subgroup 1C tolerance is being established at 0.08 ppm instead of 0.05 ppm. The petitioner's requested tolerance level included only residues from the parent and M1 metabolite. The Agency is establishing this tolerance at 0.08 ppm to account for the measurement of parent and four metabolites. Applying processing factors in accordance with the Agency's policy for determining such factors when measuring multiple pesticide residues, the Agency has determined that 0.20 ppm is an appropriate tolerance level for granules/flakes. In addition, The Agency has determined that a tolerance for potato chips is not required because residues will be within the tolerance level established for subgroup 1C.
Therefore, tolerances are established for residues of pyroxasulfone including its metabolites and degradates, in or on potatoes, granules/flakes at 0.20 ppm; vegetable, bulb, group 3-07 at 0.15 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.08 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. 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). Because this action has been exempted from review under Executive Order 12866, this action 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); Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
(5) * * *
Environmental Protection Agency (EPA).
Final rule.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“the EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule adds six sites to the General Superfund section of the NPL.
The document is effective on June 18, 2018.
Contact information for the EPA Headquarters:
• Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue NW, William Jefferson Clinton Building West, Room 3334, Washington, DC 20004, 202/566-0276.
The contact information for the regional dockets is as follows:
• Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.
• Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.
• Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.
• Cathy Amoroso, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW, Mailcode 9T25, Atlanta, GA 30303; 404/562-8637.
• Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.
• Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.
• Kumud Pyakuryal, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRSTAR, Lenexa, KS 66219; 913/551-7956.
• Victor Ketellapper, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6578.
• Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.
• Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.
Terry Jeng, phone: (703) 603-8852, email:
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613
To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).
As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).
The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”) and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.
There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. On January 9, 2017 (82 FR 2760), a subsurface intrusion component was added to the HRS to enable the EPA to consider human exposure to hazardous substances or pollutants and contaminants that enter regularly occupied structures through subsurface intrusion when evaluating sites for the NPL. The current HRS evaluates four pathways: Ground water, surface water, soil exposure and subsurface intrusion, and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:
• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.
• The EPA determines that the release poses a significant threat to public health.
• The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.
The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.
A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to
The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.
Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.
When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.
In other words, while geographic terms are often used to designate the site (
EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.
Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.
For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.
The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:
(i) Responsible parties or other persons have implemented all appropriate response actions required;
(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or
(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.
In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.
The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.
Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (
The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and
In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following website:
The EPA has improved the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.
A model letter and correspondence between the EPA and states and tribes where applicable, is available on the EPA's website at
Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at the EPA headquarters and in the EPA regional offices.
An electronic version of the public docket is available through
The headquarters docket for this rule contains the HRS score sheets, the documentation record describing the information used to compute the score and a list of documents referenced in the documentation record for each site.
The EPA regional dockets contain all the information in the headquarters docket, plus the actual reference documents containing the data principally relied upon by the EPA in calculating or evaluating the HRS score. These reference documents are available only in the regional dockets.
You may view the documents, by appointment only, after the publication of this rule. The hours of operation for the headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. Please contact the regional dockets for hours. For addresses for the headquarters and regional dockets, see
You may obtain a current list of NPL sites via the internet at
This final rule adds the following six sites to the General Superfund section of the NPL. These sites are being added to the NPL based on HRS score.
General Superfund section:
The EPA reviewed all comments received on the sites in this rule and responded to all relevant comments. The EPA is adding six sites to the NPL in this final rule. All six sites were proposed for NPL addition on January 18, 2018 (83 FR 2576). The sites are: Hockessin Groundwater in Hockessin, DE; Franklin Street Groundwater Contamination in Spencer, IN; Spring Park Municipal Well Field in Spring Park, MN; Burlington Industries Cheraw in Cheraw, SC; Lane Plating Works, Inc. in Dallas, TX; and, River City Metal Finishing in San Antonio, TX.
Comments on the Franklin Street Groundwater Contamination site are being addressed in a response to comment support document available in the public docket concurrently with this rule.
For the Hockessin Groundwater site, the EPA received several comments supporting NPL listing, several comments unrelated to NPL listing and two anonymous comments questioning site investigation and interim mitigation measures, timing of cleanup actions and potential remedies. In response, EPA is adding the site to the NPL as the best way to ensure that cleanup proceeds in a timely manner. NPL listing makes a site eligible for remedial action funding under CERCLA. The site will be further investigated during the remedial investigation/feasibility study (RI/FS) phase of the Superfund process to determine what response, if any, is appropriate to ensure protection of public health and the environment.
The EPA received no comments on the Spring Park Muncipal Well Field site.
The EPA received one comment from a community member regarding the Burlington Industries Cheraw site. The commenter expressed their opposition to NPL listing based on concerns that listing may negatively affect their property value. Economic factors such as those raised by the commenter are generally not considered in the assessment of whether a site belongs on the NPL. The EPA notes that there are both costs and benefits that can be associated with listing a site. Among the benefits are increased health and environmental protection as a result of increased public awareness of potential hazards. In addition to the potential for federally financed remedial actions, the addition of a site to the NPL could accelerate privately financed, voluntary cleanup efforts. Listing sites as national priority targets also may give states increased support for funding responses at particular sites. As a result of the additional CERCLA remedies, there will be lower human exposure to high-risk chemicals, and higher quality surface water, ground water, soil, and air. Therefore, it is possible that any perceived or actual negative fluctuations in property values or development opportunities that may result from contamination may also be countered by positive fluctuations when a CERCLA investigation and any necessary cleanup are completed.
For the Lane Plating Works, Inc. site, the EPA received only one comment related to NPL listing. The comment, submitted by the city of Dallas' Office of Environmental Quality, supports NPL listing in order to facilitate federal funding for full and complete remediation.
The EPA received two comments supporting the NPL listing of the River City Metal Finishing site, one from a community member and one from a student.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.
This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Provisions of the Congressional Review Act (CRA) or section 305 of CERCLA may alter the effective date of this regulation. Under 5 U.S.C. 801(b)(1), a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802. Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although
If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, the EPA will publish a document of clarification in the
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
40 CFR part 300 is amended as follows:
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule.
FMCSA amends its regulations by making technical corrections throughout the Federal Motor Carrier Safety Regulations. The Agency makes minor changes to correct inadvertent errors and omissions, remove or update obsolete references, ensure conformity with Office of the Federal Register style guidelines, and improve the clarity and consistency of certain regulatory provisions.
This rule is effective June 18, 2018.
Mr. David Miller, Federal Motor Carrier Safety Administration, Regulatory Development Division, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, by telephone at (202) 366-5370 or via email at
Congress delegated certain powers to regulate interstate commerce to the United States Department of Transportation (DOT or Department) in numerous pieces of legislation, most notably in section 6 of the Department of Transportation Act (DOT Act) (Pub. L. 89-670, 80 Stat. 931, Oct. 15, 1966). Section 6 of the DOT Act transferred to the Department the authority of the former Interstate Commerce Commission (ICC) to regulate the qualifications and maximum hours-of-service of employees, the safety of operations, and the equipment of motor carriers in interstate commerce. This authority, first granted to the ICC in the Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543, Aug. 9, 1935), now appears in 49 U.S.C. chapter 315. The regulations issued under this (and subsequently enacted) authority became known as the Federal Motor Carrier Safety Regulations (FMCSRs), codified at 49 CFR parts 350-399. The administrative powers to enforce chapter 315 (codified in 49 U.S.C. chapter 5) were also transferred from the ICC to the DOT in 1966 and assigned, first to the Federal Highway Administration (FHWA), and then to FMCSA. The FMCSA Administrator has been delegated authority under 49 CFR 1.87 to carry out the motor carrier functions vested in the Secretary of Transportation.
Between 1984 and 1999, a number of statutes added to FHWA's authority. Various statutes authorize the enforcement of the FMCSRs, the Hazardous Materials Regulations (HMRs), and the Commercial Regulations, and provide both civil and criminal penalties for violations of these requirements. These statutes include the Motor Carrier Safety Act of 1984 (MCSA) (Pub. L. 98-554, 98 Stat. 2832, Oct. 30, 1984), codified at 49 U.S.C. chapter 311, subchapter III; the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat. 3207-170, Oct. 27, 1986), codified at 49 U.S.C. chapter 313; the Hazardous Materials Transportation Uniform Safety Act of 1990, as amended (Pub. L. 101-615, 104 Stat. 3244, Nov. 16, 1990), codified at 49 U.S.C. chapter 51; and the ICC Termination Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803, Dec. 29, 1995), codified at 49 U.S.C. chapters 131-149.
The Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748, Dec. 9, 1999) established FMCSA as a new operating administration within DOT, effective January 1, 2000. The motor carrier safety responsibilities previously assigned to both the ICC and FHWA are now assigned to FMCSA.
Congress expanded, modified, and amended FMCSA's authority in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 (Pub. L. 107-56, 115 Stat. 272, Oct. 26, 2001); the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005); the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572, June 6, 2008); the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 Stat. 405, July 6, 2012); and the Fixing America's Surface Transportation Act (FAST Act) (Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2015).
The specific regulations amended by this rule are based on the statutes detailed above. Generally, the legal authority for each of those provisions was explained when the requirement was originally adopted and is noted at the beginning of each part in title 49 of the CFR.
The Administrative Procedure Act (APA) (5 U.S.C. 551-706) specifically provides exceptions to its notice and comment rulemaking procedures when the Agency finds there is good cause to dispense with them, and incorporates the finding and a brief statement of reasons therefore in the rules issued. Generally, good cause exists when the Agency determines that notice and public procedures are impractical, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(3)(B)). The amendments made in this final rule merely correct inadvertent errors and omissions, remove or update obsolete references, ensure conformity with Office of the Federal Register style guidelines, and make minor changes to improve clarity and consistency. The technical amendments do not impose any material new requirements or increase compliance obligations. For these reasons, FMCSA finds good cause that notice and public comment on this final rule are unnecessary.
The APA also allows agencies to make rules effective immediately with good cause (5 U.S.C. 553(d)(3)), instead of requiring publication 30 days prior to the effective date. For the reasons already stated, FMCSA finds there is good cause for this rule to be effective immediately.
FMCSA is aware of the regulatory requirements concerning public participation in FMCSA rulemaking (49 U.S.C. 31136(g)). These requirements pertain to certain major rules,
This document makes changes to correct inadvertent errors and omissions, remove or update obsolete references, ensure conformity with Office of the Federal Register style guidelines, and improve clarity and consistency. These amendments, however, do not impose any material new requirements. The reasons for each of these minor revisions are described below in the Section-by-Section Analysis.
This section-by-section analysis describes the technical amendment provisions in numerical order.
FMCSA adds a definition of “New Entrant Safety Audits” to § 350.105. On October 14, 2016 (81 FR 71002, 71010), FMCSA made various amendments to § 350.105 to ensure the section was current and consistent with the requirements of the FAST Act, enacted on December 4, 2015. Inadvertently, the definition for “New Entrant Safety Audits” was not included in the amendatory language—the description of a rule that immediately precedes each change—though it was included in the regulatory text itself. This addition corrects this oversight.
FMCSA corrects the introductory text for paragraph (a) by changing a cross reference incorrectly given as “49 CFR 320.215” to read “49 CFR 350.215.” This error originally appeared in a rule FMCSA published to conform part 350 to the FAST Act on October 14, 2016 (81 FR 71015). This amendment corrects that error.
FMCSA changes § 360.1T to correct the name of the office and routing code of the “Office of Data Analysis and Information Systems” to read the “Office of Registration and Safety Information (MC-RS)” in paragraphs (a) and (d)(2). This change reflects the current name of the office with those responsibilities. Section 360.1 (suspended) does not require a corresponding change.
In § 360.3T, paragraphs (a)(2) introductory text and (a)(2)(iii), FMCSA removes the references to “Office of Enforcement and Compliance, Insurance Compliance Division (MC-ECI).” In their place, FMCSA adds references to the “Office of Registration and Safety Information (MC-RS).” In paragraphs (e)(2)(i) and (e)(2)(iii), FMCSA removes the references to “Director, Office of Data Analysis and Information Systems” and replaces them with references to the “Director, Office of Registration and Safety Information (MC-RS).” This change reflects the current name of the office with those responsibilities. Section 360.3 (suspended) refers to the office correctly.
FMCSA changes § 365.403T(a), which defines “transfer,” to remove the footnote as originally drafted by the former ICC and, instead, make it part of the CFR text. This amendment makes the former footnote paragraph (a)(2). This footnote has been part of the rule text since it was originally published on February 18, 1988 (52 FR 4852). The footnote further describes what is meant by a transfer, and contains exceptions. It should properly be part of the regulatory text. Section 365.403 (suspended) does not require a corresponding change.
FMCSA reorganizes § 373.103 to number the undesignated paragraphs following paragraphs (a)(11) and (b)(11). The Agency redesignates current paragraphs (a)(1) through (11) as paragraphs (a)(1)(i) through (xi) and the undesignated paragraph as (a)(2). Paragraphs (b)(1) through (11) are redesignated as paragraphs (b)(1)(i) through (xi) and the undesignated paragraph becomes paragraph (b)(2). Though these undesignated paragraphs have been part of the rule since it was added by the ICC as 49 CFR 1051.2 on March 27, 1990 (55 FR 11198), undesignated paragraphs are contrary to the style of the Office of the Federal Register, which requires that all text in a section be designated.
FMCSA corrects the reference to “appendix” in paragraph (a) to refer to “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix. This amendment corrects that oversight.
In § 380.109, published March 30, 2004 (69 FR 16733), the Agency makes a number of corrections. FMCSA corrects the references to “appendix” in paragraphs (a)(1), (a)(5), (a)(6), and (a)(7) to refer to “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.
FMCSA also removes paragraph (d), which references the “Examiner's Manual for Commercial Driver's License Tests.” This American Association of Motor Vehicle Administrators (AAMVA) publication is intended for use by the States, and is not available to the general public.
FMCSA corrects references to “appendix” in paragraphs (a) introductory text and (b) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.
FMCSA corrects the references to “appendix” in paragraph (b) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but did not change all the cross references to the appendix.
FMCSA corrects the references to “appendix” in paragraph (b) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.
FMCSA corrects the references to “appendix” in paragraph (a) to read “Appendix F.” On December 8, 2016 (81 FR 88794), FMCSA redesignated the existing appendix to part 380 as Appendix F, but failed to correct all the cross references to the appendix.
FMCSA changes the heading of subpart E of part 380 to read: “Subpart E—Entry-Level Driver Training Requirements Before February 7, 2020.” On December 8, 2016 (81 FR 88790), FMCSA attempted to change the heading of subpart E of part 380; however, the Office of the Federal Register could not incorporate the amendment into the CFR due to an inaccurate amendatory instruction. This corrects that error. The sections of subpart E, §§ 380.501 to 380.513, were not modified by that rulemaking.
FMCSA reorganizes § 380.605 to make the numbering conform to the style required by the Office of the Federal Register using Arabic numbers rather than the small Roman numerals used in the December 8, 2016 (81 FR 88790-91), final rule. The Office of the Federal Register recommends to not designate paragraphs and introductory phrases, such as was used for (a) and (b) on page 88790. FMCSA has removed paragraph designations (a) and (b), so that the information is now in an undesignated introductory paragraph.
In the definitions for “Behind-the-wheel (BTW) instructor,” and “Theory instructor,” FMCSA also amends the paragraphs that begin “Exception,” to show that they are actually applicable to subordinate paragraphs (1) and (2), not just subordinate paragraph (2). The Agency inadvertently made this error when these two definitions were added, but the preamble to the December 8, 2016, final rule made this fact clear at 81 FR 88775.
FMCSA revises § 380.713 to correct several grammatical errors. No substantive changes are made.
FMCSA corrects Units A1.2.7 and A1.5.6 by removing small, typographical errors and grammatical mistakes. FMCSA added Appendix A as part of the entry-level driver training rule on December 8, 2016 (81 FR 88794).
FMCSA corrects Appendix B by changing a heading, incorrectly numbered as “Unit 1.3,” to correctly read “Unit B1.1.3 Pre- and Post-Trip Inspections.” Appendix B to Part 380 was added December 8, 2016 (81 FR 88797).
In § 382.403(e), FMCSA adds the phrase “as defined in 49 CFR 382.107.” FMCSA wants to clarify that “Designated employer representative” is a specific term defined in § 382.107.
In § 383.5, FMCSA changes the definition of “Conviction” to correct the last word of the entry to read “probated,” rather than “prorated,” to correct an error introduced in an October 2, 2014 technical amendment (79 FR 59451, 59455-56). FHWA published its revised definition of “Conviction” on October 4, 1988 (53 FR 39050). It was based on Section 6-205(c) of the Uniform Vehicle Code [1987] as adopted by the Legal Services Committee of AAMVA, and read: “Conviction means . . . regardless of whether or not the penalty is rebated, suspended, or probated.”
FMCSA amends footnote 1 to § 383.23(b)(1). The commercial drivers' license reciprocity memorandum of understanding (MOU) between the United States and Mexico was amended effective January 19, 2017; therefore, FMCSA updates the footnote to reflect the date of the amended MOU.
FMCSA changes § 383.73(b)(8) by removing a cross reference to § 383.71(b)(1)(i). This corrects a typographical error that was inadvertently and incorrectly added to the paragraph.
FMCSA adds a new paragraph (k) to § 384.301 to provide the date a State must come into substantial compliance with the provisions of the Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators rule. On December 8, 2016 (81 FR 88803), this final rule inadvertently added a new paragraph (j) to § 384.301. Because there was an existing paragraph (j), the Office of the Federal Register could not make that addition. To correct that mistake, FMCSA adds the paragraph as § 384.301(k).
In paragraph (c), FMCSA corrects the address where the public may obtain hard copies of its training, performance, and maintenance of certification/qualification requirements.
FMCSA corrects Appendix B to Part 385 by updating the section citations and text relating to §§ 382.309 and 382.605 in section VII, List of Acute and Critical Regulations. On December 19, 2000, the Department revised its drug and alcohol testing regulations set forth in 49 CFR part 40 (65 FR 79462). On August 17, 2001, FMCSA amended its drug testing rules in 49 CFR part 382 to conform to the new requirements contained in part 40. FMCSA explained that employers and employees affected by part 382 have always been required to adhere to parts 40 and 382 to comply with FMCSA's drug and alcohol testing requirements. The rule referred the reader directly to part 40 instead of duplicating part 40 rule text in part 382 to promote drafting economy and consistency of interpretation (66 FR 43097). As such, the rule removed all the prior text from §§ 382.309 and 382.605 and, instead, incorporated by reference the appropriate provisions of part 40 (66 FR 43109, 43113). The references to §§ 382.309 and 382.605 in section VII, however, were not updated to reflect the revised section citations or direct the reader to the applicable provisions in part 40. The following changes correct those errors.
Paragraphs (a) and (b) of § 382.309 are deleted and replaced by a new § 382.309 that combines the return-to-duty testing provisions set forth previously in paragraphs (a) and (b) and directs the reader to their location in part 40. Paragraph (c)(1) of § 382.605 is deleted because it is duplicates the requirements of § 382.309. Paragraph (c)(2)(ii) of § 382.605 is deleted and replaced with a new citation for § 382.605 that sets forth the provisions previously in paragraph (c)(2)(ii) and directs the reader to their location in 49 CFR part 40.
FMCSA corrects the section citation for “§ 395.8(e)(2)” by adding a reference to § 395.8(e)(3), to correct an oversight.
The section citation to “§ 172.802(b)” is corrected to read “§ 172.802(c)” to reflect the Pipeline and Hazardous Materials Safety Administration (PHMSA) redesignation of that section on March 9, 2010 (75 FR 10989). FMCSA also changes the section citation to “§ 173.421(a)” to read “§ 173.421.” On July 11, 2014 (79 FR 40613), PHMSA revised § 173.421 and FMCSA corrects this citation to reflect this.
FMCSA amends § 387.3(c)(1) by removing the word “part” in the first sentence and replacing it with the word “subpart.” This change is necessary because the Agency inadvertently failed to reconcile existing language in part 387 with language introduced as a result of the ICCTA (Pub. L. 104-88, sec. 204(a), 109 Stat. 803, 941, Dec. 29, 1995). Because of the ICCTA, 49 CFR parts 1043 and 1084 were redesignated as 49 CFR part 387, subparts C and D, respectively, which establish minimum levels of financial responsibility for certain small freight vehicles (61 FR 54709, Oct. 21, 1996). This created a conflict with the language in § 387.3(c)(1) that states “the rules in this part do not apply to a motor vehicle that has a gross vehicle weight rating (GVWR) of less than 10,001 pounds.” By changing the word “part” to “subpart,” the language is reconciled and the conflict is eliminated. Because of the addition of subparts C and D to part 387, FMCSA also changes “part” to “subpart” in § 387.3(c)(2).
FMCSA clarifies § 387.7(b)(3) by reorganizing the section to eliminate an undesignated paragraph and by correcting the spelling of the word “Mexican.”
FMCSA moves the provision, “Except as provided in § 387.27(b),” now shown as a footnote in both §§ 387.33 (suspended) and 387.33T, to the introductory text in each section. Furthermore, FMCSA updates the table in § 387.33T by removing the references to the 1983 and 1985 effective dates, which are no longer necessary, and showing only the current $5 and $1.5 million minimum limits of public liability insurance required. In addition, FMCSA clarifies that the seating capacity shown in the table in § 387.33T includes the driver, and redesignates the entries in the table as (a) and (b) to conform to Office of the Federal Register style.
FMCSA changes both § 387.301(b) (suspended) and § 387.301T(b) to reference the definitions of “household goods motor carriers” and “individual shippers” in § 375.103, rather than the more general “part 375.” FMCSA amends these sections to clarify for the reader specifically where these definitions are in the CFR.
Both §§ 387.303 (suspended) and 387.303T have an undesignated paragraph following paragraph (b)(4)(iii). In both § 387.303 (suspended) and § 387.303T, FMCSA designates those paragraphs as (b)(5). An undesignated paragraph is contrary to the style required by the Office of the Federal Register and makes it difficult to reference or change those paragraphs.
FMCSA corrects § 387.313(a)(6) (suspended) by renumbering paragraphs (a)(6)(1) and (a)(6)(2) as (a)(6)(i) and (a)(6)(ii). FMCSA makes this change to conform to Office of the Federal Register style. This error does not appear in § 387.313T, because the subparagraphs are correctly shown as (a)(6)(i) and (a)(6)(ii).
FMCSA amends § 390.3 (suspended) to clarify that the coercion rules in § 390.6 apply to shippers, receivers, consignees, brokers, freight forwarders, and other transportation intermediaries. The first Unified Registration System rule (URS) was published August 23, 2013 (78 FR 52608). The coercion rules, which prohibit shippers, receivers, consignees, and transportation intermediaries from coercing drivers of commercial motor vehicles (CMV) operating in interstate commerce to violate certain safety regulations, were subsequently published November 30, 2015 (80 FR 74710). Inadvertently, FMCSA failed to add shippers, receivers, consignees, broker, freight forwarder, and other transportation intermediaries to the general applicability requirements in § 390.3 (suspended) when it corrected and delayed the URS rule on July 28, 2016 (81 FR 49554), as well as in the indefinite URS suspension and amendments made on January 17, 2017 (82 FR 5310).
To correct this oversight, FMCSA adds a specific reference to § 390.6, Coercion prohibited, in § 390.3(i)(4) (suspended), which lists the provisions in 49 CFR chapter III, subchapter B that apply to brokers. Also, in § 390.3(j) (suspended), which lists the provisions of 49 CFR chapter III, subchapter B that apply to freight forwarders that are required to register with the Agency, FMCSA changes paragraph (j)(3) by adding a specific citation to § 390.6.
FMCSA also adds a new paragraph (l) to § 390.3 (suspended) to clarify that the rules in 49 CFR 386.12(c) and 390.6 are applicable to shippers, receivers, consignees, and transportation intermediaries. Adding these references to § 390.3 (suspended) does not create any new requirements. It simply provides a summary for users of the regulations that apply to them.
FMCSA corrects § 390.3T(a)(2) by changing the reference from § 386.12(e) to § 386.12(c). This change is necessary because the ELD rule revised § 386.12 and moved the coercion provisions to paragraph (c), effective February 16, 2016 (80 FR 78381, Dec. 16, 2015).
FMCSA amends four of the definitions in § 390.5 (suspended) and two of the definitions in § 390.5T, which is currently in effect. First, in the definition for “Conviction” in both §§ 390.5 (suspended) and 390.5T, FMCSA removes the word “prorated” at the end of the definition and replaces it with the word “probated” to correct an error. Originally, FHWA published its revised definition of “Conviction” on October 4, 1988 (53 FR 39050) and it correctly read, “Conviction means . . . regardless of whether or not the penalty is rebated, suspended, or probated.” FMCSA erroneously changed “probated” to “prorated” in an October 2, 2014 technical amendment (79 FR 59451, 59455-56). Second, in the definition of “Covered farm vehicle” in both §§ 390.5 (suspended) and 390.5T, FMCSA changes paragraph (1)(ii) by removing an extraneous and incorrect “a” before “an owner or operator of a farm or ranch.” In § 390.5 (suspended), FMCSA corrects the definitions of “Farm vehicle driver” and “Farmer” by
In § 390.15(b) introductory text, FMCSA deletes a provision that requires motor carriers to maintain accident registers for a period of 1 year from accidents that occurred on or prior to April 29, 2003. It also removes the reference to “April 29, 2003,” the compliance date for the current requirements. FMCSA removes these obsolete provisions to update and clarify the rule.
FMCSA corrects the heading of § 390.19T to reflect the heading of § 390.19 as of January 13, 2017, the day before the effective date of the Unified Registration System; Suspension of Effectiveness rulemaking (82 FR 5316, Jan. 17, 2017). FMCSA inadvertently used the same heading for both § 390.19 (suspended) and § 390.19T.
FMCSA revises § 390.27 to spell out the abbreviations in the table to help the user, and to change the address of the Eastern Service Center. The Eastern Service Center moved in July 2017, requiring this update.
In paragraph (a) of § 390.115, FMCSA adds the mailing address for the Director, Office of Carrier, Driver and Vehicle Safety Standards. In paragraph (d), FMCSA makes amendments to reflect the current title of the Associate Administrator for Policy and to add a mailing address for the Associate Administrator. FMCSA makes these changes to update the regulations and make the mailing addresses easily available for the user.
In a rule published September 23, 2016 (81 FR 65568), FMCSA allowed the voluntary mounting of vehicle safety technologies on the interior of the windshields of CMVs, including placement within the area that is swept by the windshield wipers. FMCSA reorganizes § 393.60(e)(1)(ii) to clarify that those technologies must always be placed outside the driver's sight lines to the road and to highway signs and signals.
In § 395.13(c)(2), FMCSA removes the reference to “form MCS-63,” and changes the title of the form from “Driver-Vehicle Examination Report” to its current title, “Driver/Vehicle Examination Report.” While the form name has remained largely the same, this form number is no longer used internally. FMCSA also makes this change to eliminate any possible confusion with other Federal, State, Canadian, and Mexican inspection forms.
FMCSA changes sections 4.2, ELD-Vehicle Interface, and 4.3, ELD Inputs, of Appendix A to Subpart B of Part 395 by adding references to “the vehicle's databus” and making other changes. In section 4.2(b), FMCSA changes the phrase “vehicle's engine ECM” to read “engine ECM or the vehicle's databus.” In section 4.3.1.2(b), FMCSA changes “must be acquired from the engine ECM” to read “must be acquired from the engine ECM or the vehicle's databus.” In section 4.3.1.3(b)(1), FMCSA changes “engine ECM's odometer message” to read simply “odometer message,” and adds a reference to “engine ECM or the vehicle's databus.” FMCSA amends section 4.3.1.4(b) by revising the phrase “the engine ECM's total engine hours” to read instead “the total engine hours.” Also in that section, FMCSA adds the phrase “on the engine ECM or the vehicle's databus” to clarify how the message is broadcast. Finally, the Agency removes the phrase “from the engine ECM” from section 4.3.1.7. These changes simply clarify the Agency's intent, which was always that the required vehicle parameters be obtained either via the vehicle databus or directly from the engine ECM, as evidenced by the language in section 4.2(b) of the functional specifications (“through the serial or Control Area Network communication protocols supported by the vehicle's engine ECM”) (80 FR 78391, Dec. 16, 2015). The foregoing changes are made in response to a petition for reconsideration of the ELD final rule submitted by the Truck and Engine Manufacturers Association (EMA).
Furthermore, FMCSA makes minor changes to sections 4.4, ELD Processing and Calculations, and 4.8, ELD Outputs, of Appendix A to Subpart B of Part 395. These amendments to sections 4.4 and 4.8 do not substantively change the ELD regulations. Rather, they make the technical specifications internally consistent and consistent with the regulatory requirements. These changes are necessary to conform the technical specifications with guidance documents for ELD software developers and frequently-asked-question (FAQ) documents that FMCSA has already published.
FMCSA has worked during the last year with about 80 ELD software vendors with currently-certified ELD products to help them ensure their products use the programming amendments being made today. Motor carriers, ELD owners, and drivers should not be impacted by these amendments. They are very technical in nature and involve what vendors do behind the scenes relating to ELD computer programming requirements for software's input and output data. If an ELD software vendor needs to make any further updates because of these amendments to a motor carrier's or driver's ELD unit, the ELD software vendor will most likely send the amendments to the ELD unit in a regular software update. Many software vendors will perform the update wirelessly or through the internet, similar to how the public receives software updates from vendors for smartphones, laptops, and handheld global positioning system electronic devices.
Specifically, FMCSA amends paragraph (b)(9) of section 4.4.5.1.1., Event Checksum Calculation, by changing “<CMV Number>” to read “<CMV Power Unit Number>”. “CMV Number” is not a data element in the rule; the correct term is “CMV Power Unit Number,” which is defined in section 7.4. FMCSA corrects the data element “ELD ID: <ELD Registration ID>” in paragraph (b) of section 4.8.1.3., Information To Be Shown on the Printout and Display at Roadside, to read “ELD ID: <ELD Identifier>”. This data element is an ELD provider assigned value and not the FMCSA-
FMCSA corrects section 4.8.2.1.6., ELD Event List for Driver's Certification of Own Records, to read “Driver's Certification/Recertification Actions: <CR>”. This error in “Driver's” was introduced due to the Government Printing Office publication font, which uses a curly apostrophe symbol style rather than a straight apostrophe symbol style. ELD software developer's must use the ANSI INCITS 4-1986 (R2012), American National Standard for Information Systems—Coded Character Sets—7-Bit American National Standard Code for Information Interchange (7-Bit ASCII), approved June 14, 2007. This standard is incorporated by reference in § 395.38(b)(1) and Appendix A to Subpart B of Part 395 in sections 4.8.2.1., ELD Output File Standard, paragraph (b) and section 6, References, paragraph (a)(1). This 7-Bit ASCII Code 39 provides a character and encoding only for a straight apostrophe symbol; it does not recognize or include encoding for a curly apostrophe symbol.
FMCSA corrects six of the data elements in section 7, Data Elements Dictionary, of Appendix A to Subpart B of Part 395. FMCSA changes section 7.14, ELD Authentication Value, to clarify that manufacturers who use a data length of the industry standard 2,048 characters or larger will be in compliance with the rule. The current data length range of 16-32 was not consistent with the signature generated by a current industry standard certificate. While a certificate from 16-32 characters could be used, it would not be consistent with the surety standards in place today. Today's certificate keys, which determine length of the final output, can consist of up to 16,384 bits. In section 7.19, Engine Hours, FMCSA changes the entry for “Disposition” to include certain scenarios allowed in the rule where this information will not be available. In Table 6, “Event Type” Parameter Coding, in section 7.20, Event Code, FMCSA corrects the event code description for “Driver indication for PC, YM and WT cleared” to read “Driver indication for PC or YM cleared”. While personal moves (PM) or yard moves (YM) are referenced elsewhere in the rule text, WT is not. In both section 7.31, Latitude, and section 7.33, Longitude, the Agency modifies the entries for Data Range, Data Length, Data Format, and Examples to allow for the X, M, and E entries that are identified as allowable in section 4.6.1.4, Positioning Compliance Monitoring. FMCSA changes the entry for Disposition in section 7.43, Vehicle Miles, to include those instances allowed in the rule where this information will not be available.
In § 396.17(d), FMCSA changes the two cross references to § 396.23(b)(1) to read, instead, § 396.23(a)(1). In a rule published July 22, 2016 (81 FR 47732), FMCSA removed paragraph (a) of § 396.23 and made existing paragraph (b) the new paragraph (a). FMCSA corrects the cross references in § 396.17(d) to reflect that change.
In paragraph (f) of § 396.17, FMCSA changes the phrase “State government or equivalent jurisdiction” to read “State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, and Mexico.” This change clarifies that the inspection programs of State and certain foreign governments can be used to comply with the inspection requirement and conforms with the language in § 396.23.
FMCSA revises § 396.23 by removing the word “State” and replacing it, where appropriate, with a reference to “government” or “State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, or Mexico.” This amendment is necessary to clarify that those inspection programs of State and certain foreign governments that are found to be as effective as § 396.17 inspection can be used by motor carriers to comply with the periodic inspection requirement. On September 23, 1991, FMCSA's predecessor agency, FHWA, announced its addition of all Canadian Provinces and the Yukon Territory (56 FR 47982) to the list of programs that are comparable to, or as effective as, the Federal periodic inspection (PI) of CMV requirements contained in the FMCSRs. On March 16, 2016, FMCSA announced its acceptance of the Norma Oficial Mexicana ((NOM) or Official Mexican Standard) as equivalent to the Federal PI of CMVs (81 FR 14195).
FMCSA reorganizes § 397.73(b) and adds a reference to its website in new paragraph (b)(3)(i). This change is necessary to update the procedures for finding information on the National Hazardous Materials Route Registry.
The Agency adds a reference to its website in § 397.103(c)(3). It also changes paragraph (d) by adding an email address to request the “Guidelines for Selecting Preferred Highway Routes for Highway Route Controlled Quantity Shipments of Radioactive Materials.” These changes help the user by providing updated procedures for addressing State routing designations.
FMCSA updates § 398.8 to remove form numbers that are no longer in common use and, instead, to provide current titles for those forms. Paragraph (a) is republished to provide context. In § 398.8(b), FMCSA changes the title of Form MCS 63, “Driver-Equipment Compliance Check,” to “Driver/Vehicle Examination Report” to reflect the current title of the inspection report form and removes the reference to the form number. FMCSA changes paragraph (c)(1) by removing the reference to Form MCS-64, instead referring to that form only as “Out of Service Vehicle” sticker. In paragraphs (c)(2), (3), and (4), the Agency removes the references to Form MCS-63 and instead uses “Driver/Vehicle Examination Report.” Throughout paragraph (d), the references to “Form MCS-63” are changed to read “Driver/Vehicle Examination Report.” Because the form numbers are no longer in common use, FMCSA makes these changes to provide a consistent, current reference to the Driver/Vehicle Examination Report and the “Out of Service” sticker. Also, FMCSA wants to avoid the possible confusion caused by other Federal, State, Canadian, and Mexican forms.
FMCSA determined that this final rule is not a significant regulatory action under section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, the Office of
E.O. 13771 (82 FR 9339, Feb. 3, 2017), Reducing Regulation and Controlling Regulatory Costs, requires that, for “every one new [E.O. 13771 regulatory action] issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
Implementation guidance for E.O. 13771 issued by OMB on April 5, 2017, defines two different types of E.O. 13771 actions: an E.O. 13771 deregulatory action, and an E.O. 13771 regulatory action.
An E.O. 13771 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.” This rulemaking has total costs equal to zero, and therefore is not an E.O. 13771 deregulatory action.
An E.O. 13771 regulatory action is defined as:
(i) A significant action as defined in section 3(f) of E.O. 12866 that has been finalized, and that imposes total costs greater than zero; or
(ii) a significant guidance document (
The Agency action, in this case a rulemaking, must meet both the significance and the total cost criteria to be considered an E.O. 13771 regulatory action. This rulemaking is not a significant regulatory action as defined in section 3(f) of E.O. 12866, and therefore does not meet the significance criterion for being an E.O. 13771 regulatory action. Consequently, this rulemaking is not an E.O. 13771 regulatory action and no further action under E.O. 13771 is required.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, David Miller, 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 Administration's 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 FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
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 $156 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any 1 year. This final rule will not result in such an expenditure.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.
This final rule meets applicable standards in sections 3(a) and 3(b) (2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, this regulatory action could not disproportionately affect children.
FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.
Section 522(a)(5) of the Transportation, Treasury, Independent Agencies, and General Government Appropriations Act, 2005 (Pub. L. 108- 447, Division H, Title I, 118 Stat. 2809, 3268, Dec. 8, 2004) requires DOT and certain other Federal agencies to conduct a privacy impact assessment of each rule that will affect the privacy of individuals. Because this final rule will not affect the privacy of individuals, FMCSA did not conduct a separate privacy impact assessment.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
FMCSA has analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
This rule does not have tribal implications under E.O. 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.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (
FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401
Under E.O. 12898, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this final rule in accordance with the E.O., and has determined that no environmental justice issue is associated with this final rule, nor is there any collective environmental impact that would result from its promulgation.
Grant programs—transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Brokers, Buses, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.
Administrative practice and procedure, Brokers, Buses, Freight forwarders, Maritime carriers, Mexico, Motor carriers, Moving of household goods.
Buses, Freight, Freight forwarders, Motor carriers, Moving of household goods.
Administrative practice and procedure, Highway safety, Motor carriers, Reporting and recordkeeping requirements.
Administrative practice and procedure, Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor carriers, Penalties, Safety, Transportation.
Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
Administrative practice and procedure, Alcohol abuse, Drug abuse, Highway safety, Motor carriers.
Administrative practice and procedure, Highway safety, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Buses, Freight, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Intergovernmental relations, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds.
Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Highway safety, Motor carriers, Motor vehicle safety.
Highway safety, Motor carriers, Reporting and recordkeeping requirements.
Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
Administrative practice and procedure, Hazardous materials transportation, Highway safety, Intergovernmental relations, Motor carriers, Parking, Radioactive materials, Reporting and recordkeeping requirements, Rubber and rubber products.
Highway safety, Migrant labor, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.
In consideration of the foregoing, FMCSA amends 49 CFR chapter III as set forth below:
49 U.S.C. 13902, 31101-31104, 31108, 31136, 31141, 31161, 31310-31311, 31502; and 49 CFR 1.87.
31 U.S.C. 9701; 49 U.S.C. 13908; and 49 CFR 1.87.
(a) Certificate of the Director, Office of Registration and Safety Information (MC-RS), as to the authenticity of documents, $9.00;
(d) * * *
(2) The fee for computer searches will be set at the current rate for computer service. Information on those charges can be obtained from the Office of Registration and Safety Information (MC-RS).
(a)* * *
(2)
(iii) An account holder who files a petition in bankruptcy or who is the subject of a bankruptcy proceeding must provide the following information to the Office of Registration and Safety Information (MC-RS):
(e) * * *
(2) * * *
(i)
(iii)
5 U.S.C. 553 and 559; 49 U.S.C. 13101, 13301, 13901-13906, 13908, 14708, 31133, 31138, and 31144; 49 CFR 1.87.
(a)
(2) The execution of a chattel mortgage, deed of trust, or other similar document does not constitute a transfer or require FMCSA's approval. However, a foreclosure for the purpose of transferring an operating right to satisfy a judgment or claim against the record holder may not be effected without approval of FMCSA.
49 U.S.C. 13301, 13531 and 14706; and 49 CFR 1.87.
(a)
(i) Names of consignor and consignee (except on a reconsigned shipment, not the name of the original consignor).
(ii) Date of shipment.
(iii) Origin and destination points (except on a reconsigned shipment, not the original shipping point unless the final consignee pays the charges from that point).
(iv) Number of packages.
(v) Description of freight.
(vi) Weight, volume, or measurement of freight (if applicable to the rating of the freight).
(vii) Exact rate(s) assessed.
(viii) Total charges due, including the nature and amount of any charges for special service and the points at which such service was rendered.
(ix) Route of movement and name of each carrier participating in the transportation.
(x) Transfer point(s) through which shipment moved.
(xi) Address where remittance must be made or address of bill issuer's principal place of business.
(2) The shipper or receiver owing the charges shall be given the freight or expense bill and the carrier shall keep a copy as prescribed at 49 CFR part 379. If the bill is electronically transmitted (when agreed to by the carrier and payor), a receipted copy shall be given to the payor upon payment.
(b)
(i) Serial number, consisting of one of a series of consecutive numbers assigned in advance and imprinted on the bill.
(ii) Name of carrier.
(iii) Names of payor and organization, if any, for which transportation is performed.
(iv) Date(s) transportation was performed.
(v) Origin, destination, and general routing of trip.
(vi) Identification and seating capacity of each vehicle used.
(vii) Number of persons transported.
(viii) Mileage upon which charges are based, including any deadhead mileage, separately noted.
(ix) Applicable rates per mile, hour, day, or other unit.
(x) Itemized charges for transportation, including special services and fees.
(xi) Total charges assessed and collected.
(2) The carrier shall keep a copy of all expense bills issued for the period prescribed at 49 CFR part 379. If any expense bill is spoiled, voided, or unused for any reason, a copy or written record of its disposition shall be retained for a like period.
49 U.S.C. 31133, 31136, 31305, 31307, 31308, and 31502; sec. 4007(a) and (b) of Pub. L. 102-240, 105 Stat. 1914, 2151; sec. 32304 of Pub. L. 112-141, 126 Stat. 405, 791; and 49 CFR 1.87.
The definitions in parts 383 and 384 of this subchapter apply to this subpart, except as stated below. As used in this subpart:
(1) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience driving a CMV requiring a CDL of the same or higher class and/or the same endorsement and meets all applicable State qualification requirements for CMV instructors; or
(2) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience as a BTW CMV instructor and meets all applicable State qualification requirements for CMV instructors.
(3) If an instructor's CDL has been cancelled, suspended, or revoked due to any of the disqualifying offenses identified in § 383.51 of this subchapter, the instructor is prohibited from engaging in BTW instruction for 2 years following the date his or her CDL is reinstated.
(1) Taking the CDL skills test required to receive the Class A or Class B CDL for the first time;
(2) Taking the CDL skills test required to upgrade to a Class A or Class B CDL; or
(3) Taking the CDL skills test required to obtain a passenger and/or school bus endorsement for the first time or the CDL knowledge test required to obtain a hazardous materials endorsement for the first time.
(1) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience driving a CMV requiring a CDL of the same (or higher) class and/or the same endorsement and meets all applicable State qualification requirements for CMV instructors; or
(2) Holds a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided and has at least 2 years of experience as a BTW CMV instructor and meets all applicable State qualification requirements for CMV instructors.
1. An instructor is not required to hold a CDL of the same (or higher) class and with all endorsements necessary to operate the CMV for which training is to be provided, if the instructor previously held a CDL of the same (or higher) class and complies with the other requirements set forth in paragraphs (1) or (2) of this definition.
2. Training providers offering online content exclusively are not required to meet State qualification requirements for theory instructors.
(3) If an instructor's CDL has been cancelled, suspended, or revoked due to any of the disqualifying offenses identified in § 383.51 of this subchapter, the instructor is prohibited from engaging in theory instruction for 2 years following the date his or her CDL is reinstated.
(a) Theory training providers must utilize instructors who are theory instructors as defined in § 380.605.
(b) BTW training providers must utilize instructors who are BTW instructors as defined in § 380.605.
49 U.S.C. 31133, 31136, 31301
49 U.S.C. 521, 31136, 31301
(b)
49 U.S.C. 31136, 31301
(k) A State must come into substantial compliance with the requirements of subpart B of this part and part 383 of this chapter in effect as of February 6, 2017, but not later than February 7, 2020.
49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 13901-13905, 13908, 31136, 31144, 31148, 31151, and 31502; Sec. 350 of Pub. L. 107-87; and 49 CFR 1.87.
(c) The requirements of paragraphs (a) and (b) of this section for training, performance and maintenance of certification/qualification, which are described on the FMCSA website (
The additions read as follows:
49 U.S.C. 13101, 13301, 13906, 13908, 14701, 31138, and 31139; sec. 204(a), Pub. L. 104-88, 109 Stat. 803, 941; and 49 CFR 1.87.
(b) * * *
(3)
(ii) A Mexican motor carrier so insured must have available for inspection in each of its vehicles copies of the following documents:
(A) The Certificate of Registration;
(B) The required insurance endorsement (Form MCS-90); and
(C) An insurance identification card, binder, or other document issued by an authorized insurer which specifies both the effective date and the expiration date of the temporary insurance coverage authorized by this exception.
(iii) Mexican motor carriers insured under this exception are also exempt from the notice of cancellation requirements stated on Form MCS-90.
The revision reads as follows:
(a)
For-hire motor carriers of passengers operating in interstate or foreign commerce.
Except as provided in § 387.27(b), the minimum levels of financial responsibility referred to in § 387.31 are hereby prescribed as follows:
For-hire motor carriers of passengers operating in interstate or foreign commerce.
The revision reads as follows:
(b) * * * The terms “household goods motor carrier” and “individual shipper” are defined in § 375.103 of this subchapter.
(b) * * * The terms “household goods motor carrier” and “individual shipper” are defined in § 375.103 of this subchapter.
49 U.S.C. 504, 508, 31132, 31133, 31134, 31136, 31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; secs. 212, 217, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743); sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; secs. 32101(d), 32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs. 5518, 5524, Pub. L. 114-94, 129 Stat. 1312, 1558, 1560; and 49 CFR 1.87.
The revision and addition read as follows:
(i) * * *
(4) Section 390.6, prohibiting the coercion of drivers of commercial motor vehicles operating in interstate commerce to violate certain safety regulations, and subpart E of this part, Unified Registration System.
(j) * * *
(3) Section 390.6, prohibiting the coercion of drivers of commercial motor vehicles operating in interstate commerce to violate certain safety regulations, and subpart E of this part, Unified Registration System.
(l)
The revisions read as follows:
(1) * * *
(ii) Operated by the owner or operator of a farm or ranch, or an employee or family member of an owner or operator of a farm or ranch;
(1) Controlled and operated by a farmer as a private motor carrier of property;
(2) Being used to transport either—
(i) Agricultural products, or
(ii) Farm machinery, farm supplies, or both, to or from a farm;
(3) Not being used in the operation of a for-hire motor carrier;
(4) Not carrying hazardous materials of a type or quantity that requires the commercial motor vehicle to be placarded in accordance with § 177.823 of this subtitle; and
(5) Being used within 150 air-miles of the farmer's farm.
(1) Are owned by that person; or
(2) Are under the direct control of that person.
The revisions read as follows:
(1) * * *
(ii) Operated by the owner or operator of a farm or ranch, or an employee or family member of an owner or operator of a farm or ranch;
(b) Motor carriers must maintain an accident register for 3 years after the date of each accident. Information placed in the accident register must contain at least the following:
The revisions read as follows:
(a)
(d)
49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of Pub. L. 102-240, 105 Stat. 1914, 1993 (1991); sec. 5301 and 5524 of Pub. L. 114-94, 129 Stat. 1312, 1543, 1560; and 49 CFR 1.87.
(e) * * *
(1) * * *
(ii) Paragraph (e)(1)(i) of this section does not apply to vehicle safety technologies, as defined in § 393.5, that are mounted on the interior of a windshield. Devices with vehicle safety technologies must be mounted outside the driver's sight lines to the road and to highway signs and signals, and:
(A) Not more than 100 mm (4 inches) below the upper edge of the area swept by the windshield wipers; or
(B) Not more than 175 mm (7 inches) above the lower edge of the area swept by the windshield wipers.
49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec. 113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-159 (as transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub. L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122 Stat. 4860-4866; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5206(b) of Pub. L. 114-94, 129 Stat. 1312, 1537; and 49 CFR 1.87.
(c) * * *
(2) A motor carrier shall complete the “Motor Carrier Certification of Action Taken” portion of the form “Driver/
The revised text reads as follows:
(b) An ELD used while operating a CMV that is a model year 2000 or later model year, as indicated by the vehicle identification number (VIN), that has an engine electronic control module (ECM) must establish a link to the engine ECM when the CMV's engine is powered and receive automatically the engine's power status, vehicle's motion status, miles driven value, and engine hours value through the serial or Control Area Network communication protocols supported by the engine ECM or the vehicle's databus. If the vehicle does not have an ECM, an ELD may use alternative sources to obtain or estimate these vehicle parameters with the listed accuracy requirements under section 4.3.1 of this appendix.
(b) If an ELD is required to have a link to the vehicle's engine ECM, vehicle speed information must be acquired from the engine ECM or the vehicle's databus. Otherwise, vehicle speed information must be acquired using an independent source apart from the positioning services described under section 4.3.1.6 of this appendix and must be accurate within ±3 miles per hour of the CMV's true ground speed for purposes of determining the in-motion state for the CMV.
(b) * * *
(1) The ELD must monitor the odometer message broadcast on the engine ECM or the vehicle's databus and use it to log total vehicle miles information; and
(b) If an ELD is required to have a link to the vehicle's engine ECM, the ELD must monitor the total engine hours message broadcast on the engine ECM or the vehicle's databus and use it to log total engine hours information. Otherwise, engine hours must be obtained or estimated from a source that monitors the ignition power of the CMV and must be accurate within ±0.1 hour of the engine's total operation within a given ignition power on cycle.
The vehicle identification number (VIN) for the power unit of a CMV must be automatically obtained and recorded if it is available on the vehicle databus.
(b)
(9) <CMV Power Unit Number>”, and
49 U.S.C. 504, 31133, 31136, 31151, and 31502; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; sec. 5524 of Pub. L. 114-94, 129 Stat. 1312, 1560; and 49 CFR 1.87.
(a)(1) If a commercial motor vehicle is subject to a mandatory inspection program that is determined by the Administrator to be as effective as § 396.17, the motor carrier or intermodal equipment provider must meet the requirement of § 396.17 through that inspection program. Commercial motor vehicle inspections may be conducted by government personnel, at commercial facilities authorized by a State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, or Mexico, or by the motor carrier or intermodal equipment provider itself under the auspices of a self-inspection program authorized by a State government or equivalent jurisdiction in the Canadian Provinces, the Yukon Territory, or Mexico.
(2) Should FMCSA determine that an inspection program, in whole or in part, is not as effective as § 396.17, the motor carrier or intermodal equipment provider must ensure that the periodic inspection required by § 396.17 is performed on all commercial motor vehicles under its control in a manner specified in § 396.17.
(b) [Reserved]
49 U.S.C. 322; 49 CFR 1.87. Subpart A also issued under 49 U.S.C. 5103, 31136, 31502, and 49 CFR 1.97. Subparts C, D, and E also issued under 49 U.S.C. 5112, 5125.
(b)
(i) Electronically, by email to
(ii) By mail to the Federal Motor Carrier Safety Administration, Office of Enforcement and Compliance (MC-EC), 1200 New Jersey Ave. SE, Washington, DC 20590-0001.
(2) States and Indian tribes shall also submit to FMCSA the current name of the State or Indian tribal agency responsible for NHRM highway routing designations. The State or Indian tribe shall include descriptions of these routing designations, along with the dates they were established. Information on any subsequent changes or new NRHM routing designations shall be furnished within 60 days after establishment to the FMCSA.
(3)(i) FMCSA will consolidate information on the NRHM routing designations, make it available on its website,
(ii) Each State or Indian tribe may also publish this information in its official register of State or tribal regulations.
(c) * * *
(3) The route is published in FMCSA's Hazardous Materials Route Registry, available on the FMCSA website,
(d) A list of State-designated preferred routes and a copy of the “Guidelines for Selecting Preferred Highway Routes for Highway Route Controlled Quantity Shipments of Radioactive Materials” are available upon request to Federal Motor Carrier Safety Administration, Office of Enforcement and Compliance (MC-EC), 1200 New Jersey Ave. SE, Washington, DC 20590-0001, or by email to
49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502, and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 212, Pub. L. 106-159, 113 Stat. 1748, 1766; and 49 CFR 1.87.
(a)
(b)
(c)
(2) No motor carrier shall require or permit any person to operate nor shall any person operate any motor vehicle declared and marked, “out of service” until all repairs required by the “out of service notice” on the “Driver/Vehicle Examination Report” have been satisfactorily completed. The term “operate” as used in this section shall include towing the vehicle; provided, however, that vehicles marked “out of service” may be towed away by means of a vehicle using a crane or hoist; and provided further, that the vehicle combination consisting of the emergency towing vehicle and the “out of service” vehicle meets the performance requirements of § 393.52 of this subchapter.
(3) No person shall remove the “Out of Service Vehicle” sticker from any motor vehicle prior to completion of all repairs required by the “out of service notice” on the “Driver/Vehicle Examination Report.”
(4) The person or persons completing the repairs required by the “out of service notice” shall sign the “Certification of Repairman” in accordance with the terms prescribed on the “Driver/Vehicle Examination Report,” entering the name of his/her shop or garage and the date and time the required repairs were completed. If the driver completes the required repairs, he/she shall sign and complete the “Certification of Repairman.”
(d)
(2) Motor carriers shall complete the “Motor Carrier Certification of Action Taken” on the “Driver/Vehicle Examination Report” in accordance with the terms prescribed thereon. Motor carriers shall return the “Driver/Vehicle Examination Reports” to the address indicated on the report within fifteen (15) days following the date of the vehicle inspection.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede airworthiness directive (AD) 2017-14-03 for Sikorsky Aircraft Corporation (Sikorsky) Model S-92A helicopters. AD 2017-14-03 requires an inspection and reduces the retirement lives of certain landing gear components. This proposed AD would retain the requirements of AD 2017-14-03, reduce the retirement lives of additional landing gear components, and require repeating the inspection. The actions of this proposed AD are intended to prevent an unsafe condition on these products.
We must receive comments on this proposed AD by July 16, 2018.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email:
Dorie Resnik, Aviation Safety Engineer, Boston ACO Branch, Compliance and Airworthiness Division, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7693; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
We issued AD 2017-14-03, Amendment 39-18947 (82 FR 34838, July 27, 2017), for Sikorsky Model S-92A helicopters. AD 2017-14-03 was prompted by Sikorsky's updated fatigue analysis of the nose and main landing gear, which revealed that certain components require a reduced service life. Therefore, AD 2017-14-03 requires reducing the retirement lives of main landing gear (MLG) wheel axle part number (P/N) 2392-2334-001, MLG and nose landing gear (NLG) threaded hinge pin P/N 2392-2311-003, NLG cylinder P/N 2392-4006-005, NLG hinge pin P/N 2392-4312-003, and landing gear actuator rod end P/N 2392-0876-901. AD 2017-14-03 also requires a one-time visual and ultrasonic inspection of NLG airframe fitting assembly P/N 92209-01101-041 once it has accumulated 31,600 landing cycles. Those actions are intended to detect and prevent cracks or failure of any landing gear component, which could result in damage and loss of control of the helicopter.
When we issued AD 2017-14-03, we determined it would be an interim action. Because Sikorsky's updated airworthiness limitations schedule included a repetitive inspection of the NLG airframe fitting assemblies P/N 92209-01101-041 every 1,989 landing cycles, we determined that the planned compliance time for these inspections would allow enough time to provide notice and opportunity for prior public comment on the merits of the repetitive inspection. Also, the reduced retirement lives for MLG cylinder P/N 2392-2006-005, MLG pin outboard P/N 2392-2312-003, MLG bulkhead left-hand side (LHS) P/N 92201-08111-105, -107, and -109, and MLG bulkhead right-hand side (RHS) P/N 92201-08111-106, -108, and -110 were not included in AD 2017-14-03. We determined the age of the existing Model S-92A fleet would also allow enough time to provide notice and opportunity for public comment on the merits of the reduced life limits. This proposed AD would require these inspections and reduced life limits.
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
We reviewed Ultrasonic Inspection Technique No. UT 5077, Revision 0, dated July 25, 2014 (UT 5077). UT 5077 contains the inspection method, equipment and materials, calibration, and inspection procedure for performing an ultrasonic inspection of nose gear actuator fitting P/N 92209-01101-101.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We also reviewed Sikorsky S-92 Helicopter Alert Service Bulletin 92-32-004, Basic Issue, dated January 30, 2015 (ASB). The ASB describes procedures for conducting a visual inspection of the NLG airframe fitting assembly and an ultrasonic inspection by following the procedures in UT 5077.
This proposed AD would require removing the following components from service:
• Any MLG wheel axle P/N 2392-2334-001 that has 22,300 or more landing cycles.
• Any MLG or NLG threaded hinge pin P/N 2392-2311-003 that has 26,100 or more landing cycles.
• Any NLG cylinder P/N 2392-4006-005 that has 26,300 or more landing cycles.
• Any NLG hinge pin P/N 2392-4312-003 that has 26,700 or more landing cycles.
• Any landing gear actuator rod end P/N 2392-0876-901 that has 41,700 or more landing cycles.
• Any MLG cylinder P/N 2392-2006-005 that has 76,300 or more landing cycles.
• Any MLG pin outboard P/N 2392-2312-003 that has 50,300 or more landing cycles.
• Any MLG bulkhead LHS P/N 92201-08111-105, -107, and -109 that has 58,400 or more landing cycles.
• Any MLG bulkhead RHS P/N 92201-08111-106, -108, and -110 that has 58,400 or more landing cycles.
For helicopters that have 31,600 or more landing cycles and an NLG airframe fitting assembly P/N 92209-01101-041 installed, this proposed AD would also require, before further flight and thereafter at intervals not exceeding 1,989 landing cycles:
• Using a 10X or higher power magnifying glass, inspecting each bushing and all visible surfaces of mating lug fittings adjacent to each bushing for fretting, corrosion, wear, and scratches.
• Replacing the NLG airframe fitting assembly before further flight if there is fretting, corrosion, wear, or a scratch more than 0.0005 inch deep.
• Ultrasonic inspecting the NLG actuator fitting and replacing the NLG actuator fitting before further flight if there are any anomalies.
We estimate that this AD will affect 80 helicopters of U.S. Registry.
We estimate that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85 per hour:
• Replacing a wheel axle P/N 2392-2334-001 would require 2 work-hours and required parts cost $22,000, for a cost per helicopter of $22,170.
• Replacing a MLG or NLG threaded hinge pin P/N 2392-2311-003 would require 1 work-hour and required parts cost $3,800, for a cost per helicopter of $3,885.
• Replacing a NLG cylinder P/N 2392-4006-005 would require 1 work-hour and required parts cost $27,200, for a cost per helicopter of $27,285.
• Replacing a NLG hinge pin P/N 2392-4312-003 would require 1 work-hour and required parts cost $4,400, for a cost per helicopter of $4,485.
• Replacing a landing gear actuator rod end P/N 2392-0876-901 would require 1 work-hour and required parts cost $900, for a cost per helicopter of $985.
• Replacing a MLG cylinder P/N 2392-2006-005 would require 2 work-hours and required parts cost $33,100, for a cost per helicopter of $33,270.
• Replacing a MLG pin outboard P/N 2392-2312-003 would require 1 work-hour and required parts cost $4,300, for a cost per helicopter of $4,385.
• Replacing a MLG bulkhead LHS P/N 92201-08111-105, -107, and -109 would require 70 work-hours and required parts would cost $12,550, for a cost per helicopter of $18,500.
• Replacing a MLG bulkhead RHS P/N 92201-08111-106, -108, and -110 would require 70 work-hours and required parts would cost $12,550, for a cost per helicopter of $18,500.
• Inspecting the NLG airframe fitting assembly P/N 92209-01101-041 would require 8 work-hours, and required parts cost is minimal, for a cost of $680 per helicopter and $54,400 for the U.S. fleet, per inspection cycle.
• If required, replacing a NLG actuator fitting P/N 92209-01101-101 would require 70 work-hours, and required parts cost $10,000, for a cost per helicopter of $15,950.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Sikorsky Model S-92A helicopters, certificated in any category.
This AD defines the unsafe condition as fatigue failure of the landing gear. This condition could result in failure of the landing gear and subsequent damage to and loss of control of the helicopter.
This AD replaces AD 2017-14-03, Amendment 39-18947 (82 FR 34838, July 27, 2017).
We must receive comments by July 16, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Before further flight, remove from service any part that has accumulated the number of landing cycles listed in Table 1 to paragraph (f)(1) of this AD. Thereafter, remove from service any part before accumulating the number of landing cycles listed in Table 1 to paragraph (f)(1) of this AD. For purposes of this AD, a landing cycle is counted anytime the helicopter lifts off into the air and then lands again regardless of the duration of the landing and regardless of whether the engine is shut down. If the number of landing cycles in unknown, multiply the number of hours time-in-service by 4.5 to determine the number of landing cycles.
(2) For helicopters with 31,600 or more landing cycles and an NLG airframe fitting assembly P/N 92209-01101-041 installed, before further flight and thereafter at intervals not to exceed 1,989 landing cycles:
(i) Using a 10X or higher power magnifying glass, inspect each bushing (P/N 92209-01101-102 and P/N 92209-01101-103) and all visible surfaces of mating lug fittings adjacent to each bushing for fretting, corrosion, wear, and scratches. If there is fretting, corrosion, wear, or a scratch more than 0.0005 inch deep, replace the NLG airframe fitting assembly before further flight.
(ii) Ultrasonic inspect each NLG actuator fitting P/N 92209-01101-101 in accordance with Sikorsky Ultrasonic Inspection Technique No. UT 5077, Revision 0, dated July 25, 2014 (UT 5077), except you are not required to report to or contact Sikorsky. If there are any anomalies or suspect indications, replace the NLG actuator fitting before further flight.
A copy of UT 5077 is attached to Sikorsky S-92 Helicopter Alert Service Bulletin 92-32-004, Basic Issue, dated January 30, 2015.
(1) The Manager, Boston ACO Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Dorie Resnik, Aviation Safety Engineer, Boston ACO Branch, Compliance and Airworthiness Division, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7693; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
Sikorsky S-92 Helicopter Alert Service Bulletin 92-32-004, Basic Issue, dated January 30, 2015, which is not incorporated by reference, contains additional information about the subject of this AD. For service
Joint Aircraft Service Component (JASC) Code: 3200 Main Landing Gear and 3220 Nose Landing Gear.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. This proposed AD would require measuring a vibration level in the tail rotor (T/R) drive. This proposed AD is prompted by reports of bearing degradation. The actions of this proposed AD are intended to prevent an unsafe condition on these helicopters.
We must receive comments on this proposed AD by July 16, 2018.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
Rao Edupuganti, Aviation Safety Engineer, Regulations and Policy Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2017-0159, dated August 25, 2017, to correct an unsafe condition for Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. EASA advises of two occurrences on AS355 military helicopters in which the main gearbox (MGB) oil cooler fan bearing (bearing) installed on the TR drive shaft experienced significant degradation. EASA states that while investigation has not determined the cause of the failures, this condition may also occur on other AS355 helicopters due to design commonality. According to EASA, this condition, if not detected and corrected, could result in loss of MGB and engine oil cooling function, loss of the rear transmission, and subsequent loss of control of the helicopter. To address this unsafe condition and as an interim measure, the EASA AD requires two vibration level measurements of the forward portion of the tail rotor drive line, one before and one after cleaning the MGB oil cooler fan, and replacing the bearings if excessive level or level trends are detected. The EASA AD also specifies that after the effective date of the AD, only those MGB oil cooler fan assembly bearings that are new or that have passed the vibration level measurements may be installed.
These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.
We reviewed Airbus Helicopters Alert Service Bulletin No. AS355-05.00.77, Revision 0, dated July 3, 2017, which contains procedures for checking the condition of the fan assembly bearings by measuring the vibration levels of the first section of the T/R drive.
This proposed AD would require, within 165 hours time-in-service, measuring the T/R drive vibration level without balancing, cleaning the fan, and repeating the vibration level measurement. If the difference between the two amplitude values is greater than 0.75 inch per second (ips), the proposed AD would require, before further flight, replacing each T/R fan bearing.
We consider this proposed AD to be an interim action. The manufacturer is currently developing a terminating action for the unsafe condition described in this proposed AD. If a terminating action is identified, we may consider further rulemaking then.
We estimate that this proposed AD would affect 104 helicopters of U.S. Registry.
We estimate that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85 per work-hour, measuring the vibration levels would require about 5 work-hours, for a cost of $425 per helicopter and $44,200 for the U.S. operator fleet. If required, replacing both fan assembly bearings would require about 8 work-hours, and required parts would cost $1,064, for a cost per helicopter of $1,744.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters, certificated in any category.
This AD defines the unsafe condition as degradation of a main gearbox (MGB) oil cooler fan assembly bearing. This condition could result in loss of MGB and engine oil cooling function, loss of the rear transmission, and subsequent loss of control of the helicopter.
We must receive comments by July 16, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 165 hours time-in-service (TIS):
(i) Measure the tail rotor (T/R) drive vibration level without balancing the T/R drive, and record the amplitude value.
(ii) Clean the oil cooler fan.
(iii) Measure the T/R drive vibration level without balancing the T/R drive, and record the amplitude value.
(iv) Calculate the difference between the two amplitude values. If the difference is greater than 0.75 inch per second (ips), before further flight, replace each oil cooler fan assembly bearing.
(2) After the effective date of this AD, do not install an oil cooler fan assembly bearing with more than 0 hours TIS unless the requirements of this AD have been accomplished.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Rao Edupuganti, Aviation Safety Engineer, Regulations and Policy Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
(1) Airbus Helicopters Alert Service Bulletin No. AS355-05.00.77, Revision 0, dated July 3, 2017, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at
(2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017-0159, dated August 25, 2017. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6510 Tail Rotor Driveshaft.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish Class E airspace extending upward from 700 feet above the surface at Freeport, PA, to accommodate new area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures serving McVille Airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport.
Comments must be received on or before July 2, 2018.
Send comments on this rule to: U. S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Bldg Ground Floor Rm W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or (202) 366-9826.You must identify the Docket No. FAA-2017-0426; Airspace Docket No. 17-AEA-8, at the beginning of your comments. You may also submit and review received comments through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Av, College Park, GA 30337; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at McVille Airport, Freeport, PA, to support IFR operations in standard instrument approach procedures at this airport.
Interested persons are invited to comment on this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA-2017-0426 and Airspace Docket No. 17-AEA-8) and be submitted in triplicate to the address listed above. You may also submit comments through the internet at
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2017-0426; Airspace Docket No. 17-AEA-8.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Freeport, PA, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for McVille Airport. Controlled airspace extending upward from 700 feet above the surface within
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7.6-mile radius of McVille Airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to remove Class D airspace, Class E airspace designated as a surface area, and Class E airspace designated as an extension to a Class D and Class E airspace at Henry Post Army Air Field (AAF), Fort Sill, OK; amend Class D airspace and Class E airspace designated as a surface area at Lawton-Fort Sill Regional Airport, Lawton, OK; and amend Class E airspace extending upward from 700 feet above the surface at Lawton-Fort Sill Regional Airport and Henry Post AAF. The FAA is proposing this action due to the closure of the air traffic control tower (ATCT) at Henry Post AAF. The name of Lawton-Fort Sill Regional Airport and the geographic coordinates of Henry Post AAF would also be updated to coincide with the FAA's aeronautical database, and the outdated term “Airport/Facility Directory” would be replaced with the term “Chart Supplement.”
Comments must be received on or before July 2, 2018.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2018-0246; Airspace Docket No. 18-ASW-6, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would remove Class D airspace, Class E airspace designated as a surface area,
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0246/Airspace Docket No. 18-ASW-6.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by:
Removing Class D airspace at Henry Post AAF, Fort Sill, OK;
Amending Class D airspace at Lawton-Fort Sill Regional Airport (formerly Lawton Municipal Airport), Lawton, OK, by adding an extension 1.1 miles each side of the 167° radial of the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport; amending the exclusionary language from “that airspace north of a line between lat. 34°36′18″ N, long. 98°20′33″ W and lat. 34°37′16″ N, long. 98°28′29″ W; to “that airspace within a 2.0-mile radius of Henry Post AAF”; updating the name of the airport to coincide with the FAA's aeronautical database; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;
Removing Class E airspace designated as a surface area at Henry Post AAF;
Amending Class E airspace designated as a surface area at Lawton-Fort Sill Regional Airport by adding an extension 1.1 miles each side of the 167° radial of the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport; removing that area within a 4-mile radius of Henry Post AAF from the airspace legal description; amending the exclusionary language from “within Restricted Areas R5601A and R-5601B when these restricted areas are activated” to “that airspace within a 2.0-mile radius of Henry Post AAF”; updating the name of the Lawton-Fort Sill Airport (formerly Lawton Municipal Airport), and the geographic coordinates of Henry Post AAF to coincide with the FAA's aeronautical database; removing the city name associated with Henry Post AAF to comply with FAA Order 7400.2L, Procedures for Handling Airspace Matters; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;
Removing Class E airspace designated as an extension of Class D and Class E airspace at Henry Post AAF; and
Amending Class E airspace extending upward from 700 feet above the surface at Lawton-Fort Sill Regional Airport and Henry Post AAF by amending the extension to the south of Lawton-Fort Sill Regional Airport from the 167° (previously 178°) radial from the Lawton VOR/DME extending from the 6.8-mile radius to 13.1 (decreased from 20.6) miles south of the Lawton-Fort Sill Regional Airport; removing the extension from the 358° radial from Lawton VOR/DME; removing the extension to the north of Henry Post AAF referencing the 003° radial from the Lawton VOR/DME; adding an extension 4.0 miles each side of the 360° bearing from the Henry Post AAF from the 6.5-mile radius of Henry Post AAF to 10.9 miles north of Henry Post AAF; amending the exclusionary language pertaining to restricted areas from “R-5601A and R-5601B when these restricted areas are activated” to “R-5601A, R-5601B and R-5601H when active”; removing the exclusionary language “and excluding that airspace within the Wichita Falls, TX, Class E airspace area” from the airspace legal description; and updating the name of Lawton-Fort Sill Regional (formerly Lawton Municipal Airport) and the geographic coordinates of Henry Post AAF to coincide with the FAA's aeronautical database.
This action is being proposed due to the closure of the ATCT at Henry Post AAF and to remove the associated airspace.
Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.3-mile radius of Lawton-Fort Sill Regional Airport, and within 1.1 miles each side of the 167° radial from the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport, excluding that airspace within a 2.0-mile radius of Henry Post AAF. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.3-mile radius of Lawton-Fort Sill Regional Airport, and within 1.1 miles each side of the 167° radial from the Lawton VOR/DME extending from the 4.3-mile radius to 5.3 miles south of the airport, excluding that airspace within a 2.0-mile radius of Henry Post AAF. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Lawton-Fort Sill Regional Airport, and within 4.0 miles each side of the 167° radial from the Lawton VOR/DME extending from the 6.9-mile radius to 13.1 miles south of Lawton-Fort Sill Regional Airport, and within a 6.5-mile radius of Henry Post AAF, and within 4.0 miles each side of the 360° bearing from Henry Post AAF extending from the 6.5-mile radius to 10.9 miles north of Henry AAF, excluding that airspace within Restricted Areas R-5601A, R-5601B, and R-5601H when active.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend six United States Area Navigation (RNAV) routes (Q-88, Q-90, Q-114, Q-126, Q-136, and Q-150) and establish one RNAV route (Q-92) in the western United States. The routes would support standard instrument departures (SIDs) and standard terminal arrival routes (STARs) for Denver International Airport. Additionally, the routes will promote operational efficiencies for users and provide connectivity to current and proposed RNAV enroute procedures while enhancing capacity for adjacent airports.
Comments must be received on or before July 2, 2018.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0232; Airspace Docket No. 17-ANM-33 at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to support the flow of air traffic within the National Airspace System.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers (FAA Docket No. FAA-2018-0232; Airspace Docket No. 17-ANM-33) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0232; Airspace Docket No. 17-ANM-33.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
This document proposes to amend FAA Order 7400.11B, airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The Denver, Salt Lake City, and Minneapolis Air Route Traffic Control Centers (ARTCCs) requested the FAA to amend six existing and establish one new RNAV Q-Routes. These routes would support new SIDs and STARs that are being developed for Denver International Airport and surrounding airports. Moreover, the current routes are being amended to connect the midwest and east coast airports with west coast airports. Additional waypoints are being strategically added to existing routes over the Rocky Mountains to provide more flexibility in route planning to avoid mountain wave effect (severe turbulence, strong vertical currents, and icing) and to provide flexibility in flight planning for oxygen escape routes (oxygen escape routes are used in the event of cabin depressurization during a flight).
Furthermore, amending the six existing routes and adding the one new route will facilitate the implementation of traffic management initiatives such as adjacent ARTCC metering (ACM) and time based flow management.
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify United States RNAV routes Q-88, Q-90, Q-114, Q-126, Q-136, Q-150; and establish United States RNAV route Q-92. The proposed route changes are outlined below.
United States Area Navigation Routes are published in paragraph 2006 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The United States Area Navigation Routes listed in this document will be subsequently published in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone on the waters of the Delaware River in Philadelphia, Pennsylvania. The regulation will restrict vessel traffic on a portion of the Delaware River from operating during a fireworks display on June 30, 2018 from 9:30 p.m. to 11:30 p.m. This regulation is necessary to protect the surrounding public and vessels from the hazards associated with a fireworks display. During the enforcement periods, no vessel may enter in or transit this regulated area without approval from the Captain of the Port or a designated representative.
Comments and related material must be received by the Coast Guard on or before June 18, 2018.
You may submit comments identified by docket number USCG-2018-0367 using the Federal eRulemaking Portal at
If you have questions on this rule, call or email MST1 Edmund Ofalt, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, telephone (215) 271-4889.
On 1 March 2018, the Delaware River Waterfront Corporation notified the Coast Guard that it will be conducting a fireworks display from 9:30 to 11:30 p.m. on June 30, 2018. The fireworks will be launched from a barge in the Delaware River off Penn's Landing in Philadelphia. Hazards from fireworks displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP Delaware Bay proposes to establish a safety zone on a portion of the Delaware River, Philadelphia, PA to ensure the safety of persons, vessels and the public during the event. The proposed safety zone includes navigable all waters of the Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline commencing at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence westward to latitude 39°56′29.1″ N, longitude 075°07′56.5′ W, and bounded on the north by the Benjamin Franklin Bridge where it crosses the Delaware River. The safety zone would be effective and enforced from 9:30 p.m. to 11:30 p.m. on June 30, 2018. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be unable to transit the safety zone for the duration of the fireworks event however; this safety zone will impact a small designated area of the Delaware River, in Philadelphia, PA, for a two hour period during the fireworks event. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 regarding the safety zone; under the regulation vessel operators may request permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this rule will not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination 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 proposed rule involves a safety zone lasting for two hours that would prohibit entry on portions of the Delaware River to promote public and maritime safety during a fireworks display. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. We seek any comments or information that may lead to the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) To request permission to enter the safety zone, contact the COTP or the COTP's representative on marine band radio VHF-FM channel 16 (156.8 MHz) or 215-271-4807. All persons and
(d)
U.S. Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The U.S. Copyright Office is proposing to update its regulation governing the group registration option for serials—works such as magazines and journals. The proposed rule will make a number of changes to reflect current Office practices, promote efficiency of the registration process, and encourage broader participation in the registration system by reducing the burden on applicants. Specifically, the proposed rule will require applicants to file an online application rather than a paper application, and upload a complete digital copy of each issue through the electronic registration system instead of submitting them in physical form. It will update the eligibility requirements for this group option in several respects, such as clarifying that each issue must be published under the same continuing title. In addition, the proposed rule will remove the requirement that the claimant provide the Library of Congress with two complimentary subscriptions to that serial as a condition for using the group registration option. Under the proposed rule, however, serial publishers will remain subject to the mandatory deposit requirement. Specifically, if a serial is published in the United States in a physical format, the publisher must send complimentary subscriptions to the Library, unless it is informed that the serial title is not needed for the Library's collection. Serials published only in electronic form will continue to be subject to the existing on-demand mandatory deposit regime. The Office invites public comment on these proposed changes.
Comments must be made in writing and must be received in the U.S. Copyright Office no later than June 18, 2018.
For reasons of government efficiency, the Copyright Office is using the
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040, or by email at
When Congress enacted the Copyright Act of 1976 (the “Act”), it authorized the Register of Copyrights (the “Register”) to specify by regulation the administrative classes of works for the purpose of seeking a registration, and the nature of the deposits required for each such class.
In 1991, the Office began offering a group registration option for serials.
The current group registration option for serials has a number of requirements, which are listed in different areas of the Code of Federal Regulations and in various Office publications. Specifically, applicants may use the group option (i) if the serial is “published at intervals of a week or longer”; (ii) if the issues are “published in the same calendar year”; (iii) if the “application covers no more than the issues published in a given three month period”; and (iv) if the issues are “created no more than one year prior to publication.” 37 CFR 202.3(b)(6)(i), (i)(B), (i)(G). The applicant must include a “minimum [of] 2 issues” in each submission,
The regulation also contains several provisions that are intended to help bolster the Library's collections. To use the group registration option, “two complimentary subscriptions . . . must be entered and maintained in the name of the Library of Congress,” and applicants “must submit a letter affirming that two complimentary subscriptions to the particular serial have been entered for the Library of Congress.”
The Office adopted an interim practice for mandatory deposit of serials because the Library does not desire
In addition to the above practices, Form SE/Group and Office publications list additional requirements for the group registration option for serials. Specifically, the instructions for Form SE/Group state that each issue must be published under the same continuing title, and the applicant must provide a publication date for each issue. These requirements have appeared in Form SE/Group since at least February 2000. In addition, the
Section 407 of the Copyright Act states that if a work is published in the United States, the copyright owner or the owner of the exclusive right of publication must affirmatively deposit two copies of the “best edition” of that work with the Library within three months after publication. 17 U.S.C. 407(a)-(b). This is known as the “mandatory deposit” requirement. As a general rule, publishers may satisfy this requirement by registering their works with the Office, or by sending copies to the Copyright Office's Copyright Acquisitions Division (“CAD”) without seeking a registration. If a publisher fails to comply with the mandatory deposit requirement, the Office may issue a written demand for those works, and if the required copies are not received within three months thereafter, the copyright owner or owner of the exclusive right of publication in that work may be subject to fines or other monetary liability.
Serials published in a physical format (including works published both in physical and electronic formats) are subject to these affirmative mandatory deposit requirements. By contrast, in 2010, the Office adopted an interim rule that established a different process for serials published solely in electronic form. The interim rule established a general exemption for most “[e]lectronic works published in the United States and available only online,” except for serials published solely in electronic formats (
Under the current regulations, the mandatory deposit requirements for electronic-only serials are significantly different than the registration deposit and submission requirements governing the group registration option for serials. For purposes of mandatory deposit, publishers are required to submit an electronic copy in a specific format, together with certain types of metadata that may be embodied in the copy. 37 CFR pt. 202, app. B, sec. IX. In addition, publishers must comply with certain “[t]echnical standards” when they submit their electronic works to the Office. 37 CFR pt. 202, app. B, sec. IX.
The existing regulations governing group registration of serials require updating. As noted above, the various rules that govern that group registration option are scattered across the Code of Federal Regulations, the
In addition, the existing group registration regulations do not accurately reflect the Office's current practices relating to mandatory deposit. The existing rule contemplates that registration examiners will confirm with the Library on an ongoing basis either that group registration applicants are continuing to provide serial subscriptions to the Library, or that they are exempt from that requirement. In practice, this does not happen; instead the registration examiners do not confirm whether or not subscriptions have been provided. In addition, the group registration regulations by their terms contemplate the provision of
To summarize, the proposed rule would do the following things:
(1) The rule would codify the requirement (currently found only in the Compendium) that, to be eligible for the serial group registration option, each serial issue in the group must be an “all-new” collective work that has not been previously published, and each issue must be fixed and distributed as a discrete, self-contained collective work.
(2) The rule would memorialize the Office's longstanding position regarding the scope of a registration for a group of serial issues—
(3) The rule would require applicants to register their serials through the Office's electronic registration system, and discontinue the existing paper application.
(4) The rule would amend the deposit requirements by requiring applicants to upload their serials in digital form through the electronic registration system. The Office will no longer accept physical copies, such as a print copy or photocopy of each issue in the group, or digital copies that have been saved onto a flash drive, disc, or other physical storage medium that is delivered to the Office.
(5) Serial publishers would no longer be required to provide complimentary subscriptions to the Library as a condition for using the group registration option, and the Register would no longer revoke the privilege of using the group registration option if the applicant fails to provide complimentary subscriptions. But the rule would also make clear that electronic deposits submitted to the Office through the registration system will not satisfy the mandatory deposit requirements in section 407. Specifically, if a serial is published in the United States in a physical format, the publisher must provide the Library with two complimentary subscriptions to the serial, unless they are informed that the serial title is not needed for the Library's collections. Serials published only in electronic form will continue to be subject to the existing on-demand mandatory deposit regime.
(6) The rule would clarify that applicants must include at least two issues in each group registration, and maintains the requirements that each issue in the group must be a work made for hire, and the author and copyright claimant for each issue must be the same person or organization. 37 CFR 202.3(b)(6)(i)(E), (F).
(7) The rule would retain the requirement that applicants may only register serials that are “published at intervals of a week or longer” (
(8) The proposed rule will eliminate the requirement that “[e]ach issue must have been created no more than one year prior to publication,”
The next sections discuss those changes warranting more discussion.
The proposed rule clarifies that each serial issue in the group must be an all-new collective work.
To be eligible for this group registration option, the serial must also be fixed and distributed as a discrete, self-contained collective work.
By contrast, a website would not satisfy this requirement. Websites typically add, archive, and/or replace content on a continuing basis. As such, they are not fixed and distributed as discrete, self-contained collective works. Moreover, these updates are rarely distributed on an established schedule, and rarely contain numerical or chronological designations distinguishing one update from the next. For this reason, websites are not considered “serials” for purposes of registration.
Although the proposed rule does not extend to websites, the Office is aware of the need for establishing new and
The proposed rule clarifies that a registration for a group of serials covers each issue in the group, and each issue will be registered as a separate collective work. In other words, the group registration is treated as the legal equivalent of a separate collective work registration for each serial issue.
As a general rule, a registration for a collective work covers the individual contributions contained within that work if they are fully owned by the copyright claimant and if they were first published in that work.
With respect to the information collected as part of a group registration and examination practices, the Office must balance the public interest in creating a meaningful record (
Accordingly, the Office's current application form for a group of serial issues does not allow for the applicant to expressly assert a claim in the individual contributions appearing within each issue, provide titles, authors, or other identifying information for each contribution, or identify component works created by a third party and transferred to the claimant by written agreement. But the Office foresees the future possibility of applicants submitting metadata for the component works appearing within each issue, and the possibility of the Office incorporating this information into the registration record. If this becomes feasible once the Office implements its next-generation registration system, it may require this type of information as a condition for using this group registration option.
When the examiner reviews each serial issue, he or she will examine the issue as a whole to determine if it contains sufficient compilation authorship to warrant registration. And the examiner will review the serial issue to determine whether it contains “a number of contributions” constituting “separate and independent works in themselves.” 17 U.S.C. 101 (definition of “collective work”). When the Office issues a group registration, the certificate will identify the title, author, and claimant for each serial issue in the group, but it will not identify the titles, authors, or claimants for the individual contributions appearing within those issues.
The scope of protection for a group registration issued under the proposed rule will have two consequences in infringement actions. First, a group registration may be used to satisfy the statutory requirements for instituting an infringement action involving any of the serial issues that were included within the group, or any of the individual contributions appearing within those issues—provided that the claimant fully owned those contributions at the time the application for registration is submitted, and provided that the contributions were first published in one of those issues.
Second, the proposed rule also clarifies that the group as a whole is not considered a compilation, a collective work, or a derivative work. Instead, the group is merely an administrative classification created solely for the purpose of registering multiple collective works with one application and one filing fee. The chronological selection, coordination, and arrangement of the issues within the group is entirely dictated by the regulatory requirements for this option. Likewise, when a group of serial issues are combined for the purpose of facilitating registration, those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply collecting a month of issues and arranging them in chronological order. 17 U.S.C. 101 (definition of “derivative work”).
The current regulation states that applicants may register their works with the online application designated for groups of serial issues, or in the alternative, they may submit a paper application using Form SE/Group. 37
The Office's decision to offer a group option is entirely discretionary, and Congress gave the Office broad authority to establish the requirements for these types of claims. 17 U.S.C. 408(c)(1). Currently, the vast majority of the claims submitted on Form SE/Group require correspondence or other action from the Office, which increases overall pendency and contributes to the Office's backlog of pending claims. For example, applicants routinely file claims that are not eligible for this group option, fail to provide information expressly requested on the form, or add extraneous information that is not requested. In each case, however, the Office must first scan these paper applications into the registration system and input the relevant information by hand before an examiner can reject the application as having been improperly filed. This is a cumbersome, labor-intensive process. In many cases, the Office must contact the applicant to request additional information or permission to correct the application.
Addressing these issues imposes significant burdens on the Office's limited resources, and has had an adverse effect on the examination of other types of works within the Literary Division of the Registration Program. Eliminating the paper application should mitigate many of these problems. Among other improvements, the online application contains automated validations that prevent applicants from submitting applications that fail to comply with the eligibility requirements for this group option, such as submitting a single issue rather than a group of two or more issues.
For these reasons, the Office believes that requiring applicants to submit online applications is necessary to improve the overall efficiency of the group registration process.
As noted above, the proposed rule will require applicants to submit a complete copy of each serial issue in the group in digital form and upload each issue through the electronic system. Requiring applicants to upload digital copies to the electronic system will increase the efficiency of the group registration process. The Office does not need physical copies to examine a serial for copyrightable authorship, or to determine whether the applicant satisfied the formal and legal requirements for this group option.
Requiring digital uploads may also provide serial publishers with certain legal benefits. When the Office registers a group of serials and issues a certificate of registration, the effective date of registration is the date on which the Office received the application, filing fee, and deposit in proper form. When an applicant uploads a digital copy of the deposit to the electronic system, the Office typically receives the application, filing fee, and deposit on the same date. By contrast, when an applicant sends physical copies to the Office the deposit may arrive long after the date that the application and filing fee were received—thereby establishing a later effective date of registration.
Moreover, if an applicant uploads a complete copy of the serial through the electronic registration system, the Office will retain a digital copy of those issues in its repository of electronic deposits. Digital copies are much easier to store and retrieve. This is critical if the copyright owner or other interested parties need to obtain a copy of a particular issue for use in litigation or another legitimate purpose.
Although the proposed rule eliminates the requirement to provide subscriptions or microfilm as a condition of using the group registration option, serials will still be subject to the mandatory deposit requirement under section 407.
To assist publishers with complying with these mandatory deposit requirements, the proposed rule amends the Office's mandatory deposit regulations, 37 CFR 202.19, to provide specific rules for serials that are published in the United States in a physical format, or in both a physical and electronic format.
No change is being made to the mandatory deposit scheme for electronic-only serials; such serials will continue to be subject to the existing, demand-based mandatory deposit scheme.
The proposed rule will encourage broader participation in the registration system, and increase the efficiency of the process for both the Office and copyright owners alike, while providing the Library with a means for adding serials to its collections through mandatory deposit. The Office invites
Copyright, General Provisions.
Copyright, Preregistration and registration of claims to copyright.
For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR parts 201 and 202 as follows:
17 U.S.C. 702.
(c) * * *
(6)
(c) * * *
(6) Registration of a claim in a group of serials (per issue, minimum two issues)
17 U.S.C. 408(f), 702.
(d)
(1)
(ii) The group must include at least two issues.
(iii) Each issue in the group must be an all-new collective work that has not been previously published, each issue must be fixed and distributed as a discrete, self-contained collective work, and the claim in each issue must be limited to the collective work.
(iv) Each issue in the group must be a work made for hire, and the author and claimant for each issue must be the same person or organization.
(v) All of the issues in the group must be published at intervals of a week or longer.
(vi) All of the issues must be published within three months, under the same continuing title, within the same calendar year, bearing issue dates within those months, and the applicant must specify the date of publication for each issue in the group.
(2)
(3)
(n) * * * When the Office issues a group registration under paragraph (d) or (e) of this section, the registration covers each issue in the group and each issue is registered as a separate collective work. * * *
(d) * * *
(2) * * *
(x) In the case of serials (as defined in § 202.3(b)(1)(v), but excluding newspapers) published in the United States in a physical format, or in both a physical and an electronic format, the copyright owner or the owner of the exclusive right of publication must provide the Library of Congress with two complimentary subscriptions to the serial, unless the Copyright Acquisitions Division informs the owner that the serial is not needed for the Library's collections. Subscription copies must be physically mailed to the Copyright Office, at the address for mandatory deposit copies specified in § 201.1(c) of this chapter, promptly after the publication of each issue, and the subscription(s) must be maintained on an ongoing basis. The owner may cancel the subscription(s) if the serial is no longer published by the owner, if the serial is no longer published in the United States in a physical format, or if the Copyright Acquisitions Division informs the owner that the serial is no longer needed for the Library's collections. In addition, prior to commencing the subscriptions, the owner must send a letter to the Copyright Acquisitions Division at the address specified in § 201.1(b) of this chapter confirming that the owner will provide the requested number of subscriptions for the Library of Congress. The letter must include the name of the publisher, the title of the newsletter, the International Standard Serial Number (“ISSN”) that has been assigned to the newsletter (if any), and the issue date and the numerical or chronological designations that appear on the first issue that will be provided under the subscriptions.
U.S. Copyright Office, Library of Congress.
Notice of proposed rulemaking.
The U.S. Copyright Office is proposing to update its regulation governing the group registration option for newsletters, which are defined in part as a class of serials that are published at least two days each week. The proposed rule would make a number of changes to reflect current Office practices, promote efficiency of the registration process, and encourage broader participation in the registration system by reducing the burden on applicants. Specifically, the proposed rule would require applicants to file an online application, rather than a paper application, and upload a complete digital copy of each issue through the electronic registration system instead of submitting them in physical form. The proposed rule would amend the definition of “newsletter,” and eliminate the requirement that each issue must be a work made for hire and the requirement that the applicants submit their claims within a certain period of time. In addition, the proposed rule would remove the requirement that the claimant provide the Library with complimentary subscriptions to or microfilm of the newsletter as a condition for using the group registration option. Under the proposed rule, however, newsletter publishers would remain subject to the mandatory deposit requirement. Specifically, if the newsletter is published in the United States in a physical format, the publisher must provide the Library with two complimentary subscriptions to the newsletter, unless it is informed that the newsletter is not needed for the Library's collections. Newsletters published only in electronic form would continue to be subject to the general, existing on-demand mandatory deposit regime for electronic serials. The Office invites public comment on these proposed changes.
Comments must be made in writing and must be received in the U.S. Copyright Office no later than June 18, 2018.
For reasons of government efficiency, the Copyright Office is using the
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040, or by email at
When Congress enacted the Copyright Act of 1976 (the “Act”), it authorized the Register of Copyrights (the “Register”) to specify by regulation the administrative classes of works for the purpose of seeking a registration and the nature of the deposits required for each such class.
In 1995, the Office promulgated a rule offering a group registration option for newsletter publishers, concluding that it would further Congress's desire to promote registration of works that may be too burdensome and expensive to be registered separately.
The current group registration option for newsletters has a number of requirements. Specifically, the applicant must complete and submit a paper application using Form G/DN, include at least two newsletter issues in each group, and “designate the first and last day that [the] issues in the group were published.” 37 CFR 202.3(b)(9), (b)(9)(viii). In addition, the newsletter issues must be “essentially all-new collective works or all-new issues that have not been published before,” “bear issue dates within a single calendar month under the same continuing title,” be works made for hire, and have the
To satisfy the registration deposit requirements for this group option, the applicant must submit one complete copy of each issue that is included in the group. 37 CFR 202.3(b)(9)(vi)(A). The current regulation also states that if the newsletter is one that has been selected for the Library's collections, the claimant is required to provide either “as many as two complimentary subscriptions of the newsletter in the edition most suitable to the Library's needs,” or “a single positive, 35 mm silver halide microfilm meeting the Library's best edition criteria that includes all issues published as final editions in the designated calendar month,” whichever the Library prefers.
Finally, the current regulation states that registration must be “sought within three months after the publication date of the last issue included in the group.”
Section 407 of the Copyright Act states that if a work is published in the United States, the owner of copyright or the owner of the exclusive right of publication must affirmatively deposit two copies of the “best edition” of that work with the Library within three months after publication. 17 U.S.C. 407(a)-(b). This is known as the “mandatory deposit” requirement. As a general rule, publishers may satisfy this requirement by registering their works with the Office, or by sending copies to the Copyright Office's Copyright Acquisitions Division without seeking a registration. If a publisher fails to comply with the mandatory deposit requirement, the Office may issue a written demand for those works, and if the required copies are not received within three months thereafter, the copyright owner or owner of the exclusive right of publication in that work may be subject to fines or other monetary liability.
Newsletters published in a physical format (including works published both in physical and electronic formats) are subject to these affirmative mandatory deposit requirements. 37 CFR 202.19(c)(5). Electronic-only newsletters are subject to a separate mandatory deposit regime. Specifically, in 2010, the Office adopted an interim rule that established a different process for serials published solely in electronic form. (Newsletters, as a type of serial, are subject to these rules.) That interim rule established a general exemption for most “[e]lectronic works published in the United States and available only online,” except for serials published solely in electronic formats (
The existing regulations governing group registration of newsletters require updating, both to better account for current practice, and to allow the Office to streamline and modernize its registration procedures. Accordingly, the Office is proposing to amend the regulation governing the group option for newsletters to modify the eligibility requirements for this group option in several respects.
To summarize, the proposed rule would do the following things:
(1) The rule would clarify and expand the category of works eligible for the group registration option, including by eliminating the work-for-hire requirement, by making clear that newsletters need not be collective works, and by eliminating the three-month deadline for filing the registration application.
(2) The rule would memorialize the Office's longstanding position regarding the scope of a registration for a group of newsletter issues—
(3) The rule would require applicants to register their newsletters through the Office's electronic registration system, and would discontinue the existing paper application.
(4) The rule would require applicants to upload their newsletters in digital form through the electronic registration system; the Office would no longer accept physical copies, such as a photocopy of each issue in the group, or digital copies that have been saved onto a flash drive, disc, or other physical storage medium that is delivered to the Office.
(5) Newsletter publishers would no longer be required to provide either subscriptions or microfilm copies for the Library's collections as a condition for using the group registration option. But the rule would also make clear that electronic deposits submitted to the Office through the registration system would not satisfy the mandatory deposit requirements in section 407, and would amend the mandatory deposit regulations to provide guidance on fulfilling those requirements. Specifically, if a newsletter is published in the United States in a physical format, the publisher must provide the Library with two complimentary subscriptions to the newsletter, unless it is informed that the newsletter is not needed for the Library's collections. Newsletters published only in electronic form will continue to be subject to the existing on-demand mandatory deposit regime.
The next sections discuss changes warranting more discussion.
The proposed rule clarifies that newsletter issues can be, but do not
The rule also clarifies that each newsletter issue in the group must be fixed and distributed as a discrete, self-contained work.
The current regulation states that newsletter publishers must submit their claims within three months after the publication of the most recent issue in the group. 37 CFR 202.3(b)(9)(vii). The proposed rule eliminates this requirement, as it existed as a means of encouraging publishers to provide subscriptions or copies to the Library as early as possible. Since the proposed rule eliminates that requirement, the timeliness requirement can be eliminated as well, especially because the Copyright Act itself already contains a number of incentives for early registration.
The proposed rule continues the existing requirement that the works be “all new” collective works or “all new” issues that have not been published before.
The proposed rule clarifies the scope of the group registration option in various respects, including by eliminating the existing reference to “
The proposed rule clarifies that a registration for a group of newsletters covers each issue in the group, and each issue would be registered as a separate work. In other words, the group registration is treated as the legal equivalent of a separate registration for each newsletter issue.
If the newsletters qualify and are claimed as collective works, then those issues would be registered as separate collective works. As a general rule, a registration for a collective work covers the individual contributions contained within that work if they are fully owned by the copyright claimant and if they were first published in that work.
With respect to the information collected as part of a group registration and examination practices, the Office must balance the public interest in creating a meaningful record (
Accordingly, the Office's application to register a group of newsletter issues does not contain spaces where the applicant can provide titles, authors, or other identifying information for each contribution, or identify component works created by a third party and transferred to the claimant by written agreement. But the Office foresees the future possibility of applicants submitting metadata for the component works appearing within each issue, and the possibility of the Office incorporating this information into the registration record. If this becomes feasible once the Office implements its next-generation registration system, it may require this type of information as a condition for using this group registration option.
If each issue appears to be a collective work, the examiner will examine the issue as a whole to determine if it contains sufficient compilation authorship to warrant registration as a collective work. And the examiner will review the issue to determine whether it contains “a number of contributions” constituting “separate and independent works in themselves” 17 U.S.C. 101 (definition of “collective work”). When the Office issues a group registration, the certificate will identify the title,
The scope of protection for a group registration issued under the proposed rule will have several consequences in infringement actions. First, a group registration may be used to satisfy the statutory requirements for instituting an infringement action involving any of the newsletter issues that were included within the group.
Second, the proposed rule clarifies that the group as a whole is not considered a compilation, a collective work, or a derivative work. Instead, the group is merely an administrative classification created solely for the purpose of registering multiple works with one application and one filing fee. The chronological selection, coordination, and arrangement of the issues within the group is entirely dictated by the regulatory requirements for this option. Likewise, when a group of newsletter issues are combined for the purpose of facilitating registration, those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply collecting a month of issues and arranging them in chronological order. 17 U.S.C. 101 (definition of “derivative work”).
On December 14, 2012, the Office made some modifications to its electronic registration system to allow newsletter publishers to submit their claims with the online application. Under the proposed rule, applicants would be required to use the electronic application designated for a group of newsletter issues as a condition for seeking a group registration. The Office would no longer accept groups of newsletter issues submitted for registration on paper using Form G/DN.
The Office's decision to offer a group option is entirely discretionary, and Congress gave the Office broad authority to establish the requirements for these types of claims. 17 U.S.C. 408(c)(1). Currently, the vast majority of the claims submitted on Form G/DN require correspondence or other action from the Office, which increases overall pendency and contributes to the Office's backlog of pending claims. Applicants routinely file claims that are not eligible for this group option, fail to provide information expressly requested on the form, or add extraneous information that is not requested. In each case, however, the Office must first scan these paper applications into the registration system and input the relevant information by hand before an examiner can reject the application as having been improperly filed. This is a cumbersome, labor-intensive process, and if it is done incorrectly, the information must be re-entered into the system. In many cases, the Office must contact the applicant to request additional information or permission to correct the application.
Addressing these issues imposes significant burdens on the Office's limited resources, and has had an adverse effect on the examination of other types of works within the Literary Division of the Registration Program. Eliminating the paper application should mitigate many of these problems. Among other improvements, the online application contains automated validations that prevent applicants from submitting applications that fail to comply with the eligibility requirements for this group option, such as including too many issues in the group (
For these reasons, the Office believes that requiring applicants to submit online applications is necessary to improve the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the proposed rule.
As noted above, to register a group of newsletters under the proposed rule, applicants will be required to submit a complete digital copy of each issue in the group, regardless of whether the newsletter is published in a physical or electronic form and regardless of whether the newsletter is published in the United States or abroad. Requiring applicants to upload digital copies to the electronic system will increase the efficiency of the group registration process. The Office does not need physical copies to examine a newsletter for copyrightable authorship, or to determine whether the applicant satisfied the formal and legal requirements for this group option.
Requiring digital uploads may also provide newsletter publishers with certain legal benefits. When the Office registers a group of newsletters and issues a certificate of registration, the effective date of registration is the date on which the Office received the application, filing fee, and deposit in proper form. When an applicant uploads a digital copy of the deposit to the electronic system, the Office typically receives the application, filing fee, and deposit on the same date. By contrast, when an applicant sends physical copies to the Office, the deposit may arrive long after the date that the application and filing fee were
Although the proposed rule eliminates the requirement to provide subscriptions or microfilm as a condition of using the group registration option, newsletter publishers would still generally be subject to the mandatory deposit requirement under section 407.
To assist publishers with complying with these mandatory deposit requirements, the proposed rule amends the Office's mandatory deposit regulations, 37 CFR 202.19, to provide specific rules for all serials (a definition that includes newsletters) that are published in the United States in a physical format or in both a physical and electronic format.
No change is being made to the mandatory deposit scheme for electronic-only serials; such serials will continue to be subject to the existing, demand-based mandatory deposit scheme.
The proposed rule, if adopted, will encourage broader participation in the registration system, and increase the efficiency of the process for both the Office and copyright owners alike, while providing the Library with a means for adding newsletters to its collections. The Office invites public comment on all these proposed changes.
Copyright, General Provisions.
Copyright, Preregistration and registration of claims to copyright.
For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR parts 201 and 202 as follows:
17 U.S.C. 702.
(c) * * *
(6)
17 U.S.C. 408(f), 702.
(f)
(1)
(A) All the issues in the group must be newsletters. For purposes of this section, a newsletter is a serial that is published and distributed by mail, electronic media, or other medium, including paper, email, or download. Publication must usually occur at least two days each week and the newsletter must contain news or information that is chiefly of interest to a special group, such as trade and professional associations, colleges, schools, or churches. Newsletters are typically distributed through subscriptions, but are not distributed through newsstands or other retail outlets.
(B) The group must include at least two issues.
(C) Each issue in the group must be an all-new issue or an all-new collective work that has not been previously published, and each issue must be fixed and distributed as a discrete, self-contained work.
(D) The author and claimant for each issue must be the same person or organization.
(E) All the issues in the group must be published under the same continuing title, they must be published within the same calendar month and bear issue dates within that month, and the applicant must identify the earliest and latest date that the issues were published during that month.
(2)
(3)
(n)
(d) * * *
(2) * * *
(x) In the case of serials (as defined in § 202.3(b)(1)(v), but excluding newspapers) published in the United States in a physical format, or in both a physical and an electronic format, the copyright owner or the owner of the exclusive right of publication must provide the Library of Congress with two complimentary subscriptions to the serial, unless the Copyright Acquisitions Division informs the owner that the serial is not needed for the Library's collections. Subscription copies must be physically mailed to the Copyright Office, at the address for mandatory deposit copies specified in § 201.1(c) of this chapter, promptly after the publication of each issue, and the subscription(s) must be maintained on an ongoing basis. The owner may cancel the subscription(s) if the serial is no longer published by the owner, if the serial is no longer published in the United States in a physical format, or if the Copyright Acquisitions Division informs the owner that the serial is no longer needed for the Library's collections. In addition, prior to commencing the subscriptions, the owner must send a letter to the Copyright Acquisitions Division at the address specified in § 201.1(b) of this chapter confirming that the owner will provide the requested number of subscriptions for the Library of Congress. The letter must include the name of the publisher, the title of the newsletter, the International Standard Serial Number (“ISSN”) that has been assigned to the newsletter (if any), and the issue date and the numerical or chronological designations that appear on the first issue that will be provided under the subscriptions.
Copyright Royalty Board, Library of Congress.
Proposed rule.
The Copyright Royalty Judges (Judges) publish for comment proposed regulations that set rates and terms for the making of an ephemeral recording of a sound recording by a business establishment service for the period January 1, 2019, through December 31, 2023.
Comments and objections are due no later than June 18, 2018.
You may submit comments and objections, identified by docket number 17-CRB-0001-BER (2019-2023), by any of the following methods:
Anita Blaine, CRB Program Specialist, by telephone at (202) 707-7658 or email at
In 1995, Congress enacted the Digital Performance in Sound Recordings Act, Public Law 104-39, which created an exclusive right, subject to certain limitations, for copyright owners of sound recordings to perform publicly those sound recordings by means of certain digital audio transmissions. Among the limitations on the performance right was the creation of a statutory license for nonexempt, noninteractive digital subscription transmissions. 17 U.S.C. 114(d).
The scope of the section 114 statutory license was expanded in 1998 upon the passage of the Digital Millennium Copyright Act of 1998 (DMCA), Public Law 105-34, which allows public performance of a sound recording when made in accordance with the terms and rates of the statutory license, by a preexisting satellite digital audio radio service or as part of an eligible nonsubscription transmission. 17 U.S.C. 114(d).
The DMCA also created a statutory license for the making of an “ephemeral recording” of a sound recording by certain transmitting organizations. 17 U.S.C. 112(e). This license, among other things, allows entities that transmit performances of sound recordings to business establishments to make an ephemeral recording of a sound recording for later transmission, pursuant to the limitations set forth in section 114(d)(1)(C)(iv).
Chapter 8 of the Copyright Act requires the Copyright Royalty Judges (Judges) to conduct proceedings every five years to determine the royalty rates and terms for “the activities described in section 112(e)(1) relating to the limitation on exclusive rights specified by section 114(d)(1)(C)(iv).” 17 U.S.C. 801(b)(1), 804(b)(2). Accordingly, the Judges published a notice commencing the current proceeding and requesting that interested parties submit petitions to participate. 82 FR 143 (Jan. 3, 2017).
The Judges received Petitions to Participate from Mood Media
On May 4, 2018, the Judges received a Motion to Adopt Settlement stating that all participants
Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt royalty rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Judges for approval. The Judges must provide “an opportunity to comment on the agreement” to both participants and non-participants in the rate proceeding who “would be bound by the terms, rates, or other determination set by any agreement . . .” 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may also “object to [the agreement's] adoption as a basis for statutory terms and rates.”
The Judges “may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement,” only “ if any participant [to the proceeding] objects to the agreement and the [Judges] conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.” 17 U.S.C. 801(b)(7)(A)(ii).
Royalty rates and terms adopted pursuant to section 801(b)(7)(A) are binding on all copyright owners of sound recordings and all business establishment services making an ephemeral recording of a sound recording for the period January 1, 2019, through December 31, 2023.
The public may comment and object to any or all of the proposed regulations contained in this notice. Comments and objections must be submitted no later than June 18, 2018.
Copyright, Digital audio transmissions, Ephemeral recordings, Performance right, Sound recordings.
For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend part 384 of chapter III of title 37 of the Code of Federal Regulations as follows:
17 U.S.C. 112(e), 801(b)(1).
(a)
(2) “Gross Proceeds” as used in this section means all fees and payments, including those made in kind, received from any source before, during or after the License Period that are derived from the use of copyrighted sound recordings during the License Period pursuant to 17 U.S.C. 112(e) for the sole purpose of facilitating a transmission to the public of a performance of a sound recording under the limitation on exclusive rights specified in 17 U.S.C. 114(d)(1)(C)(iv). The attribution of Gross Proceeds to copyrighted recordings may be made on the basis of:
(i) For classical programs, the proportion that the playing time of copyrighted classical recordings bears to the total playing time of all classical recordings in the program; and
(ii) For all other programs, the proportion that the number of copyrighted recordings bears to the total number of all recordings in the program.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or “District”) portion of the California State Implementation Plan (SIP), which applies to the San Joaquin Valley of California (“Valley”). These revisions concern the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). We are also proposing to approve a public draft version of SJVUAPCD's supplement to its 2014 RACT SIP demonstration, which contains relevant permit conditions for J.R. Simplot's Nitric Acid plant in Helm, California (CA) and negative declarations where the District concludes it has no sources subject to certain Control Techniques Guidelines (CTG) documents. We are proposing action on local SIP revisions under the Clean Air Act (CAA or “the Act”). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by June 18, 2018.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2018-0272 at
Stanley Tong, EPA Region IX, (415) 947-4122,
Throughout this document, “we,” “us” and “our” refer to the EPA.
On June 19, 2014, the SJVUAPCD adopted the “2014 Reasonably Available Control Technology (RACT) Demonstration for the 8-Hour Ozone State Implementation Plan (SIP)” (“2014 RACT SIP”), and on July 18, 2014, the California Air Resources Board (CARB) submitted it to the EPA for approval as a revision to the California SIP. On January 18, 2015, the submittal of the
On May 4, 2018, CARB transmitted the District's public draft version of relevant permit conditions in a permit to operate for J.R. Simplot's Nitric Acid plant in Helm, CA and negative declarations for several CTG source categories, along with a request for parallel processing.
Also included with the District's
On June 16, 2016, the SJVUAPCD adopted the “2016 Ozone Plan for the 2008 8-Hour Ozone Standard” (“
There are no previous versions of the documents described above in the SJVUAPCD portion of the California SIP for the 2008 8-hour ozone NAAQS.
Volatile organic compounds (VOCs) and oxides of nitrogen (NO
Section III.D of the preamble to the EPA's final rule to implement the 2008 8-hour ozone NAAQS (80 FR 12264, March 6, 2015) discusses RACT requirements. It states in part that RACT SIPs must contain adopted RACT regulations, certifications where appropriate that existing provisions are RACT, and/or negative declarations that no sources in the nonattainment area are covered by a specific CTG source category, and that states must submit appropriate supporting information for their RACT submissions as described in the EPA's implementation rule for the 1997 ozone NAAQS. See 80 FR 12264, at 12278 (March 5, 2015) and 70 FR 71612, at 71652 (November 29, 2005).
SJVUAPCD's
The submitted documents and supplemental clarifying information provide SJVUAPCD's analyses of its compliance with the CAA section 182 RACT requirements for the 2008 8-hour ozone NAAQS. The EPA's technical support document (TSD) has more information about the District's submissions and the EPA's evaluations thereof.
SIP rules must require RACT for each category of sources covered by a CTG document as well as each major source of VOCs or NO
States should also submit for SIP approval negative declarations for those source categories for which they have not adopted CTG-based regulations (because they have no sources above the CTG recommended applicability threshold) regardless of whether such negative declarations were made for an earlier SIP.
The District's analysis must demonstrate that each major source of NO
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
5. Memorandum from William T. Harnett to Regional Air Division Directors, (May 18, 2006), “RACT Qs & As—Reasonably Available Control Technology (RACT) Questions and Answers.”
6. “Final Rule to Implement the 8-hour Ozone National Ambient Air Quality Standard—Phase 2” (70 FR 71612; November 29, 2005); and
7. “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (80 FR 12264; March 6, 2015).
The
Chapter 3.4 of the
For NO
For VOC sources, although the
For major stationary sources of NO
For major non-CTG stationary sources of VOC, we reviewed the District's list of major VOC sources in its
For NO
For VOC sources, Chapter 2.2 of the
The District must submit a RACT certification or a negative declaration for each CTG source category, and must demonstrate that each major stationary source of NO
The
The
In lieu of adopting RACT rules, Districts can adopt negative declarations
The District's parallel processing request states that it “previously adopted Negative Declarations for CTGs . . . for Shipbuilding and Ship Repair Operations, Control of Volatile Organic Emissions from Manufacture of Synthesized Pharmaceutical Products, and Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires . . . and is confirming that the Negative Declarations adopted previously are still valid.” The District's parallel processing request also proposes to adopt the following negative declarations because the District concludes, based on a review of its permitted sources, SIC codes, and internet searches that there are no stationary sources or emitting facilities related to the CTG source categories listed in Table 1. The EPA searched CARB's emissions inventory database and verified that there do not appear to be facilities in the SJVUAPCD that are subject to these CTGs. We believe that these five new negative declarations, and three reaffirmed negative declarations are consistent with the relevant policy and guidance regarding RACT.
Our TSD has more information on our evaluation of the submitted
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the
We will accept comments from the public on this proposal until June 18, 2018. If we take final action to approve the submitted documents, our final action will incorporate them into the federally enforceable SIP.
In this rule the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference certain permit conditions for the J.R. Simplot Nitric Acid plant in Helm, CA as described above in the preamble. The EPA has made, and will continue to make, these materials available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve elements of a state implementation plan (SIP) submission from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) relating to Prevention of Significant Deterioration (PSD) for the 1997 ozone, 1997 fine particulate (PM
Comments must be received on or before June 18, 2018.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0603 at
Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
This rulemaking proposes to approve a SIP submission from MPCA dated October 4, 2016, which addresses infrastructure requirements relating to PSD for the 1997 ozone, 1997 PM
The requirement for states to make infrastructure SIP submissions arises out of CAA section 110(a)(1). Pursuant to CAA section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. CAA section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA. This specific rulemaking is only taking action on the infrastructure SIP elements relating to PSD, provided at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J).
In previous rulemakings, EPA addressed Minnesota's infrastructure obligations under the various NAAQS. On July 13, 2011 (76 FR 41075), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 1997 ozone and 1997 PM
MPCA's submission dated October 4, 2016, requested that EPA approve into its SIP Minnesota Rule 7007.3000, which incorporates by reference the Federal PSD rules at 40 CFR 52.21. On July 10, 2017 (82 FR 31741), EPA proposed to approve this request, and on September 26, 2017 (82 FR 44734), EPA finalized approval; the change became effective on October 26, 2017. Therefore, Minnesota is now implementing its own SIP-approved PSD program.
In this rulemaking, as requested by Minnesota, EPA is proposing to find that Minnesota has satisfied all infrastructure SIP elements relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997 PM
EPA's guidance relating to infrastructure SIP submissions can be found in a guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM
Pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. MPCA commenced a public comment period on June 20, 2016, and closed the public comment period on July 20, 2016. Minnesota received three comments, and provided a response to comments in its submittal.
Minnesota provided a synopsis of how its SIP meets each of the applicable requirements in CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) for the 1997 ozone, 1997 PM
States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet new source review (NSR) requirements under PSD and nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.
The evaluation of the state's submission addressing the infrastructure SIP requirements of CAA section 110(a)(2)(C) covers: (i) Enforcement of SIP measures; (ii) PSD provisions that explicitly identify oxides of nitrogen (NO
States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet NSR requirements under PSD and NNSR programs.
In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 41439, and 80 FR 634536, EPA determined that Minnesota has met the enforcement of SIP measures requirements of CAA section 110(a)(2)(C) with respect to the 1997 ozone, 1997 PM
EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOx as a precursor to ozone (
The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including the provisions specific to NO
On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. These Federal PSD rules fully satisfy the requirements of CAA section 110(a)(2)(C) regarding NO
On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM
The explicit references to SO
The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM
On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. These Federal PSD rules fully satisfy the requirements of CAA section 110(a)(2)(C) regarding identification of precursors to PM
On October 20, 2010 (75 FR 64864), EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM
The 2010 NSR Rule also established a new “major source baseline date” for PM
On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. These Federal PSD rules fully satisfy the requirements of CAA section 110(a)(2)(C) regarding PM
With respect to CAA sections 110(a)(2)(C) and 110(a)(2)(J), EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of CAA section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Minnesota has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs.
On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions.
In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule.
In light of the Supreme Court opinion and subsequent D.C. Circuit judgement, EPA took steps to revise Federal PSD rules to be consistent with these court decisions. On May 7, 2015 (80 FR 26183), EPA issued a final rule that narrowly amended the permit rescission provisions in the Federal PSD regulations, and on August 19, 2015 (80 FR 50199), EPA issued a final rule that removed several provisions of the PSD and title V permitting regulations that were originally promulgated as part of the 2010 Tailoring Rule and that were vacated by the D.C. Circuit in its April 10, 2015 judgment.
On September 26, 2017 (82 FR 44734), EPA approved into the Minnesota SIP Minn. R. 7007.3000, which incorporates by reference “as amended” the Federal PSD rules at 40 CFR 52.21. Because EPA's May 7, 2015, and August 19, 2015, amendments to 40 CFR 52.21 included updates to bring the Federal rules into alignment with the Supreme Court opinion and the D.C. Circuit's amended judgement, Minnesota is currently operating a PSD program that is consistent with both court decisions.
EPA is proposing that Minnesota's SIP is sufficient to satisfy CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) with respect to GHGs. This is because the PSD permitting program approved by EPA into the SIP on September 26, 2017, continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT.
For the purposes of infrastructure SIPs, EPA reiterates that NSR reform regulations are not within the scope of these actions. Therefore, we are not taking action on existing NSR reform regulations for Minnesota.
Certain requirements of CAA section 110(a)(2)(C) overlap with requirements of CAA sections 110(a)(2)(D)(i)(II) and 110(a)(2)(J). These links will be discussed in the appropriate areas below.
CAA section 110(a)(2)(D)(i)(II) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state.
EPA notes that Minnesota's satisfaction of the applicable infrastructure SIP PSD requirements has been detailed in the discussion of CAA section 110(a)(2)(C). EPA further notes that the proposed actions in that discussion related to PSD are consistent with the proposed actions related to PSD for CAA section 110(a)(2)(D)(i)(II), and are reiterated below.
EPA previously approved revisions to Minnesota's SIP to meet certain requirements obligated by the Phase 2 Rule and the 2008 NSR Rule. These revisions included provisions that: Explicitly identify NO
States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. This requirement can be satisfied through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state.
Minnesota's EPA-approved NNSR regulations are contained in Minn. R. 7007, and are consistent with 40 CFR 51.165 (60 FR 27411, May 24, 1995). Therefore, EPA proposes that Minnesota has met all of the applicable PSD requirements for the 1997 ozone, 1997 PM
CAA section 110(a)(2)(D)(ii) requires that each SIP contain adequate provisions requiring compliance with the applicable requirements of CAA sections 126 and 115 (relating to interstate and international pollution abatement, respectively).
CAA section 126(a) requires new or modified sources to notify neighboring
The evaluation of Minnesota's submission addressing the infrastructure SIP requirements of CAA section 110(a)(2)(J) covers: (i) Consultation with government officials; (ii) public notification; (iii) PSD; and, (iv) visibility protection.
States must provide a process for consultation with local governments and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements.
In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 41442, and 80 FR 63450, EPA determined that Minnesota has met the consultation with government officials requirements of CAA section 110(a)(2)(J) with respect to the 1997 ozone, 1997 PM
CAA section 110(a)(2)(J) also requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances.
In our previous rulemakings at 76 FR 41075, 77 FR 65478, 79 FR 41442, and 80 FR 63450, EPA determined that Minnesota has met the public notification requirements of CAA section 110(a)(2)(J) with respect to the 1997 ozone, 1997 PM
States must meet applicable requirements of CAA section 110(a)(2)(C) related to PSD. Minnesota's PSD program in the context of infrastructure SIPs has already been discussed above in the paragraphs addressing CAA sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the proposed actions for those CAA sections are consistent with the proposed actions for this portion of CAA section 110(a)(2)(J).
Therefore, EPA proposes that Minnesota has met all of the infrastructure SIP requirements for PSD associated with CAA section 110(a)(2)(D)(J) for the 1997 ozone, 1997 PM
With regard to the applicable requirements for visibility protection, states are subject to visibility and regional haze program requirements under part C of the CAA (which includes CAA sections 169A and 169B). In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Therefore, no new visibility obligation is “triggered” under CAA section 110(a)(2)(J) when a new NAAQS becomes effective. In other words, the visibility protection requirements of CAA section 110(a)(2)(J) are not germane to infrastructure SIPs.
EPA is proposing to approve a submission from Minnesota certifying that its current SIP is sufficient to meet the infrastructure SIP requirements relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997 PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations,
Environmental Protection Agency (EPA).
Proposed rule.
The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule proposes to add three sites to the General Superfund section of the NPL.
Comments regarding any of these proposed listings must be submitted (postmarked) on or before July 16, 2018.
Identify the appropriate docket number from the table below.
Submit your comments, identified by the appropriate docket number, at
To send a comment via the United States Postal Service, use the following address: U.S. Environmental Protection Agency, EPA Superfund Docket Center, Mailcode 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
Use the Docket Center address below if you are using express mail, commercial delivery, hand delivery or courier. Delivery verification signatures will be available only during regular business hours: EPA Superfund Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
For additional docket addresses and further details on their contents, see section II, “Public Review/Public Comment,” of the
Terry Jeng, phone: (703) 603-8852, email:
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613
To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).
As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).
The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”), and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.
There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. On January 9, 2017 (82 FR 2760), a subsurface intrusion component was added to the HRS to enable the EPA to consider human exposure to hazardous substances or pollutants and contaminants that enter regularly occupied structures through subsurface intrusion when evaluating sites for the NPL. The current HRS evaluates four pathways: Ground water, surface water, soil exposure and subsurface intrusion, and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Pursuant to 42 U.S.C. 9605(a)(8)(B), each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:
• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.
• The EPA determines that the release poses a significant threat to public health.
• The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.
The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.
A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * * ” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.
The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.
Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.
When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.
In other words, while geographic terms are often used to designate the site (
The EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility Study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.
Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.
For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.
The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:
(i) Responsible parties or other persons have implemented all appropriate response actions required;
(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or
(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.
In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.
The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.
Sites qualify for the CCL when: (1)Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (
The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse) represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to
In order to maintain close coordination with states and tribes in
The EPA is improving the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and 3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.
A model letter and correspondence from this point forward between the EPA and states and tribes where applicable, is available on the EPA's website at
Yes, documents that form the basis for the EPA's evaluation and scoring of the sites in this proposed rule are contained in public dockets located both at the EPA Headquarters in Washington, DC, and in the regional offices. These documents are also available by electronic access at
You may view the documents, by appointment only, in the Headquarters or the regional dockets after the publication of this proposed rule. The hours of operation for the Headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding federal holidays. Please contact the regional dockets for hours.
The following is the contact information for the EPA Headquarters Docket: Docket Coordinator, Headquarters, U.S. Environmental Protection Agency, CERCLA Docket Office, 1301 Constitution Avenue NW, William Jefferson Clinton Building West, Room 3334, Washington, DC 20004; 202/566-0276. (Please note this is a visiting address only. Mail comments to the EPA Headquarters as detailed at the beginning of this preamble.)
The contact information for the regional dockets is as follows:
• Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.
• Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.
• Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.
• Cathy Amoroso, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW, Mailcode 9T25, Atlanta, GA 30303; 404/562-8637.
• Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.
• Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.
• Kumud Pyakuryal, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRSTAR, Lenexa, KS 66219; 913/551-7956.
• Victor Ketellapper, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6578.
• Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.
• Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.
You may also request copies from the EPA Headquarters or the regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. Please note that due to the difficulty of reproducing oversized maps, oversized maps may be viewed only in-person; since the EPA dockets are not equipped to both copy and mail out such maps or scan them and send them out electronically.
You may use the docket at
The Headquarters docket for this proposed rule contains the following for the sites proposed in this rule: HRS score sheets; documentation records describing the information used to compute the score; information for any sites affected by particular statutory requirements or the EPA listing policies; and a list of documents referenced in the documentation record.
The regional dockets for this proposed rule contain all of the information in the Headquarters docket plus the actual reference documents containing the data principally relied upon and cited by the EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the regional dockets.
Comments must be submitted to the EPA Headquarters as detailed at the beginning of this preamble in the
The EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that the EPA will publish concurrently with the
Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that the EPA should consider and how it affects individual HRS factor values or other listing criteria (
Generally, the EPA will not respond to late comments. The EPA can guarantee only that it will consider those comments postmarked by the close of the formal comment period. The EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments.
During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the regional dockets approximately one week after the formal comment period closes.
All public comments, whether submitted electronically or in paper form, will be made available for public viewing in the electronic public docket at
In certain instances, interested parties have written to the EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.
In this proposed rule, the EPA is proposing to add three sites to the NPL, all to the General Superfund section. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above.
The sites are presented in the table below.
General Superfund section:
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL
This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p.193.
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes to allow rate-of-return carriers receiving universal service support under the Alternative Connect America Cost Model (A-CAM) to voluntarily migrate their lower speed circuit-based business data service (BDS) offerings to incentive regulation. It also seeks comment on whether to remove ex ante pricing regulation from these carriers' higher speed BDS offerings and on whether further regulatory relief is warranted for these carriers' lower-speed circuit-based BDS in areas deemed competitive by a potential competitive market test. Additionally, the document proposes to allow other rate-of-return carriers receiving fixed support to opt into the same incentive regulation proposed for A-CAM carriers. Finally, the Commission seeks comment on proposed rule changes that would implement the proposals made in this document, including corrections to inaccuracies contained in its current rules.
Comments are due on or before June 18, 2018; reply comments are due on or before July 2, 2018. Parties that believe this document may contain new or modified information collection requirements may submit written Paperwork Reduction Act (PRA) comments to the Office of Management and Budget (OMB), and other interested parties on or before July 16, 2018.
You may submit comments, identified by WC Docket No. 17-144, by any of the following methods:
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Justin Faulb, Wireline Competition Bureau, Pricing Policy Division at 202-418-1589 or via email at
For additional information concerning any potential information collection requirements contained in this document, send an email to
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), WC Docket No. 17-144; FCC 18-46, adopted on April 17, 2018 and released on April 18, 2018. The full-text of this document may be found at the following internet address:
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document in Dockets WC 17-144. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary: Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be
1. The Commission has long recognized that, because it promotes efficiency and reduces regulatory burdens, incentive regulation is preferable to rate-of-return regulation. Therefore, in a series of steps over the last three decades, the Commission provided incentives to encourage incumbent local exchange carriers (LECs) to move from rate-of-return regulation to incentive regulation. In this NPRM, we take more steps along that path by proposing to allow rate-of-return carriers that receive universal service support under the Alternative Connect America Cost Model (A-CAM) to voluntarily migrate their lower speed business data services (BDS) offerings to incentive regulation. Because A-CAM carriers that elect to move away from rate-of-return regulation for their BDS offerings (electing A-CAM carriers) will no longer need to provide cost-based justification for their rates, we propose to relieve them of burdensome cost-based pricing regulation, including the obligation to conduct cost studies for purposes of ratemaking. At the same time, because we recognize that ex ante pricing regulation is of limited use—and often harmful—in a dynamic and increasingly competitive market, we seek comment on identifying areas served by electing A-CAM carriers that are sufficiently competitive that their lower speed BDS offerings should be relieved of ex ante pricing regulation, and we seek comment on whether to relieve electing A-CAM carriers' higher speed BDS offerings from ex ante pricing regulation. And, because there are other rate-of-return carriers that receive model-based or fixed support, and would benefit from less burdensome regulation, we propose to provide the same relief to those carriers as we propose to provide to A-CAM carriers. Taken together we expect these actions will spur entry, innovation, and competition in the affected BDS markets.
2. We start from the premise that incentive regulation encourages carriers to be efficient by granting them at least a share of profits obtained from cost reductions and allowing them to more aggressively serve consumers (including by reducing prices) in the face of competitive pressures. By contrast, rate-of-return regulation provides incentives for firms to “pad” their rate base and to make inefficiently high use of capital inputs. Additionally, rate-of-return regulation requires carriers to account for the costs they incur in providing service to justify their rates and universal service support and thus unavoidably involves substantial regulatory burdens.
3. In 1990, the Commission began the process of shifting away from cost-based regulation by adopting price cap rules that govern how the largest incumbent LECs establish their interstate access charges. Price cap regulation was intended to avoid the counterproductive incentives of rate-of-return regulation in part by divorcing the annual rate adjustments from the actual costs of each individual LEC, and in part by adjusting the cap based on actual industry productivity experience. In more recent years, a number of midsize carriers have voluntarily converted from rate-of-return to price cap regulation.
4. In 2011, as part of comprehensive reform and modernization of the universal service and intercarrier compensation systems, the Commission adopted rate caps for switched access services for rate-of-return carriers, thereby removing switched access services from rate-of-return regulation. In 2016, the Commission gave rate-of-return carriers the option of receiving forward looking model-based support from the high-cost universal service support program, the A-CAM, designed to estimate the cost of operating and maintaining an efficient modern network. More than 200 carriers opted to receive A-CAM support which eliminated the need for those carriers to conduct cost studies to quantify the amount of high-cost support they receive. The Commission observed that “the election of model-based support places those carriers in a different regulatory paradigm” and that “[e]ffectively, the carriers that choose to take the voluntary path to the model are electing incentive regulation for common line offerings.” As a result, rate-of-return carriers that elected the A-CAM support option are currently subject to rate-of-return regulation and the attendant requirement to conduct cost studies only for their BDS offerings.
5. In 2017, ITTA and USTelecom (together, Petitioners) filed a joint petition requesting that the Commission allow A-CAM carriers and other rate-of-return carriers that receive model-based support to opt into the regulatory framework for BDS that the Commission recently adopted for price cap carriers. The Petition explains that for such carriers, “continued compliance with rate-o[f]-return-based rate regulation . . . entails significant costs.” It further explains that because carriers that receive universal service support based on a cost model no longer have cost-based switched access charges, “the need to perform annual cost studies now applies only with respect to BDS.” It also claims that rate-of-return regulation deters investment in networks and harms competition. The Wireline Competition Bureau (Bureau) sought and received comment on the Petition. A number of commenters support the Petition, arguing that cost savings and lighter touch pricing regulation of model-based carriers' BDS would spur competition, incentivize investment, benefit consumers, and eliminate unnecessary administrative burdens. Other commenters expressed concerns, including whether sufficient competition exists in A-CAM study areas to justify reduced regulation.
6. In addition to facilitating rate-of-return carriers' move to incentive regulation, the Commission has taken major steps to reduce regulation for carriers that face competition. Given the inherent inefficiencies of regulation, the Commission relies on competition to the extent possible to ensure carriers' rates and practices are just and reasonable. In 1999, the Commission granted pricing flexibility to price cap carriers that provided service in areas where carriers could demonstrate threshold levels of deployment by competitive providers. The
7. The
8. We seek comment on a regulatory framework that would provide electing A-CAM carriers a path to allow a move from rate-of-return regulation to a more efficient system of incentive regulation for their TDM transport and end user channel terminations at speeds at or below a DS3. In so doing, we propose to require that each A-CAM carrier's decision about whether to move their BDS offerings out of rate-of-return regulation be made on an all-or-nothing basis for all of an A-CAM carrier's study areas that receive A-CAM support. We also invite comment on what would be an appropriate market analysis for these lower speed services and on a competitive market test that would allow us to distinguish between markets that are sufficiently competitive so as not to warrant the burdens of ex ante pricing regulation from those that are not. Although the sections below focus on A-CAM carriers, because we are proposing to allow other rate-of-return carriers that receive model-based or other types of fixed support the opportunity to elect the same or similar lighter-touch BDS regulation that we propose for A-CAM carriers, we also seek comment on providing a path forward for regulating such carriers' BDS offerings. As commenters respond to the requests for comment below, we encourage discussion of how such a path forward could work for other such rate-of-return carriers.
9. We propose to allow electing A-CAM carriers to convert their lower capacity TDM BDS offerings to an incentive regulatory approach modelled on the rules the Commission adopted for price cap carriers' lower speed BDS in noncompetitive areas, while still allowing such carriers to be subject to the switched access rate transition and the Eligible Recovery rules applicable to rate-of-return carriers. We propose to allow conversion to incentive regulation for TDM transport and end user channel termination services offered at speeds at or below a DS3, as well as other generally lower speed non-packet-based services that are commonly considered special access services. Are there other special access offerings by rate-of-return carriers that we should include in the incentive regulation option for A-CAM carriers? For example, are there any telecommunications service components associated with either residential digital subscriber line services or dedicated internet access services that would qualify as special access services that we should also allow to migrate to incentive regulation? We anticipate that this approach will encourage competition for BDS in areas served by electing A-CAM carriers and reduce unnecessary regulatory burdens on electing A-CAM carriers. We seek comments on this proposal, including on the benefits and costs of this approach.
10. The Commission has consistently acknowledged that incentive regulation can foster appropriate incentives for carriers to be efficient and to innovate. Under price cap regulation, as opposed to cost-based regulation, carriers have the incentive to become more efficient, to reduce costs, and to innovate as a means of increasing their profits. Moreover, an appropriate X-factor and periodic review by the Commission can ensure that carriers share some or all of these efficiencies with their customers. We invite parties to identify with specificity any short-comings in the proposal and to suggest alternatives that could achieve the objectives more efficiently. Given the well-recognized benefits of incentive regulation, we also seek comment on whether we should make this election mandatory for all A-CAM carriers.
11. We propose to relieve electing A-CAM carriers of a variety of regulatory obligations that pertain to rate-of-return regulation, including the obligation to perform cost studies. Rate-of-return carriers are required by our rules to perform relatively burdensome cost studies to support their rate development. Petitioners and other commenters identify elimination of cost studies as a primary benefit of allowing A-CAM carriers to elect incentive regulation. We invite parties to quantify the burdens of preparing cost studies (including costs and/or hours of labor) and comment on whether cost studies impose any special burdens on smaller carriers. We also seek comment on whether data from A-CAM carriers' cost studies are necessary in the performance of any Commission regulatory function. If so, will the benefits of the data collected from electing A-CAM carriers' cost studies outweigh the burden of requiring them to continue to provide that data when they are no longer offering cost-based services? Are there other, less burdensome ways of collecting the relevant data from electing A-CAM carriers that we should explore? Are there other issues we need to address before relieving A-CAM carriers of the burden of cost studies? If so, how shall we address them?
12. We also propose to allow electing A-CAM carriers pricing flexibility for their lower capacity TDM services similar to that granted by the Commission in the
13. We also propose to allow electing A-CAM carriers to remain in the NECA traffic-sensitive tariff for switched access services, and to continue to be subject to the switched access rate cap provisions of section 51.909 and the
14. We recognize that our proposed approach for electing A-CAM carriers treats TDM transport differently than the
15. We do not propose to transition electing A-CAM carriers to incentive regulation for switched access services. The transition provisions for switched access rates and Eligible Recovery rules for rate-of-return carriers adopted by the
16. In this section, we make specific proposals regarding the terms of the incentive regulation we propose to adopt for electing A-CAM carriers and seek comment on these proposals.
17. We propose to require carriers that elect to move off rate-of-return regulation for their BDS services to move to incentive regulation at the holding company level for study areas in all states that elected to receive A-CAM support rather than electing on an individual carrier or study area basis, as proposed by Petitioners. Requiring election at the holding company level will ensure cost savings from the elimination of annual cost studies to be realized by all affiliated carriers electing A-CAM support. Carriers have already had the opportunity to elect between A-CAM and cost-based support at a state-wide level. Allowing A-CAM carriers to elect regulatory treatment at a more disaggregated level would appear to be inconsistent with the underlying premise of price caps, which assumed a broad representation of carrier operations to provide a basis for establishing an industry-wide productivity factor. Currently, there are 262 A-CAM companies when calculated at the state level and 207 when calculated at the holding company level. We invite parties to comment on the proposed level of election. Parties believing the proposed holding company level is too high should explain why a more disaggregated level would be in the public interest. Any explanation should include concrete examples of why the proposed level would preclude a significant number of A-CAM carriers from electing incentive regulation. Parties should address whether other aspects of the proposal could be modified to make the proposed level of election more acceptable.
18. We propose to make incentive regulation for electing A-CAM carriers effective on the July 1st following adoption of an order in this proceeding, which is the deadline for the annual access tariff filing. Using July 1st will simplify the tariffing process for implementing any change and is consistent with the price cap rules' use of the prior calendar-year demand data for their price cap calculations. We invite parties to comment on this proposal, and to suggest other timing options that may work, identifying the benefits and drawbacks of such proposals. The proposals should address the periods for determining cost and demand for electing A-CAM carriers. We also invite parties to comment on whether we should allow a one-time opportunity to elect, or whether additional election opportunities should be allowed. If more than one opportunity to elect is offered, what should the timing be for any additional election opportunities?
19. We have recently proposed making a second A-CAM offer. In the event that additional rate-of-return carriers become A-CAM carriers, we propose that they may elect to adopt incentive regulation at the next annual tariff filing date that follows their election. We also propose to allow the new electing A-CAM carriers to adopt the other lighter touch regulatory options that are available to electing A-CAM carriers at that time. We invite parties to comment on these proposals.
20. We propose to allow electing A-CAM carriers that currently file their own tariffed rates for BDS offerings to use their existing rates to set their initial BDS rates under incentive regulation. The Commission used this method when allowing rate-of-return carriers filing their own rates to convert to price cap regulation. The demand to be used for the incentive regulation calculations would be that of the previous calendar year. The carrier would then apply the prescribed X-factor and the inflation factor, two variables in the Commission's existing formula for the price cap index (PCI), which would result in the proposed rates in the first year of incentive regulation, and each year thereafter. We invite parties to comment on this proposal. We ask that any party disagreeing with this approach submit a detailed proposal for setting initial rates, including an explanation of why its preferred approach would be equal to or better than the approach we propose.
21. Establishing initial BDS rates for electing A-CAM carriers participating in the NECA traffic-sensitive pool is more complicated because they are charging a pooled rate, which does not reflect the actual costs of the pooling carrier. The NECA pool BDS rates are
22. Are there other approaches we should take in determining how electing A-CAM carriers should establish initial BDS rates? Are there other adjustments that we should make to our proposed initial rate setting process? For example, should the initial rates be lower than current rates because of the cost savings electing carriers will realize by moving to incentive regulation? If so, how much should be shared with consumers and how should such amount be determined? In a 2012 waiver petition seeking to move from rate-of-return to price cap status, FairPoint Communications, Inc., proposed reducing its special access rates by a percentage of the anticipated cost savings. We invite parties to comment on these issues and to suggest how such amounts should be determined, especially if another cost study is to be avoided.
23. Consistent with the
24. Consistent with the
25. Are there reasons we should use a different productivity factor for electing A-CAM providers than we use for price cap carriers? We request that any party proposing a different productivity factor or measure of inflation factor describe with specificity how their proposed X-Factor is derived and why it would be a better forecast of the expected pattern of growth than what we propose herein.
26. We also seek comment on the extent to which the voluntary nature of the election interacts with the appropriate level of the X-Factor. For example, are there relationships between different factors that could warrant that the Commission increase or decrease the X-Factor? Should the level of the X-Factor be affected by whether the carrier election is for all A-CAM study areas, or made on a more disaggregated level?
27. We seek comment on the treatment that should be accorded exogenous costs if we allow A-CAM carriers to elect to move to incentive regulation. Exogenous costs are those costs that are beyond the control of the carrier, as determined by the Commission. Section 61.45(d) of our rules provides for an exogenous cost adjustment for price cap carriers to be apportioned on a cost-causative basis between price cap services as a group, and excluded services as a group. Exogenous cost changes attributed to price cap services are recovered from services other than those used to calculate the average traffic-sensitive charge. A-CAM carriers have been removed from rate-of-return regulation for universal service purposes and for interstate access services other than BDS. We invite parties to address how the principle of cost causation should be applied in determining the amount of any exogenous costs to be assigned to the BDS basket for electing A-CAM carriers. We propose that exogenous costs be allocated based on a ratio of BDS revenues to total revenues from all regulated services and A-CAM universal service support payments. We invite parties to address whether some other basis would be preferable, including the rationale for the alternative approach.
28. Consistent with the
29. We invite interested parties to comment on the proposal to adopt a low-end adjustment mechanism. We ask parties to comment on whether this measure will ensure that electing A-CAM carriers have the opportunity to attract sufficient capital. We note that an A-CAM carrier would have to present cost data to support a claim for a low-end adjustment. Because eliminating the need for cost studies is one of the driving objectives behind Petitioners' proposal, we ask parties to comment on whether there are alternative ways to make the required determinations short of performing a full cost study. Parties offering suggestions should explain the proposed mechanism in sufficient detail that a comparison to the results of a cost study can be made. We also seek comment on the appropriateness of setting the benchmark for the low-end adjustment at 100 basis points below the authorized rate of return for rate-of-return carriers. We note that this proposal would allow the benchmark to track the gradual reduction in the authorized rate-of-return as it transitions down.
30. Pursuant to section 10 of the Act, and to implement our new incentive regulation for those A-CAM carriers that elect incentive regulation, we propose to forbear from application of our cost assignment rules, including jurisdictional separations requirements. Consistent with our previous forbearance orders for price cap carriers, we propose to define cost assignment rules to include the rules governing the assignment of costs and revenues by carriers. We seek comment on our proposed definition.
31. In providing similar forbearance to price cap carriers, the Commission observed that such rules “were developed when the ILECs' interstate rates and many of their intrastate rates were set under rate-based, cost-of-service regulation. The Commission has explained that `because price cap regulation severs the direct link between regulated costs and prices, a carrier is not able automatically to recoup misallocated non-regulated costs by raising basic service rates,' thus reducing incentives to shift non-regulated costs to regulated services.” Does the same reasoning for forbearance apply to A-CAM carriers electing incentive regulation? Will the operation of the incentive regulation rules we propose make enforcement of the cost assignment and separations rules unnecessary to ensure just, reasonable and not unjustly or unreasonably discriminatory charges, practices, classifications, and regulations, or make enforcement of those rules unnecessary to protect consumers from unjust, unreasonable, and unjustly or unreasonably discriminatory rates, practices, classifications, and regulations? Is enforcement of such regulations unnecessary to protect consumers? Would forbearance be consistent with the public interest and would the reduction of regulatory burdens improve market competitiveness?
32. We further propose to condition any grant of forbearance from application of the cost assignment and jurisdictional separations rules for an electing A-CAM carrier that froze their separations category relationships on its conducting a cost study for the preceding calendar year. The A-CAM carrier would then adjust the initialized BDS rates determined pursuant to the procedures described above by the results of the cost study. We invite parties to comment on this proposal and to identify any constraints that should be placed on application of the cost study results to the development of revised access charges, including BDS rates. For example, should a carrier be limited in the extent it may adjust the relative price relationships between business data services that may be established?
33. Above, we propose procedures for electing A-CAM carriers to use in establishing initial BDS rates under incentive regulation that assume other factors remained unchanged. Forbearing from cost allocation and jurisdictional separations requirements for A-CAM carriers electing incentive regulation, however, would change one of the controlled factors. We invite comment on what adjustments, if any, we should allow an A-CAM carrier that elects to freeze its category relationships to make to its rates to ensure that its BDS rates are just and reasonable pursuant to section 201 of the Act.
34. We propose to allow electing A-CAM carriers to use GAAP for keeping their accounts, should they choose to do so. The Commission recently revised the Part 32 rules to allow price cap LECs to elect to use GAAP in recording and reporting their financial data, subject to two targeted accounting requirements. Electing carriers may either (a) calculate an Implementation Rate Difference between the attachment rates calculated by the price cap carrier under the Uniform System of Accounts (USOA) and under GAAP as of the last full year preceding the carrier's initial opting-out of Part 32 USOA accounting requirements; or (b) comply with GAAP accounting for all purposes other than those associated with setting pole attachment rates while continuing to use the Part 32 accounts and procedures necessary to establish and evaluate pole attachment rates. Electing carriers must adjust their annually computed GAAP-based rates by the Implementation Rate Difference for a period of 12 years after the election. This frees price cap carriers from having to maintain two sets of books: One for financial reporting purposes consistent with GAAP and one for regulatory reporting purposes consistent with the accounting requirements of Part 32. For the same reasons, we propose to allow electing A-CAM carriers to have the option to use GAAP. We propose to require electing A-CAM carriers that choose to use GAAP accounting to be subject to the same data provisioning requirements as price cap carriers, including the requirements relating to the calculation of pole attachment rates. As a result, such carriers will have to determine an Implementation Rate Difference to apply in calculating their pole attachment rates. We seek comment on this proposal. Are there other issues with allowing electing A-CAM carriers to use GAAP accounting that we should consider?
35. We seek comment on whether we should adopt a competitive market test (CMT) to assess the availability of actual and likely competitive options in the provision of transport and last-mile services in areas served by electing A-CAM carriers and to remove from ex ante pricing regulation DS1 and DS3 end user channel terminations, TDM transport at speeds at or below a DS3, and other generally lower speed BDS
36. If we adopt a CMT for electing A-CAM carriers, should we use the CMT the Commission adopted in the
37. First, we seek comment on adopting a CMT that uses only a version of the second prong of the existing CMT using data from areas served by A-CAM carriers
38. Petitioners propose that we apply the existing CMT to electing A-CAM carriers' BDS offerings. Under this proposal, an electing A-CAM carrier's lower speed TDM BDS offerings would be relieved of ex ante pricing regulation in those counties that have already been deemed competitive by the existing CMT. Petitioners recognize that there are 78 purely rate-of-return counties that were not analyzed by the existing CMT. They propose to use the second prong of the existing CMT to determine whether those counties should be considered competitive. Petitioners argue that this approach would involve minimal administrative and compliance burdens and would avoid the need for revising and re-running the CMT for electing A-CAM carriers or analyzing any additional data.
39. We seek comment on Petitioners' proposed approach. The existing CMT was developed for price cap carriers' service areas and involved analysis of competition only in price cap areas. The Commission did not consider competition in A-CAM markets. Is an analysis of existing or potential competition in price cap areas of a county an appropriate way to determine whether competition or potential competition exists in areas of that county served by an electing A-CAM carrier? Is it likely to result in deregulating lower speed TDM-based BDS services offered by electing A-CAM carriers in counties where such carriers will not face competitive pressure in pricing those services? Are there other benefits or drawbacks to this approach that we should consider?
40. Another option would be to adopt a CMT for electing A-CAM carriers using prongs similar to those of the existing CMT, but using data specific to areas served by electing A-CAM carriers. We seek comment on this approach. We recognize that for purposes of the first prong of the new CMT, this approach would require a data collection sufficient to allow us to identify for each county served by an electing A-CAM carrier whether 50 percent of the locations with BDS demand in that part of the county are within a half-mile of a location that was served by a competitive provider. Such a collection could be limited to electing A-CAM carriers and their competitors. Nonetheless, we have reservations about the relative costs and benefits of conducting such a data collection. And, the current record is split on whether we should consider a new data collection. We seek comment on how to most efficiently collect relevant data and on whether the burdens of such a data collection outweigh the benefits. We also seek comment on other benefits and drawbacks to this option.
41. A fourth option is to create a whole new CMT based on a competitive market analysis specific to BDS services in areas served by electing A-CAM carriers. Petitioners argue that the BDS market analysis conducted in the
42. In the
43. If we conduct a new market analysis, should it be similar to the market analysis conducted by the Commission in the
44.
45. To the extent the Commission's existing data sources are insufficient, we seek data from commenters on facilities-based BDS providers serving A-CAM areas that would help us to ascertain markets with reasonably competitive conditions to justify lighter touch regulatory treatment. Are there existing data similar to data collected as part of the
46.
47.
48.
49. We seek comment on the number, type, size, concentration, and market share of nearby BDS competitors (
50. Consistent with the
51. The
52. If we adopt a CMT for areas served by electing A-CAM carriers, consistent with the
53. We also seek comment on whether we should eliminate ex ante pricing regulation of packet-based and TDM-based business data services providing bandwidth in excess of a DS3 offered by those carriers that elect to move their lower speed BDS offerings from rate-of-return regulation to incentive regulation. If so, should we provide 36 months for such a transition? If we transition these high-speed services, consistent with the
54. With respect to price cap areas, the Commission's market analysis did “not show compelling evidence of market power” in incumbent LECs' provision of packet-based services and higher capacity TDM-based business data services (in excess of the bandwidth of a DS3), particularly for higher bandwidth services. We seek comment on whether these observations offer any insights on the nature and extent of competition in A-CAM areas. Are markets for higher capacity TDM-based BDS offerings (above the bandwidth of a DS3) and packet-based services likely to be sufficiently competitive in A-CAM areas over the next three to five years such that the harms of price regulation in these markets, most notably in terms of discouraging the extension of competition, are likely to be greater than any harms that may occur were we not to regulate? Are these markets sufficiently competitive to outweigh any benefits of ex ante pricing regulation? Parties are encouraged to provide evidence to support their arguments. We seek comment on the extent to which Commission or other data could facilitate our evaluation of competition in these areas, including Form 477 mass market broadband data, A-CAM study area boundary data, A-CAM modeling data, and geocoded location data submitted to USAC. We invite commenters to identify specific data sources that could be useful to our inquiry and to explain their utility.
55. The Commission also found that sales of TDM-based BDS by price cap carriers were declining due to product substitution, including customer loss to cable operators and other competitive providers. To what extent are purchasers substituting packet-based services for TDM-based services in A-CAM areas? Are TDM-based services declining in A-CAM areas at a rate similar to the decline in price cap areas? The Commission found declining prices for packet-based BDS across all bandwidths in price cap areas to be evidence of competitive conditions. Have prices for packet-based BDS in A-CAM areas also declined across all bandwidths? Are lower bandwidth packet-based services (at or below the level of a DS3) experiencing price changes in A-CAM areas as in price cap areas?
56. We recognize that price cap carriers' provision of these services was generally relieved of ex ante pricing regulation prior to the
57. We seek comment on granting forbearance from section 203 tariffing requirements for A-CAM carriers' provision of certain BDS after they elect incentive regulation. In the
58. While the Petition does not expressly request forbearance from tariffing requirements, we seek comment on whether to de-tariff certain electing A-CAM BDS offerings by granting forbearance from section 203 tariffing obligations. We seek comment on whether we should remove ex ante pricing regulation of packet-based BDS and higher capacity TDM-based services providing bandwidth in excess of a DS3 for A-CAM carriers that elect incentive regulation. Would forbearing from the tariffing requirement for these services meet the statutory criteria set by section 10 of the Act? Would de-tariffing these services promote competitive market conditions? Would de-tariffing reduce compliance costs, increase regulatory flexibility, increase incentives to invest in innovative products and services and thereby facilitate the technology transitions, or otherwise be in the public interest as the Petition asserts? If the Commission decides to forbear from section 203, should it mandate or simply allow de-tariffing? Would mandatory de-tariffing further promote competition and drive down prices by requiring electing carriers to negotiate agreements to provide the de-tariffed services that they offer?
59. We seek comment on how to transition electing A-CAM carriers and the areas they serve if the Commission adopts a new lighter touch regulatory framework for their provision of BDS. The
60. We propose to offer the opportunity to elect the same type of regulatory relief that we propose to provide to electing A-CAM carriers to other rate-of-return carriers that currently receive fixed universal service support, rather than receiving support based on their costs. Such carriers include traditional rate-of-return carriers that are affiliated with price cap carriers and are therefore receiving support based on the Connect America Cost Model (CACM); rate-of-return carriers participating in the Commission's “Alaska Plan”; and carriers that accept further offers of A-CAM support.
61. Like A-CAM carriers, the members of each of these three groups of rate-of-return carriers all receive non-cost-based universal service support and therefore are routinely required to prepare cost studies only for their BDS. What are the costs and benefits of relieving them of existing pricing regulations and allowing them to elect the type of incentive pricing regulation we propose? Should we modify our proposed incentive regulation in any way to reflect differences in any of these types of carriers' circumstances? Are there any other types of carriers that should be eligible for our incentive regulation proposal and, if so, based on what rationale?
62. Throughout this NPRM, we seek comment on various aspects of the Petition for rulemaking filed by ITTA and USTelecom. However, the Petition differs in some ways from what we propose in this NPRM. Most fundamentally, it proposes that subject to certain conditions we simply allow model-based carriers to elect the same regulatory framework that the
63. We seek comment on the proposed rule changes that can be found in Appendix A. Those rule changes largely track the proposals made in this NPRM. They also include some corrections to what appear to be inaccuracies in our current rules. These proposed changes include changing (1) the cross reference to § 61.3(aa) in § 51.903(g) to § 61.3(bb), (2) the cross reference to § 61.3(ee) in § 61.41(d) to § 61.3(ff), (3) the cross reference to § 61.3(x) in § 69.114 to § 61.3(ff), and (4) the cross reference to § 69.801(g) in § 69.805(a) to § 69.801(h). These cross references have been rendered inaccurate because of changes in the definitions contained in § 61.3 that occurred in other rulemaking proceedings or because they were incorrectly stated when added to our rules.
64. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
65. Pursuant to the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and actions considered in this Notice of Proposed Rulemaking. The text of the IRFA is set forth in Appendix B. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comment on the Notice of Proposed Rulemaking. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this Notice of Proposed Rulemaking, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
66. This document may contain proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the Small Business Paperwork Relief Act of 2002,
67. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). The Commission requests written public comments on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the
68. In this NPRM, we propose changes to, and seek comment on, our rate-of-return and business data services rules as they are applied to rate-of-return carriers that receive universal service support based on the Alternative-Connect America Cost Model (A-CAM), or under the Commission's universal service support mechanism for Alaska-based carriers (Alaska Plan), or is an affiliate of a price cap local exchange carrier operating pursuant to a waiver of § 61.41 of our rules. In the NPRM, the Commission proposes to adopt a form of incentive regulation for A-CAM carriers' provision of business data services (BDS), conduct a market analysis to evaluate the characteristics of BDS markets served by A-CAM carriers, and adopt a new lighter touch regulatory framework for A-CAM carriers' BDS that in most respects parallels the framework recently adopted for price cap carriers in the
69. The legal basis for any action that may be taken pursuant to this NPRM is contained in sections 1, 4(i), 10, and 201(b) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 160, and 201(b).
70. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and by the rule revisions on which the NPRM seeks comment, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
71.
72. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
73. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on these data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
74.
75.
76.
77.
78. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
79.
80.
81.
82.
83.
84.
85.
86. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
87.
88.
89.
90. Because section 706 requires us to monitor the deployment of broadband using any technology, we anticipate that some broadband service providers may not provide telephone service. Accordingly, we describe below other types of firms that may provide broadband services, including cable companies, MDS providers, and utilities, among others.
91.
92.
93.
94.
95.
96. This NPRM proposes changes to, and seeks comment on, the Commission's rate-of-return and business data services rules. The objective of the proposed modifications is to reduce the unnecessary regulatory burdens and inflexibility of rate-of-return regulation for BDS services for A-CAM carriers, which are for the most part small businesses. These rule modifications would provide additional incentives for competitive entry, network investment and the migration to IP-based network technologies and services. The NPRM seeks comment on proposed rules that would generally reduce compliance requirements for A-CAM carriers that choose to opt into the new incentive regulation and regulatory framework for the provision of BDS.
97. Under the Commission's rate-of-return rules, rates for business data services are based on costs derived from carrier-specific cost studies which represent a significant compliance burden for A-CAM carriers relative to their overall revenues. The NPRM proposes to transition these carriers to a form of incentive regulation that will enable these LECs to significantly reduce these compliance costs. The NPRM also proposes a new regulatory framework for A-CAM carriers' BDS that would in many cases eliminate ex ante pricing regulation and tariffing requirements for carriers electing incentive regulation.
98. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.
99. The rule changes proposed by the NPRM would reduce the economic impact of the Commission's rules on A-CAM carriers that elect incentive regulation in the following ways. Electing A-CAM carriers would no longer be required to prepare annual cost studies to justify their BDS rates. Such carriers would also be freed of ex ante pricing regulation for many of their BDS offerings, including packet-based BDS, circuit-based BDS above a DS3
100. None.
101. Accordingly,
102.
103.
104.
Communications common carriers, Equal employment opportunity, Reporting and recordkeeping requirements, Telecommunications, Television.
Communications common carriers, Reporting and recordkeeping requirements, Telephone, Uniform System of Accounts.
Communications common carriers, Telecommunications.
Communications common carriers, Reporting and recordkeeping requirements, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 1, 32, 51, 61 and 69 as follows:
47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), 309, 1403, 1404, 1451, and 1452.
(g) A price cap company, or a rate-of-return carrier electing to provide service pursuant to § 61.50 of this chapter, opts-out of Part 32 may calculate attachment rates for its poles, ducts, conduits, and rights of way using either Part 32 accounting data or GAAP accounting data. A company using GAAP accounting data to compute rates to attach to its poles, ducts, conduits, and rights of way in any of the first twelve years after opting-out must adjust (increase or decrease) its annually computed GAAP-based rates by an Implementation Rate Difference for each of the remaining years in the period. The Implementation Rate Difference means the difference between attachment rates calculated by the carrier under Part 32 and under GAAP as of the last full year preceding the carrier's initial opting-out of Part 32 USOA accounting requirements.
47 U.S.C. 219, 220 as amended, unless otherwise noted.
The revised Uniform System of Accounts (USOA) is a historical financial accounting system which reports the results of operational and financial events in a manner which enables both management and regulators to assess these results within a specified accounting period. The USOA also provides the financial community and others with financial performance results. In order for an accounting system to fulfill these purposes, it must exhibit consistency and stability in financial reporting (including the results published for regulatory purposes). Accordingly, the USOA has been designed to reflect stable, recurring financial data based to the extent regulatory considerations permit upon the consistency of the well-established body of accounting theories and principles commonly referred to as generally accepted accounting principles (GAAP). The rules of this part, and any other rules or orders that are derivative of or dependent on these Part 32 rules, do not apply to price cap companies, and rate-of-return telephone companies offering business data services pursuant to § 61.50 of this chapter, that have opted-out of USOA requirements pursuant to the conditions specified by the Commission in section 32.11(g).
(g) Notwithstanding subsection (a), a price cap company, or a rate-of-return telephone company offering business data services pursuant to § 61.50 of this chapter, that elects to calculate its pole attachment rates pursuant to section 1.1409(g) of this chapter will not be subject to this Uniform System of Accounts.
47 U.S.C. 151-55, 201-05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 1302.
(g) Rate-of-Return Carrier is any incumbent local exchange carrier not subject to price cap regulation as that term is defined in § 61.3(bb) of this chapter, but only with respect to the
Secs. 1, 4(i), 4(j), 201-05 and 403 of the Communications Act of 1934, as amended; 47 U.S.C. 151, 154(i), 154(j), 201-05 and 403, unless otherwise noted.
(d) Except as provided in paragraph (e) of this section, local exchange carriers that become subject to price cap regulation as that term is defined in § 61.3(ff) shall not be eligible to withdraw from such regulation.
(f) Notwithstanding the requirements of paragraphs (c) and (d) of this section, a telephone company subject to rate-of-return regulation that is affiliated with a price cap local exchange carrier may provide business data services pursuant to § 61.50 without converting other services to price cap regulation.
(a) A rate-of-return carrier, as defined in § 51.903(g), has the option to offer business data services to customers pursuant to this section if the carrier
(1) Receives universal service payments pursuant to the Alternative-Connect America Cost Model pursuant to § 54.311;
(2) Is an affiliate of a price cap local exchange carrier operating pursuant to a waiver of § 61.41; or
(3) Receives universal service payments pursuant to § 54.306.
(b) A rate-of-return carrier may not elect to offer business data services to customers pursuant to this section unless it notifies the Chief of the Wireline Competition Bureau at least 120 days before the effective date of the election. Carriers may only elect this option to be effective on July 1, [year].
(c) A rate-of-return carrier may elect to offer business data services pursuant to this section only if all affiliated rate-of-return carriers make the election.
(d) A rate-of-return carrier electing to offer business data services under this section may continue to participate in the NECA Traffic Sensitive Pool for access services other than business data services.
(e) A rate-of-return carrier electing to offer business data services pursuant to this section shall employ the procedures outlined in §§ 61.41 through .49 to adjust its indexes to the extent those sections are applicable to business data services, except that:
(1) For the special access basket specified in § 61.42(d)(5), the value of X for local exchange carriers offering service under this section shall be 2.0% effective July 1, [year]; and
(2) Exogenous costs shall be allocated to business data services based on relative revenues, including any universal service support amounts.
(f) Tariffs offering business data services pursuant to this section may offer those business data services at different rates in different study areas.
(g) A rate-of-return carrier offering business data services pursuant to this section may make a low-end adjustment pursuant to § 61.45(d)(1)(vii) of this subpart unless it:
(1) Exercises the regulatory relief pursuant to paragraph (j) of this section in any part of its service region; or
(2) Exercises the option to use Generally Accepted Accounting Principles rather than the Part 32 Uniform System of Accounts pursuant to § 32.11(g).
(h) Rate-of-return carriers electing to offer business data services pursuant to this section may offer transport and end user channel terminations that include:
(1) Volume and term discounts;
(2) Contract-based tariffs, provided that:
(i) Contract-based tariff services are made generally available to all similarly situated customers;
(ii) The rate-of-return carrier excludes all contract-based tariff offerings from incentive regulation pursuant to § 61.42(f) of this subpart;
(3) Ability to file tariff revisions on at least one day's notice, notwithstanding the notice requirements for tariff filings specified in § 61.58 of this chapter.
(j) A rate-of-return carrier electing to offer business data services pursuant to this section shall comply with the requirements of section 69.805 of this Chapter.
(k) The regulation of other services offered by a rate-of-return carrier that offers business data services pursuant to this section shall not be modified as a result of the requirements of this section.
(a) This section shall apply to price cap local exchange carriers permitted to offer contract-based tariffs under § 1.776 or § 69.805 of this chapter, as well as to the offering of business data services by rate-of-return carriers pursuant to § 61.50 of this part.
47 U.S.C. 154, 201, 202, 203, 205, 218, 220, 254, 403.
(a) Appropriate subelements shall be established for the use of equipment or facilities that are assigned to the Special Access element for purposes of apportioning net investment, or that are equivalent to such equipment or facilities for companies subject to price cap regulation as that term is defined in § 61.3(ff) of this chapter.
(a) In markets deemed non-competitive, buyers and sellers of business data services shall not enter into a tariff, contract-based tariff, or commercial agreement, including but not limited to master service agreement, that contains a non-disclosure agreement as defined in § 69.801(h), that restricts or prohibits disclosure of information to the Commission, or requires a prior request or legal compulsion by the Commission to effect such disclosure.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes to implement management measures described in Amendment 43 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), as prepared and submitted by the South Atlantic Fishery Management Council (Council). If implemented, this proposed rule would allow for the harvest of red snapper in South Atlantic Federal waters. This proposed rule would revise red snapper commercial and recreational annual catch limits (ACL). The purpose of this proposed rule is to minimize adverse socio-economic effects to fishermen and fishing communities that utilize red snapper as part of the snapper-grouper fishery, while preventing overfishing from occurring and continuing to rebuild the red snapper stock.
Written comments on the proposed rule must be received by June 18, 2018.
You may submit comments on the proposed rule, identified by “NOAA-NMFS-2017-0148,” by either of the following methods:
•
•
Electronic copies of Amendment 43 may be obtained from
Frank Helies, NMFS Southeast Regional Office, telephone: 727-824-5305, or email:
The snapper-grouper fishery in the South Atlantic region is managed under the FMP and includes red snapper, along with other snapper-grouper species. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
Harvest of red snapper from South Atlantic Federal waters was prohibited in 2010 through a temporary interim rule and then through Amendment 17A to the FMP when the stock was determined to be overfished and undergoing overfishing (Southeast Data, Assessment, and Review (SEDAR) 15, 2009)(74 FR 63673, December 4, 2009; 75 FR 76874, December 9, 2010). Amendment 17A also implemented a 35-year red snapper rebuilding plan that began in 2010, and set the red snapper stock ACL at zero. In 2013, Amendment 28 to the FMP established a process that allowed red snapper harvest (ACL greater than zero) if total removals (landings plus dead discards) were less than the acceptable biological catch (ABC) in the previous fishing year (78 FR 44461, July 24, 2013). Using the process established through Amendment 28, limited harvest of red snapper was allowed in 2012, 2013, and 2014. However, because the estimated total removals of red snapper exceeded the ABC in 2014, 2015, and 2016, due to estimates of red snapper discards that were incidentally harvested as bycatch while targeting other species, there was no allowable harvest in 2015 and 2016. In 2017, as a result of new scientific information regarding the red snapper stock, NMFS allowed limited commercial and recreational harvest of red snapper by a temporary rule through emergency action pursuant to the Magnuson-Stevens Act (82 FR 50839, November 2, 2017).
The most recent stock assessment for South Atlantic red snapper, SEDAR 41 (2017), was completed in 2016 and subsequently revised in 2017. SEDAR 41 (2017) evaluated data through 2014 and determined the red snapper stock was overfished and that overfishing was occurring. The stock assessment indicated that overfishing was occurring because the estimated fishing mortality based on the average over the last three years of the assessment represented in the model (2012-2014) exceeded the maximum fishing mortality threshold. Though limited red snapper harvest was allowed in 2012-2014, a large majority of the estimated fishing mortality was attributed to very large and uncertain dead discard estimates when fishermen were targeting red snapper and species that co-occur with red snapper, such as vermilion snapper, gag, red grouper, black sea bass, gray triggerfish, greater amberjack, and scamp. The Council's Scientific and Statistical Committee (SSC) reviewed the SEDAR 41 (2017) stock assessment and indicated the estimate of recreational discards was the greatest source of uncertainty in the stock assessment. It was acknowledged in the assessment that discarding of red snapper has increased over time due to changes in minimum landing size to 20 inches (51 cm) in 1992, increases in abundance of young fish from above-average year classes in some recent years, the introduction of the moratorium in 2010 and 2011, and the small commercial catch limits and recreational bag limits in the mini-seasons for 2012 onwards. Because most of the catch is now discarded, the number of discards is dependent upon fisher recalls, and these estimates are expanded based on small sample size; thus, the quality of total fishery removals estimates is poor and uncertain, which will impact estimation of stock size and fishing mortality.
In May 2016, the Council's Scientific and Statistical Committee (SSC) reviewed SEDAR 41 (2017) and had an extensive discussion of the uncertainties associated with the assessment. The SSC stated that the assessment was based on the best scientific information available, but noted the assessment findings were highly uncertain regarding to what extent overfishing was occurring (
The projections of yield streams used in SEDAR 41 (2017) included both landings and dead discards, which were
Additionally, in their February 2017 response, the SEFSC advised the Council that the uncertainty in the stock assessment inhibits the ability to set an ABC that can be effectively monitored. The SEFSC further stated in an April 2017 letter to the Council, that the use of an ABC based primarily on fishery discards for monitoring the effectiveness of management action is likely ineffective due to the high level of uncertainty in measures of discards and the change in the effort estimation methodology that will be implemented in the MRIP survey. NMFS has determined that, given the extreme uncertainty associated with the red snapper recreational discard estimates, it is not appropriate to rely on those discard estimates for the management of red snapper, and the division of the SSC's ABC recommendation of 53,000 fish into landed fish and discarded fish is unwarranted.
The results of SEDAR 41 (2017) using data through 2014, indicated that the red snapper stock was still overfished, but was rebuilding in accordance with the rebuilding plan. NMFS sent the Council a letter on March 3, 2017, noting these results and the SEFSC's concerns regarding the substantial uncertainty in the assessment, and advising the Council that sufficient steps had been taken to address overfishing of red snapper while continuing to rebuild the stock through harvest prohibitions in 2015 and 2016.
This determination is supported by a significant increase in stock biomass since 2010 to levels not seen since the 1970's, and the increasing abundance of older age classes (SEDAR 41 2017). Additional support for the determination comes from fishery-independent information collected through the Southeast Reef Fish Survey (SERFS) program, and the East Coast Fisheries Independent Monitoring information conducted by the Florida Fish and Wildlife Conservation Commission (FWCC). According to the SERFS, the relative abundance (CPUE) of red snapper has increased since 2009, reaching the highest level observed in the entire time series (1990-2016) in 2016. In addition, the SERFS program notified the Council at the December 2017 meeting that red snapper relative abundance, as measured through fishery-independent monitoring, increased 18 percent from 2016 to 2017. According to the results of FWCC's study, CPUE for red snapper for hook gear (surveyed in 2012, 2014, 2016, and 2017) and the standardized index of abundance (surveyed from 2014-2017) was highest in 2017. The FWCC data also showed a greater number of large red snapper and a broader range of ages in recent years, which suggests rebuilding progress of the red snapper stock. Additionally, the increase in relative abundance of red snapper indicated by the fishery-independent CPUE indices has taken place despite landings during the limited seasons in 2012-2014 and despite the large number of estimated red snapper dead discards during the harvest restrictions implemented for red snapper since 2010.
As a result of the new scientific information regarding the red snapper stock, NMFS allowed limited harvest of red snapper beginning November 2, 2017, by a final temporary rule through emergency action (82 FR 50839, November 2, 2017). The amount of harvest allowed in the temporary rule was equivalent to the amount of observed landings in the 2014 fishing season, and this proposed rule would allow the same amount of harvest annually beginning in 2018. NMFS determined that allowing the same amount of harvest as occurred in 2014 was unlikely to result in overfishing or change the red snapper rebuilding time period. NMFS has determined that Amendment 43 is based on the best scientific information available. Additionally, the ACL proposed in Amendment 43 is less than the ABC provided by the SSC from SEDAR 41, in accordance with the Magnuson-Stevens Act and the National Standard 1 Guidelines. See 16 U.S.C. 1852(h)(6), 50 CFR 600.310(f)(4)(i).
Based on the actions in Amendment 28, the FMP currently contains total ABCs that are then divided, with one component for landings and another for discards. By changing the process for determining the ACL for red snapper established in Amendment 28, this proposed rule would implement management measures concerning the commercial and recreational harvest, beginning in 2018. Limited commercial and recreational harvest of red snapper would be allowed by implementing a total ACL of 42,510 fish, based on the landings observed during the limited red snapper season in 2014. This ACL is less than the SSC's most recent total ABC recommendation of 53,000 red snapper, and is less than the 79,000 fish landings component of the 135,000 fish total ABC projection for 2018 in Amendment 28. Based on the current sector allocation ratio developed by the Council for red snapper of 28.07 percent commercial and 71.93 percent recreational, the total ACL is divided into a commercial ACL of 124,815 lb (56,615 kg), round weight, and a recreational ACL of 29,656 fish. The commercial sector's ACL is set in pounds of fish because the commercial sector reports landings in weight. Therefore, weight is a more accurate representation of commercial landings. In this proposed rule, for the commercial sector, one red snapper is equivalent to 9.71 lb (4.40 kg), round weight. ACLs for the recreational sector are specified in numbers of fish, because the Council determined that numbers of fish are a more reliable estimate for that sector than specifying the ACL in weight of fish. Because surveys that estimate recreational landings collect information on numbers of fish and convert those numbers to weights using biological samples that are sometimes limited, the Council believes that there can be uncertainty in estimates of recreational landings by weight.
To implement the limits on red snapper harvest described in Amendment 43, this proposed rule not only would amend the existing regulations to make the changes to the ACLs described above, but also would make other minor modifications to the existing regulations. Thus, the regulatory text of this proposed rule would implement several management
Under Amendment 43 and the proposed rule's regulatory text, the commercial season would begin each year on the second Monday in July. If commercial landings reach or are projected to reach the commercial ACL, then the commercial AM would close the sector for the remainder of that current fishing year. NMFS would monitor commercial landings in-season, and if commercial landings reach or are projected to reach the commercial ACL, then NMFS would file a notification with the Office of the Federal Register to close the commercial sector for red snapper for the remainder of the fishing year. In 2018, if the recreational and commercial fishing seasons do not open exactly on these dates in July as described, the respective seasons would open as close to these dates as possible.
In addition to setting sector ACLs and AMs for commercial and recreational harvest, this proposed rule would revise the temporal application of the current commercial trip limit of 75 lb (34 kg), gutted weight, and the recreational bag limit of 1 fish per person per day. In an effort to decrease regulatory discards (fish returned to the water because they are below the minimum size limit), no size limits would be implemented for either sector through this proposed rule.
NMFS notes that current regulations contain a severe weather provision with respect to modifying the commercial and recreational sector season dates (50 CFR 622.183(b)(5)(ii)). The Regional Administrator (RA) has the authority to modify the season opening and closing dates if severe weather conditions exist. The RA would determine when severe weather conditions exist, the duration of the severe weather conditions, and which geographic areas are deemed affected by severe weather conditions. If severe weather conditions exist or if NMFS determines the commercial or recreational ACLs were not harvested and a reopening of either or both sectors in the current fishing year would be possible, the RA would file a notification to that effect with the Office of the Federal Register, and include in that notification an announcement of any change in the red snapper commercial and recreational fishing seasons. The regulatory text of this proposed rule does not alter this existing authority.
The Council is currently developing additional amendments to the FMP that would consider other changes to red snapper management in the South Atlantic.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 43, the FMP, 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. NMFS expects this rule would have economic benefits because it would allow for commercial and recreational harvest of red snapper that would not otherwise be expected to occur in the absence of this action.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination follows.
A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.
This proposed rule would apply to all federally-permitted commercial vessels and recreational anglers that fish for or harvest red snapper in Federal waters of the South Atlantic. Although the proposed rule would apply to recreational anglers, including those that fish from charter vessels and headboats (for-hire vessels), it would not directly affect the business operations of for-hire vessels. For-hire vessels sell fishing services to recreational anglers. The proposed changes to red snapper management measures would not directly alter the services sold by these for-hire vessels. Any change in anglers' demand for these fishing services (and associated economic effects) as a result of the proposed rule would be secondary to any direct effect on anglers and, therefore, would be an indirect effect of the proposed rule. Because the effects on for-hire vessels would be indirect, they fall outside the scope of the RFA. Furthermore, for-hire captains and crew are allowed to retain red snapper under the recreational bag limit; however, they cannot sell these fish. As such, for-hire captains and crew would be directly affected only as recreational anglers. Recreational anglers who would be directly affected by this proposed rule are not considered small entities under the RFA, and are, therefore, outside the scope of this analysis. 5 U.S.C. 603. Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” 5 U.S.C. 601(6) and 601(3)-(5). Recreational anglers are not businesses, organizations, or governmental jurisdictions. In summary, only the impacts on commercial vessels will be discussed.
As of July 10, 2017, there were 544 valid or renewable Federal South Atlantic snapper-grouper unlimited permits and 114 valid or renewable 225-lb trip-limited permits. Each of these commercial permits is associated with an individual vessel. Data from the years of 2012 through 2016 were used for the analysis in Amendment 43, and these data provided the basis for the Council's decisions. On average, from 2012 through 2016, there were only 85 federally-permitted commercial vessels with reported landings of red snapper. Their average annual vessel-level revenue from all species for 2012 through 2016 was approximately $88,000 (2016 dollars). Because the Federal commercial red snapper seasons were very short or did not occur during 2012 through 2016, this proposed action would likely affect more vessels than just those that reported red snapper landings during that time. On average, 582 vessels reported landings of any snapper-grouper species from 2012 through 2016, and their average annual vessel-level revenue from all species was approximately $44,000 (2016 dollars). The maximum annual revenue from all species reported by a single one of these vessels from 2012 through 2016 was approximately $1.38 million (2016 dollars).
For RFA purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411)
Under the current regulations, because combined total commercial and recreational landings and dead discards exceeded the ABC in 2017, there would be no commercial red snapper harvest allowed in 2018. Assuming commercial and recreational red snapper dead discard rates in 2018 and subsequent years remain stable or increase (which is likely as the stock rebuilds), under the current regulations these full-year commercial red snapper harvest closures would be expected to continue for the foreseeable future.
Amendment 43 would, however, allow for the commercial harvest of red snapper. It specifies a constant total ACL for red snapper equal to 42,510 fish. The proposed rule would set the commercial red snapper ACL at 124,815 lb (56,615 kg), round weight and the recreational ACL would be set at 29,656 fish. The proposed rule would be expected to increase total ex-vessel revenue by a range of $545,981 (2016 dollars) to $572,901 per year relative to the status quo (
The information provided above supports a determination that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. Because this rule, if implemented, is not expected to have a significant adverse economic impact on any small entities, an initial regulatory flexibility analysis is not required and none has been prepared.
No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, the Paperwork Reduction Act does not apply to this proposed rule.
Fisheries, Fishing, Red snapper, South Atlantic.
For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:
16 U.S.C. 1801
(c) * * *
(2)
(b) * * *
(5) * * *
(i) The commercial and recreational sectors for red snapper are closed (
(b) * * *
(9)
(a) * * *
(9)
(y)
(2)
Animal and Plant Health Inspection Service, USDA.
Notice of availability.
We are advising the public that the Animal and Plant Health Inspection Service has prepared a draft environmental impact statement (EIS) and preliminary pest risk assessment (PRA) that evaluate the potential environmental impacts and plant pest risk associated with the proposed environmental release of genetically engineered
We will consider all comments that we receive on or before June 25, 2018.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
Dr. Alan Pearson, Chief, Plant Pests, and Protectants Branch, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 147, Riverdale, MD 20737-1238; (301) 851-3944, email:
Under the authority of the plant pest provisions of the Plant Protection Act (PPA), as amended (7 U.S.C. 7701
The regulations in § 340.4(a) provide that any person may submit an application for a permit for the introduction of a regulated article to the Animal and Plant Health Inspection Service (APHIS). Paragraph (b) of § 340.4 describes the form that an application for a permit for the environmental release of a regulated article must take and the information that must be included in the application. In addition, paragraph (b) states that applications must be submitted at least 120 days in advance of the proposed release into the environment in order to allow for APHIS review. However, the 120-day review period would be extended if preparation of an environmental impact statement (EIS) is necessary.
Under the provisions of the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
In a notice
This approach for controlling citrus greening disease does not involve a genetically engineered tree. Instead, the gene from spinach that codes for the defensin protein will be delivered to the tree's circulatory system by the genetically engineered CTV. APHIS decided to prepare an EIS because of the scope of the proposed releases and to better understand the potential environmental impacts and the associated uncertainty related to permit issuance.
APHIS solicited public comment for a period of 30 days ending May 10, 2017, as part of its scoping process to identify issues to address in the draft EIS. We
• The potential for the genetically engineered CTV to change over time and the potential for recombination with other viruses;
• Impacts to non-target species;
• The potential for defensin proteins to be found in areas other than the phloem of the plant;
• The potential for the genetically engineered CTV to become more transmissible;
• The impacts to organic citrus growers; and
• Health and safety concerns.
The issues discussed in the draft EIS were developed by considering the public input from the
Therefore, in accordance with NEPA, APHIS' NEPA Implementing Procedures (7 CFR part 372), and 7 CFR part 340, APHIS is making available the draft EIS, as well as a preliminary pest risk assessment (PRA), for a 45 day public review and comment period. The draft EIS and preliminary PRA are available as indicated under
A notice of availability regarding the draft EIS was also published by the Environmental Protection Agency in the
Rural Business and Cooperative Programs, Rural Business-Cooperative Service, USDA.
Proposed collection; Comments requested.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Rural Business and Cooperative Service's intention to request a revision for a currently approved information collection in support of the program for 7 CFR, part 1951, subpart R, “Rural Development Loan Servicing.”
Comments on this notice must be received by July 16, 2018 to be assured of consideration.
Lori Hood, Rural Business-Cooperative Service, USDA, STOP 3226, 1400 Independence Ave. SW, Washington, DC 20250-3226, Telephone: (202) 720-1400.
Copies of this information collection can be obtained from Jeanne Jacobs, Regulations and Paperwork Management Branch, Support Services Division, at (202) 692-0040.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that Fastenal Canada Ltd. (Fastenal Canada) did not cooperate to the best of its ability and has based its margin on adverse facts available (AFA), and that RMB Fasteners Ltd. and IFI & Morgan Ltd. (RMB/IFI) did not have any reviewable transactions during the POR.
Applicable May 17, 2018.
Paul Walker, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202.482.0413.
On June 7, 2016, Commerce published the
The merchandise covered by the order includes steel threaded rod. The subject merchandise is currently classifiable under subheading 7318.15.5051, 7318.15.5056, 7318.15.5090, and 7318.15.2095 of the United States Harmonized Tariff Schedule (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise is dispositive.
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” The petitioner, the only interested party to request an administrative review of any companies, timely withdrew its review requests with respect to 168 companies.
On July 7, 2017, RMB/IFI filed a no-shipment certification, indicating that it did not export subject merchandise to the United States during the POR. During the course of this review, Commerce examined this no shipments claim and provides its analysis in the Preliminary Decision Memo. Based on the record evidence, we preliminarily determine that RMB/IFI did not have any reviewable transactions during the POR. In addition, we find that it is appropriate not to rescind the review, in part, in this circumstance, and to complete the review with respect to the above-named company, issuing appropriate instructions to U.S. Customs and Border Protection (CBP) based on the final results of the review.
Commerce is conducting this review in accordance with sections 751(a)(1)(B) and 751(a)(2)(A) of the Tariff Act of 1930, as amended (the Act). With respect to Fastenal Canada, because it did not respond to Commerce's requests for information, we relied on facts available, in accordance with section 776(a) of the Act. Further, because we find that Fastenal Canada did not act to the best of its ability, we drew an adverse inference in selecting from among the facts otherwise available, in accordance with section 776(b) of the Act. In addition, because Jiaxing Brother Standard Part Co., Ltd., Brother Holding Group Co. Ltd. and Zhejiang Morgan Brother Technology Co. Ltd. did not submit a separate rate application or certification, we preliminarily find that these companies have not demonstrated eligibility for separate rates, and accordingly, we are preliminarily assigning these companies the China-wide entity rate of 206.00 percent. For a full description of the methodology underlying our preliminary conclusions,
For a complete description of the events that followed the initiation of this review,
Commerce preliminarily determines that a dumping margin of 206.00 percent exists for Fastenal Canada for the period April 1, 2016, through March 31, 2017.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the date of publication of the preliminary results, unless the Secretary alters the time limit. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant
Commerce intends to issue the final results of this administrative review, which will include the results of our analysis of all issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results, Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For Fastenal Canada, the cash deposit rate will be that 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 the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
List of Topics Discussed in the Preliminary Decision Memo:
Recommendation
The 168 Companies for which Commerce is rescinding the review:
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that forged steel fittings from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is April 1, 2017, through September 30, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable May 17, 2018.
Katherine Johnson at 202-482-4929 or Irene Gorelik at (202) 482-6905, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
Commerce initiated this investigation on October 25, 2017.
For a complete description of the events that followed the initiation of this investigation,
The products covered by this investigation are forged steel fittings from China. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Tariff Act of 1930, as amended (the Act). Commerce has calculated export prices in accordance with section 772(a) of the Act. Because China is a non-market economy, within the meaning of section 771(18) of the Act, Commerce has calculated normal value (NV) in accordance with section 773(c) of the Act. In addition, pursuant to section 776(a) and (b) of the Act, Commerce preliminarily has relied upon facts otherwise available, with adverse inferences, for the China-wide entity, including the single entity comprising Jiangsu Haida Pipe Fittings Group Company Ltd., its affiliated producer Haida Pipe Co., Ltd., and its affiliated reseller Yancheng L&W International Co., Ltd. For a full description of the methodology underlying Commerce's analysis,
In the
Commerce preliminarily determines that the following weighted-average dumping margins exist:
In accordance
Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin as follows: (1) For the producer/exporter combinations listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed for that combination in the table; (2) for all combinations of Chinese producers/exporters of merchandise under consideration that have not established eligibility for their own separate rates, the cash deposit rate will be equal to the estimated weighted-average dumping margin established for the China-wide entity; and (3) for all third-county exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the Chinese producer/exporter combination (or the China-wide entity) that supplied that third-country exporter.
To determine the cash deposit rate, Commerce normally adjusts the estimated weighted-average dumping margin by the amount of domestic subsidy pass-through and export subsidies determined in a companion CVD proceeding when CVD provisional measures are in effect. Accordingly, where Commerce makes a preliminary affirmative determination for domestic subsidy pass-through or export subsidies, Commerce offsets the calculated estimated weighted-average dumping margin by the appropriate rate(s). In this case, we have not made a preliminary affirmative determination for domestic subsidy pass-through or export subsidies. Therefore, we are not adjusting the estimated weighted-average dumping margin for these subsidies.
These suspension of liquidation instructions will remain in effect until further notice.
Commerce intends to disclose to interested parties the calculations performed in conjunction with this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify information relied upon in making its final determination.
Case briefs regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation, or on a date established by the Secretary, as appropriate. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of publication of this notice in the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the non-scope case and rebuttal briefs and/or scope case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. Any hearing request for scope issues must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Pursuant to 19 CFR 351.210(e)(2), Commerce requires that a request by exporters for postponement of the final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On March 18, 2018, pursuant to 19 CFR 351.210(e), Both-Well (Taizhou) Steel Fittings Co., Ltd. requested that, in the event of an affirmative preliminary determination, Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, we are notifying the U.S. International Trade Commission (ITC) of our affirmative preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings, unions, and outlets. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.
While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182, the scope is not limited to fittings made to these specifications.
The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable specifications, subject fittings may also be machined from bar stock or machined from seamless pipe and tube.
All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure/PSI,
Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, butt weld outlets, nipples, and all fittings that have a maximum pressure rating of 300 pounds of pressure/PSI or less.
Also excluded are fittings certified or made to the following standards, so long as the fittings are not also manufactured to the specifications of ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182:
To be excluded from the scope, products must have the appropriate standard or pressure markings and/or accompanied by documentation showing product compliance to the applicable standard or pressure,
Subject carbon and alloy forged steel fittings are normally entered under Harmonized Tariff Schedule of the United States (HTSUS) 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010. The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) continues to find that Tianjin Magnesium International, Co., Ltd. (TMI) and Tianjin Magnesium Metal Co., Ltd. (TMM) had no shipments of subject merchandise covered by the antidumping duty order on magnesium metal from the People's Republic of China (China) for the period of review (POR) April 1, 2016, through March 31, 2017.
Applicable May 17, 2018.
James Terpstra or Brendan Quinn, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3965 or (202) 482-5848, respectively.
On January 8, 2018, Commerce published the
The product covered by this antidumping duty order is magnesium metal from China, which includes primary and secondary alloy magnesium metal, regardless of chemistry, raw material source, form, shape, or size. Magnesium is a metal or alloy containing by weight primarily the element magnesium. Primary magnesium is produced by decomposing raw materials into magnesium metal. Secondary magnesium is produced by recycling magnesium-based scrap into magnesium metal. The magnesium covered by this order includes blends of primary and secondary magnesium.
The subject merchandise includes the following alloy magnesium metal products made from primary and/or secondary magnesium including, without limitation, magnesium cast into ingots, slabs, rounds, billets, and other shapes; magnesium ground, chipped, crushed, or machined into rasping, granules, turnings, chips, powder, briquettes, and other shapes; and products that contain 50 percent or greater, but less than 99.8 percent, magnesium, by weight, and that have been entered into the United States as conforming to an “ASTM Specification for Magnesium Alloy”
The scope of this order excludes: (1) All forms of pure magnesium, including chemical combinations of magnesium and other material(s) in which the pure magnesium content is 50 percent or greater, but less than 99.8 percent, by weight, that do not conform to an “ASTM Specification for Magnesium Alloy”
The merchandise subject to this order is classifiable under items 8104.19.00, and 8104.30.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS items are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
In the
Commerce determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b). Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this review.
Additionally, consistent with the Commerce's refinement to its assessment practice in non-market economy cases, for TMI and TMM, exporters under review, which we determined had no shipments of the subject merchandise during the POR, any suspended entries of subject merchandise from these companies (
The following cash deposit requirements will be effective upon
This notice serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these final results and this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable May 17, 2018.
Thomas Martin at (202) 482-3936 or Ariela Garvett at (202) 482-3609, AD/CVD Operations, Enforcement and Compliance, Office IV, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On March 27, 2018, the Department of Commerce (Commerce) initiated a countervailing duty (CVD) investigation of imports of laminated woven sacks (LWS) from the Socialist Republic of Vietnam.
Section 703(b)(1) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in a CVD investigation within 65 days after the date on which Commerce initiated the investigation. However, section 703(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 130 days after the date on which Commerce initiated the investigation if, under part (A), the petitioners
On May 4, 2018, the petitioners submitted a timely request that Commerce postpone the preliminary CVD determination.
In accordance with 19 CFR 351.205(e), the petitioners have stated the reasons for requesting a postponement of the preliminary determination, and Commerce finds no compelling reason to deny the request. Therefore, in accordance with section 703(c)(1)(A) of the Act, Commerce is postponing the deadline for the preliminary determination to no later than 130 days after the date on which the investigation was initiated,
This notice is issued and published pursuant to section 703(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that forged steel fittings from Italy are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is October 1, 2016, through September 30, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable May 17, 2018.
Denisa Ursu or Michael Bowen, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2285 or (202) 482-0768, respectively.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as Amended (the Act). Commerce initiated this investigation on October 25, 2017.
Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. The revised deadline for the preliminary determination of this investigation is now May 7, 2018.
For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.
The products covered by this investigation are forged steel fittings from Italy. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 731 of the Act. Pursuant to sections 776(a) and (b) of the Act and 19 CFR 351.308, Commerce preliminarily relied upon facts otherwise available with an adverse inference (adverse facts available or AFA) for the two mandatory respondents, M.E.G.A. S.p.A (MEGA) and I.M.L. Industria Meccanica Ligure S.p.A. (IML), which failed to cooperate to the best of their ability in their responses to Commerce's requests for information.
Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated weighted-average dumping margin for all other exporters and producers not individually examined. Section 735(c)(5)(A) of the Act states that, in calculating this rate, it shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually examined, excluding rates that are zero,
In cases where no weighted-average dumping margins other than zero,
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of subject merchandise, as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.
Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of preliminary determination in the
As explained in the Preliminary Decision Memorandum, we will afford MEGA the opportunity to remedy a deficiency in its reported cost reconciliation after issuing this preliminary determination. Should we find MEGA's response satisfactory, then, as provided in section 782(i)(1) of the Act, we intend to verify this respondent's information for purposes of relying upon it in making our final determination. IML did not provide sections B, C, D, or supplemental section A questionnaire responses and, therefore, Commerce will not conduct verification of IML. As further explained in the Preliminary Decision Memorandum, the companies, Officine Nicola Galperti & Figlio (Galperti) and Pegasus S.R.L. (Pegasus), contend that they are not producers or exporters of forged steel fittings from Italy.
Case briefs regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation, or on a date established by Commerce, as appropriate. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of publication of this notice in the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the non-scope case and rebuttal briefs and/or scope case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. Any hearing request for scope issues must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. All documents
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Pursuant to 19 CFR 351.210(e)(2), Commerce requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On April 18, 2018, pursuant to 19 CFR 351.210(e), MEGA requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the U.S. International Trade Commission (ITC) of its affirmative preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings, unions, and outlets. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.
While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182, the scope is not limited to fittings made to these specifications.
The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable specifications, subject fittings may also be machined from bar stock or machined from seamless pipe and tube.
All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure/PSI,
Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, butt weld outlets, nipples, and all fittings that have a maximum pressure rating of 300 pounds of pressure/PSI or less.
Also excluded are fittings certified or made to the following standards, so long as the fittings are not also manufactured to the specifications of ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182:
To be excluded from the scope, products must have the appropriate standard or pressure markings and/or accompanied by documentation showing product compliance to the applicable standard or pressure,
Subject carbon and alloy forged steel fittings are normally entered under Harmonized Tariff Schedule of the United States (HTSUS) 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010. The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that forged steel fittings from Taiwan are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is October 1, 2016, through September 30, 2017. Interested parties are invited to comment on this preliminary determination.
Applicable May 17, 2018.
Robert Palmer (202) 482-9068 or Suzanne Lam at (202) 482-0783, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
Commerce initiated this investigation on October 25, 2017.
For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.
The products covered by this investigation are forged steel fittings from Taiwan. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 731 of the Tariff Act of 1930, as amended (the Act). Pursuant to sections 776(a) and (b) of the Act and 19 CFR 351.308, Commerce preliminarily relied upon facts otherwise available with an adverse inference (adverse facts available or AFA) to assign an estimated weighted-average dumping margin to the two mandatory respondents in Taiwan, Both Well Steel Fittings Co., Ltd. (Both Well) and Luchu Shin Yee Works Co. Ltd. (Luchu), because these respondents did not respond to Commerce's antidumping duty questionnaire and, therefore, failed to cooperate to the best of their ability in the investigation.
Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In cases where no weighted-average dumping margins other than zero,
Commerce preliminarily determines that the following weighted-average dumping margins exist:
In accordance with section 773(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit
Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of preliminary determination in the
Because the mandatory respondents in this investigation, Both Well and Luchu, did not provide the information requested and Commerce preliminarily determines these respondents to have been uncooperative, Commerce will not conduct verifications of these two companies. Kopex contends that it is not a producer or exporter of forged steel fittings from Taiwan. As provided in section 782(i)(1) of the Act, we intend to verify Kopex's claim that it did not produce or sell the subject merchandise during the POI.
Case briefs regarding non-scope issues may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the verification report is issued in this investigation, or on a date established by the Secretary, as appropriate. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Additionally, case briefs regarding scope issues may be submitted within 10 days after the date of publication of this notice in the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the non-scope case and rebuttal briefs and/or scope case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. Any hearing request for scope issues must be filed identically on the records of this investigation and the concurrent AD and CVD investigations of forged steel fittings. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
In accordance with section 733(f) of the Act, Commerce will notify the U.S. International Trade Commission (ITC) of our affirmative preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation is carbon and alloy forged steel fittings, whether unfinished (commonly known as blanks or rough forgings) or finished. Such fittings are made in a variety of shapes including, but not limited to, elbows, tees, crosses, laterals, couplings, reducers, caps, plugs, bushings, unions, and outlets. Forged steel fittings are covered regardless of end finish, whether threaded, socket-weld or other end connections.
While these fittings are generally manufactured to specifications ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182, the scope is not limited to fittings made to these specifications.
The term forged is an industry term used to describe a class of products included in applicable standards, and does not reference an exclusive manufacturing process. Forged steel fittings are not manufactured from casting. Pursuant to the applicable specifications, subject fittings may also be machined from bar stock or machined from seamless pipe and tube.
All types of fittings are included in the scope regardless of nominal pipe size (which may or may not be expressed in inches of nominal pipe size), pressure rating (usually, but not necessarily expressed in pounds of pressure/PSI,
Excluded from this scope are all fittings entirely made of stainless steel. Also excluded are flanges, butt weld fittings, butt weld outlets, nipples, and all fittings that have a maximum pressure rating of 300 pounds of pressure/PSI or less.
Also excluded are fittings certified or made to the following standards, so long as the fittings are not also manufactured to the specifications of ASME B16.11, MSS SP-79, MSS SP-83, MSS SP-97, ASTM A105, ASTM A350, and ASTM A182:
To be excluded from the scope, products must have the appropriate standard or pressure markings and/or accompanied by documentation showing product compliance to the applicable standard or pressure,
Subject carbon and alloy forged steel fittings are normally entered under Harmonized Tariff Schedule of the United States (HTSUS) 7307.99.1000, 7307.99.3000, 7307.99.5045, and 7307.99.5060. They also may be entered under HTSUS 7307.92.3010, 7307.92.3030, 7307.92.9000, and 7326.19.0010. The HTSUS subheadings and specifications are provided for convenience and customs purposes; the written description of the scope is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is conducting a new shipper review of Qingdao Doo Won Foods Co., Ltd. (Doo Won) regarding the antidumping duty order on fresh garlic from the People's Republic of China (China). The period of review (POR) is November 1, 2016, through April 30, 2017. Because we have concluded preliminarily that Doo Won is not the producer of the fresh garlic it exported to the United States, we are preliminarily rescinding this review with respect to Doo Won. Interested parties are invited to comment on these preliminary results.
Kathryn Wallace, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6251.
On July 10, 2017, Commerce published a notice of initiation of a new shipper review of fresh garlic from the China for the period November 1, 2016, through April 30, 2017.
The merchandise covered by this order is all grades of garlic, whether whole or separated into constituent cloves.
Commerce is conducting this review in accordance with section 751(a)(2)(B)
For the reasons detailed in the Preliminary Decision Memorandum, we preliminarily find that Doo Won's sale under review is
Commerce intends to disclose the analysis performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments by no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
Commerce intends to issue the final results of this new shipper review, which will include the results of its analysis of issues raised in any such comments, within 90 days of publication of these preliminary results, pursuant to section 751(a)(2)(B)(iv) of the Act.
Upon completion of the final results, pursuant to 19 CFR 351.212(b), Commerce will determine, and the U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. If we proceed to a final rescission of the new shipper review, Doo Won's entries will be assessed at the rate entered.
The following cash deposit requirements will be effective upon publication of the final results or final rescission of this NSR for entries of subject merchandise by Doo Won. If Commerce proceeds to a final rescission of the new shipper review, the cash deposit rate will continue to be the China-wide rate. If we issue final results of the new shipper review for Doo Won, we will instruct CBP to collect cash deposits, effective upon the publication of the final results, at the rates established therein.
Consistent with 19 CFR 351.307(b)(1)(iv), we intend to verify the information relied upon in making its decision.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 771(i)(1) of the Act, and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on utility scale wind towers (wind towers) from the People's Republic of China (China) would likely lead to the continuation or recurrence of a countervailable subsidy at the levels indicated in the Final Results of Review section of this notice.
Applicable May 17, 2018.
Kristen Johnson, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4793.
The
Commerce has exercised its discretion to toll all deadlines affected by the duration of the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the final results of this expedited sunset review is May 7, 2018.
The merchandise covered by this
A wind tower section consists of, at a minimum, multiple steel plates rolled into cylindrical or conical shapes and welded together (or otherwise attached) to form a steel shell, regardless of coating, end-finish, painting, treatment, or method of manufacture, and with or without flanges, doors, or internal or external components (
Wind towers and sections thereof are included within the scope whether or not they are joined with nonsubject merchandise, such as nacelles or rotor blades, and whether or not they have internal or external components attached to the subject merchandise.
Specifically excluded from the scope are nacelles and rotor blades, regardless of whether they are attached to the wind tower. Also excluded are any internal or external components which are not attached to the wind towers or sections thereof.
Merchandise covered by the
All issues raised in this review are addressed in the Issues and Decision Memorandum, which is dated concurrently with and adopted by this notice.
Pursuant to sections 752(b)(1) and (3) of the Act, we determine that revocation of the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
Commerce is issuing and publishing these final results and this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The Project Performance Report and Administration Report Forms and Example Report Form Instructions can be reviewed under the Progress Reporting heading at
Written comments must be submitted on or before July 16, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Janine Harris, Office of Habitat Conservation, Restoration Center, 1315 East-West Highway, Silver Spring, MD 20910, (301) 427-8635, or
This request is for extension of a currently approved information collection.
The NOAA Restoration Center (NOAA RC) provides technical and financial assistance to identify, develop, implement, and evaluate community-driven habitat restoration projects. Awards are made as grants or cooperative agreements under the authority of the Magnuson-Stevens Fishery Conservation and Management Act of 2006, 16 U.S.C. 1891a and the Fish and Wildlife Coordination Act, 16 U.S.C. 661, as amended by the Reorganization Plan No. 4 of 1970.
The NOAA RC requires specific information on habitat restoration projects that we fund, as part of routine progress reporting. Recipients of NOAA RC funds submit information such as project location, restoration techniques used, species benefited, acres restored, stream miles opened to access for diadromous fish, volunteer participation, and other parameters.
The required information enables NOAA to track, evaluate and report on coastal and marine habitat restoration and demonstrate accountability for federal funds. This information is used to populate a database of NOAA RC-funded habitat restoration. The database, with its robust querying capabilities, is instrumental to provide accurate and timely responses to NOAA, Department of Commerce, Congressional and constituent inquiries. It also facilitates reporting by NOAA on the Government Performance and Results Act “acres restored” performance measure. Grant recipients are required by the NOAA Grants Management Division to submit periodic performance reports and a final report for each award; this collection stipulates the information to be provided in these reports.
There are two progress report forms for simplicity. The Performance Report Form focuses on tracking project implementation, milestones, performance measures, monitoring, and expenditures. The Administrative Form only applies to recipients with an award that will implement multiple projects. It collects information on the administration of the award, the number of projects supported by the award, and award expenditures.
NOAA's preferred method of collection is submission of electronic fillable forms attached to an award file in Grants Online, NOAA's award management system. If the recipient does not have electronic access to submit the form, mailed paper forms will be accepted.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The purpose of this information collection is to obtain information from individuals in the seven United States (U.S.) jurisdictions containing coral reefs. Specifically, NOAA is seeking information on the knowledge, attitudes and reef use patterns, as well as information on knowledge and attitudes related to specific reef protection activities. In addition, this survey will provide for the ongoing collection of social and economic data related to the communities affected by coral reef conservation programs.
The Coral Reef Conservation Program (CRCP), developed under the authority of the Coral Reef Conservation Act of 2000, is responsible for programs intended to enhance the conservation of coral reefs. We intend to use the information collected through this instrument for research purposes as well as measuring and improving the results of our reef protection programs. Because many of our efforts to protect reefs rely on education and changing attitudes toward reef protection, the information collected will allow CRCP staff to ensure programs are designed appropriately at the start, future program evaluation efforts are as successful as possible, and outreach efforts are targeting the intended recipients with useful information.
Information will be collected in the means most efficient and effective in the individual jurisdiction. For the three years covered by this clearance we expect to use face-to-face interviews in American Samoa, and as appropriate, face-to-face, telephone and/or internet-based survey techniques in Hawaii and Florida, Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands.
This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
United States Patent and Trademark Office, Commerce.
Notice and request for nominations for the Patent and Trademark Public Advisory Committees.
On November 29, 1999, the President signed into law the Patent and Trademark Office Efficiency Act (the “Act”), Public Law 106-113, which, among other things, established two Public Advisory Committees to review the policies, goals, performance, budget and user fees of the United States Patent and Trademark Office (USPTO) with respect to patents, in the case of the Patent Public Advisory Committee, and with respect to trademarks, in the case of the Trademark Public Advisory Committee, and to advise the Director on these matters. The America Invents Act Technical Corrections Act made several amendments to the 1999 Act, including the requirement that the terms of the USPTO Public Advisory Committee members be realigned by 2014, so that December 1 be used as the start and end date, with terms staggered so that each year three existing terms expire and three new terms begin on December 1. Through this Notice, the USPTO is requesting nominations for up to three (3) members of the Patent Public Advisory Committee, and for up to three (3) members of the Trademark Public Advisory Committee, for terms of three years that begin on December 1, 2018.
Nominations must be postmarked or electronically transmitted on or before July 6, 2018.
Persons wishing to submit nominations should send the nominee's resumé by postal mail to Brendan McCommas, Chief of Staff, Office of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, Post Office Box 1450, Alexandria, Virginia, 22313-1450 or by electronic mail to:
Brendan McCommas, Chief of Staff, Office of the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, at (571) 272-8600.
The Advisory Committees' duties include:
• Review and advise the Under Secretary of Commerce for Intellectual Property and Director of the USPTO on matters relating to policies, goals, performance, budget, and user fees of the USPTO relating to patents and trademarks, respectively; and
• Within 60 days after the end of each fiscal year: (1) Prepare an annual report on matters listed above; (2) transmit the report to the Secretary of Commerce, the President, and the Committees on the Judiciary of the Senate and the House of Representatives; and (3) publish the report in the Official Gazette of the USPTO.
The Public Advisory Committees are each composed of nine (9) voting members who are appointed by the Secretary of Commerce (the “Secretary”) and serve at the pleasure of the Secretary for three-year terms. Members are eligible for reappointment for a second consecutive three-year term. The Public Advisory Committee members must be citizens of the United States
Each newly appointed member of the Patent and Trademark Public Advisory Committees will serve for a three-year term that begins on December 1, 2018, and ends on December 1, 2021. As required by the 1999 Act, members of the Patent and Trademark Public Advisory Committees will receive compensation for each day (including travel time) while the member is attending meetings or engaged in the business of that Advisory Committee. The enabling statute states that members are to be compensated at the daily equivalent of the annual rate of basic pay in effect for level III of the Executive Schedule under section 5314 of Title 5, United States Code. Committee members are compensated on an hourly basis, calculated at the daily rate. While away from home or regular place of business, each member shall be allowed travel expenses, including per diem in lieu of subsistence, as authorized by Section 5703 of Title 5, United States Code.
Public Advisory Committee Members are Special Government Employees within the meaning of Section 202 of Title 18, United States Code. The following additional information includes several, but not all, of the ethics rules that apply to members, and assumes that members are not engaged in Public Advisory Committee business more than 60 days during any period of 365 consecutive days.
• Each member will be required to file a confidential financial disclosure form within thirty (30) days of appointment. 5 CFR 2634.202(c), 2634.204, 2634.903, and 2634.904(b).
• Each member will be subject to many of the public integrity laws, including criminal bars against representing a party in a particular matter that came before the member's committee and that involved at least one specific party. 18 U.S.C. 205(c);
• Representation of foreign interests may also raise issues. 35 U.S.C. 5(a)(1) and 18 U.S.C. 219.
Meetings of each Advisory Committee will take place at the call of the respective Committee Chair to consider an agenda set by that Chair. Meetings may be conducted in person, telephonically, on-line through the internet, or by other appropriate means. The meetings of each Advisory Committee will be open to the public except each Advisory Committee may, by majority vote, meet in executive session when considering personnel, privileged, or other confidential information. Nominees must have the ability to participate in Committee business through the internet.
Department of the Air Force, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by July 16, 2018.
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 obtain a copy of the proposal and associated collection instruments, please write to the Air Force Office of Scientific Research, ATTN: AFOSR/RTB, 875 North Randolph Street, Suite 325, Room 3112, Arlington, VA 22203-
Department of the Army, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by July 16, 2018.
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 obtain a copy of the proposal and associated collection instruments, please write to the Office of the Deputy Chief of Staff, G-1, ATTN: Army Resiliency Directorate (DAPE-AR), 300 Army Pentagon, Washington, DC 20310-0300 or call (703) 571-7295.
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the U.S. Strategic Command Strategic Advisory Group (“the Group”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
The Group's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The Group's charter and contact information for the Group's Designated Federal Officer (DFO) can be found at
The Group provides the Secretary of Defense and the Deputy Secretary of Defense, through the Chairman of the Joint Chiefs of Staff and the Commander of the United States Strategic Command (USSTRATCOM), independent advice and recommendations on: Scientific, technical, intelligence, and policy-related matters of interest to the Joint Chiefs of Staff and the USSTRATCOM concerning the development and
The Group is composed of no more than 20 members who are eminent authorities in the fields of strategic policy formulation; nuclear weapon design; national command, control, communications, intelligence, and information operations; or other important aspects of the Nation's strategic forces. All members of the Group are appointed to provide advice on behalf of the Government on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Group-related travel and per diem, Group members serve without compensation.
The public or interested organizations may submit written statements to the Group membership about the Group's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the Group. All written statements shall be submitted to the DFO for the Group, and this individual will ensure that the written statements are provided to the membership for their consideration.
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Defense Science Board.
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
This committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The charter and contact information for the Designated Federal Officer (DFO) can be obtained at
The Board provides the Secretary of Defense and the Deputy Secretary of Defense independent advice and recommendations on science, technology, manufacturing, acquisition process, and other matters of special interest to the DoD. The Board shall be composed of no more than 50 members who are eminent authorities in the fields of science, technology, manufacturing, acquisition process, and other matters of special interest to the DoD. Members of the Board who are not full-time or permanent part-time Federal officers or employees will be appointed as experts or consultants pursuant to 5 U.S.C. 3109 to serve as special government employee members. Members of the Board who are full-time or permanent part-time Federal officers or employees will be appointed pursuant to 41 CFR 102-3.130(a) to serve as regular government employee members. All members of the Board are appointed to provide advice on the basis of their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official Committee-related travel and per diem, members serve without compensation. The DoD, as necessary and consistent with the Board's mission and DoD policies and procedures, may establish subcommittees, task forces, or working groups to support the Board, and all subcommittees must operate under the provisions of FACA and the Government in the Sunshine Act. Subcommittees will not work independently of the Board and must report all recommendations and advice solely to the Board for full deliberation and discussion. Subcommittees, task forces, or working groups have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Board. No subcommittee or any of its members can update or report, verbally or in writing, directly to the DoD or any Federal officers or employees. The Board's DFO, pursuant to DoD policy, must be a full-time or permanent part-time DoD employee, and must be in attendance for the duration of each and every Board/subcommittee meeting. The public or interested organizations may submit written statements to the Board membership about the Board's mission and functions. Such statements may be submitted at any time or in response to the stated agenda of planned Board meetings. All written statements must be submitted to the Board's DFO who will ensure the written statements are provided to the membership for their consideration.
Defense Security Service, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by July 16, 2018.
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 obtain a copy of the proposal and associated collection instruments, please write to the Defense Security Service, Program Integration Office, Project Integration Office Process and Governance Manager, ATTN: Mr. Chris Kubricky, Quantico, VA 22134, or call the Program Integration Office at, (571) 305-6243.
Federal Student Aid, Department of Education.
Notice.
The Secretary announces the annual updates to the tables used in the statutory Federal Need Analysis Methodology that determines a student's expected family contribution (EFC) for award year (AY) 2019-20 for student financial aid programs, Catalog of Federal Domestic Assistance (CFDA) Numbers 84.063, 84.033, 84.007, 84.268, 84.408, and 84.379. The intent of this notice is to alert the financial aid community and the broader public to these required annual updates used in the determination of student aid eligibility.
Marya Dennis, U.S. Department of Education, Room 63G2, Union Center Plaza, 830 First Street NE, Washington, DC 20202-5454. Telephone: (202) 377-3385.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Part F of title IV of the Higher Education Act of 1965, as amended (HEA), specifies the criteria, data elements, calculations, and tables the Department of Education (Department) uses in the Federal Need Analysis Methodology to determine the EFC.
Section 478 of the HEA requires the Secretary to annually update the following four tables for price inflation—the Income Protection Allowance (IPA), the Adjusted Net Worth (NW) of a Business or Farm, the Education Savings and Asset Protection Allowance, and the Assessment Schedules and Rates. The updates are based, in general, upon increases in the Consumer Price Index (CPI).
For AY 2019-20, the Secretary is charged with updating the IPA for parents of dependent students, adjusted NW of a business or farm, the education savings and asset protection allowance, and the assessment schedules and rates to account for inflation that took place between December 2017 and December 2018. However, because the Secretary must publish these tables before December 2018, the increases in the tables must be based on a percentage equal to the estimated percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U) for 2018. The Secretary must also account for any under- or over-estimation of inflation for the preceding year.
In developing the table values for the 2018-19 AY, the Secretary assumed a 2.3 percent increase in the CPI-U for the period December 2016 through December 2017. The actual inflation for this time period was 2.1 percent. The Secretary estimates that the increase in the CPI-U for the period December 2017 through December 2018 will be 1.6 percent.
Additionally, section 601 of the College Cost Reduction and Access Act of 2007 (CCRAA, Pub. L. 110-84) amended sections 475 through 478 of the HEA affecting the IPA tables for the 2009-10 through 2012-13 AYs and required the Department to use a percentage of the estimated CPI to update the table in subsequent years. These changes to the IPA impact dependent students, as well as independent students with dependents other than a spouse and independent students without dependents other than a spouse. This notice includes the new 2019-20 AY values for the IPA tables, which reflect the CCRAA amendments. The updated tables are in sections 1 (Income Protection Allowance), 2 (Adjusted Net Worth of a Business or Farm), and 4 (Assessment Schedules and Rates) of this notice.
As provided for in section 478(d) of the HEA, the Secretary must also revise the education savings and asset protection allowances for each AY. The Education Savings and Asset Protection Allowance table for AY 2019-20 has been updated in section 3 of this notice.
Section 478(h) of the HEA also requires the Secretary to increase the amount specified for the employment expense allowance, adjusted for inflation. This calculation is based on increases in the Bureau of Labor Statistics' marginal costs budget for a two-worker family compared to a one-worker family. The items covered by this calculation are: Food away from home, apparel, transportation, and household furnishings and operations. The Employment Expense Allowance table for AY 2019-20 has been updated in section 5 of this notice.
The HEA requires the following annual updates:
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For each additional family member add $4,450. For each additional college student subtract $3,160.
The IPAs for independent students with dependents other than a spouse for AY 2019-20 are as follows:
For each additional family member add $6,290. For each additional college student subtract $4,470.
The IPAs for single independent students and independent students without dependents other than a spouse for AY 2019-20 are as follows:
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The portion of these assets included in the contribution calculation is computed according to the following schedule. This schedule is used for parents of dependent students, independent students without dependents other than a spouse, and independent students with dependents other than a spouse.
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The parents' contribution for a dependent student is computed according to the following schedule:
The contribution for an independent student with dependents other than a spouse is computed according to the following schedule:
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The employment expense allowance for parents of dependent students, married independent students without dependents other than a spouse, and independent students with dependents other than a spouse is the lesser of $4,000 or 35 percent of earned income.
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You may also access documents of the Department published in the
20 U.S.C. 1087rr.
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications.
Comments must be received on or before June 18, 2018.
Submit your comments, identified by the Docket Identification (ID) Number and the File Symbol of interest as shown in the body of this document, 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
Robert McNally, Biopesticides and Pollution Prevention Division (BPPD) (7511P), main telephone number: (703) 305-7090, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the provisions of FIFRA section 3(c)(4) (7 U.S.C. 136a(c)(4)), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Notice of receipt of these applications does not imply a decision by the Agency on these applications.
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7 U.S.C. 136
Office of Administrative Law Judges, Environmental Protection Agency (EPA).
Notice of order denying petition to set aside consent agreement and proposed final order.
In accordance with section 311(b)(6)(C)(iii) of the Clean Water Act (CWA or Act), notice is hereby given that an Order Denying Petition to Set Aside Consent Agreement and Proposed Final Order has been issued in the matter styled as
To access and review documents filed in the matter that is the subject of this document, please visit
Jennifer Almase, Attorney-Advisor, Office of Administrative Law Judges (1900R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW; telephone number: (202) 564-6255 (main) or (202) 564-1170 (direct); fax number: (202) 565-0044; email address:
Section 311(b)(6)(A) of the CWA empowers EPA to assess a class I or class II administrative civil penalty against any owner, operator, or person in charge of any onshore facility from which oil or a hazardous substance is discharged in violation of section 311(b)(3), or who fails or refuses to comply with any regulation issued under section 311(j) to which that owner, operator, or person in charge is subject (33 U.S.C. 1321(b)(6)(A)). However, before issuing an order assessing a class II civil penalty under section 311(b)(6), EPA is required by the CWA and the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits (Rules of Practice) to provide public notice of and reasonable
Any person who comments on the proposed assessment of a class II civil penalty under section 311(b)(6) is then entitled to receive notice of any hearing held under section 311(b)(6) of the CWA and at such hearing is entitled to a reasonable opportunity to be heard and to present evidence (33 U.S.C. 1321(b)(6)(C)(ii); 40 CFR 22.45(c)(1)). If no hearing is held before issuance of an order assessing a class II civil penalty under section 311(b)(6) of the CWA, such as where the administrative penalty action in question is settled pursuant to a consent agreement and final order, any person who commented on the proposed assessment may petition to set aside the order on the basis that material evidence was not considered and to hold a hearing on the penalty (33 U.S.C. 1321(b)(6)(C)(iii); 40 CFR 22.45(c)(4)(ii)).
The CWA requires that if the evidence presented by the petitioner in support of the petition is material and was not considered in the issuance of the order, the Administrator shall immediately set aside such order and provide a hearing in accordance with section 311(b)(6)(B)(ii) (33 U.S.C. 1321(b)(6)(C)(iii)). Conversely, if the Administrator denies a hearing, the Administrator shall provide to the petitioner, and publish in the
Pursuant to section 311 of the CWA, the authority to decide petitions by commenters to set aside final orders entered without a hearing and provide copies and/or notice of the decision has been delegated to Regional Administrators in administrative penalty actions brought by regional offices of EPA. Administrator's Delegation of Authority 2-52A (accessible at:
If the Petition Officer finds that a hearing is appropriate, the Presiding Officer shall order that the consent agreement and proposed final order be set aside and establish a schedule for a hearing (40 CFR 22.45(c)(4)(vi)). Conversely, if the Petition Officer finds that resolution of the proceeding without a hearing is appropriate, the Petition Officer shall issue an order denying the petition and stating reasons for the denial (40 CFR 22.45(c)(4)(vii)). The Petition Officer shall then file the order with the Regional Hearing Clerk, serve copies of the on the parties and the commenter, and provide public notice of the order.
In May of 2016, the Director of the Superfund Division of EPA's Region 5 (Complainant) and BP Products North America Inc. (Respondent) executed a Consent Agreement and Final Order (CAFO) in the matter styled as
On or about June 1, 2016, EPA provided public notice of its intent to file the proposed CAFO and accept public comments thereon. Carlotta Blake-King, Carolyn A. Marsh, Debra Michaud, and Patricia Walter (Petitioners) timely filed comments on the proposed CAFO (Comments). Complainant subsequently prepared a Response to Comments Regarding Proposed CAFO (Response to Comments), which indicated that EPA would not be altering the proposed CAFO. The Response to Comments was mailed to Petitioners, together with a copy of the proposed CAFO, on or about January 17, 2017, and each Petitioner received the materials by January 30, 2017. On or about February 24, 2017, Petitioners timely filed a joint petition seeking to set aside the proposed CAFO and have a public hearing held thereon (Petition).
A Request to Assign Petition Officer (Request) was issued by Region 5's Acting Regional Administrator on May 17, 2017, and served on Petitioners on May 30, 2017. In the Request, the Acting Regional Administrator stated that after considering the issues raised in the Petition, Complainant had decided not to withdraw the CAFO. Accordingly, the Acting Regional Administrator requested assignment of an Administrative Law Judge to consider and rule on the Petition pursuant to § 22.45(c)(4)(iii) of the Rules of Practice, 40 CFR 22.45(c)(4)(iii). By Order dated June 16, 2017, the undersigned was designated to preside over this matter, and Complainant was directed to file a response to the Petition. Complainant filed its Response to Petition to Set Aside Consent Agreement and Proposed Final Order (Response to Petition) on July 13, 2017.
On May 8, 2018, the undersigned issued an Order Denying Petition to Set Aside Consent Agreement and Proposed Final Order (Order). Therein, the undersigned denied the Petition without the need for a hearing on the basis that Petitioners had failed to present any relevant and material evidence that had not been adequately considered and responded to by Complainant.
Specifically, Petitioners raised issues that the undersigned grouped into four categories.
Second, Petitioners urged that an additional fine of $100,000 be levied against Respondent for its purported culture of indifference towards health and safety, which, according to Petitioners, was evident from the violations Respondent has committed and the ineffective responses it has undertaken over many years. In considering this issue, the undersigned first noted that EPA is limited to imposing the maximum penalty permitted under applicable law for the violations alleged and determining the penalty based on the statutory factors and that Petitioners failed to cite any legal authority allowing EPA to impose a fine beyond the maximum statutory penalty. The undersigned then noted that Petitioners also failed to offer any argument or evidence rebutting Complainant's position that it had properly implemented the applicable policy governing its calculation and negotiation of the penalty assessed in the proposed CAFO, which takes the statutory penalty factors into account. Accordingly, the undersigned found that with respect to this issue, Petitioners did not present any fact or argument relevant and material to the proposed CAFO that was not already considered by Complainant. Thus, the claim was denied.
Third, Petitioners urged that a Supplemental Environmental Project (SEP) be incorporated into the proposed CAFO for local projects and that local residents be included in the projects. In association with those requests, Petitioners questioned the manner in which funds for SEPs were distributed by EPA and the Department of Justice and asserted that residents had not been included in projects occurring in the Lake George Branch of the Indiana Harbor Ship Canal. The undersigned found that as Complainant had stated in its Response to Comments and Response to Petition, EPA lacks the legal authority to demand a SEP or control the distribution of civil penalty funds. The undersigned concluded that given this lack of authority, the issues raised by Petitioners with regard to a SEP were immaterial to the issuance of the proposed CAFO. Thus, this claim was denied.
Fourth, Petitioners urged that an independent advisory committee and environmental monitoring program for Respondent's wastewater treatment plant be created. Petitioners then questioned Respondent's community outreach activities, which Complainant had referenced in its Response to Comments. The undersigned found that as argued by Complainant in its Response to Petition, EPA lacks the legal authority under section 311(b)(6) of the CWA to establish advisory committees or environmental monitoring programs or compel Respondent to engage in outreach activities. The undersigned concluded that given the absence of any material and relevant issue not considered by Complainant with respect to the course of action requested by Petitioners, their claim in this regard was also denied.
Having found that Petitioners failed to present any relevant and material evidence that had not been adequately considered and responded to by Complainant in agreeing to the proposed CAFO, the undersigned then addressed Petitioners' requests for a public hearing in their Comments and Petition. Noting that Petitioners appeared to seek a public forum, at least in part, for the parties to explain the meaning of the proposed CAFO to the public, the undersigned observed that section 311(b)(6)(B)(ii) of the CWA and the Rules of Practice provide, not for a meeting of that nature, but rather a hearing at which evidence is presented for the purpose of determining whether Complainant met its burden of proving that Respondent committed the violations as alleged and that the proposed penalty is appropriate based on applicable law and policy. The undersigned noted that Petitioners did not specifically identify any testimonial or documentary evidence that they would present at any such hearing. The undersigned further noted that Petitioners did not offer in either their Comments or the Petition any relevant and material evidence or arguments that had not already been adequately addressed by Complainant. For these reasons, the undersigned found that resolution of the proceeding by the parties would be appropriate without a hearing.
The undersigned thus issued the Order Denying Petition to Set Aside Consent Agreement and Proposed Final Order.
Environmental Protection Agency (EPA).
Notice.
The July 17-20, 2018, in-person meeting of the Federal Insecticide, Fungicide, and Rodenticide Act Scientific Advisory Panel (FIFRA SAP) to consider and review Resistance of Lepidopteran Pests to
The preparatory webcast meeting will be held on June 5, 2018, from approximately 2 p.m. to 4 p.m. (EDT). This is an open public meeting that will be conducted via webcast using Adobe Connect and telephone. Registration is required to participate during this meeting. Please visit:
The EPA is extending the written public comment period for the June 5 preparatory webcast until June 1, 2018 and the July 17-20 in-person meeting until June 18, 2018.
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Tamue L. Gibson, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 202-564-7642; email address:
This action is directed to the public in general. This action may be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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You may participate in this meeting by following the instructions in this unit. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA-HQ-OPP-2017-0617 in the subject line on the first page of your request.
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The Agency encourages each individual or group wishing to make brief oral comments to FIFRA SAP during the in-person meeting to submit their request to the DFO listed under
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FIFRA SAP serves as a primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. FIFRA SAP is a Federal advisory committee established in 1975 under FIFRA that operates in accordance with requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix). FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health and the National Science Foundation. The FIFRA SAP is assisted in their reviews by ad hoc participation from the Science Review Board (SRB). As a scientific peer review mechanism, FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists. The FIFRA SAP is not required to reach consensus in its recommendations to the Agency.
During the preparatory webcast meeting scheduled for June 5, 2018, the FIFRA SAP will review and consider the scope and clarity of the Charge Questions for the Panel's July 17-20, 2018 Meeting on the Resistance of Lepidopteran Pests to
EPA's background paper, charge/questions to FIFRA SAP, and related supporting materials will be available in early May. In addition, a list of prospective candidates currently under consideration for ad hoc participation in this review is now available for public comment until May 31, 2018. You may obtain electronic copies of most meeting documents, including FIFRA SAP composition (
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
Section 5(g) of the Toxic Substances Control Act (TSCA) requires EPA to publish in the
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the PMNs addressed in this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2018-0097, is available at
This document lists the statements of findings made by EPA after review of notices submitted under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the period from February 1, 2018 to March 31, 2018.
TSCA section 5(a)(3) requires EPA to review a TSCA section 5(a) notice and make one of the following specific findings:
• The chemical substance or significant new use presents an unreasonable risk of injury to health or the environment;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance or significant new use;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects and the chemical substance or significant new use may present an unreasonable risk of injury to health or the environment;
• The chemical substance is or will be produced in substantial quantities, and such substance either enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance; or
• The chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
Unreasonable risk findings must be made without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant under the conditions of use. The term “conditions of use” is defined in TSCA section 3 to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
EPA is required under TSCA section 5(g) to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
• EPA case number assigned to the TSCA section 5(a) notice.
• Chemical identity (generic name, if the specific name is claimed as CBI).
• Website link to EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C).
15 U.S.C. 2601
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before June 18, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the web page
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection.
Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before July 16, 2018. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Section 54.703 states that industry and non-industry groups may submit to the Commission for approval nominations for individuals to be appointed to the USAC Board of Directors.
Sections 54.719 through 54.725 describes the procedures for Commission review of USAC decisions including the general filing requirements pursuant to which parties may file requests for review.
Tuesday, May 22, 2018 at 10:00 a.m.
1050 First Street NE, Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 52 U.S.C. 30109.
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Matters concerning participation in civil actions or proceedings or arbitration.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than June 4, 2018.
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In compliance with the requirements of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research, and Evaluation, 330 C Street SW, Washington, DC 20201, Attn: OPRE Reports Clearance Officer. Email address:
The Department specifically requests comments on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Anesthesiology and Respiratory Therapy Devices Panel of the Medical Devices Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public.
The meeting will be held on June 14, 2018 from 8 a.m. to 6 p.m.
Gaithersburg Holiday Inn, Grand Ballroom, 2 Montgomery Village Ave., Gaithersburg, MD 20879. The hotel's telephone number is 301-948-8900. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
Evella Washington, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G640, Silver Spring, MD 20993-0002,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Artair Mallett at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by June 18, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports FDA's Center for Food Safety and Applied Nutrition's (CFSAN) export certificate application process. Some countries may require manufacturers of FDA-regulated products to provide certificates for products they wish to export to that country. Accordingly, firms exporting products from the United States often ask FDA to provide such a “certificate.” In many cases, foreign governments are seeking official assurance that products exported to their countries can be marketed in the United States, or that they meet specific U.S. requirements. In some cases, review of an FDA export certificate may be required as part of the process to register or import a product into another country. An export certificate generally indicates that the particular product is marketed in the United States or otherwise eligible for export and that the particular manufacturer has no unresolved enforcement actions pending before, or taken by, FDA.
Interested persons may request a certificate from CFSAN electronically via the Certificate Application Process (CAP), a component of FDA Industry Systems, or by contacting CFSAN for assistance. To facilitate the application process we have eliminated paper-based forms. For food products, we have expanded the electronic options for providing facility and product information. Respondents will now be able to identify facilities based on a food facility registration number, FDA Establishment Identification number, or Data Universal Numbering System number. The system uses these identifiers to locate and auto-populate name and address information, eliminating the need for users to manually enter this information and reducing the time to complete the application. Respondents can also upload product information via a spreadsheet, which reduces the time needed to enter product information, particularly for applications that include multiple products. All information is entered using electronic Forms FDA 3613d, 3613e, 3613g, and 3613
While burden associated with information collection activities for export certificates issued for other FDA-regulated products is approved under OMB control number 0910-0498, this collection specifically supports export certificates issued by CFSAN. Also, because we have eliminated paper-based forms, respondents who require assistance with completing export certificate applications online may contact CFSAN directly by email (
In the
We estimate the burden of the information collection as follows:
This estimate reflects a revision resulting from the elimination of paper-based forms. Specifically, and based on our experience with the information collection, we have reduced the estimated time to prepare a submission from 1.5 hours to 0.5 hour. The previous estimate was based on the time necessary to prepare a paper submission, but all firms requesting export certificates now provide submissions electronically via CAP. We believe that the time to prepare an electronic submission is under 0.25 hour, but are estimating 0.5 hour as a conservative approach to address all scenarios. We base our estimates of the total annual responses on our experience with certificate applications received in the past 3 fiscal years.
We expect that most firms requesting export certificates in the next 3 years will choose to take advantage of the option of electronic submission via CAP. If a firm is unable to submit their information via CAP, they may contact CFSAN and request assistance. CFSAN will assist firms in entering their information into the electronic system so that the firm may receive their export certificates in a timely manner. Our burden estimates in table 1 are based on the expectation of 100 percent participation in the electronic submission process. Providing the opportunity to submit the information in electronic format has reduced our previous estimates for the time to prepare each submission.
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before June 18, 2018.
Submit your comments to
Sherrette Funn,
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Focusing specifically on six of the 17 sites, the in-depth implementation and outcome evaluation of the SAMHSA AOT Grant Program for Individuals with Serious Mental Illness is being carried out by RTI International, in partnership with Duke University and Policy Research Associates. The completed implementation evaluation, conducted from November 2016 to August 2017, gathered information related to the processes and practices of AOT across the six in-depth sites. The information to be collected for the outcome evaluation will allow ASPE and partners SAMHSA and NIMH to assess which elements of AOT programs influence health and social outcomes for people under AOT orders, as well as the use of services, associated costs, and patient and family satisfaction with the AOT process.
The Office for Human Research Protections, Office of the Assistant Secretary for Health, Office of the Secretary, and the Food and Drug Administration, HHS.
Notice of availability.
The Office for Human Research Protections (OHRP), Office of the Assistant Secretary for Health, and the Food and Drug Administration (FDA) are announcing the availability of a guidance entitled “Institutional Review Board (IRB) Written Procedures: Guidance for Institutions and IRBs.” The guidance is intended for institutions and IRBs responsible for review and oversight of human subject research under the Department of Health and Human Services (HHS) and FDA regulations. The purpose of this guidance is to assist staff at institutions and IRBs who are responsible for preparing and maintaining written procedures. The guidance announced in this notice finalizes the draft guidance of the same title dated August 2016.
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the guidance to the Office of Good Clinical Practice (OGCP), Office of Special Medical Programs, Office of Medical Products and Tobacco, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5103, Silver Spring, MD 20993; or Division of Policy and Assurances, Office for Human Research Protections, 1101 Wootton Pkwy., Suite 200, Rockville, MD 20852. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling OGCP at 301-796-8340 or OHRP at 240-453-6900 or 866-447-4777. See the
Janet Donnelly, Office of Good Clinical Practice, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5167, Silver Spring, MD 20993, 301-796-4187; or Irene Stith-Coleman, Office for Human Research Protections, 1101 Wootton Pkwy., Suite 200, Rockville, MD 20852, 240-453-6900.
OHRP and FDA are announcing the availability of a guidance document entitled “Institutional Review Board (IRB) Written Procedures: Guidance for Institutions and IRBs.” OHRP and FDA frequently receive questions about the scope and content of written procedures. We created a Written Procedures Checklist (also referred to as the Checklist) to assist institutions and IRBs in preparing and maintaining written procedures. The Checklist is designed to prompt a thorough evaluation of written procedures that help to ensure the protection of human research subjects. The Checklist incorporates the HHS and FDA regulatory requirements in 45 CFR 46.103(b)(4) and (5) and 21 CFR 56.108(a) and (b) for written procedures for the IRB and recommendations about operational details to include to support each of these requirements. In addition, the Checklist identifies some additional topics the institution/IRB may consider when developing comprehensive procedures. This guidance supersedes OHRP's July 1, 2011, “Guidance on Written IRB Procedures” and FDA's 1998 “Appendix H: A Self-Evaluation Checklist for IRBs” (formerly part of FDA's Information Sheet Guidance for IRBs, Clinical Investigators, and Sponsors).
This document is a final guidance document, based on the Agencies' review of submitted comments. The Agencies are always open to additional comments on this and other Agency guidance.
To enhance human subject protection and reduce regulatory burden, OHRP and FDA have been actively working to harmonize the Agencies' regulatory requirements and guidance for human subject research. This guidance document was developed as a part of these efforts. In addition, on December 13, 2016, the 21st Century Cures Act (Cures Act) (Pub. L. 114-255) was signed into law. Title III, section 3023 of the Cures Act requires the Secretary of HHS to harmonize differences between the HHS human subject regulations and FDA's human subject regulations. This guidance document is consistent with the goals of section 3023 of the Cures Act.
In the
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of OHRP and FDA on written procedures for institutions and IRBs. It does not establish any rights for any person and is not binding on OHRP, FDA, or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
This guidance refers to previously approved collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information referenced in this guidance that are related to IRB recordkeeping requirements under 21 CFR 56.115, including the information collection activities in the provisions in 21 CFR 56.108(a) and (b), have been approved under OMB control numbers 0910-0755 and 0910-0130. The collections of information referenced in this guidance that are related to IRB recordkeeping requirements under 45 CFR 46.115, including the information collection activities in the provisions in 45 CFR 46.103(b)(4) and (5) have been approved under OMB control number 0990-0260.
Persons with access to the internet may obtain the document at
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before June 18, 2018.
Submit your comments to
When submitting comments or requesting information, please include the document identifier 0990-New-30D and project title for reference., to
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Likely Respondents: Institutions engaged in nonexempt human subjects research.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications.
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities. The ESA also requires that we invite public comment before issuing these permits.
We must receive comments by June 18, 2018.
•
•
When submitting comments, please indicate the name of the applicant and the PRT# at the beginning of your comment. We will post all comments on
Brenda Tapia, (703) 358-2104 (telephone);
You may submit your comments and materials by one of the methods listed above under
Please make your requests or comments as specific as possible, confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
If you submit a comment via
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
We invite the public to comment on applications to conduct certain activities with endangered species. With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
The applicant requests renewal of their permit for scientific research with wild and captive-born giant pandas currently held under loan agreement with the Government of China under the provisions of the U.S. Fish and Wildlife Service Panda Policy. The proposed research will cover all aspects of behavior, reproductive physiology, genetics, nutrition, and animal health and is a continuation of activities currently in progress. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import biological samples from African wild dog (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: North Sulawesi babirusa (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess Arabian oryx (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess Arabian oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for Arabian oryx (
If the Service decides to issue permits to any of the applicants listed in this notice, we will publish a notice in the
Endangered Species Act of 1973 as amended (16 U.S.C. 1531
Office of Natural Resources Revenue, Interior.
Notice.
This notice announces the third meeting of the Royalty Policy Committee (Committee). This meeting is open to the public.
The Committee meeting will be held on Wednesday, June 6, 2018, in Albuquerque, NM, from 9:00 a.m. to 5:00 p.m. Mountain Time.
The Committee meeting will be held at the Sheraton Albuquerque Airport Hotel located at 2910 Yale Blvd. SE, Albuquerque, NM 87106. Members of the public may attend in person or view documents and presentations under discussion via WebEx at
Mr. Chris Mentasti, Office of Natural Resources Revenue at (202) 513-0614 or email to
The U.S. Department of the Interior established the Committee on April 21, 2017, under the authority of the Secretary of the Interior and regulated by the Federal Advisory Committee Act. The purpose of the Committee is to ensure that the public receives the full value of resources produced from Federal lands. The duties of the Committee are solely advisory in nature. More information about the Committee, including its charter, is available at
Whenever possible, we encourage those participating by telephone to gather in conference rooms in order to share teleconference lines. Please plan to dial into the meeting and/or log into WebEx at least 10-15 minutes prior to the scheduled start time in order to avoid possible technical difficulties. We will accommodate individuals with special needs whenever possible. If you require special assistance (such as an interpreter for the hearing impaired), please notify Interior staff in advance of the meeting at 202-513-0614 or
We will post the minutes from these proceedings on the Committee website at
Members of the public may choose to make a public comment during the designated time for public comments. Members of the public may also choose to submit written comments by mailing them to the Office of Natural Resources Revenue, Attention: RPC, 1849 C Street NW, MS 5134, Washington, DC 20240. You also can email your written comments to
5 U.S.C. Appendix 2.
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be published in the
On March 27, 2018, Accuride Corporation, Evansville, Indiana, and Maxion Wheels Akron LLC, Akron, Ohio filed a petition with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of LTFV and subsidized imports of steel wheels from China. Accordingly, effective March 27, 2018, the Commission, pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation No. 701-TA-602 and antidumping duty investigation No. 731-TA-1412 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Act (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on May 11, 2018. The views of the Commission are contained in USITC Publication 4785 (May 2018), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 19) of the presiding administrative law judge (“ALJ”), granting complainant's motion to terminate the investigation as to respondent Apio, Inc. (“Apio”) of Guadalupe, California, based on a settlement and license agreement. As Apio is the last respondent, the investigation is terminated in its entirety.
Cathy Chen, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2392. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Commission instituted this investigation on January 22, 2018, based on a complaint filed on behalf of Windham Packaging, LLC (“Windham”) of Windham, New Hampshire. 83 FR 3020 (Jan. 22, 2018). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, by reason of infringement of claims 1-6, 11, and 13 of U.S. Patent No. 7,083,837. 83 FR 4269 (Jan. 30, 2018). The complaint further alleges that a domestic industry exists. The Commission's notice of investigation named as respondents Alpine Fresh, Inc. (“Alpine Fresh”) of Miami, Florida; B&G Foods North America, Inc. (“B&G Foods”) of Parsippany, New Jersey; Taylor Farms California, Inc. (“Taylor Farms”) of Salinas, California; Apio; and Glory Foods, Inc. (“Glory Foods”) of Columbus, Ohio. The Office of Unfair Import Investigations is not participating in the investigation.
Respondents B&G Foods, Taylor Farms, Alpine Fresh, and Glory Foods have been terminated from the investigation under Commission Rule 210.21(a)(1).
On April 9, 2018, Windham filed a motion to terminate the investigation as to the last remaining respondent Apio based on a settlement and license agreement. Order No. 19 at 1 (Apr. 20, 2018). On April 20, 2018, the ALJ issued the subject ID granting the motion.
The Commission has determined not to review the ID. The investigation is terminated in its entirety.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On the basis of the record
The Commission, pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)), instituted these investigations effective March 28, 2017, following receipt of a petition filed with the Commission and Commerce by Charter Steel, Saukville, Wisconsin; Gerdau Ameristeel US Inc., Tampa, Florida; Keystone Consolidated Industries, Inc., Peoria, Illinois; and Nucor Corporation, Charlotte, North Carolina. Effective September 5, 2017, the Commission established a general schedule for the conduct of the final phase of its investigations on carbon and certain alloy steel wire rod, following preliminary determinations by Commerce that imports of the subject wire rod were subsidized by the governments of Italy and Turkey. Notice of the scheduling of the final phase of the Commission's investigations and of a public hearing to be held in connection therewith was given by
The Commission made these determinations pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)). It completed and filed its determinations in these investigations on May 11, 2018. The views of the Commission are contained in USITC Publication 4782, May 2018, entitled
By order of the Commission.
Civil Division, Department of Justice.
60-day Notice.
The Department of Justice (DOJ), Civil Division, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until July 16, 2018.
Comments are encouraged and all comments should reference the 8 digit OMB number for the collection or the title of the collection. If you have questions concerning the collection, please contact James G. Touhey, Jr., Director, Torts Branch, Civil Division, U.S. Department of Justice, P.O. Box 888, Benjamin Franklin Station, Washington, DC 20044, Telephone: (202) 616-4400.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
Overview of this information collection:
1
2
3
4
5
6
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of public meeting.
This notice is to advise interested persons that on Tuesday, June 12, 2018, OSHA will conduct a public meeting to discuss proposals in preparation for the 35th session of the United Nations Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS) to be held July 4 through July 6, 2018, in Geneva, Switzerland. OSHA, along with the U.S. Interagency Globally Harmonized System of Classification and Labelling of Chemicals (GHS) Coordinating Group, plans to consider the comments and information gathered at this public meeting when developing the U.S. Government positions for the UNSCEGHS meeting. OSHA also will give an update on the Regulatory Cooperation Council (RCC).
Also, on Tuesday, June 12, 2018, the Department of Transportation (DOT), Pipeline and Hazardous Materials Safety Administration (PHMSA) will conduct a public meeting (See Docket No. PHMSA-2018-0024; Notice No. 2018-07) to discuss proposals in preparation for the 53rd session of the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCE TDG) to be held June 25 through July 4, 2018, in Geneva, Switzerland. During this meeting, PHMSA is also requesting comments relative to potential new work items that may be considered for inclusion in its international agenda. PHMSA will also provide an update on recent actions to
Tuesday, June 12, 2018.
Both meetings will be held at the DOT Headquarters Conference Center, West Building, Oklahoma City Conference Room, 1200 New Jersey Avenue SE, Washington, DC 20590.
Attendees may use the same form to pre-register for both meetings. Failure to pre-register may delay your access into the DOT Headquarters building. Additionally, if you are attending in person, arrive early to allow time for security checks necessary to access the building.
Conference call-in and “Skype meeting” capability will be provided for both meetings. Specific information on such access will be posted when available at
General topics on the agenda include:
Information on the work of the UNSCEGHS including meeting agendas, reports, and documents from previous sessions, can be found on the United Nations Economic Commission for Europe (UNECE) Transport Division website located at the following web address:
The UNSCEGHS bases its decisions on Working Papers. The Working Papers for the 35th session of the UNSCEGHS are located at:
Informal Papers submitted to the UNSCEGHS provide information for the Sub-committee and are used either as a mechanism to provide information to the Sub-committee or as the basis for future Working Papers. Informal Papers for the 35th session of the UNSCEGHS are located at:
In addition to participating at the public meeting, interested parties may submit comments on the Working and Informal Papers for the 35th session of the UNSCEGHS to the docket established for International/Globally Harmonized System (GHS) efforts at
The primary purpose of PHMSA's meeting is to prepare for the 53rd session of the UNSCE TDG. This session represents the third meeting scheduled for the 2017-2018 biennium. UNSCE TDG will consider proposals for the 21st Revised Edition of the
During this meeting, PHMSA is also soliciting input relative to preparing for the 53rd session of the UNSCE TDG as well as potential new work items which may be considered for inclusion in its international agenda. Following the 53rd session of the UNSCE TDG, a copy of the Sub-Committee's report will be available at the UN Transport Division's website at:
Additional information regarding the UNSCE TDG and related matters can be found on PHMSA's website at
Office of Information and Regulatory Affairs, Office of Management and Budget.
Request for information (RFI).
Consistent with Executive Order 12866 and the Regulatory Right to Know Act, the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget is seeking public input on how the Federal government may prudently manage regulatory costs imposed on the maritime sector. Multiple Federal agencies regulate the U.S. maritime sector consistent with their statutory authorities. OIRA seeks public comment on how existing agency requirements affecting the maritime sector can be modified or repealed to increase efficiency, reduce or eliminate unnecessary or unjustified regulatory burdens, or simplify regulatory compliance while continuing to meet statutory missions. This RFI is meant to inform agencies' development of regulatory reform proposals. Additionally, OIRA intends to make all submissions publicly available on
Written comments and information are requested on or before July 16, 2018.
Interested persons are encouraged to submit comments, identified by “Maritime Regulatory Reform RFI,” by any of the following methods:
Shannon Joyce, Office of Information and Regulatory Affairs, 725 17th Street NW, Washington, DC 20503. Telephone: 202-395-5897.
On January 30, 2017, the President issued Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” That Order stated, “[T]he policy of the executive branch is to be prudent and financially responsible in the expenditure of funds, from both public and private sources.” The Order stated, “[I]t is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.” On February 24, 2017, the President issued Executive Order 13777, “Enforcing the Regulatory Reform Agenda.” The Order, among other things, directed each agency to establish a Regulatory Reform Task Force (RRTF) to make recommendations to the agency head regarding the repeal, replacement, or modification of existing regulations, consistent with applicable law. At a minimum, each RRTF is directed to attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) are outdated, unnecessary, or ineffective;
(iii) impose costs that exceed benefits;
(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;
(v) are inconsistent with the requirements of Information Quality Act, or the guidance issued pursuant to that Act, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or
(vi) derived from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.
Although agencies are directed by Executive Order 12866 to promulgate rules “only upon a reasoned determination that the benefits of the intended regulation justify its costs,” it is difficult to predict all of the consequences of a rule, including its costs and benefits, until it has been put into place. In addition, circumstances surrounding a rule often change because of changes in technology, information availability, market conditions, or other reasons. The regulatory programs of two agencies may apply to the same population in a way that is redundant, or the programs of one agency may complicate compliance with the programs of another agency as an unintended consequence.
To facilitate implementation of these Executive Orders in the maritime sector, OIRA is seeking public comment on how best to achieve meaningful burden reduction in the maritime sector—across all agencies operating in this space—while continuing to fulfill agencies' statutory responsibilities and objectives. OIRA is also interested in understanding how regulations from the United States might be better coordinated with the regulations and requirements of other countries, especially Canada and Mexico, in shared bodies of water. Although some agencies that regulate the maritime sector have previously sought regulatory reform ideas, this RFI seeks broader input on regulations across all agencies regulating the maritime sector. OIRA intends to communicate regulatory reform suggestions suggested by the public to the RRTFs at the appropriate federal agencies for their consideration and to aid the agencies in the coordination of interagency streamlining of regulatory requirements.
For purposes of this initiative, the maritime sector includes all enterprises related to maritime commerce, including: (1) Designing, building, acquiring, repairing, or scrapping vessels; (2) operating, manning, or maintaining vessels, port facilities, or shipyards; (3) operating shipping lines, customs brokerage services, shipping and freight forwarding services, or maritime activities related to resource extraction, renewable energy, cable laying, or marine research.
OIRA is particularly interested in learning more about experiences with regulations involving cargo or passenger vessels, but welcomes any comment falling under the definition above.
The maritime sector is subject to regulation by multiple federal agencies, including but not limited to, the Federal Maritime Commission, the Department of Transportation, the Department of Homeland Security, the Department of Defense, the Department of Labor, the Department of Commerce, the Environmental Protection Agency, the Council on Environmental Quality, and the Department of the Interior.
OIRA seeks information from members of the public on maritime regulations promulgated by agencies of the Federal government. The goal is to identify existing rules that are inefficient, obsolete, unnecessary, redundant, or otherwise not justified. OIRA seeks views from the public on specific rules or information requirements that should be altered, streamlined, or eliminated.
To allow OIRA to more effectively evaluate maritime regulatory reform suggestions, OIRA requests that comments include:
• Supporting data or other information such as cost information;
• Specific suggestions regarding repeal, replacement, or modification, including, if possible, citations to the relevant sections of the Code of Federal Regulations;
• Insight into the experiences of the regulated public regarding regulatory redundancy, compliance inefficiencies, outdated requirements, etc.;
• Information regarding difficulties for small- and medium-sized enterprises that may not have been initially taken into consideration when the regulatory program was promulgated; or
• Information regarding the possibility of increased regulatory cooperation between the United States and foreign partners, especially Canada and Mexico, to relieve burden on the industry.
OIRA provides the following list of questions to guide public input. This non-exhaustive list is meant to assist in the formulation of comments and is not intended to restrict the issues that may be addressed. In addressing these questions or others, OIRA requests that commenters specify the regulation, guidance document, or form or reporting requirement at issue, providing legal citation or form number where known and available. OIRA also requests that commenters provide, in as much detail as possible, an explanation of why the regulatory requirement should be modified, streamlined, or repealed, as well as specific suggestions of ways agencies can do so while achieving their regulatory objectives.
(1) Are there regulations that have become unnecessary, ineffective, or are no longer justified, and if so what are they (
(2) Are there rules or reporting requirements that have become outdated and, if so, how can they be modernized to better accomplish their objective?
(3) Are there requirements (
(4) Are there rules from different agencies that involve similar, overlapping activities such as training, drills, or inspections that might be consolidated or coordinated to reduce the regulatory burden on the industry?
(5) Are there reporting or other information collection requirements imposed by multiple regulatory agencies that involve similar, overlapping reporting that might be consolidated or coordinated to reduce the regulatory burden on the industry?
(6) Are there rules or reporting requirements imposed by the United States and other countries—especially Canada and Mexico—that are inconsistent with one another to the point of creating barriers to commerce? Are there reporting requirements between Canada and the United States, particularly on the Great Lakes, that are similar to the point that the two countries may be able to share information, to the extent permissible by law, to reduce the burden on industry?
(7) Are there rules that have not achieved their intended purpose or otherwise not operating as well as expected such that a modified, or different approach at lower cost should be considered?
(8) Are there rules that are preventing or creating barriers to the adoption of new, innovative technologies in the maritime industry?
(9) Are there rules preventing, curtailing, or causing the decision to outsource maritime related activities that would otherwise add value to the domestic economy? What types of economically beneficial maritime activities might be animated if these rules were abolished?
(10) Do agencies currently collect information that they do not need or use effectively?
(11) Are there regulations, reporting requirements, or regulatory processes that are unnecessarily complicated that could be made more efficient?
(12) Are there rules or reporting requirements that have been overtaken by technological developments? Can new technologies be leveraged to modify, streamline, or do away with existing regulatory or reporting requirements?
(13) How can agencies that regulate the maritime sector best reduce regulatory costs while achieving the agencies' statutory objectives, and how can they best identify those rules that might be modified, streamlined, or repealed?
(14) What factors should agencies consider in selecting and prioritizing rules and reporting requirements for reform?
(15) How can agencies obtain and analyze accurate, objective information and data about the costs and benefits of existing regulations? Are there existing sources of data to use to evaluate the current effects of regulations?
This RFI is meant to inform agencies' development of regulatory reform proposals. OIRA intends to make all submissions publicly available on
Institute of Museum and Library Services, National Foundation on the Arts and the Humanities.
Submission for OMB review, comment request.
The Institute of Museum and Library Services announces the following information collection has been submitted to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. This notice proposes the clearance of the IMLS Grant Application Forms for another three year period.
A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Comments must be submitted to the office listed in the
OMB is particularly interested in comments that help the agency to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Comments should be sent to Office of Information and Regulatory Affairs,
Dr. Sandra Webb, Director of Grant Policy and Management, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington, DC 20024-2135. Dr. Webb can be reached by Telephone: 202-653-4718 Fax: 202-653-4608, or by email at
The Institute of Museum and Library Services is the primary source of federal support for the nation's libraries and museums. We advance, support, and empower America's museums, libraries, and related organizations through grant making, research, and policy development. Our vision is a nation where museums and libraries work together to transform the lives of individuals and communities. To learn more, visit
Institute of Museum and Library Services, National Foundation on the Arts and the Humanities.
Submission for OMB review, comment request.
The Institute of Museum and Library Services announces the following information collection has been submitted to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. This notice proposes the clearance of the IMLS National Leadership Grants for Libraries and Laura Bush 21st Century Librarian Grants.
A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Comments must be submitted to the office listed in the
OMB is particularly interested in comments that help the agency to:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (
Comments should be sent to Office of Information and Regulatory Affairs,
Dr. Sandra Webb, Director of Grant Policy and Management, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington, DC 20024-2135. Dr. Webb can be reached by Telephone: 202-653-4718 Fax: 202-653-4608, or by email at
The Institute of Museum and Library Services is the primary source of federal support for the nation's libraries and museums. We advance, support, and empower America's museums, libraries, and related organizations through grant making, research, and policy development. Our vision is a nation where museums and libraries work together to transform the lives of individuals and communities. To learn more, visit
The Laura Bush 21st Century Librarian Program (LB21) supports developing a diverse workforce of librarians to better meet the changing learning and information needs of the American public by enhancing the training and professional development of librarians, developing faculty and library leaders, and recruiting and educating the next generation of librarians.
This action is to renew the forms and instructions for the Notice of Funding Opportunities for the next three years.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
Reason for Closing: The work being reviewed during closed portions of the site visit include information of a proprietary or confidential nature, including technical information; financial data, such as salaries and personal information concerning individuals associated with the project. These matters are exempt under 5 U.S.C. 552b(c), (4) and (6) of the Government in the Sunshine Act.
In accordance with Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
Welcome/Introductions; BFA/OIRM/OLPA/Budget Updates; President's Management Agenda—Overview; Deeper Dive—Cross-Agency Priority Goals, Interaction of Agency CFO and CIO.
Enterprise Risk Management; Customer Service; Meeting with Dr. Córdova; Committee Business/Wrap Up.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service has filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The requests(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service has filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The requests(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This notice will be published in the
On March 15, 2018, Investors Exchange LLC (“Exchange”) filed with the Securities and Exchange
Section 19(b)(2) of the Act
The Commission is extending the 45-day time period for Commission action on the proposed rule change. The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the Exchange's proposed rule change, the comments received, and the Exchange's response to comments.
Accordingly, pursuant to Section 19(b)(2)(A)(ii)(I) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to provide Users with connectivity to three additional third party data feeds and to change the NYSE Arca Options Fees and Charges (the “Options Fee Schedule”) and the NYSE Arca Equities Fees and Charges (the “Equities Fee Schedule” and, together with the Options Fee Schedule, the “Fee Schedules”) related to these co-location services. Additionally, the Exchange proposes to make non-substantive corrections to the Fee Schedules. The proposed rule change is available on the Exchange's website 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 the co-location
The Exchange charges fees for connectivity to data feeds from third party markets and other content service providers (“Third Party Data Feeds”).
The Additional Third Party Data Feeds are produced by an entity owned by the Exchange's ultimate parent, Intercontinental Exchange, Inc. (“ICE”), and so the Exchange has an indirect interest in the Additional Third Party Data Feeds. The Additional Third Party Data Feeds include data drawn from the Exchange, the Affiliate SROs, and third party exchanges, including stock and futures exchanges. Because it includes third party data, the Additional Third Party Data Feeds are considered Third Party Data Feeds.
The list of available Third Party Data Feeds presently includes three ICE Data Services Consolidated Feeds.
More specifically, when a User requests connectivity to one of the previously filed ICE Data Services Consolidated Feeds, it receives connectivity to all the data in the relevant ICE Data Services Consolidated Feeds. The User uses its processor to narrow down the feed to the specific data it wants. In contrast, when a User requests connectivity to an Additional Third Party Data Feed, it will specify to the content service provider what specific information, out of the data from the roughly 600 sources, it wants to receive. The content service provider will use its own processor to narrow down the data feeds, so that the User will only receive the information it requests. A User may choose whether it wants connectivity to one of the previously filed ICE Data Services Consolidated Feeds or to one of the Additional Third Party Data Feeds based on whether it wants to process the data, and what level of control it wants over the processing. In both cases, the User will only receive data the relevant third party data provider authorizes it to receive.
As it does with the existing Third Party Data Feeds, the Exchange proposes to charge a monthly recurring fee for connectivity to each Additional Third Party Data Feed. The monthly recurring fee would vary by the bandwidth of the connection. Accordingly, the Exchange proposes to revise the Fee Schedules to provide that Users may obtain connectivity to the Additional Third Party Data Feeds for a monthly fee, as follows:
Depending on its needs and bandwidth, a User may opt to receive all or some of the feeds or services included in the Additional Third Party Data Feeds.
The Exchange would provide connectivity to the Additional Third Party Data Feeds (“Connectivity”) as a convenience to Users. Use of Connectivity would be completely voluntary. The Exchange is not aware of any impediment to third parties offering Connectivity.
The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds, as such third parties are not required to make that information public. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the Secure Financial Transaction Infrastructure (“SFTI”) network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange would receive the Additional Third Party Data Feeds from the content service provider, at its data center. It would then provide connectivity to that data to Users for a fee. Users would connect to the Additional Third Party Data Feeds over the internet protocol (“IP”) network, a local area network available in the data center.
In order to connect to an Additional Third Party Data Feed, a User would enter into a contract with the content service provider, pursuant to which the content service provider would charge the User for the Third Party Data Feed. The Exchange would receive the Additional Third Party Data Feed over its fiber optic network and, after the content service provider and User entered into the contract and the Exchange received authorization from the content service provider, the Exchange would re-transmit the data to the User over the User's port. The Exchange would charge the User for the connectivity to the Additional Third Party Data Feed. A User would only receive, and would only be charged for, connectivity to the Additional Third Party Data Feed for which it entered into contracts.
The Exchange would have no right to use an Additional Third Party Data Feed other than as a redistributor of the data. The Additional Third Party Data Feeds would not provide access or order entry to the Exchange's execution system. The Additional Third Party Data Feeds would not provide access or order entry to the execution systems of the party generating the feed. The Exchange would receive the Additional Third Party Data Feeds via arms-length agreements and it would have no inherent advantage over any other distributor of such data.
The Exchange proposes to make additional, non-substantive changes to add definitions, remove obsolete text and update third party exchange names (collectively, the “Non-Substantive Changes”). The proposed additional changes would have no effect on pricing.
General Note 1 in the Fee Schedules references the Affiliate SROs. The Exchange proposes to add short-hand definitions of each of the Affiliate SROs, which terms are used later in the Fee Schedules. The revised references would be to “NYSE American LLC (NYSE American) and New York Stock Exchange LLC (NYSE).”
The Exchange offers Users the option of a “Cabinet Upgrade” and related fee, pursuant to which the Exchange accommodates requests for additional power allocation beyond the typical amount that the Exchange allocates per dedicated cabinet, at which point the Exchange must upgrade the cabinet's power capacity.
A User may provide hosting services to its customers in the User's co-location space at the data center. In 2015, the Exchange modified the Hosting Fee to provide that, effective January 1, 2016, the Hosting Fee increased from $500 to $1,000 and would be assessed to a Hosting User on a per Hosted Customer basis and for each cabinet in which the Hosting User hosts the Hosted Customer.
The Fee Schedules continue to include both the Hosting Fee that was in effect through December 31, 2015 and the date of the change. The Exchange proposes to delete the obsolete references to these dates and the amount of the previous hosting fee. The amended text would be as follows (additional text underscored, deletions in strikethrough):
Certain services in the data center that are described in the Fee Schedules identify dates by which they were expected to be available. These dates have passed. Accordingly, the Exchange proposes to eliminate the obsolete references to these dates. In addition, the Exchange proposes to update the references to certain exchanges that have changed their names.
To that end, the Exchange proposes to make the following changes:
• For the wireless connection of Bats Pitch BZX Gig shaped data and Bats Pitch BYX Gig shaped data, the description would be revised as follows: (a) The text would read “Wireless connection of Cboe Pitch BZX Gig shaped data and Cboe Pitch BYX Gig shaped data”; and (b) the text “Note: Connection to Bats Pitch BYX Gig shaped data is expected to be available no later than December 31, 2016.” would be deleted.
• For the wireless connection of Bats EDGX Gig shaped data and Bats EDGA Gig shaped data, the description would be revised as follows: (a) The text would read “Wireless connection of Cboe EDGX Gig shaped data and Cboe EDGA Gig shaped data”; and (b) the text “Note: Connection to Bats EDGA Gig shaped data is expected to be available no later than December 31, 2016.” would be deleted.
• For the wireless connection of Toronto Stock Exchange (TSX), the text “Note: Service is expected to be available no later than June 30, 2017.” would be deleted.
• In the table under “Third Party Data Feeds,” “Bats BZX Exchange (BZX) and Bats BYX Exchange (BYX)” and “Bats EDGX Exchange (EDGX) and Bats EDGA Exchange (EDGA)” and their related monthly recurring connectivity fees would be deleted, and lines for “Cboe BZX Exchange (CboeBZX) and Cboe BYX Exchange (CboeBYX)” and “Cboe EDGX Exchange (CboeEDGX) and Cboe EDGA Exchange (CboeEDGA)” added with their related monthly recurring connectivity fees, which would remain unchanged, as follows (additional text underscored, deletions in strikethrough):
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed fee change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering additional connectivity to the Additional Third Party Data Feeds, the Exchange would give each User additional options for addressing its connectivity needs, responding to User demand for connectivity options. Providing the connectivity to the Additional Third Party Data Feeds would help each User tailor its data center operations to the requirements of its business operations by allowing it to select the form and latency of connectivity that best suits its needs.
The Exchange would provide Connectivity as a convenience to Users. Use of Connectivity would be completely voluntary. The Exchange is not aware of any impediment to third parties offering Connectivity. The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering connectivity to the Additional Third Party Data Feed to Users, the Exchange would give Users additional options for connectivity to new services, responding to User demand for connectivity options.
The Exchange believes that the proposed Non-Substantive Changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because the changes would clarify Exchange rules and alleviate any possible market
The Exchange also believes that the proposed fee change is consistent with Section 6(b)(4) of the Act,
The Exchange believes that the proposed fee changes are consistent with Section 6(b)(4) of the Act for multiple reasons. The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
The Exchange believes that the additional services and fees proposed herein would be equitably allocated and not unfairly discriminatory because, in addition to the services being completely voluntary, they would be available to all Users on an equal basis (
The Exchange believes that the proposed charges would be reasonable, equitably allocated and not unfairly discriminatory because the Exchange would offer the Connectivity as conveniences to Users, but in order to do so must provide, maintain and operate the data center facility hardware and technology infrastructure. The Exchange must handle the installation, administration, monitoring, support and maintenance of such services, including by responding to any production issues. Since the inception of co-location, the Exchange has made numerous improvements to the network hardware and technology infrastructure and has established additional administrative controls. The Exchange has expanded the network infrastructure to keep pace with the increased number of services available to Users, including resilient and redundant feeds. In addition, in order to provide Connectivity, the Exchange would maintain multiple connections to each Additional Third Party Data Feed, allowing the Exchange to provide resilient and redundant connections; adapt to any changes made by the relevant third party; and cover any applicable fees charged by the relevant third party, such as port fees. In addition, Users would not be required to use any of their bandwidth for Connectivity unless they wish to do so.
The Exchange believes the proposed fee for connectivity to each Additional Third Party Data Feed is reasonable because the proposed monthly recurring fee varies by the bandwidth of the connection, and so is generally proportional to the bandwidth required. In addition, the proposed fees are consistent with the fees for connectivity to the previously filed ICE Data Services Consolidated Feeds, which feeds are similar to the Additional Third Party Data Feeds in terms of the underlying content. The Exchange notes that the proposed monthly recurring fees are also generally consistent with the monthly recurring fees for connectivity to the SR Labs-SuperFeed Third Party Data Feeds, which also vary by bandwidth. The Exchange believes that the proposed difference in pricing between the Additional Third Party Data Feeds and SR Labs-SuperFeed options is reasonable, equitably allocated and not unfairly discriminatory because, although the bandwidth may be similar, the competitive considerations and the costs the Exchange incurs in providing such connections may differ.
The Exchange believes the proposed fees for Connectivity would be reasonable because they would allow the Exchange to defray or cover the costs associated with offering Users connectivity to Additional Third Party Data Feeds while providing Users the convenience of receiving such Connectivity within co-location, helping them tailor their data center operations to the requirements of their business operations.
The Exchange believes that the proposed Non-Substantive Changes would be reasonable because the changes would have no impact on pricing. Rather, the changes would remove obsolete text and update references, thereby clarifying the Exchange rules and alleviating possible market participant confusion.
For the reasons above, the proposed changes would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users with additional options for connectivity to new services would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such proposed Connectivity would satisfy User demand for connectivity options. The Exchange would provide Connectivity as a convenience equally to all Users. All Users that voluntarily selected to receive Connectivity would be charged the same amount for the same services.
The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds, as such third parties are not required to make that information public. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
Finally, the Exchange believes that the proposed Non-Substantive Changes would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed changes are not designed to address any competitive issue but rather to remove obsolete text and update the Fee Schedules, thereby clarifying Exchange rules and alleviating any possible market participant confusion caused by the obsolete dates and exchange names.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow Users to have the benefit of Additional Third Party Feed sooner and will allow User additional flexibility in tailoring their data center operations. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an exemptive order under Section 206A of the Investment Advisers Act of 1940 (the “Act”) and Rule 206(4)-5(e).
BlackRock Advisors, LLC, BlackRock Financial Management, Inc. and BlackRock Fund Advisors (Collectively the “Applicants” or “Advisers”).
Exemption requested under section 206A of the Act and rule 206(4)-5(e) from rule 206(4)-5(a)(1) under the Act.
Applicants request that the Commission issue an order under section 206A of the Act and rule 206(4)-5(e) exempting it from rule 206(4)-5(a)(1) under the Act to permit Applicants to receive compensation from certain government entities for investment advisory services provided to government entities within the two-year period following a contribution by a covered associate of the Applicants to an official of the government entities.
The application was filed on May 26, 2017, and amended and restated applications were filed on November 21, 2017 and March 28, 2018.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on June 5, 2018, and should be accompanied by proof of service on Applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. Applicants: BlackRock Advisors, LLC and BlackRock Financial Management, Inc., 55 East 52nd Street, New York, NY 10055 and BlackRock Fund Advisors, 400 Howard Street, San Francisco, CA 94105.
Rachel Loko, Senior Counsel, or Holly Hunter-Ceci, Assistant Chief Counsel, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website at
1. Applicants are registered with the Commission as investment advisers pursuant to the Act. BlackRock, Inc. (“BlackRock”) is the parent company of the Advisers. Applicants act as advisers to registered investment companies and investment companies exempt from registration under the Investment Company Act of 1940.
2. The individual who made the campaign contribution that triggered the two-year compensation ban (the “Contribution”) is Mark Wiedman (the “Contributor”). The Contributor is a Senior Managing Director at BlackRock, the head of BlackRock's ETF and Index Investments business, and a member of BlackRock's Global Executive Committee. BlackRock's ETF business focuses on selling interests in RICs directly to investors, including certain government entities, which is not covered business under rule 206(4)-5. However, Applicants submit that, as a member of BlackRock's Global Executive Committee, the Contributor is, and at the time of the Contribution was, an executive officer of the Advisers under rule 206(4)-5(f)(4), and thus by definition is and at all relevant times was a covered associate pursuant to rule 206(4)-5(f)(2)(i).
3. Certain Ohio government entities have selected mutual funds (“RICs”) advised by BlackRock Advisors, LLC and BlackRock Fund Advisors to be options in their participant-directed plans and one Ohio government pension plan has invested in an unregistered fund managed by BlackRock Financial Management, Inc. Such government entities, are “government entities” as defined under Rule 206(4)-5(f)(5) and, throughout the application, are referred to individually as a “Client” and collectively as the “Clients.”
4. The recipient of the Contribution was John Kasich (the “Official”), the Governor of Ohio, in his campaign for President of the United States. The investment decisions of each Client are overseen by a board of trustees or directors (the “Board” or the “Boards”), to which the Governor appoints certain members. The Applicants submit that due to the power of appointment, the Governor is an “official” of each Client under rule 206(4)-5.
5. The Contribution that triggered rule 206(4)-5's prohibition on compensation under rule 206(4)-5(a)(1) was made on January 15, 2016 (“the Contribution Date”) for the amount of $2,700 to the Official's campaign for President of the United States via credit card to attend a lunch hosted by the campaign at the invitation of a business acquaintance who was an independent director of a BlackRock fund and who shared the Contributor's personal political views. Applicants submit that the Contribution was not motivated by any desire to influence the award of investment advisory business. Applicants represent that in addition to being entitled to vote in the presidential election, the Contributor was interested in the GOP presidential primary. Aside from a brief introduction while Governor Kasich welcomed a group of attendees at lunch, the Contributor has never met the Official or dealt with the Official or his staff in any capacity. Moreover, the
6. The initial selection process pursuant to which each Client decided to invest in a fund advised by an Adviser or to select a RIC advised by an Adviser as an investment option in a participant-directed plan, as applicable, had been completed before the contribution was made. Applicants state that the Contributor had no intention to seek, and no action was taken by the Contributor or the Applicants, to obtain any direct or indirect influence from the Official or any other person with respect to those investments. The Contributor did not participate in any capacity in soliciting those investments or any other investment advisory business covered under rule 206(4)-5 from any government entity.
7. The Contribution was discovered on October 6, 2016 by Blackrock's Compliance department in the course of internal compliance testing. Specifically, Blackrock discovered the Contribution after a routine search on the Federal Election Commission's website. The Contributor requested a refund of the full $2,700 on November 11, 2016 and received a refund on November 23, 2016. Applicants represent that all compensation earned that is attributable to the Clients' investments since the Contribution Date has been placed in escrow pending the outcome of this Application.
8. BlackRock's political contribution policies and procedures (the “Policy”) which apply to BlackRock as well as its subsidiaries, including the Advisers, were adopted and implemented in order to coincide with the effective date of rule 206(4)-5, well before the Contribution was made. The Applicants submit that at the time of the Contribution, the Policy required, and continues to require, that all employees pre-clear all political contributions made in the United States. There is no
1. Rule 206(4)-5(a)(1) under the Act prohibits a registered investment adviser from providing investment advisory services for compensation to a government entity within two years after a contribution to an official of a government entity is made by the investment adviser or any covered associate of the investment adviser. Each of the Clients is a “government entity,” as defined in rule 206(4)-5(f)(5), the Contributor is a “covered associate” as defined in rule 206(4)-5(f)(2), and the Official is an “official” as defined in rule 206(4)-5(f)(6).
2. Section 206A of the Act authorizes the Commission to “conditionally or unconditionally exempt any person or transaction . . . from any provision or provisions of [the Act] or of any rule or regulation thereunder, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of [the Act].”
3. Rule 206(4)-5(e) provides that the Commission may conditionally or unconditionally grant an exemption to an investment adviser from the prohibition under rule 206(4)-5(a)(1) upon consideration of the factors listed below, among others:
(1) Whether the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act;
(2) Whether the investment adviser: (i) Before the contribution resulting in the prohibition was made, adopted and implemented policies and procedures reasonably designed to prevent violations of the rule; and (ii) prior to or at the time the contribution which resulted in such prohibition was made, had no actual knowledge of the contribution; and (iii) after learning of the contribution: (A) Has taken all available steps to cause the contributor involved in making the contribution which resulted in such prohibition to obtain a return of the contribution; and (B) has taken such other remedial or preventive measures as may be appropriate under the circumstances;
(3) Whether, at the time of the contribution, the contributor was a covered associate or otherwise an employee of the investment adviser, or was seeking such employment;
(4) The timing and amount of the contribution which resulted in the prohibition;
(5) The nature of the election (
(6) The contributor's apparent intent or motive in making the contribution which resulted in the prohibition, as evidenced by the facts and circumstances surrounding such contribution.
4. Applicants request an order pursuant to section 206A and rule 206(4)-5(e), exempting them from the two-year prohibition on compensation imposed by rule 206(4)-5(a)(1) with respect to investment advisory services provided to the Clients within the two-year period following the Contribution.
5. Applicants submit that the exemption is necessary and appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants further submit that the other factors set forth in rule 206(4)-5(e) similarly weigh in favor of granting an exemption to the Applicants to avoid consequences disproportionate to the violation.
6. Applicants contend that given the nature of the Contribution, and the lack of any evidence that the Advisers or the Contributor intended to, or actually did, interfere with any Client's merit-based process for the selection or retention of advisory services, the Clients' interests are best served by allowing the Advisers and their Clients to continue their relationship uninterrupted. Applicants state that causing the Advisers to forgo the impacted compensation attributable to the two-year period would result in a financial loss of approximately $37 million or 13,700 times the amount of the Contribution. Applicants suggest that the policy underlying rule 206(4)-5 is served by ensuring that no improper influence is exercised over investment decisions by governmental entities as a result of campaign contributions and not by withholding compensation as a result of unintentional violations.
7. Applicants represent that the Policy was adopted and published well before the Contribution was made. Applicants further represent that, the Policy has conformed to the requirements of rule
8. Applicants assert that at no time did any employee or covered associate of BlackRock, the Advisers or any of their affiliates, other than the Contributor have any knowledge that the Contribution had been made before its discovery by the Compliance department in October 2016.
9. Applicants assert that after learning of the Contribution and confirming the Contributor's covered status, BlackRock caused the Contributor to promptly obtain a full refund of the Contribution. Applicants submit that in response to the contribution, BlackRock has begun the process of implementing enhancements to the Policy that will include (a) sending its employees, including employees of its affiliates a third annual reminder to pre-clear all political contributions in the United States, including those to federal candidates (b) revising its annual computer-based training module to highlight the need to pre-clear all political contributions in the United States, including those to federal candidates, and (c) enhancing its protocol to monitor compliance with the Policy's pre-clearance requirements by searching the FEC's and certain states' campaign finance databases for contributions made by a sampling of covered associates on a quarterly basis. Finally, BlackRock's Compliance department will remind the Contributor of the Policy's pre-clearance requirement on at least a quarterly basis.
10. Applicants state that the Contributor is and has, at all relevant times, been a covered associate of the Advisers. Applicants note that the Contributor has never solicited investment advisory business covered under rule 206(4)-5 from government entities and has had no direct contact or involvement with any of the Clients or the members of their Boards regarding any business matters.
11. Applicants assert that the Clients' initial investments with the Advisers substantially predate the Contribution. They were done on an arm's length basis and the Contributor and the Applicants took no action to obtain any direct or indirect influence from the Official.
12. Applicants submit that neither the Advisers nor the Contributor sought to interfere with the Clients' merit-based selection process for advisory services, nor did they seek to negotiate higher fees or greater ancillary benefits than would be achieved in arms' length transactions. Applicants further submit that there was no violation of the Advisers' fiduciary duty to deal fairly or disclose material conflicts given the absence of any intent or action by the Advisers or the Contributor to influence the selection process. Applicants contend that in the case of the Contribution, the imposition of the two-year prohibition on compensation does not achieve rule 206(4)-5's purposes and would result in consequences disproportionate to the mistake that was made.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to amend its marketing fee program with respect to the fee assessed on Russell 2000 Index (“RUT”) options.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its marketing fee program with respect to the fee assessed on Russell 2000 Index (“RUT”) options. Currently, the Exchange assesses the marketing fee on RUT options at a rate of $0.30 per contract. The Exchange no longer wishes to assess the marketing fee to RUT options. The Exchange notes that the marketing fee is similarly not applied to other Underlying Symbol List A products, which group includes RUT. The Exchange believes removing the marketing fee will encourage greater liquidity in RUT, which benefits all market participants.
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 removing the marketing fee to RUT options is reasonable, because it is a fee that will no longer apply to RUT transactions. The proposed change is also equitable and not unfairly discriminatory because it applies uniformly to all Trading Permit Holders and because the marketing fee does not apply to other Underlying Symbol List A products, of which group RUT belongs.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange 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 change applies uniformly to Trading Permit Holders and TPHs will no longer have to pay a marketing fee for RUT transactions. 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 RUT is exclusively listed on Cboe Options and C2. To the extent that the proposed changes make Cboe Options a more attractive marketplace for market participants at other exchanges, such market participants are welcome to become Cboe Options market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
In notice document 2018-08729, beginning on page 18630 in the issue of Thursday, April 26, 2018, make the following correction:
On page 18630, in the middle column, in the document heading, “[Release No. 34-83080; File No. SR-18-31]” should read “[Release No. 34-83080; File No. SR-Phlx-2018-31]”.
Pursuant to Section 19(b)(1)
The Exchange proposes to provide Users with connectivity to three additional third party data feeds and to change the NYSE American Equities Price List (“Price List”) and the NYSE American Options Fee Schedule (“Fee Schedule”) related to these co-location services. Additionally, the Exchange proposes to make non-substantive corrections to the Price List and Fee Schedule. The proposed rule change is available on the Exchange's website 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 the co-location
The Exchange charges fees for connectivity to data feeds from third party markets and other content service providers (“Third Party Data Feeds”).
The Additional Third Party Data Feeds are produced by an entity owned by the Exchange's ultimate parent, Intercontinental Exchange, Inc. (“ICE”), and so the Exchange has an indirect interest in the Additional Third Party Data Feeds. The Additional Third Party Data Feeds include data drawn from the Exchange, the Affiliate SROs, and third party exchanges, including stock and futures exchanges. Because it includes third party data, the Additional Third Party Data Feeds are considered Third Party Data Feeds.
The list of available Third Party Data Feeds presently includes three ICE Data Services Consolidated Feeds.
More specifically, when a User requests connectivity to one of the previously filed ICE Data Services Consolidated Feeds, it receives connectivity to all the data in the relevant ICE Data Services Consolidated Feeds. The User uses its processor to narrow down the feed to the specific data it wants. In contrast, when a User requests connectivity to an Additional Third Party Data Feed, it will specify to the content service provider what specific information, out of the data from the roughly 600 sources, it wants to receive. The content service provider will use its own processor to narrow down the data feeds, so that the User will only receive the information it requests. A User may choose whether it wants connectivity to one of the previously filed ICE Data Services Consolidated Feeds or to one of the Additional Third Party Data Feeds based on whether it wants to process the data, and what level of control it wants over the processing. In both cases, the User will only receive data the relevant third party data provider authorizes it to receive.
As it does with the existing Third Party Data Feeds, the Exchange proposes to charge a monthly recurring fee for connectivity to each Additional Third Party Data Feed. The monthly recurring fee would vary by the bandwidth of the connection. Accordingly, the Exchange proposes to revise the Price List and Fee Schedule to provide that Users may obtain connectivity to the Additional Third Party Data Feeds for a monthly fee, as follows:
Depending on its needs and bandwidth, a User may opt to receive all or some of the feeds or services included in the Additional Third Party Data Feeds.
The Exchange would provide connectivity to the Additional Third Party Data Feeds (“Connectivity”) as a convenience to Users. Use of Connectivity would be completely voluntary. The Exchange is not aware of any impediment to third parties offering Connectivity.
The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds, as such third parties are not required to make that information public. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the Secure Financial Transaction Infrastructure (“SFTI”) network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange would receive the Additional Third Party Data Feeds from the content service provider, at its data center. It would then provide connectivity to that data to Users for a fee. Users would connect to the Additional Third Party Data Feeds over the internet protocol (“IP”) network, a local area network available in the data center.
In order to connect to an Additional Third Party Data Feed, a User would enter into a contract with the content service provider, pursuant to which the content service provider would charge the User for the Third Party Data Feed. The Exchange would receive the Additional Third Party Data Feed over its fiber optic network and, after the content service provider and User entered into the contract and the Exchange received authorization from the content service provider, the Exchange would re-transmit the data to the User over the User's port. The Exchange would charge the User for the connectivity to the Additional Third Party Data Feed. A User would only receive, and would only be charged for, connectivity to the Additional Third Party Data Feed for which it entered into contracts.
The Exchange would have no right to use an Additional Third Party Data Feed other than as a redistributor of the data. The Additional Third Party Data Feeds would not provide access or order entry to the Exchange's execution system. The Additional Third Party Data Feeds would not provide access or order entry to the execution systems of the party generating the feed. The Exchange would receive the Additional Third Party Data Feeds via arms-length agreements and it would have no inherent advantage over any other distributor of such data.
The Exchange proposes to make additional, non-substantive changes to add definitions, remove obsolete text and update third party exchange names (collectively, the “Non-Substantive Changes”). The proposed additional changes would have no effect on pricing.
General Note 1 in the Price List and Fee Schedule references the Affiliate SROs. The Exchange proposes to add short-hand definitions of each of the Affiliate SROs, which terms are used later in the Price List and Fee Schedule. The revised references would be to “New York Stock Exchange LLC (NYSE) and NYSE Arca, Inc. (NYSE Arca).”
The Exchange offers Users the option of a “Cabinet Upgrade” and related fee, pursuant to which the Exchange accommodates requests for additional power allocation beyond the typical amount that the Exchange allocates per dedicated cabinet, at which point the Exchange must upgrade the cabinet's power capacity.
A User may provide hosting services to its customers in the User's co-location space at the data center. In 2015, the Exchange modified the Hosting Fee to provide that, effective January 1, 2016, the Hosting Fee increased from $500 to $1,000 and would be assessed to a Hosting User on a per Hosted Customer basis and for each cabinet in which the Hosting User hosts the Hosted Customer.
The Price List and Fee Schedule continue to include both the Hosting Fee that was in effect through December 31, 2015 and the date of the change. The Exchange proposes to delete the obsolete references to these dates and the amount of the previous hosting fee. The amended text would be as follows (additional text underscored, deletions in strikethrough):
Certain services in the data center that are described in the Price List and Fee Schedule identify dates by which they were expected to be available. These dates have passed. Accordingly, the Exchange proposes to eliminate the obsolete references to these dates. In addition, the Exchange proposes to update the references to certain exchanges that have changed their names.
To that end, the Exchange proposes to make the following changes:
• For the wireless connection of Bats Pitch BZX Gig shaped data and Bats Pitch BYX Gig shaped data, the description would be revised as follows: (a) The text would read “Wireless connection of Cboe Pitch BZX Gig shaped data and Cboe Pitch BYX Gig shaped data”; and (b) the text “Note: Connection to Bats Pitch BYX Gig shaped data is expected to be available no later than December 31, 2016.” would be deleted.
• For the wireless connection of Bats EDGX Gig shaped data and Bats EDGA Gig shaped data, the description would be revised as follows: (a) The text would read “Wireless connection of Cboe EDGX Gig shaped data and Cboe EDGA Gig shaped data”; and (b) the text “Note: Connection to Bats EDGA Gig shaped data is expected to be available no later than December 31, 2016.” would be deleted.
• For the wireless connection of Toronto Stock Exchange (TSX), the text “Note: Service is expected to be available no later than June 30, 2017.” would be deleted.
• In the table under “Third Party Data Feeds,” “Bats BZX Exchange (BZX) and Bats BYX Exchange (BYX)” and “Bats EDGX Exchange (EDGX) and Bats EDGA Exchange (EDGA)” and their related monthly recurring connectivity fees would be deleted, and lines for “Cboe BZX Exchange (CboeBZX) and Cboe BYX Exchange (CboeBYX)” and “Cboe EDGX Exchange (CboeEDGX) and Cboe EDGA Exchange (CboeEDGA)” added with their related monthly recurring connectivity fees, which would remain unchanged, as follows (additional text underscored, deletions in strikethrough):
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed fee change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering additional connectivity to the Additional Third Party Data Feeds, the Exchange would give each User additional options for addressing its connectivity needs, responding to User demand for connectivity options. Providing the connectivity to the Additional Third Party Data Feeds would help each User tailor its data center operations to the requirements of its business operations by allowing it to select the form and latency of connectivity that best suits its needs.
The Exchange would provide Connectivity as a convenience to Users. Use of Connectivity would be completely voluntary. The Exchange is not aware of any impediment to third parties offering Connectivity. The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering connectivity to the Additional Third Party Data Feed to Users, the Exchange would give Users additional options for connectivity to new services, responding to User demand for connectivity options.
The Exchange believes that the proposed Non-Substantive Changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because the changes would clarify Exchange rules and alleviate any possible market participant confusion caused by the obsolete dates and exchange names.
The Exchange also believes that the proposed fee change is consistent with Section 6(b)(4) of the Act,
The Exchange believes that the proposed fee changes are consistent with Section 6(b)(4) of the Act for multiple reasons. The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
The Exchange believes that the additional services and fees proposed herein would be equitably allocated and not unfairly discriminatory because, in addition to the services being completely voluntary, they would be available to all Users on an equal basis (
The Exchange believes that the proposed charges would be reasonable, equitably allocated and not unfairly discriminatory because the Exchange would offer the Connectivity as conveniences to Users, but in order to
The Exchange believes the proposed fee for connectivity to each Additional Third Party Data Feed is reasonable because the proposed monthly recurring fee varies by the bandwidth of the connection, and so is generally proportional to the bandwidth required. In addition, the proposed fees are consistent with the fees for connectivity to the previously filed ICE Data Services Consolidated Feeds, which feeds are similar to the Additional Third Party Data Feeds in terms of the underlying content. The Exchange notes that the proposed monthly recurring fees are also generally consistent with the monthly recurring fees for connectivity to the SR Labs-SuperFeed Third Party Data Feeds, which also vary by bandwidth. The Exchange believes that the proposed difference in pricing between the Additional Third Party Data Feeds and SR Labs-SuperFeed options is reasonable, equitably allocated and not unfairly discriminatory because, although the bandwidth may be similar, the competitive considerations and the costs the Exchange incurs in providing such connections may differ.
The Exchange believes the proposed fees for Connectivity would be reasonable because they would allow the Exchange to defray or cover the costs associated with offering Users connectivity to Additional Third Party Data Feeds while providing Users the convenience of receiving such Connectivity within co-location, helping them tailor their data center operations to the requirements of their business operations.
The Exchange believes that the proposed Non-Substantive Changes would be reasonable because the changes would have no impact on pricing. Rather, the changes would remove obsolete text and update references, thereby clarifying the Exchange rules and alleviating possible market participant confusion.
For the reasons above, the proposed changes would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users with additional options for connectivity to new services would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such proposed Connectivity would satisfy User demand for connectivity options. The Exchange would provide Connectivity as a convenience equally to all Users. All Users that voluntarily selected to receive Connectivity would be charged the same amount for the same services.
The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds, as such third parties are not required to make that information public. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor. Users that opt to use the proposed Connectivity would not receive connectivity that is not available to all Users, as all market participants that contract with the content provider may receive connectivity. In this way, the proposed changes would enhance competition by helping Users tailor their Connectivity to the needs of their business operations by allowing them to select the form and latency of connectivity that best suits their needs.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
Finally, the Exchange believes that the proposed Non-Substantive Changes would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed changes are not designed to address any competitive issue but rather to remove obsolete text and update the Price List and Fee Schedule, thereby clarifying Exchange rules and alleviating any possible market participant confusion caused by the obsolete dates and exchange names.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow Users to have the benefit of Additional Third Party Feed sooner and will allow User additional flexibility in tailoring their data center operations. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to provide Users with connectivity to three additional third party data feeds and change its Price List related to these co-
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 the co-location
The Exchange charges fees for connectivity to data feeds from third party markets and other content service providers (“Third Party Data Feeds”).
The Additional Third Party Data Feeds are produced by an entity owned by the Exchange's ultimate parent, Intercontinental Exchange, Inc. (“ICE”), and so the Exchange has an indirect interest in the Additional Third Party Data Feeds. The Additional Third Party Data Feeds include data drawn from the Exchange, the Affiliate SROs, and third party exchanges, including stock and futures exchanges. Because it includes third party data, the Additional Third Party Data Feeds are considered Third Party Data Feeds.
The list of available Third Party Data Feeds presently includes three ICE Data Services Consolidated Feeds.
More specifically, when a User requests connectivity to one of the previously filed ICE Data Services Consolidated Feeds, it receives connectivity to all the data in the relevant ICE Data Services Consolidated Feeds. The User uses its processor to narrow down the feed to the specific data it wants. In contrast, when a User requests connectivity to an Additional Third Party Data Feed, it will specify to the content service provider what specific information, out of the data from the roughly 600 sources, it wants to receive. The content service provider will use its own processor to narrow down the data feeds, so that the User will only receive the information it requests. A User may choose whether it wants connectivity to one of the previously filed ICE Data Services Consolidated Feeds or to one of the Additional Third Party Data Feeds based on whether it wants to process the data, and what level of control it wants over the processing. In both cases, the User will only receive data the relevant third party data provider authorizes it to receive.
As it does with the existing Third Party Data Feeds, the Exchange proposes to charge a monthly recurring fee for connectivity to each Additional Third Party Data Feed. The monthly recurring fee would vary by the bandwidth of the connection. Accordingly, the Exchange proposes to revise the Price List to provide that Users may obtain connectivity to the Additional Third Party Data Feeds for a monthly fee, as follows:
Depending on its needs and bandwidth, a User may opt to receive all or some of the feeds or services included in the Additional Third Party Data Feeds.
The Exchange would provide connectivity to the Additional Third Party Data Feeds (“Connectivity”) as a convenience to Users. Use of Connectivity would be completely voluntary. The Exchange is not aware of any impediment to third parties offering Connectivity.
The Exchange does not have visibility into whether third parties currently
The Exchange would receive the Additional Third Party Data Feeds from the content service provider, at its data center. It would then provide connectivity to that data to Users for a fee. Users would connect to the Additional Third Party Data Feeds over the internet protocol (“IP”) network, a local area network available in the data center.
In order to connect to an Additional Third Party Data Feed, a User would enter into a contract with the content service provider, pursuant to which the content service provider would charge the User for the Third Party Data Feed. The Exchange would receive the Additional Third Party Data Feed over its fiber optic network and, after the content service provider and User entered into the contract and the Exchange received authorization from the content service provider, the Exchange would re-transmit the data to the User over the User's port. The Exchange would charge the User for the connectivity to the Additional Third Party Data Feed. A User would only receive, and would only be charged for, connectivity to the Additional Third Party Data Feed for which it entered into contracts.
The Exchange would have no right to use an Additional Third Party Data Feed other than as a redistributor of the data. The Additional Third Party Data Feeds would not provide access or order entry to the Exchange's execution system. The Additional Third Party Data Feeds would not provide access or order entry to the execution systems of the party generating the feed. The Exchange would receive the Additional Third Party Data Feeds via arms-length agreements and it would have no inherent advantage over any other distributor of such data.
The Exchange proposes to make additional, non-substantive changes to add definitions, correct a typographical error, remove obsolete text and update third party exchange names (collectively, the “Non-Substantive Changes”). The proposed additional changes would have no effect on pricing.
General Note 1 in the Price List references the Affiliate SROs. The Exchange proposes to add short-hand definitions of each of the Affiliate SROs, which terms are used later in the Price List. The revised references would be to “NYSE American LLC (NYSE American) and NYSE Arca, Inc. (NYSE Arca).”
The Exchange offers Users the option of a “Cabinet Upgrade” and related fee, pursuant to which the Exchange accommodates requests for additional power allocation beyond the typical amount that the Exchange allocates per dedicated cabinet, at which point the Exchange must upgrade the cabinet's power capacity.
A User may provide hosting services to its customers in the User's co-location space at the data center. As stated in the Price List, “Hosting User” means a User that hosts a Hosted Customer in the User's co-location space, and “Hosted Customer” means a customer of a Hosting User that is hosted in a Hosting User's co-location space.
In 2011, the Exchange filed a “Hosting Fee” applicable to Hosting Users.
The Affiliate SROs submitted substantially the same proposed rule change.
In addition, as noted above, the change in the Hosting Fee was effective January 1, 2016. That date has passed, but the Price List continues to include both the Hosting Fee that was in effect through December 31, 2015 and the date of the change. The Exchange proposes to delete the obsolete references to these dates and the amount of the previous hosting fee.
The amended text would be as follows (additional text underscored, deletions in strikethrough):
Certain services in the data center that are described in the Price List identify dates by which they were expected to be available. These dates have passed. Accordingly, the Exchange proposes to eliminate the obsolete references to these dates. In addition, the Exchange proposes to update the references to certain exchanges that have changed their names.
To that end, the Exchange proposes to make the following changes:
• For the wireless connection of Bats Pitch BZX Gig shaped data and Bats Pitch BYX Gig shaped data, the description would be revised as follows: (a) The text would read “Wireless connection of Cboe Pitch BZX Gig shaped data and Cboe Pitch BYX Gig shaped data”; and (b) the text “Note: Connection to Bats Pitch BYX Gig shaped data is expected to be available no later than December 31, 2016.” would be deleted.
• For the wireless connection of Bats EDGX Gig shaped data and Bats EDGA Gig shaped data, the description would be revised as follows: (a) The text would read “Wireless connection of Cboe EDGX Gig shaped data and Cboe EDGA Gig shaped data”; and (b) the text “Note: Connection to Bats EDGA Gig shaped data is expected to be available no later than December 31, 2016.” would be deleted.
• For the wireless connection of Toronto Stock Exchange (TSX), the text “Note: Service is expected to be available no later than June 30, 2017.” would be deleted.
• In the table under “Third Party Data Feeds,” “Bats BZX Exchange (BZX) and Bats BYX Exchange (BYX)” and “Bats EDGX Exchange (EDGX) and Bats EDGA Exchange (EDGA)” and their related monthly recurring connectivity fees would be deleted, and lines for “Cboe BZX Exchange (CboeBZX) and Cboe BYX Exchange (CboeBYX)” and “Cboe EDGX Exchange (CboeEDGX) and Cboe EDGA Exchange (CboeEDGA)” added with their related monthly recurring connectivity fees, which would remain unchanged, as follows (additional text underscored, deletions in strikethrough):
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed fee change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering additional connectivity to the Additional Third Party Data Feeds, the Exchange would give each User additional options for addressing its connectivity needs, responding to User demand for connectivity options. Providing the connectivity to the Additional Third Party Data Feeds would help each User tailor its data center operations to the requirements of its business operations by allowing it to select the form and latency of connectivity that best suits its needs.
The Exchange would provide Connectivity as a convenience to Users. Use of Connectivity would be completely voluntary. The Exchange is not aware of any impediment to third parties offering Connectivity. The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because, by offering connectivity to the Additional Third Party Data Feed to Users, the Exchange would give Users additional options for connectivity to new services, responding to User demand for connectivity options.
The Exchange believes that the proposed Non-Substantive Changes would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because the changes would clarify Exchange rules and alleviate any possible market participant confusion caused by the disparity of the description of the Hosting Fee between the Price List and the price lists and fee schedules of the Affiliate SROs or by the obsolete dates and exchange names.
The Exchange also believes that the proposed fee change is consistent with Section 6(b)(4) of the Act,
The Exchange believes that the proposed fee changes are consistent with Section 6(b)(4) of the Act for multiple reasons. The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
The Exchange believes that the additional services and fees proposed herein would be equitably allocated and not unfairly discriminatory because, in addition to the services being completely voluntary, they would be available to all Users on an equal basis (
The Exchange believes that the proposed charges would be reasonable,
The Exchange believes the proposed fee for connectivity to each Additional Third Party Data Feed is reasonable because the proposed monthly recurring fee varies by the bandwidth of the connection, and so is generally proportional to the bandwidth required. In addition, the proposed fees are consistent with the fees for connectivity to the previously filed ICE Data Services Consolidated Feeds, which feeds are similar to the Additional Third Party Data Feeds in terms of the underlying content. The Exchange notes that the proposed monthly recurring fees are also generally consistent with the monthly recurring fees for connectivity to the SR Labs-SuperFeed Third Party Data Feeds, which also vary by bandwidth. The Exchange believes that the proposed difference in pricing between the Additional Third Party Data Feeds and SR Labs-SuperFeed options is reasonable, equitably allocated and not unfairly discriminatory because, although the bandwidth may be similar, the competitive considerations and the costs the Exchange incurs in providing such connections may differ.
The Exchange believes the proposed fees for Connectivity would be reasonable because they would allow the Exchange to defray or cover the costs associated with offering Users connectivity to Additional Third Party Data Feeds while providing Users the convenience of receiving such Connectivity within co-location, helping them tailor their data center operations to the requirements of their business operations.
The Exchange believes that the proposed Non-Substantive Changes would be reasonable because the changes would have no impact on pricing. Rather, the changes would remove obsolete text and update references, thereby clarifying the Exchange rules and alleviating possible market participant confusion.
For the reasons above, the proposed changes would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users with additional options for connectivity to new services would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because such proposed Connectivity would satisfy User demand for connectivity options. The Exchange would provide Connectivity as a convenience equally to all Users. All Users that voluntarily selected to receive Connectivity would be charged the same amount for the same services.
The Exchange does not have visibility into whether third parties currently offer, or intend to offer, Users connectivity to the Additional Third Party Data Feeds, as such third parties are not required to make that information public. However, if one or more third parties presently offer, or in the future opt to offer, such Connectivity to Users, a User may utilize the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor. Users that opt to use the proposed Connectivity would not receive connectivity that is not available to all Users, as all market participants that contract with the content provider may receive connectivity. In this way, the proposed changes would enhance competition by helping Users tailor their Connectivity to the needs of their business operations by allowing them to select the form and latency of connectivity that best suits their needs.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
Finally, the Exchange believes that the proposed Non-Substantive Changes would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed changes are not designed to address any competitive issue but rather to remove obsolete text and update references, thereby clarifying Exchange rules and alleviating any possible market participant confusion caused by the disparity of the description between the Price List and the price lists and fee schedules of the Affiliate SROs, or by the obsolete dates and exchange names.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, as it will allow Users to have the benefit of Additional Third Party Feed sooner and will allow User additional flexibility in tailoring their data center operations. For this reason, the Commission designates the proposed rule change to be operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Fixed Income Clearing Corporation (“FICC”) filed with the U.S. Securities and Exchange Commission (“Commission”) on January 12, 2018 advance notice SR-FICC-2018-801 (“Advance Notice”) pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
Several commenters state that some of the changes proposed in the Advance Notice would impose an unfair burden on competition. That issue is relevant to the Commission's evaluation of the related Proposed Rule Change, which is conducted under the Exchange Act, but not to the Commission's evaluation of the Advance Notice, which, as discussed below in Section II, is conducted under the Clearing Supervision Act and generally considers whether the proposal will mitigate systemic risk and promote financial stability. Accordingly, concerns regarding burden on competition are not discussed herein but will be addressed in the Commission's review of the related Proposed Rule Change, as applicable, under the Exchange Act.
FICC proposes to change the FICC GSD Rulebook (“GSD Rules”)
FICC states that the changes proposed in the Advance Notice are designed to improve GSD's current VaR Charge so that it responds more effectively to market volatility.
For the proposed sensitivity approach to the VaR Charge, FICC would source sensitivity data and relevant historical risk factor time series data generated by an external vendor based on its econometric, risk, and pricing models.
• key rate measures the sensitivity of a price change to changes in interest rates;
• convexity measures the degree of curvature in the price/yield relationship of key interest rates;
• implied inflation rate measures the difference between the yield on an ordinary bond and the yield on an inflation-indexed bond with the same maturity;
• agency spread is yield spread that is added to a benchmark yield curve to discount an Agency bond's cash flows to match its market price;
• mortgage-backed securities spread is the yield spread that is added to a benchmark yield curve to discount a to-be-announced (“TBA”) security's cash flows to match its market price;
• volatility reflects the implied volatility observed from the swaption market to estimate fluctuations in interest rates;
• mortgage basis captures the basis risk between the prevailing mortgage rate and a blended Treasury rate; and
• time risk factor accounts for the time value change (or carry adjustment) over the assumed liquidation period.
The above-referenced risk factors are similar to the risk factors currently utilized in MBSD's sensitivity approach; however, GSD has included other risk factors that are specific to the U.S. Treasury securities, Agency securities and mortgage-backed securities cleared through GSD.
Additionally, FICC proposes to change the look-back period from a front-weighted one-year look-back to an evenly-weighted 10-year look-back period that would include, to the extent applicable, an additional stressed period. FICC states that the proposed extended look-back period would help to ensure that the historical simulation contains a sufficient number of historical market conditions.
FICC also proposes to look at the historical changes of specific risk factors during the look-back period in order to generate risk scenarios to arrive at the market value changes for a given portfolio.
FICC also proposes to eliminate the augmented volatility adjustment multiplier. FICC states that the multiplier would not be necessary because the proposed sensitivity approach would have a longer look-back period and the ability to include an additional stressed market condition to account for periods of market volatility.
According to FICC, in the event that a portfolio contains classes of securities that do not have sufficient volume and price information available, a historical simulation approach would not generate VaR Charge amounts that reflect the risk profile of such securities.
Finally, FICC proposes to adjust the existing calculation of the VaR Charge to include a VaR Floor, which would be the amount used as the VaR Charge when the sum of the amounts calculated by the proposed sensitivity approach and haircut method is less than the proposed VaR Floor.
FICC proposes to add a new component to GSD's margin calculation—the Blackout Period Exposure Adjustment.
FICC proposes to eliminate the existing Blackout Period Exposure Charge component from GSD's margin calculation.
FICC also proposes to eliminate the existing Coverage Charge component from GSD's margin calculation.
FICC proposes to amend GSD's existing Backtesting Charge component of its margin calculation to (1) include the backtesting deficiencies of certain Members during the Blackout Period and (2) give GSD the ability to assess the Backtesting Charge on an intraday basis.
Currently, the Backtesting Charge does not apply to Members with mortgage-backed securities during the Blackout Period because such Members would be subject to a Blackout Period Exposure Charge.
FICC also proposes to adjust the Backtesting Charge to apply to Members that experience backtesting deficiencies during the trading day because of such Member's intraday trading activities.
FICC proposes to adjust GSD's calculation for determining the Excess Capital Premium. Currently, GSD assesses the Excess Capital Premium when a Member's VaR Charge exceeds the Member's Excess Capital.
Separate from the above changes to GSD's margin calculation, FICC proposes to provide transparency in the GSD Rules with respect to GSD's existing calculation of the Intraday Supplemental Fund Deposit.
FICC calculates the Intraday Supplemental Fund Deposit by tracking three criteria for each Member.
The QRM Methodology document provides the methodology by which FICC would calculate the VaR Charge, with the proposed sensitivity approach, as well as other components of the Members' margin calculation.
In Amendment No. 1, FICC proposed three things. First, FICC proposed to stagger the implementation of the proposed Blackout Period Exposure Adjustment and the proposed removal of the Blackout Period Exposure Charge.
Second, FICC proposes to amend the implementation date for the remainder of the proposed changes in the Advance Notice.
Third, FICC proposes to correct an incorrect description of the calculation of the Excess Capital Premium that appears once in the narrative to the Advance Notice, as well as in the corresponding location in the Exhibit 1A to the Advance Notice.
Interested persons are invited to submit written data, views and arguments concerning whether Amendment No. 1 is consistent with the Clearing Supervision 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.
Although the Clearing Supervision Act does not specify a standard of review for an advance notice, its stated purpose is instructive: to mitigate systemic risk in the financial system and promote financial stability by, among other things, promoting uniform risk management standards for systemically important financial market utilities and strengthening the liquidity of systemically important financial market utilities.
Section 805(a)(2) of the Clearing Supervision Act
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
Section 805(c) of the Clearing Supervision Act provides, in addition, that the Commission's risk-management standards may address such areas as risk-management and default policies and procedures, among others areas.
The Commission has adopted risk-management standards under Section 805(a)(2) of the Clearing Supervision Act
The Commission believes that the changes proposed in the Advance Notice are consistent with each of the objectives and principles described in Section 805(b) of the Clearing Supervision Act.
First, as described above, FICC currently calculates the VaR Charge component of each Member's margin using a VaR calculation that relies on a full revaluation approach. FICC proposes to instead implement a sensitivity approach to its VaR Charge calculation, with, at minimum, an evenly-weighted 10-year look-back period. The proposed sensitivity approach would leverage an external vendor's expertise in supplying market risk attributes (
Second, as described above, FICC proposes to implement the existing Margin Proxy as a back-up methodology to the proposed sensitivity approach to the VaR Charge calculation. This proposed change would help FICC to better limit its credit exposure to Members' by continuing to calculate each Member's VaR Charge in the event that FICC experiences a data disruption with the vendor that supplies the sensitivity data.
Third, as described above, FICC proposes to eliminate the augmented volatility adjustment multiplier from its current VaR Charge calculation. This proposed change would enable FICC to remove a component from the VaR Charge calculation that would no longer be needed under the proposed changes, specifically the addition of the proposed 10-year look-back period that has the option of an additional stress period.
Fourth, as described above, FICC proposes to implement a haircut method for securities with inadequate historical pricing data and, thus, lack sufficient sensitivity data to apply the proposed sensitivity approach to FICC's VaR calculation. Employing a haircut on such securities would help FICC limit its credit exposure to Members' that transact in the securities by establishing a way to better capture their risk profile.
Fifth, as described above, FICC proposes to implement a VaR Floor. The proposed VaR Floor would be triggered in the event that the proposed sensitivity VaR model calculates too low of a VaR Charge because of offsets applied by the model from certain offsetting long and short positions. In other words, the VaR Floor would serve as a backstop to the proposed sensitivity approach to FICC's VaR calculation, which would help ensure that FICC continues to limit its credit exposure to Members. Altogether, these proposed changes to the VaR Charge component of the margin calculation would enable FICC to view and respond more effectively to market volatility by attributing market price moves to various risk factors and more effectively limiting FICC's credit exposure to Members in market conditions that reflect a rapid decrease in market price volatility levels.
In addition to these changes to the VaR Charge component of the margin calculation, FICC proposes to make a number of changes to other components of the margin calculation that would promote robust risk management at FICC. Specifically, as described above, FICC proposes to (1) add the Blackout Period Exposure Adjustment component to FICC's margin calculation to help address risks that could result from overstated values of mortgage-backed securities that are pledged as collateral for GCF Repo Transactions during a Blackout Period; (2) make changes to the existing Backtesting Charge component to help ensure that the charge will apply to (i) all Members that experience backtesting deficiencies attributable to the Member's GCF Repo Transactions that are collateralized with mortgage-backed securities during the Blackout Period, and (ii) all Members that experience backtesting deficiencies during the trading day because of such Member's intraday trading activities; (3) provide more detail in the GSD Rules regarding FICC's calculation of the existing Intraday Supplemental Fund Deposit charge and its determination of whether to assess the charge; and (4) remove the Coverage Charge and Blackout Period Exposure Charge components because the risk these components addressed would be addressed by the other proposed changes to the margin calculation, specifically the proposed sensitivity approach to FICC's VaR calculation and the proposed Blackout Period Exposure Adjustment component, respectively.
Taken together, the above mentioned proposed changes to the components of the margin calculation would enhance FICC's current method for calculating each Member's margin. The enhancement would enable FICC to produce margin levels more commensurate with the risks associated with its Members' portfolios in a broader range of scenarios and market conditions, and, thus, more effectively cover its credit exposure to its Members. Therefore, the Commission believes that the changes proposed in the Advance Notice would help promote robust risk management, consistent with Section 805(b) of the Clearing Supervision Act.
The Commission also believes that the proposed changes would help promote safety and soundness at FICC, which, in turn, would help reduce systemic risk and support the stability of the broader financial system. As described above, the proposed changes are designed to better limit FICC's credit exposure to Members in the event of a Member default through an enhanced VaR Charge calculation. By better limiting credit exposure to its Members, FICC's proposed changes are designed to help ensure that, in the event of a Member default, FICC's operations would not be disrupted and non-defaulting Members would not be exposed to losses that they cannot anticipate or control.
Therefore, for the above reasons, the Commission believes that the changes proposed in the Advance Notice would help promote safety and soundness, which in turn, would help reduce systemic risks and support the stability of the broader financial system, consistent with Section 805(b) of the Clearing Supervision Act.
The Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(4)(i) under the Exchange Act. Rule 17Ad-22(e)(4)(i) requires each covered
As described above, FICC proposes a number of changes to the way it addresses credit exposure to its Members through its margin calculation. Specifically, FICC proposes to (1) replace its existing full revaluation VaR Charge calculation with a sensitivity approach to the VaR Charge calculation that uses an evenly-weighted 10-year look-back period; (2) utilize the existing Margin Proxy as a back-up VaR Charge calculation to the proposed sensitivity in the event that FICC experiences a data disruption with the third-party vendor; (3) implement a haircut method for securities that are ineligible for the sensitivity approach to FICC's VaR calculation due to inadequate historical pricing data; (4) establish the VaR Floor; (5) establish the Blackout Period Exposure Adjustment component; (6) adjust the existing Backtesting Charge component; and (7) use Net Capital instead of Excess Capital when calculating the Excess Capital Premium, as applicable, for broker Members, inter-dealer broker Members, and dealer Members.
Two commenters expressed concerns regarding the proposed change to the Excess Capital Premium.
In response, FICC states that the Excess Capital Premium is used to more effectively manage the risk posed by a Member whose activity causes it to have a margin requirement that is greater than its excess regulatory capital.
Additionally, two commenters noted that the proposed sensitivity approach to the VaR Charge calculation is not needed at this time because the Margin Proxy
In response, FICC states that the Margin Proxy has historically provided a more accurate VaR Charge calculation than the full valuation approach, but the current VaR Charge as supplemented by the Margin Proxy calculation reflects relatively low market price volatility that has been present in the mortgage-backed securities market since the beginning of 2017. As such, FICC states that this current approach contains an insufficient amount of look-back data to ensure that the backtesting will remain above 99 percent if volatility returns to levels seen beyond the one-year look-back period that is currently used to calibrate the Margin Proxy for MBS.
The Commission believes that these proposed changes are designed to help FICC better identify, measure, monitor, and manage its credit exposure to its Members by calculating more precisely the risk presented by Members, which would enable FICC to assess a more reliable VaR Charge. Specifically, FICC's proposed change to (1) switch to a sensitivity approach to the VaR Charge calculation, with a 10-year look-back period, would help the calculation respond more effectively to market volatility by attributing market price moves to various risk factors; (2) use the Margin Proxy as a back-up to the proposed sensitivity calculation would help ensure that FICC is able to assess a VaR Charge, even if its unable to receive sensitivity data from the third-party vendor; (3) apply a haircut on securities that are ineligible for the sensitivity VaR Charge calculation would enable FICC to better account for the risk presented by such securities; (4) establish the VaR Floor would enable FICC to better calculate a VaR Charge for portfolios where the proposed sensitivity approach would yield too low a VaR Charge; (5) establish the Blackout Period Exposure Adjustment component would enable FICC to better address risks that could result from overstated values of mortgage-backed securities that are pledged as collateral for GCF Repo Transactions during a Blackout Period; (6) adjust the existing Backtesting Charge component would ensure that the charge applied to all Members, as appropriate, and to Member's intraday trading activities; and (7) use Net Capital instead of Excess Capital when calculating the Excess Capital Premium would make the Excess Capital Premium calculation for broker Members, inter-dealer broker Members, and dealer Members more consistent with the equity capital measure that is used for other Members.
In response to commenters concerns regarding the proposed change to the Excess Capital Premium calculation, the Commission notes that this proposed change would only modify the denominator used in the calculation. Specifically, the denominator would become larger, as the proposal to use Net Capital (proposed denominator) is a larger amount than the current use of Excess Net Capital (current denominator).
Of course, if the numerator in the calculation (
In response to the comments that the proposed sensitivity approach to the VaR Charge calculation is not necessary at this time in light of the Margin Proxy, the Commission disagrees. In considering these comments, the Commission thoroughly reviewed (i) the Advance Notice, including the supporting exhibits that provided confidential information on the performance of the proposed sensitivity calculation, impact analysis, and backtesting results; (ii) the comments received; and (iii) the Commission's own understanding of the performance of the current VaR Charge calculation, with which the Commission has experience from its general supervision of FICC, compared to the proposed sensitivity calculation. More specifically, the confidential Exhibit 3 submitted by FICC includes (i) 12-month rolling coverage backtesting results; (ii) intraday backtesting impact analysis; (iii) a breakdown of coverage percentages and dollar amounts, for each Member, under the current margin model with and without Margin Proxy and under the proposed sensitivity model; and (iv) an impact study of the proposed changes detailing the margin amounts required per Member during Blackout Periods and non-Blackout Periods.
On a Member basis, the Commission notes that there is not a sizeable change in the amount of margin collected under the current margin model, supplemented by the Margin Proxy, compared to the proposed sensitivity model. The Commission also notes that the Margin Proxy was implemented as a temporary solution to issues identified with the current model, as it only has a one year look-back period.
Therefore, for the reasons discussed above, the Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(4)(i) under the Exchange Act.
The Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(6)(i) under the Exchange Act. Rule 17Ad-22(e)(6)(i) requires each covered clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum considers, and produces margin levels commensurate with, the risks and particular attributes of each relevant product, portfolio, and market.
As described above, FICC proposes a number of changes to how it calculates Members' margin charge through a risk-based margin system that considers the risks and attributes of securities that GSD clears. Specifically, FICC proposes to (1) move to a sensitivity approach to the VaR Charge calculation; (2) move from a front-weighted one-year look-back period to an evenly-weighted 10-year look-back period with the option for an additional stress period; (3) use the existing Margin Proxy as a back-up methodology to the proposed sensitivity approach to the VaR Charge calculation;
Several commenters raised concerns that the proposed changes to the margin calculation would not produce a margin charge commensurate with the risks and particular attributes of Members' complete portfolios. Specifically, Ronin states that the use of the proposed sensitivity approach to the VaR Charge calculation only uses a subset of a Member's entire portfolio (
In response, FICC disagrees with Amherst's statement that FICC's failure to implement a cross-margining arrangement would be inconsistent with the requirements of Rule 17Ad-22(e)(6) under the Exchange Act.
Nevertheless, FICC states that it agrees with commenters that data sharing and cross-margining would be beneficial to its Members and is exploring data sharing and cross-margining opportunities outside of the Advance Notice.
Separate from those comments, two commenters also raised concerns with the proposed extended look-back period. Ronin states that FICC's assumption of adding a continued stress period to the 10-year look-back calculation is employing “statistical bias” because it treats every day as if the market is in “the midst of a financial crisis” and creates over margining.
In response, FICC states that a longer look-back period will produce a more stable VaR estimate that adequately reflects extreme market moves ensuring the VaR Charge does not decrease as quickly during periods of low volatility nor increase as sharply during periods of a market crisis.
The Commission believes that these proposed changes are designed to help FICC better cover its credit exposures to its Members, as the changes would help establish a risk-based margin system that considers and produces margin levels commensurate with the risks and particular attributes of the products cleared in GSD. Specifically, the proposal to (1) move to a sensitivity approach to the VaR Charge calculation would enable the VaR calculation to respond more effectively to market volatility by allowing FICC to attribute market price moves to various risk factors; (2) establish an evenly-weighted 10-year look-back period, with the option to add an additional stress period, would help FICC to ensure that the proposed sensitivity VaR Charge calculation contains a sufficient number of historical market conditions, to include stressed market conditions; (3) use the existing Margin Proxy as a back-up methodology system would help ensure FICC is able to calculate a VaR Charge for Members despite a not being able to receive sensitivity date; (4) to implement a haircut method for securities with insufficient sensitivity data would help ensure that FICC is able to capture the risk profile of the securities; (5) establish the VaR Floor would help ensure that FICC assess a VaR Charge where the proposed sensitivity calculation has produce too low of a VaR Charge; (6) establish the Blackout Period Exposure Adjustment component would enable FICC to
In responses to comments regarding cross-margining and its potential impact upon membership levels and market liquidity, the Commission notes that the Advance Notice does not propose to establish or change any cross-margining agreements, whether between GSD and MBSD or between GSD, MBSD, and another clearing agency. As such, cross-margining is not one of the proposed changes under the Commission's review. The Commission further notes that GSD and MBSD have different members (although a member of one could, and some have, apply and become a member of the other), offer different services, and clear different products. To the extent there is consistency in products, the products are still cleared by different services. Accordingly, FICC maintains not only separate rulebooks for each division but also separate liquidity resources.
Therefore, the Commission believes that the absence of a proposed change in the Advance Notice to establish cross-margining between GSD and MBSD, or to expanding cross-margining between GSD and another clearing agency, does not render the specific changes proposed in the Advance Notice for GSD inconsistent with the Clearing Supervision Act or the applicable rules discussed herein. Rather, the Commission believes that the proposed changes to GSD's margin calculation are designed to be tailored to the specific risks associated with the products and services offered by GSD and that the proposed GSD margin calculation is commensurate with the risks associated with portfolios held by Members in GSD.
In response to comments about the proposed look-back period, the Commission believes that an evenly-weighted 10-year look-back period, plus an additional stress period, as needed, is an appropriate approach to help ensure that the proposed sensitivity VaR Charge calculation accounts for historical market observations of the securities cleared by GSD, so that FICC is in a better position to maintain backtesting coverage above 99 percent for GSD.
Therefore, for the above discussed reasons, the Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(6)(i) under the Exchange Act.
The Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(6)(ii) under the Exchange Act. Rule 17Ad-22(e)(6)(ii) requires each covered clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum, marks participant positions to market and collects margin, including variation margin or equivalent charges if relevant, at least daily and includes the authority and operational capacity to make intraday margin calls in defined circumstances.
As described above, FICC proposes to adjust the existing Backtesting Charge component. Specifically, FICC proposes to collect the charge from all Members on a daily basis, as applicable, as well as from Members that have backtesting deficiencies during the trading day due to large fluctuations of intraday trading activity that could pose risk to FICC in the event that such Members defaults during the trading day.
The change is designed to help improve FICC's risk-based margin system by authorizing FICC to assess this specific margin charge on all Members at least daily, as needed, and on an intra-day basis, as needed. Therefore, the Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(6)(ii) under the Exchange Act.
The Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(6)(iv) under the Exchange Act. Rule 17Ad-22(e)(6)(iv) requires each covered clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum, uses reliable sources of timely price data and procedures and sound valuation models for addressing circumstances in which pricing data are not readily available or reliable.
As described above, FICC proposes a number of changes to its margin calculation that are designed to use reliable price data and address circumstances in which pricing data may not be available or reliable. Specifically, FICC proposes to (1) replace its existing full revaluation VaR Charge calculation with the proposed sensitivity approach that relies upon the expertise of a third-party vendor to produce the needed sensitivity data; (2) utilize the existing Margin Proxy as a back-up to the proposed sensitivity VaR Charge calculation in the event that FICC experiences a data disruption with the third-party vendor; (3) implement a haircut method for securities that are ineligible for the proposed sensitivity approach to the VaR Charge calculation due to inadequate historical pricing data; and (4) establish the VaR Floor.
The Commission believes that these proposed changes are designed to help FICC better cover its credit exposures to its Members, as the changes would help establish a risk-based margin system that considers and produces margin levels commensurate with the risks and particular attributes of the products cleared in GSD. Specifically, the proposal to (1) move to a sensitivity approach to the VaR Charge calculation would not only enable the VaR calculation to respond more effectively to market volatility by allowing FICC to attribute market price moves to various risk factors but also would enable FICC to employ the expertise of a third-party vendor to supply applicable sensitivity data; (2) use the existing Margin Proxy as a back-up methodology system would help ensure FICC is able to calculate a VaR Charge for Members despite any difficulty in receiving sensitivity data from the third-party vendor; (3) implement a haircut method for securities with insufficient sensitivity data would help ensure that FICC is able to capture the risk profile of the securities; and (4) establish the VaR Floor would help ensure that FICC assess a VaR Charge where the proposed sensitivity VaR Charge calculation produces too low of a VaR Charge.
Therefore, for these reasons, the Commission believes that the changes proposed in the Advance Notice are
The Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(6)(v) under the Exchange Act. Rule 17Ad-22(e)(6)(v) requires each covered clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to use an appropriate method for measuring credit exposure that accounts for relevant product risk factors and portfolio effects across products.
As described above, FICC proposes a number of changes to its margin calculation that are designed to help ensure that FICC accounts for the relevant product risk factors and portfolio effects across GSD's products when measuring its credit exposure to Members. Specifically, FICC proposes to (1) replace its existing full revaluation VaR Charge calculation with the proposed sensitivity approach to the VaR Charge calculation; (2) implement a haircut method for securities that are ineligible for the proposed sensitivity approach due to inadequate historical pricing data; and (3) establish the Blackout Period Exposure Adjustment component.
Two commenters raised concerns regarding the Blackout Period Exposure Adjustment.
Amherst similarly states that using historical pay-down rates for all active MBS pools, rather than using historical pay-down rates for the MBS pools held in each Members' portfolio, in calculating the Blackout Period Exposure Adjustment would eliminate “prudent risk and position management” that Members can undertake to reduce FICC's exposure.
In response, FICC states that Blackout Period Exposure Adjustment collections that occur after the MBS collateral pledge would not mitigate the risk that a Member defaults after the collateral is pledged but before such Member satisfies the next day's margin.
The Commission believes that these proposed changes are designed to help FICC use an appropriate method for measuring credit exposure that accounts for relevant product risk factors and portfolio effects across products cleared by GSD. Specifically, the proposal to (1) move to a sensitivity approach to the VaR Charge calculation would enable the VaR calculation to respond more effectively to market volatility by allowing FICC to attribute market price moves to various risk factors; (2) to implement a haircut method for securities with insufficient sensitivity data would help ensure that FICC is able to capture the risk profile of the securities; and (3) establish the Blackout Period Exposure Adjustment component would enable FICC to address risks that could result from overstated values of mortgage-backed securities that are pledged as collateral for GCF Repo Transactions during a Blackout Period.
In response to commenters' concerns regarding the Blackout Period Exposure Adjustment collection cycle, the Commission notes the proposed cycle follows the same cycle currently used for the Blackout Period Exposure Charge, which FICC proposes to eliminate on account of the proposed Blackout Period Exposure Adjustment. For both the current and proposed cycle, the Commission understands, based on its experience and expertise, that FICC's application of the charge on the last business day of the month, as opposed to the first business day of the following month, is an appropriate way to ensure that FICC collects the funds before realizing the risk that the charge is intended to mitigate (
Therefore, for these reasons, the Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(6)(v) under the Exchange Act.
Rule 17Ad-22(e)(6)(vi)(B) under the Exchange Act requires each covered clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its participants by establishing a risk-based margin system that, at a minimum, is monitored by management on an ongoing basis and is regularly reviewed, tested, and verified by conducting a sensitivity analysis
Some of the commenters raise concerns that two of the presumptions assumed by FICC for backtesting, in order to determine the adequacy of the FICC's margin resources, are inaccurate.
In its response, FICC states that the three-day liquidation period is an accurate assumption of the length of time it would take to liquidate a portfolio given the volume and types of securities that can be found in a Member's portfolio at any given time.
The Commission believes that FICC's assumption that it could take three days to liquidate the portfolio of a defaulted Member, regardless of the size of the portfolio or the type of Member, is appropriate. To the extent there is a difference in the time required for FICC to liquidate various GSD products over a three-day period, the Commission believes that such time is appropriate in order for FICC to focus on the overall risk management of the defaulted Member without creating a liquidation methodology that is overly complex and susceptible to flaws.
Therefore, the Commission believes that the Advance Notice is consistent with Rule 17Ad-22(e)(6)(vi)(B) under the Exchange Act.
Rule 17Ad-22(e)(23)(ii) under the Exchange Act requires each covered clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to provide sufficient information to enable participants to identify and evaluate the risks, fees, and other material costs they incur by participating in the covered clearing agency.
Three commenters expressed concerns regarding the limited time in which Members have had to evaluate the data provided by FICC and the effects of the proposed changes.
Similarly, Amherst states that the proposed changes should not be implemented until Members have had the appropriate time and sufficient information to complete a comparison between the current margin methodology and the proposed changes.
Similarly, Ronin states that FICC has heavily relied on parallel and historical studies when providing its Members with data, but Members lack the necessary tools to conduct their own scenario analysis.
In response, FICC states that its Members have been provided with sufficient time and information to assess the impact of the proposed changes.
In response to commenters, the Commission notes that the disclosure requirements of Rule 17Ad-22(e)(23)(ii) under the Exchange Act
Until the Commission has not objected to the changes proposed in an advance notice, either through written notice before the end of the review period
Therefore, the Commission believes that the changes proposed in the Advance Notice are consistent with Rule 17Ad-22(e)(23)(ii) under the Exchange Act.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change would update (a) both the FICC Government Securities Division (“GSD”) Rulebook (“GSD Rules”) and the FICC Mortgage-Backed Securities Division (“MBSD”) Clearing Rules (“MBSD Rules”)
In its filing with the Commission, the clearing agency 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 clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this proposed rule change is to update (a) both the GSD Rules and the MBSD Rules
In 2009, the Commission approved FICC's proposal to implement a fails charge in the GSD Rules
The TMPG fails charge guidelines were aimed at addressing persistent settlement fails in Treasury securities transactions that had arisen in the market. As noted in TMPG's
In 2011, FICC amended the GSD Rules to expand the fails charge provision to agency debt transactions.
The current fails charge calculation, which was approved by the Commission, and remains as such in the GSD Rules is equal to the product of the (i) funds associated with a failed position and (ii) the greater of (a) 0 percent or (b) 3 percent per annum minus the Target Fed funds target rate that is effective at 5 p.m. EST on the Business Day prior to the originally scheduled settlement date, capped at 3 percent per annum.
In 2012, the Commission approved the implementation of a fails charge in the MBSD Rules, as part of a larger proposed rule change to make MBSD a central counterparty.
Under both the GSD and MBSD versions of the current fails charge, the calculation of the charge could result in a zero charge. Under the GSD version of the current fails charge, if the fails charge is 3 percent and the federal funds target rate is 3 percent, then the calculation of the charge in this case would result in a zero charge. Similarly, under the MBSD version of the current fails charge, if the fails charge is 2 percent and the federal funds target rate is 2 percent, then the calculation of the charge in this case would result in a zero charge.
On February 28, 2018, the TMPG announced a proposed change to its best practice regarding the fails charge to introduce a floor of one (1) percent so that a minimum charge amount would result from the calculation of the charge.
The TMPG has requested that FICC amend the GSD and MBSD fails charges to mirror the TMPG's revised recommendation regarding the imposition of the floor. As one of the largest participants in the Treasury, agency and mortgage-backed securities markets, FICC believes that it is imperative that FICC adhere to these best practice recommendations and help maintain consistency and symmetry among the markets. FICC agrees with the TMPG recommendation regarding the imposition of the floor and proposes to amend the GSD Rules and the MBSD Rules to implement such change.
For the GSD Rules, the proposed rule change would consist of deleting the “0” in the calculation of the fails charge in GSD Rule 11, Section 14 and replacing it with “1.” For the MBSD Rules, the proposed rule change would also consist of deleting the “0” in the calculation of the fails charge in MBSD Rule 12 and replacing it with “1.”
FICC is also proposing to clarify the target rate that is referenced in the calculation of both the GSD and MBSD fails charges. Both divisions' fails charges reference the federal funds target rate. Per the TMPG guidelines, if the Federal Open Market Committee (“FOMC”) specifies a target range in lieu of a target level, the lower limit of the target range announced by the FOMC would be used in the calculation of the fails charge.
In addition, while the GSD Rules expressly set forth the fails charge cap (
FICC is proposing to make a technical change regarding references to the federal funds rate in the fails charge calculation in the GSD Rules and the MBSD Rules. The current term “Target Fed funds target rate” in Section 14 of GSD Rule 11 and the current term “fed funds target rate” in MBSD Rule 12 would be replaced with the new term “target level for the federal funds rate,” which is the term used by the TMPG in its guidance. FICC believes that this non-substantive change would enhance clarity across the GSD Rules and MBSD Rules and enhance consistency with the TMPG guidance.
FICC is also proposing to amend certain terms in the fails charge provisions of both the GSD Rules and MBSD Rules in order to use defined terms and to enhance clarity and consistency within the GSD Rules and MBSD Rules. Specifically, in GSD Rule 11, Section 14 and in MBSD Rule 12, the term “Fedwire” would be replaced with the defined term “FedWire.” In MBSD Rule 12, the terms “pool delivery obligation” and “pool deliver obligation” would be replaced each time it appears with the defined term “Pool Deliver Obligation.” In MBSD Rule 12, the word “contractual” in the term “contractual Settlement Date” would be capitalized to use the defined term “Contractual Settlement Date” and the term “business day” would be replaced with the defined term “Business Day.”
Pending SEC approval, FICC would implement this proposal on July 2, 2018. FICC would announce such implementation date by Important Notice. As proposed, a legend would be added to each of GSD Rule 1, GSD Rule 11, MBSD Rule 1, and MBSD Rule 12 stating that there are changes that have been approved by the Commission but have not yet been implemented. The proposed legend also would include a date on which such changes would be implemented and the file number of this proposal, and state that, once this proposal is implemented, the legend would automatically be removed from such rule.
FICC believes that this proposal is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. Specifically, FICC believes that this proposal is consistent
Section 17A(b)(3)(F) of the Act requires, in part, that the GSD Rules and the MBSD Rules be designed to promote the prompt and accurate clearance and settlement of securities transactions.
This proposal is also consistent with Rule 17Ad-22(e)(23)(ii) under the Act. Rule 17Ad-22(e)(23)(ii) under the Act requires FICC to establish, implement, maintain and enforce written policies and procedures reasonably designed to provide sufficient information to enable participants to identify and evaluate the risks, fees, and other material costs they incur by participating in the covered clearing agency.
FICC believes that the proposed rule changes to amend the calculation of the fails charge in each of the GSD Rules and the MBSD Rules to implement a floor could have an impact on competition because the implementation of the floor would result in higher fail charges for members that incur the charge.
FICC believes the proposed rule changes to amend the calculation of the fails charge in each of the GSD Rules and the MBSD Rules to implement a floor would be necessary in furtherance of the purposes of the Act.
FICC also believes any burden on competition that is created by the proposed rule changes to amend the calculation of the fails charge in each of the GSD Rules and the MBSD Rules to implement a floor would be appropriate in furtherance of the purposes of the Act.
FICC does not believe there would be an impact on competition with the proposed rule changes that would update (a) both the GSD Rules and the MBSD Rules to (i) clarify the target rate that may be used in the fails charge calculations under certain circumstances; (ii) add two defined terms to effectuate the target-rate clarification; and (iii) make certain technical changes to the fails-charge provisions to ensure consistent use of defined terms; and (b) the MBSD Rules only, to clarify that a cap applies to the MBSD fails charge.
Written comments relating to this proposed rule change have not been solicited or received. FICC will notify the Commission of any written comments received by FICC.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Department of State will conduct an open meeting at 9:30 a.m. on June 28, 2018, in conference Room 4Y23-21 of the Douglas A. Munro Coast Guard Headquarters Building at St. Elizabeth's, 2703 Martin Luther King Jr. Avenue SE, Washington, DC 20593. The primary purpose of the meeting is to prepare for the fifth session of the International Maritime Organization's (IMO) Sub-Committee on Human Element, Training and Watch keeping (HTW) to be held at the IMO Headquarters, United Kingdom, July 16 to 20, 2018.
The agenda items to be considered include:
Members of the public may attend this meeting up to the seating capacity of the room. Upon request to the meeting coordinator, members of the public may also participate via teleconference, up to the capacity of the teleconference phone line. To access the teleconference line, participants should call (202) 475-4000 and use Participant Code: 887 809 72. To facilitate the building security process, and to request reasonable accommodation, those who plan to attend should contact the meeting coordinator, Mr. Davis Breyer, by email at
Federal Aviation Administration (FAA), DOT.
Notice of Aviation Rulemaking Advisory Committee (ARAC) meeting.
The FAA is issuing this notice to advise the public of a meeting of the ARAC.
The meeting will be held on June 21, 2018, starting at 2:00 p.m. Eastern Standard Time. Arrange oral presentations by June 4, 2018.
The meeting will take place at the Mayflower Hotel, 1127 Connecticut Ave. NW, Washington, DC 20036.
Lakisha Pearson, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591, telephone (202) 267-4191; fax (202) 267-5075; email
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), we are giving notice of a meeting of the ARAC taking place on June 21, 2018, at the Mayflower Hotel, 1127 Connecticut Ave. NW, Washington, DC 20036.
The Draft Agenda includes:
The Agenda will be published on the FAA Meeting webpage (
Attendance is open to the interested public but limited to the space available. Please confirm your attendance with the person listed in the
For persons participating by telephone, please contact the person listed in the
The public must arrange by June 4, 2018, to present oral statements at the meeting. The public may present written statements to the Aviation Rulemaking Advisory Committee by providing 25 copies to the Designated Federal Officer, or by bringing the copies to the meeting.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed under the heading
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before June 6, 2018.
Send comments identified by docket number FAA-2018-0324 using any of the following methods:
•
•
•
•
John Barcas (202) 267-7023, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 18, 2018.
Comments should refer to docket number MARAD-2018-0072. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel SIMPATICA is:
The complete application is given in DOT docket MARAD-2018-0072 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 18, 2018.
Comments should refer to docket number MARAD-2018-0069. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel RESOLVE DISCOVERY is:
The complete application is given in DOT docket MARAD-2018-0069 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 18, 2018.
Comments should refer to docket number MARAD-2018-0071. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel ANOMALY is:
The complete application is given in DOT docket MARAD-2018-0071 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 18, 2018.
Comments should refer to docket number MARAD-2018-0070. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel THE WESTERN STAR is:
The complete application is given in DOT docket MARAD-2018-0070 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 18, 2018.
Comments should refer to docket number MARAD-2018-0068. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-453, Washington, DC 20590. Telephone 202-366-9309, Email
As described by the applicant the intended service of the vessel SHANGRI-LA is:
The complete application is given in DOT docket MARAD-2018-0068 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), DOT.
Request for public comment on proposed collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under the procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatements of previously approved collections. This document describes one collection of information for which NHTSA intends to seek OMB approval.
Comments must be received on or before July 16, 2018.
You may submit comments identified by DOT Docket ID Number NHTSA-2018-0050 using any of the following methods:
Kathy Sifrit, Ph.D., Contracting Officer's Representative, Office of Behavioral Safety Research (NPD-320), National Highway Traffic Safety Administration, 1200 New Jersey Ave. SE, Washington, DC 20590. Dr. Sifrit's phone number is 202-366-0868, and her email address is
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) How to enhance the quality, utility, and clarity of the information to be collected; and
(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
In compliance with these requirements, NHTSA asks public comment on the following proposed collection of information:
44 U.S.C. Section 3506(c)(2)(A).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice and request for comments.
On March 6, 2018, in accordance with the Paperwork Reduction Act of 1995, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice in the
During the public comment period, PHMSA received no comments in response to the information collections. PHMSA received fifteen comments that did not pertain to the information collection requests. PHMSA is publishing this notice to provide the public with an additional 30 days to comment on the renewal of the information collections referenced above and to announce that the information collection requests will be submitted to OMB for approval.
Interested persons are invited to submit comments on or before June 18, 2018 to be assured of consideration.
Angela Dow by telephone at 202-366-1246, by email at
You may submit comments identified by the docket number PHMSA-2018-0016 by any of the following methods:
•
•
•
Requests for a copy of the information collection should be directed to Angela Dow by telephone at 202-366-1246, by fax at 202-366-4566, by email at
During the 60-day comment period, PHMSA received fifteen (15) comments from anonymous submitters that emphasized the general importance of environmental safety in the oil and gas industry.
Section 1320.8(d), Title 5, Code of Federal Regulations, requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies two information collection requests that PHMSA will submit to OMB for renewal. The following information is provided for each information collection: (1) Title of the information collection; (2) OMB control number; (3) Current expiration date; (4) Type of request; (5) Abstract of the information collection activity; (6) Description of affected public; (7) Estimate of total annual reporting and recordkeeping burden; and (8) Frequency of collection. PHMSA will request a three-year term of approval for each information collection activity. PHMSA requests comments on the following information collections:
(a) The need for the renewal and revision of these collections of information for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Office of Strategic Planning and Management, HUD.
Notice.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions the Department of Housing and Urban Development (The Department or HUD) has made in competitions for funding under Notices of Funding Availability (NOFAs) for the following programs: FY2016 Community Development Block Grant Program for Indian Tribes and Alaska Native Villages; FY2016 Research and Evaluation, Demonstration and Data Analysis and Utilization; FY2017 Community Compass Technical Assistance and Capacity Building Program; FY2014-FY2016 Community Compass Technical Assistance and Capacity Building Program Award Amendments; FY2017 Community Development Block Grant Program for Indian Tribes and Alaska Native Villages; FY2017 Continuum of Care (CoC) Program; and FY2017 Choice Neighborhoods Planning Grants.
Julie Hopkins, Director, Office of Strategic Planning and Management, Grants Management and Oversight Division, 451 Seventh Street SW, Room 3156, Washington, DC 20410, at 202-502-4496 (this is not a toll-free number) or by email at
On April 13, 2016, the Department announced the
On February 10, 2017, the Department announced the
On August 14, 2017, the Department announced the
On March 9, 2017, the Department announced the
On July 14, 2017, the Department announced the
On June 28, 2017, the Department announced the
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545(a)(4)(C)), the Department is publishing the awardees and the amounts of the awards in Appendices A-G to this document.