Industry and Security Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Air Force Department
Defense Acquisition Regulations System
Navy Department
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Food and Drug Administration
Indian Health Service
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Bureau of Safety and Environmental Enforcement
Geological Survey
Alcohol, Tobacco, Firearms, and Explosives Bureau
Antitrust Division
Employment and Training Administration
Labor Statistics Bureau
Federal Aviation Administration
Federal Highway Administration
Federal Railroad Administration
Federal Transit Administration
Maritime Administration
National Highway Traffic Safety Administration
Foreign Assets Control Office
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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National Mediation Board.
Final rule.
The National Mediation Board (NMB or Board), with the concurrence of the U.S. Office of Government Ethics (OGE), is issuing a final rule for employees of the NMB that supplements the executive branch-wide Standards of Ethical Conduct (Standards) issued by OGE. The supplemental regulation requires NMB employees to obtain approval before engaging in outside employment.
This final rule is effective May 29, 2019.
Mary Johnson, General Counsel, National Mediation Board, 202-692-5050,
On November 1, 2018, the NMB, with OGE's concurrence, published an interim final rule in the
This rule is not a significant rule for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget.
As required by the Regulatory Flexibility Act, the NMB certifies that these regulatory changes will not have a significant impact on small business entities. This rule will not have any significant impact on the quality of the human environment under the National Environmental Policy Act.
The NMB has determined that the Paperwork Reduction Act does not apply because this regulation does not contain any information collection requirements that require the approval of the Office of Management and Budget.
Conflicts of interests, Government employees.
By direction of the Board.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Airbus Model A330 series airplane. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is seats with inertia locking devices. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Effective May 29, 2019.
Shannon Lennon, Cabin and Airframe Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3209; email
On February 13, 2019, Airbus applied for a change to Type Certificate No. A46NM for seats with inertia locking devices in Model A330 series airplanes. The Model A330 series airplane is a twin-engine, transport-category airplane with a maximum takeoff weight of 533,518 pounds and seating for 440 passengers.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Airbus must show that the Model A330
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, Airbus Model A330 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
Airbus Model A330 series airplanes will incorporate the following novel or unusual design features:
Seats with inertia locking devices (ILD).
Airbus will install, in Model A330 series airplanes, Thompson Aero Seating Ltd. passenger seats that can be translated in the fore and aft direction by an electrically powered motor (actuator) that is attached to the seat primary structure. Under typical service-loading conditions, the motor internal brake is able to translate the seat and hold the seat in the translated position. However, under the inertial loads of emergency-landing loading conditions specified in 14 CFR 25.562, the motor internal brake may not be able to maintain the seat in the required position. The ILD is an “active” device intended to control seat movement (
The ILD will self-activate only in the event of a predetermined airplane loading condition such as that occurring during crash or emergency landing, and will prevent excessive seat forward translation. A minimum level of protection must be provided if the seat-locking device does not deploy.
The normal means of satisfying the structural and occupant protection requirements of § 25.562 result in a non-quantified, but nominally predictable, progressive structural deformation or reduction of injury severity for impact conditions less than the maximum specified by the rule. A seat using ILD technology, however, may involve a step change in protection for impacts below and above that at which the ILD activates and deploys to retain the seat pan in place. This could result in structural deformation or occupant injury output being higher at an intermediate impact condition than that resulting from the maximum impact condition. It is acceptable for such step-change characteristics to exist, provided the resulting output does not exceed the maximum allowable criteria at any condition at which the ILD does or does not deploy, up to the maximum severity pulse specified by the requirements.
The ideal triangular maximum severity pulse is defined in Advisory Circular (AC) 25.561-1B. For the evaluation and testing of less-severe pulses for purposes of assessing the effectiveness of the ILD deployment setting, a similar triangular pulse should be used with acceleration, rise time, and velocity change scaled accordingly. The magnitude of the required pulse should not deviate below the ideal pulse by more than 0.5g until 1.33 t
Conditions 1 through 5 address ensuring that the ILD activates when intended, to provide the necessary protection of occupants. This includes protection of a range of occupants under various accident conditions. Conditions 6 through 10 address maintenance and reliability of the ILD, including any outside influences on the mechanism, to ensure it functions as intended.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The FAA issued Notice of Proposed Special Conditions No. 25-19-02-SC for the Airbus Model A330 series airplane. This document was published in the
As discussed above, these special conditions are applicable to Airbus Model A330 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only one novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A330 series airplanes.
In addition to the requirements of § 25.562, passenger seats incorporating inertia locking devices (ILD)s must meet the following:
1.
a. Separation of the seat from the airplane floor.
b. Separation of any part of the seat that could form a hazard to the seat
c. Failure of the occupant restraint or any other condition that could result in the occupant separating from the seat.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Leonardo S.p.A. (Type Certificate previously held by Finmeccanica S.p.A., AgustaWestland S.p.A.) Model AW109SP helicopters. This AD requires inspecting and altering the rescue hoist. This AD was prompted by a report of a damaged hoist cable that detached after load application. The actions of this AD are intended to address an unsafe condition on these products.
This AD is effective July 3, 2019.
The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of July 3, 2019.
For service information identified in this final rule, contact Leonardo S.p.A. Helicopters, Matteo Ragazzi, Head of Airworthiness, Viale G.Agusta 520, 21017 C.Costa di Samarate (Va) Italy; telephone +39-0331-711756; fax +39-0331-229046; or at
You may examine the AD docket on the internet at
David Hatfield, Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Leonardo S.p.A. (formerly Finmeccanica S.p.A, AgustaWestland S.p.A.) Model AW109SP helicopters. The NPRM published in the
We are issuing this AD to address chafing of a rescue hoist cable. This condition could result in detachment of an external load and subsequent injury to persons being lifted.
EASA, which is the Technical Agent for the Member States of the European Union, has issued AD No. 2017-0025, dated February 14, 2017, to correct an unsafe condition for certain Leonardo S.p.A. (formerly Finmeccanica S.p.A. and AgustaWestland S.p.A.) Model AW109SP helicopters. EASA advises that a hoist cable became snagged behind a hoist handle assembly nut and broke during a dummy load application. EASA further advises that this condition could result in detachment of an external load, and subsequent personal injury or injury to persons on the ground. To address this unsafe condition, the EASA AD requires inspecting the hoist cable, modifying the rescue hoist handle, and amending the rescue hoist pre-flight inspection described in the rotorcraft flight manual.
We gave the public the opportunity to participate in developing this final rule. We have considered the comment received. One commenter commented in support of the NPRM.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to our bilateral agreement with the European Union, EASA has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.
Leonardo S.p.A. issued Leonardo Helicopters Bollettino Tecnico No. 109SP-110, dated February 13, 2017, which contains procedures for inspecting the hoist handle, the passenger-side cabin doorframe, and the hoist cable. This service information also specifies replacing the attaching hardware on the rescue hoist handle and adding a temporary pre-flight check of the hoist cable to the rotorcraft flight manual.
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
The EASA AD requires amending the rotorcraft flight manual by adding a daily rescue hoist cable preflight inspection, this AD does not since the actions in this AD correct the unsafe condition.
We estimate that this AD affects 30 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD, based on an average labor rate of $85 per hour.
Inspecting the hoist handle assembly, cabin doorframe, and hoist cable requires about 2 hours, for a cost of $170 per helicopter and $5,100 for the U.S. fleet. Replacing the hardware on the hoist handle assembly requires about 1 hour and required parts costs are minimal, for a cost of $85 per helicopter and $2,550 for the U.S. fleet.
If required, replacing a hoist cable requires about 3 hours and required parts cost $3,150, for a cost per helicopter of $3,405.
According to Leonardo Helicopters' service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Leonardo Helicopters. Accordingly, we have included all costs in our cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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 to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Leonardo S.p.A. (Type Certificate previously held by Finmeccanica S.p.A., AgustaWestland S.p.A.) Model AW109SP helicopters, certificated in any category, with a rescue hoist part number 109-B810-16-101 or 109-B810-16-201 installed.
This AD defines the unsafe condition as chafing of a rescue hoist cable. This condition could result in detachment of an external load and subsequent injury to persons being lifted.
This AD is effective July 3, 2019.
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 10 hours time-in-service (TIS) or before the next hoist operation, whichever occurs first, inspect the rescue hoist handle assembly and the upper part of the cabin doorframe for chafing. The inspection area of the cabin doorframe is depicted in Figure 3 of Leonardo Helicopters Bollettino Tecnico No. 109SP-110, dated February 13, 2017 (BT 109SP-110). Examples of chafing are shown in Figures 10 and 11 of BT 109SP-110. If there is any chafing, before further flight, repair the chafed areas and inspect the first 6 meters (20 feet) of the hoist cable as follows:
(i) Measure the diameter of the hoist cable as described in the Compliance Instructions, Part I, paragraphs 3.4.1 through 3.4.2 of BT 109SP-110.
(ii) Average the two measurements at each location. If at any location the diameter of the hoist cable is less than 4.7 mm (0.185 inch), before the next hoist operation, remove the hoist cable from service.
(iii) Inspect the hoist cable for broken wires, kinks, bird caging, flattened areas, abrasion, and necking, referencing the examples shown and depicted in Figures 5 through 9 of BT 109SP-110. If there are any broken wires, kinks, bird caging, flattened areas, abrasion, or necking, before the next hoist operation, remove the hoist cable from service.
(2) Within 25 hours TIS, replace the rescue hoist handle attaching hardware as described in the Compliance Instructions, Part II, paragraphs 3 through 6, of BT 109SP-110.
A one-time special flight permit may be granted provided that the hoist is not used.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: David Hatfield, Aviation Safety Engineer, Safety Management 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.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2017-0025, dated February 14, 2017. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 2500, Cabin Equipment/Furnishings.
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Leonardo Helicopters Bollettino Tecnico No. 109SP-110, dated February 13, 2017.
(ii) [Reserved]
(3) For service information identified in this AD, contact Leonardo S.p.A. Helicopters, Matteo Ragazzi, Head of Airworthiness, Viale G.Agusta 520, 21017 C.Costa di Samarate (Va) Italy; telephone +39-0331-711756; fax +39-0331-229046; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to:
Bureau of Safety and Environmental Enforcement, Interior.
Correcting amendments.
On September 28, 2018, the Bureau of Safety and Environmental Enforcement (BSEE) published a final rule that revised certain BSEE-administered regulations. This document corrects the final regulations.
Effective on May 29, 2019.
Kelly Odom, Regulations and Standards Branch, 703-787-1775 or by email:
BSEE published the final rule: Oil and Gas and Sulphur Operations on the Outer Continental Shelf—Oil and Gas Production Safety Systems (1014-AA37), on September 28, 2018 (83 FR 49216). This correction to that publication is necessary to modify the amendatory instructions in the regulatory text of the final rule related to the formatting of certain tables. The Office of the Federal Register has informed BSEE that it must remove the instruction to print certain tables in the final regulatory text as photographs in the
Administrative practice and procedure, Continental shelf, Continental shelf—mineral resources, Continental shelf—rights-of-way, Environmental impact statements, Environmental protection, Government contracts, Incorporation by reference, Investigations, Oil and gas exploration, Penalties, Pipelines, Reporting and recordkeeping requirements, Sulfur.
For the reasons stated in the preamble, the Bureau of Safety and Environmental Enforcement (BSEE) amends 30 CFR part 250 as follows:
30 U.S.C. 1751, 31 U.S.C. 9701, 33 U.S.C. 1321(j)(1)(C), 43 U.S.C. 1334.
(a) Before you install or modify a production safety system, you must submit a production safety system application to the District Manager. The District Manager must approve your production safety system application before you commence production through or otherwise use the new or modified system. The application must include the design documentation prescribed as follows:
(b) You must develop and maintain the following design documents and make them available to BSEE upon request:
(c) In the production safety system application, you must also certify the following:
(1) That all electrical systems were designed according to API RP 14F or API RP 14FZ, as applicable (incorporated by reference in § 250.198);
(2) That the design documents for the mechanical and electrical systems that you are required to submit under paragraph (a) of this section are sealed by a licensed professional engineer. For modified systems, only the modifications are required to be sealed by a licensed professional engineer(s). The professional engineer must be licensed in a State or Territory of the United States and have sufficient expertise and experience to perform the duties; and
(3) That a hazards analysis was performed in accordance with § 250.1911 and API RP 14J (incorporated by reference in § 250.198), and that you have a hazards analysis program in place to assess potential hazards during the operation of the facility.
(d) Within 90 days after placing new or modified production safety systems in service, you must submit to the District Manager the as-built diagrams for the new or modified production safety systems outlined in paragraphs (a)(1), (2), and (3) of this section. You must certify in an accompanying letter that the as-built design documents have been reviewed for compliance with applicable regulations and accurately represent the new or modified system as installed. The drawings must be clearly marked “as-built.”
(e) You must maintain approved and supporting design documents required under paragraphs (a) and (b) of this section at your offshore field office nearest the OCS facility or at other locations conveniently available to the District Manager. These documents must be made available to BSEE upon request and must be retained for the life of the facility. All approved designs are subject to field verifications.
(a) * * *
(b) * * *
Department of Defense.
Final rule.
This rule describes the procedures the Department of Defense (DoD) will follow when seeking access to customer records maintained by financial institutions. These updates fulfill DoD's responsibilities under the Right to Financial Privacy Act.
This final rule is effective on June 28, 2019.
Cindy Allard, (703) 571-0086.
DoD's current rule was last updated on May 4, 2006 (71 FR 26221). DoD's
All four commenters expressed agreement with the rule. Commenters affirmed the need to protect financial privacy. Based on the comments, DoD is adopting the proposed changes in the final rule without revision. This rule will apply DoD-wide to provide consistent implementation across all components. Upon publication, one component-level rule at 32 CFR part 504 will be rescinded.
The primary benefit to a DoD-wide rule is consistent implementation across the DoD's responsibilities under the Act. The Act requires DoD to reimburse a financial institution for such costs as are reasonably necessary and which have been directly incurred based on the rates of reimbursement established by the Federal Reserve Board in 12 CFR 219.3. The average cost of reimbursement from DoD to financial institutions over the past five years is $4,328 per year and the Department does not anticipate an increase with the finalization of this rule. DoD has not paid any civil penalties associated with this rule as discussed in the Civil Liability section of the rule.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute 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 and was not reviewed by the Office of Management and Budget (OMB).
This final rule is not subject to the requirements of E.O. 13771 (82 CFR 9339, February 3, 2017) because this final rule is not significant under E.O. 12866.
This final rule is not subject to the Unfunded Mandates Reform Act because it does not contain a federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100M or more in any one year.
It has been certified that 32 CFR part 275 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it does not have a significant economic impact on a substantial number of small entities.
It has been certified that 32 CFR part 275 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has federalism implications. This final rule will not have a substantial effect on state and local governments, or otherwise have federalism implications.
Banks, Banking, Credit, Privacy.
12 U.S.C. 3401,
The purpose of this part is to authorize DoD Components to request financial records from a financial institution pursuant to the formal written request procedure authorized by section 1108 of the Act and to set forth the conditions under which such requests may be made.
The terms used in this part have the same meaning as similar terms used in the Right to Financial Privacy Act of 1978, Title XI of Public Law 95-630.
The DoD Components are authorized to request financial records of any customer from a financial institution pursuant to a formal written request under the Act only if:
(a) No administrative summons or subpoena authority reasonably appears to be available to the DoD Component to obtain financial records for the purpose for which the records are sought;
(b) There is reason to believe that the records sought are relevant to a legitimate law enforcement inquiry and will further that inquiry;
(c) The request is issued by a supervisory official of a grade designated by the head of the DoD Component. Officials so designated shall not delegate this authority to others;
(d) The request adheres to the requirements set forth in § 275.4; and
(e) The notice requirements required by section 1108(4) of the Act, or the requirements pertaining to the delay of notice in section 1109 of the Act, and described in paragraphs (e)(1) through (5) of this section are satisfied, except in situations (
(1) The notice requirements are satisfied when a copy of the request has
(2)(i) Within ten days of service or within fourteen days of mailing of a subpoena, summons, or formal written request, a customer may file a motion to quash an administrative summons or judicial subpoena, or an application to enjoin a Government authority from obtaining financial records pursuant to a formal written request, with copies served upon the Government authority. A motion to quash a judicial subpoena shall be filed in the court that issued the subpoena. A motion to quash an administrative summons or an application to enjoin a Government authority from obtaining records pursuant to a formal written request shall be filed in the appropriate United States District Court. Such motion or application shall contain an affidavit or sworn statement stating:
(A) That the applicant is a customer of the financial institution from which financial records pertaining to said customer have been sought; and
(B) The applicant's reasons for believing that the financial records sought are not relevant to the legitimate law enforcement inquiry stated by the Government authority in its notice, or that there has not been substantial compliance within the provisions of the Act.
(ii) Service shall be made upon a Government authority by delivering or mailing by registered or certified mail a copy of the papers to the person, office, or department specified in the notice which the customer has received a request.
(3) If a customer desires that such records or information not be made available, the customer must:
(i) Fill out the accompanying motion paper and sworn statement or write one of the customer's own, stating that he or she is the customer whose records are being requested by the Government and either giving the reasons the customer believes that the records are not relevant to the legitimate law enforcement inquiry stated in this notice or any other legal basis for objecting to the release of the records.
(ii) File the motion and statement by mailing or delivering them to the clerk at an appropriate United States District Court.
(iii) Serve the Government authority requesting the records by mailing or delivering a copy of the motion and statement to the Government authority.
(iv) Be prepared to go to court and present the customer's position in further detail.
(v) The customer does not need to have a lawyer, although he or she may wish to employ a lawyer to represent the customer and protect the customer's rights.
(4) If the customer does not follow the procedures in paragraphs (e)(2) and (3) of this section, upon the expiration of ten days from the date of service or fourteen days from the date of mailing of the notice, the records or information requested therein may be made available. The records may be transferred to other Government authorities for legitimate law enforcement inquiries, in which event the customer will be notified after the transfer.
(5) Also, the records or information requested therein may be made available if ten days have expired from the date of service or fourteen days from the date of mailing of the notice and within such time period the customer has not filed a sworn statement and an application to enjoin the Government authority in an appropriate court, or the customer challenge provisions.
(a) The formal written request must be in the form of a letter or memorandum to an appropriate official of the financial institution from which financial records are requested. The request shall be signed by the issuing official, and shall set forth that official's name, title, business address, and business phone number. The request shall also contain the following:
(1) The identity of the customer or customers to whom the records pertain;
(2) A reasonable description of the records sought; and
(3) Such additional information which may be appropriate—
(b) In cases where customer notice is delayed by court order, a copy of the court order must be attached to the formal written request.
Before obtaining the requested records pursuant to a formal written request described in § 275.4, an official of a rank designated by the head of the requesting DoD Component shall certify in writing to the financial institution that the DoD Component has complied with the applicable provisions of the Act.
Cost reimbursement to financial institutions for providing financial records will be made consistent with 12 CFR part 219, subpart A.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing three temporary safety zones for certain waters within the Captain of the Port Maryland-National Capital Region Zone. This action is necessary to provide for the safety of life on these navigable waters of the Severn River at Sherwood Forest, MD, on July 3, 2019, (with alternate date of July 5, 2019), the Middle River in Baltimore County, MD, on July 6, 2019, (with alternate date of July 7, 2019), and the Susquehanna River at Havre de Grace, MD, on July 6, 2019, (with alternate date of July 7, 2019), during fireworks displays to commemorate the July 4th holiday. This regulation prohibits persons and vessels from being in the safety zones unless authorized by the Captain of the Port Baltimore or a designated representative.
This rule is effective from 8:30 p.m. on July 3, 2019 through 10:30 p.m. on July 7, 2019.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Mr. Ron Houck, Sector Maryland-National Capital Region Waterways Management Division, U.S. Coast Guard; telephone 410-576-2674, email
The Sherwood Forest Club, Inc., notified the Coast Guard that from 9:20 to 9:50 p.m. on July 3, 2019, it will be conducting a fireworks display launched from the end of the Sherwood Forest Club main pier, located adjacent to the Severn River, in Sherwood Forest, MD. In the event of inclement weather, the fireworks display will be scheduled for the same time on July 5, 2019.
The Marine Trades Association of Baltimore County, Inc. notified the Coast Guard that from 9:15 to 9:55 p.m. on July 6, 2019, it will be conducting a fireworks display launched from a fireworks barge located in the Middle River, approximately 300 yards southeast of Wilson Point in Baltimore County, MD. In the event of inclement weather, the fireworks display will be scheduled for the same time on July 7, 2019.
The City of Havre de Grace 2019 Independence Day Commission notified the Coast Guard that from 9:15 to 9:45 p.m. on July 6, 2019, it will be conducting a fireworks display launched from a fireworks barge located in the Susquehanna River, approximately 300 yards southeast of Concord Point in Havre de Grace, MD. In the event of inclement weather, the fireworks display will be scheduled for the same time on July 7, 2019.
In response, on April 9, 2019, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zones; July 4th Holiday Fireworks in the Coast Guard Captain of the Port Maryland-National Capital Region Zone” (84 FR 14064). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to these three fireworks displays. During the comment period that ended May 9, 2019, we received four comments.
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that potential hazards associated with the fireworks to be used in these three fireworks displays will be a safety concern for anyone within a 150-yard radius of the end of Sherwood Forest Club main pier along the Severn River, a 200-yard radius of the barge on the Middle River, and a 200-yard radius of the barge on the Susquehanna River. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled events.
As noted above, we received four comments on our NPRM published April 9, 2019. The comments were in support of the Coast Guard's rulemaking. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM as a result of comments. However, there is a minor change to coordinates to one of the safety zones. The change is in paragraph (a)(2), to the location of “Safety zone 2.” The proposed rule stated the approximate position of the fireworks barge as latitude 39°18′24″ N, longitude 076°24′29″ W. The approximate position of the fireworks barge is actually latitude 39°18′25″ N, longitude 076°2″27″ W. The difference between the two locations is approximately 64 yards.
This rule establishes three safety zones for certain waters within the COTP Maryland-National Capital Region Zone, as described in 33 CFR 3.25-15, which will be enforced during the times described below for each zone.
The first safety zone will cover all navigable waters within 150 yards of the end of Sherwood Forest Club main pier located along the Severn River in Sherwood Forest, MD. A “FIREWORKS—DANGER—STAY AWAY” sign will be posted on land adjacent to the shoreline, near the location. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:20 p.m. to 9:50 p.m. on July 3, 2019 fireworks display.
The second safety zone will cover all navigable waters within 200 yards of a barge in the Middle River located approximately 300 yards southeast of Wilson Point in Baltimore County, MD. “FIREWORKS—DANGER—STAY AWAY” signs will be posted on the port and starboard sides of the on-scene barge. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:15 p.m. to 9:55 p.m. on July 6, 2019 fireworks display.
The third safety zone will cover all navigable waters within 200 yards of a barge in the Susquehanna River located approximately 300 yards southeast of Concord Point in Havre de Grace, MD. “FIREWORKS—DANGER—STAY AWAY” signs will be posted on the port and starboard sides of the on-scene barge. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:15 to 9:45 p.m. on July 6, 2019 fireworks display.
No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this 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 rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule 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, duration, and time-of-day of the safety zones, which would impact small designated areas of the Severn River, Middle River, and Susquehanna River for a total of approximately seven enforcement-
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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this 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 rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves three safety zones lasting seven hours that will prohibit entry within portions of the Severn River, Middle River, and Susquehanna River. It is categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(1)
(2)
(3)
(b)
(1)
(2)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's designated representative by telephone at 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF-FM channel 16 (156.8 MHz).
(3) Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
(f)
(2) Paragraph (a)(2) of this section will be enforced from 8 p.m. to 10:30 p.m. on July 6, 2019. If necessary due to inclement weather on July 6th, it will be enforced from 8 p.m. to 10:30 p.m. on July 7, 2019.
(3) Paragraph (a)(3) of this section will be enforced from 8 p.m. to 10:30 p.m. on July 6, 2019. If necessary due to inclement weather on July 6th, it will be enforced from 8 p.m. to 10:30 p.m. on July 7, 2019.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the State Implementation Plan (SIP) revision that the State of Louisiana submitted to EPA on November 9, 2017 with supplements provided on February 8, 2018, August 24, 2018 and October 9, 2018. The purpose of this revision is to provide for attainment of the 1-hour sulfur dioxide (SO
This rule is effective on June 28, 2019.
EPA has established a docket for this action under Docket Identification No. EPA-R06-OAR-2017-0558. All documents in the docket are listed on the
Robert Imhoff, EPA Region 6 Office, Regional Haze and SO
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On June 22, 2010, EPA promulgated a new 1-hour primary SO
Section 172(c) of the CAA lists the required components of a nonattainment plan submittal. The base year emissions inventory (section 172(c)(3)) is required to show a comprehensive, accurate, current inventory of all relevant pollutants in the nonattainment area. The nonattainment plan must identify and quantify any expected emissions from the construction of new sources to account for emissions in the area that might affect reasonable further progress (RFP) toward attainment, or that might interfere with attainment and maintenance of the NAAQS, and it must provide for a nonattainment new source review (NNSR) program (section 172(c)(5)). The attainment demonstration must include a modeling analysis showing that the enforceable emissions limitations and other control measures taken by the state will provide for RFP and expeditious attainment of the NAAQS (section 172(c)(2), (4), (6), and (7)). The nonattainment plan must include an analysis and provide for implementation of RACM, including RACT (section 172(c)(1)). Finally, the nonattainment plan must provide for contingency measures (section 172(c)(9)) to be implemented either in the case that RFP toward attainment is not made, or in the case that the area fails to attain the NAAQS by the attainment date.
On April 23, 2014, EPA issued a guidance document entitled, “Guidance for 1-Hour SO
For a number of areas, including the St. Bernard Parish, Louisiana SO
On April 19, 2018, we published a proposed rulemaking action to approve the 2010 SO
After the close of the public comment period to the April 19, 2018 proposal, the Louisiana Department of Environmental Quality (LDEQ) submitted additional information to EPA on August 24, 2018. The additional information was submitted to us partly in response to a public comment received on the April 19, 2018 proposal from United States Senator from Louisiana, Bill Cassidy. Senator Cassidy's comment letter expressed concern that Rain would need to modify the February 2018 AOC entered between Rain and LDEQ as Rain did not believe that it could meet the limits set forth in the AOC without an additional extension to the compliance dates. In response to the comment, and to determine feasible emission limits for operations during transitions from exhaust flow through the hot stack to flow through the heat recovery boiler (referred to as the cold stack), LDEQ granted an extension of the deadline of the February 2018 AOC on April 27, 2018. LDEQ then issued a revised AOC on August 2, 2018. An air quality modeling analysis was submitted to EPA on August 24, 2018 to specifically demonstrate attainment of the NAAQS with the revised limits in the August 2018 AOC. EPA reviewed the new modeling analysis and found some errors and omissions. In response, LDEQ submitted an updated modeling analysis on October 9, 2018. The AOC (signed by LDEQ and Rain August 2, 2018 and submitted to EPA on August 24, 2018), and the October 9, 2018 modeling files (also submitted by LDEQ) serve as a supplement to the November 9, 2017 and February 8, 2018 SIP submittals and are intended to address the public comment by incorporating certain additional AOC revisions (dated August 2, 2018) and supporting modeling into the 2010 SO
In a supplemental notice of proposed rulemaking on February 8, 2019 (84 FR 2801), EPA proposed to approve Louisiana's August 24, 2018 and October 9, 2018 updated modeling files as a supplement to the November 9, 2017 SIP and February 8, 2018 submittals. The State's submittal and attainment demonstration included all the specific attainment elements mentioned above, including new SO
We received five written comment letters in response to our original and supplemental proposals for approval of the SIP revisions for the St. Bernard Parish, Louisiana Nonattainment Area relevant to both actions.
EPA acknowledges the commenter's support.
We disagree that the attainment demonstration does not provide adequate assurance that air quality impacts will remain below the NAAQS. The SO
The SO
In addition, the commenter argues that neither the State's nor EPA's modeling provide adequate assurance that air quality impacts in St. Bernard Parish will remain below the NAAQS. EPA's modeling and the State's modeling appear to be fundamentally inconsistent as in Table 2 of the proposed rule the agency indicates that the maximum SO
Nothing in the Clean Air Act forecloses EPA from conducting an analysis to assist in its review and evaluation of the State's SIP submittal. EPA's modeling was an integral part of our review and evaluation of the State's SIP submittal to verify that the NAAQS was fully protected at all relevant locations when accounting for all measures in the SIP. In this case, EPA's modeling confirmed the State's analysis; our modeling was provided to show our process and to assess our reasons for approving the SIP submittal. We also consider the comment moot based on the State's August 24, 2018 and October 9, 2018 supplements to the SIP in which the State conducted its own additional modeling analysis to support the August 2, 2018 revised AOC.
EPA contacted LDEQ to confirm why the maximum SO
EPA used several factors in evaluating and concurring with the State's decision to exclude the sources to the west from the modeling. In the State's judgment, the distance to these western sources (>25km to the Parish boundary), and the low maximum concentrations and the small impact gradients modeled for these sources in the western edge of St. Bernard Parish support the determination that their impacts not be included in the modeling or characterized in the modeling through the use of the background monitor value added to the modeling concentration.
EPA's guidance
For St. Bernard there were limited options for the background monitor data because the existing monitors are directly impacted by nearby sources under certain wind directions. The option chosen was to use a monitor, Meraux, located in St. Bernard Parish, to best characterize background concentrations because of its proximity. Since the Meraux monitor was impacted by Valero refinery emissions which were directly included in the model, LDEQ excluded the data when winds were from directions that could transport Valero's emissions to this monitor. Valero is located to the west of the Meraux monitor. EPA acknowledges that the exclusion of wind directions from the Valero refinery to the Meraux background monitor also means that the background does not include all potential contributions from the remote (>20km) sources to the west. As discussed above, none of these sources would normally be included in the modeling directly due to their size and distance. However, because of the exclusion of certain wind directions coupled with relatively few point sources in the included wind directions that made up the Meraux monitor's background data, out of an abundance of caution, EPA requested that the State model the remote western sources to ensure that their exclusion was reasonable and would not impact the attainment demonstration if they were included.
EPA's concern was whether the attainment demonstration modeling would show a projected value to the east of Rain very near the standard during Rain's normal operations. In that case, if the excluded sources to the west had the potential for an appreciable impact there would be a concern that the modeled DV could exceed the standard if the impact from those sources were included. In order to make sure that there was no appreciable potential impact from these sources to the west, LDEQ agreed to look at sources individually and also ensure that they were not omitting a cluster of sources that could have potential impacts much higher than 3.5 μg/m
The result of the modeling for the attainment demonstration was that the highest design values were projected to the west of Rain during periods with winds out of the east. The excluded western sources cannot add to this design value as they are downwind of the area of highest modeled concentration during this period. The highest values to the east of Rain under any scenario were projected to be more than 10 μg/m
The table below gives the distance from the excluded sources from the west to the modeled maximum design value to the east of Rain that occurs during one stage of Rain's operation and their 2014 NEI emissions. Based on the 2014 NEI emissions and distance to the maximum modeled design value east of Rain it was appropriate to not include these sources to the west in the model. LDEQ's analysis to consider these sources to the west for inclusion in the modeling was conservative and provided additional support to the conclusion that inclusion of these sources would not impact the attainment demonstration.
The purpose of the use of the transition was to use the stack parameters (
Compliance with the 510 lb/hr limit on the cold stack is achieved through the automated control and monitored by the installed CEM system which measures both concentration and mass flow rate. The emission rate required is programmed into the system and it governs the operational parameters of the scrubber to achieve the desired rate. The emission rate attained is recorded directly and reported for compliance.
LDEQ stated that rural coefficients were appropriate since the surrounding rivers, lakes, and wetlands would tend to minimize the urban heat island effect. In particular, the wind direction for the highest design values is from the east which contains an extensive wetland. See our full Response to Significant Comments document for a detailed analysis of the land use around the facility and in the region. EPA agrees with LDEQ that this choice was appropriate for this analysis and running the model with urban coefficients was not appropriate or necessary.
We disagree with the comment. As to the first part of the comment over inconsistent standards for the same pollutant, the AOC provides clear requirements at all stages of operation of the plant to ensure attainment of the NAAQS. At every operational stage, the operational conditions (temperature, flow and emission rate) needed are unequivocal and distinct. As illustrated in Figure 5 from the supplemental TSD and repeated in the detailed Response to Comment document included in the docket to this action, the requirements do not overlap as stated by the commenter—each block is distinct (they do not overlap) and the required conditions are specific.
As to the comment regarding alternatives for compliance, as stated above and illustrated in Figure 5 from the supplemental TSD, the requirements for compliance are specific and distinct for each operational phase. The cold stack requirements are directly measured and reported. Compliance with the hot stack requirements is monitored by measurements of temperature and flow rates and a verified emission rate equation. The equation is based on a mass balance of the sulfur contained in the input green coke and output calcined coke determined through composite samples taken throughout the operational day. It should be noted that the hours of operation of the hot stack either by stand-alone operation or during transitions are limited. The stand-alone hours of operation are limited by the permit to less than 500 hours per year. According to Rain's 2017 Title V Specific Requirements Report
We disagree with the Commenter. With regard to the Commenter's statements on sanctions, we find the comments are outside the scope of the proposal and supplemental proposal
We note that the commenter is incorrect with regards to the attainment date. As detailed in the background section above, the “round one” area designations were effective October 4, 2013. SIPs are required to demonstrate that their respective areas will attain the NAAQS as expeditiously as practicable, but no later than 5 years from the effective date of designation, which is October 4, 2018. With regard to a FIP obligation mentioned by the commenter, as we noted above, any duties EPA has to promulgate a FIP are outside the scope of this SIP approval action, and therefore we are not required to respond to the comment, however, such alleged duties will terminate upon issuance of this final rulemaking approval action, thus EPA's FIP obligation will cease to apply.
With regard to the Commenter's statements on the FIP, we find that any duties EPA has to promulgate a FIP are outside the scope of this SIP approval action, and therefore we are not required to respond to the comment. However, we note that in any case such alleged duties will terminate upon EPA's final approval of the SIP.
EPA has determined that Louisiana's SO
EPA is approving into the Louisiana SIP the provisions of Rain Carbon CII's Administrative Order, issued August 2, 2018, that constitute the SO
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of revisions to the Louisiana source-specific requirements as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically 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, 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);
• 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
• does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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).
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 29, 2019. 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, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The additions read as follows:
(d) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Massachusetts. On February 9, 2018, the Massachusetts Department of Environmental Protection (MassDEP) submitted revisions to the EPA satisfying the MassDEP's earlier commitment to adopt and submit provisions that meet certain requirements of the Nonattainment New Source Review (NNSR) air permit program regulations. The EPA is also approving the Commonwealth's NNSR certification, which was included in the February 9, 2018, SIP revision, as sufficient for the purposes of satisfying the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). In addition, this action converts the EPA's December 21, 2016, conditional approval for certain infrastructure provisions relating to Massachusetts's NNSR air permit program to full approval. This action is being taken under the Clean Air Act.
This rule is effective on June 28, 2019.
EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2018-0829. All documents in the docket are listed on the
Eric Wortman, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100 (Mail Code 05-2), Boston, MA 02109—3912, tel. (617) 918-1624, email
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On February 14, 2019, the EPA published a Notice of Proposed Rulemaking (NPRM) for the Commonwealth of Massachusetts.
On December 21, 2016, the EPA published a final conditional approval for Massachusetts's June 6, 2014 infrastructure SIP submittal for the 1997 ozone, 2008 lead (Pb), 2008 ozone, 2010 NO
Dukes County in Massachusetts was designated nonattainment for the 2008 8-hour ozone NAAQS on July 20, 2012 using 2009-2011 ambient air quality data.
Based on initial nonattainment designations for the 2008 8-hour ozone standard, as well as the March 6, 2015 final SIP Requirements Rule, Massachusetts was required to develop a SIP revision addressing certain CAA requirements for the Dukes County nonattainment area, and submit to the EPA an NNSR Certification SIP or SIP revision no later than 36 months after the effective date of area designations for the 2008 8-hour ozone NAAQS (
On February 3, 2017, the EPA found that 15 states (including the Commonwealth of Massachusetts) and the District of Columbia failed to submit SIP revisions in a timely manner to satisfy certain requirements for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/or states in the ozone transport region.
Other specific requirements of the Commonwealth's NNSR SIP revisions and NNSR certification, and the rationale for EPA's proposed action, are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.
The EPA's review of MassDEP's February 9, 2018 SIP submittal indicates that the submittal satisfies the requirements of the CAA and is appropriate for inclusion into the SIP. The EPA therefore is approving the SIP revisions submitted by MassDEP. Also, as a result of our approval of the NNSR permitting revisions in this action, the EPA is converting the December 21, 2016 conditional approval to a full approval for prong 3 of CAA section 110(a)(2)(D)(i)(II). Other aspects of EPA's December 21, 2016 conditional approval will be addressed in other actions.
The EPA is also approving MassDEP's February 9, 2018 SIP revision addressing the NNSR requirements for the 2008 ozone NAAQS for the Dukes County Nonattainment Area. The EPA has concluded that MassDEP's submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well as its obligations under the EPA's February 3, 2017 Findings of Failure to Submit relating to submission of a NNSR certification.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Massachusetts's 310 CMR 7.00: Appendix A as described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally 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, 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);
• This action is not an Executive Order 13771 regulatory action because this action is not significant 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
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, 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).
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 29, 2019. 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, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.
Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
The revision and additions read as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of clofentezine in or on guava. The Interregional Research Project Number 4 (IR-4) requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective May 29, 2019. Objections and requests for hearings must be received on or before July 29, 2019, 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-2018-0275, 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 Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an
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-2018-0275, 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
In the
Based upon review of the data supporting the petition, EPA is establishing a tolerance level for residues in or on guava at 3 ppm rather than 1 ppm as requested. The reason for this change is explained in Unit IV.D.
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 clofentezine including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with clofentezine 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 primary target organ is the liver with secondary effects on the thyroid. There is no concern for increased quantitative or qualitative susceptibility of the young following
Further detail on the toxicological profile for clofentezine is discussed in Unit II.A. of the final rule published in the
Specific information on the studies received and the nature of the adverse effects caused by clofentezine as well as the no-observed-adverse-effect-level (NOAEL) and the 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 no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). 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 reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for clofentezine used for human risk assessment is discussed in Unit II.B of the final rule published in the
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Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:
• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, and the exposure estimate does not understate exposure for the population in such area.
In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
The Agency estimated the average PCT for existing uses as follows: Almonds: 5%; apples: 2.5%; apricots: 2.5%; cherries: 5%; grapes: 1%; nectarines: 5%; peaches: 5%; pears: 5%; and walnuts: 5%.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which clofentezine may be applied in a particular area.
2.
Based on the First Index Reservoir Screening Tool (FIRST) and Pesticide Root Zone Model Ground Water (PRZM-GW) models, the estimated drinking water concentrations (EDWCs) of clofentezine acute exposures are estimated to be 7.59 parts per billion (ppb) for surface water and less than 0.05 ppb for ground water. For chronic exposures for non-cancer assessments, the EDWCs are estimated to be 0.062 ppb for surface water and less than 0.05 ppb for ground water. For chronic exposures for cancer assessments, the EDWC is estimated to be 0.025 ppb for surface.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration value of 0.062 ppb was used to assess the contribution to drinking water. For cancer dietary risk assessment, the water concentration value of 0.025 ppb was used to assess the contribution to drinking water.
3.
4.
EPA has not found clofentezine to share a common mechanism of toxicity with any other substances, and clofentezine does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that clofentezine 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 at
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i. The toxicity database for clofentezine is complete.
ii. There is no indication that clofentezine is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that clofentezine results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to clofentezine in drinking water. These assessments will not underestimate the exposure and risks posed by clofentezine.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Adequate enforcement methodology (high-performance liquid chromatography (HPLC)) is available to enforce the tolerance expression. The limit of quantitation (LOQ) and limit of detection (LOD) were determined to be 0.01 ppm and 0.003 ppm, respectively.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint
The Codex has not established an MRL for clofentezine on guava.
One comment was received on the Notice of Filing expressing concern about pollution in cities due to human waste. The comment did not raise any issue related to the Agency's safety determination for clofentezine tolerances. The receipt of this comment is acknowledged; however, this comment is not relevant to this action.
The Agency is establishing a tolerance for residues of clofentezine in or on guava at 3 ppm, rather than 1 ppm as requested. The storage stability data indicated a low average concurrent recovery of residues in guava. To account for the low storage stability recoveries, the Agency applied a factor of 3X to the average field trial values, resulting in a calculation of higher residues on guava and a need for a higher tolerance level.
Therefore, a tolerance is established for residues of clofentezine, 3,6-bis(2-chlorphenyl)-1,2,4,5-tetrazine, in or on guava at 3 ppm.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these 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) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), nor is this action considered a regulatory action under 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) * * *
(1) * * *
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Adrienne L. Sheldon, PE, CFM, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW, Washington, DC 20472, (202) 212-3966.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Embraer S.A. Model ERJ 170 airplanes; Model ERJ 190-100 STD, -100 LR, -100 ECJ, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes. This proposed AD was prompted by reports of the ram air turbine (RAT) compartment door seal peeling off and tangling up on the RAT rotor during flight test. This proposed AD would require a general visual inspection for peeling-off of the RAT compartment door seal, bonding if necessary, and the rework of the RAT compartment door seal attachment. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 15, 2019.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this NPRM, contact Embraer S.A., Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—Brasil; telephone +55 12 3927-5852 or +55 12 3309-0732; fax +55 12 3927-7546; email
You may examine the AD docket on the internet at
Krista Greer, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3221.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian AD 2019-02-02, dated February 28, 2019 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Embraer S.A. Model ERJ 170 airplanes; Model ERJ 190-100 STD, -100 LR, -100 ECJ, and -100 IGW airplanes; and Model ERJ 190-200 STD, -200 LR, and -200 IGW airplanes. The MCAI states:
It has been found the occurrence some events of the Ram Air Turbine (RAT) compartment door seal peeling off and tangling up on the RAT rotor during flight test. We are issuing this [Brazilian] AD to prevent the loss of the RAT function, which associated with an emergency electrical event, can result in the loss of airplane controllability.
Required actions include an inspection for peeling-off condition, bonding as necessary, and rework of the RAT compartment door seal attachment. You may examine the MCAI in the AD docket on the internet at
Embraer S.A. has issued Service Bulletin SB170-53-0142, Revision 01, dated December 12, 2018; Service Bulletin SB190-53-0098, Revision 01, dated December 12, 2018; and Service Bulletin SB190LIN-53-0072, Revision 01, dated January 9, 2019. This service information describes procedures for rework of the RAT compartment door seal attachment, which includes installing fasteners around the RAT door seal attachment. These documents are distinct since they apply to different airplane models.
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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified
This proposed AD would require a general visual inspection for peeling-off of the RAT compartment door seal, bonding if necessary, and the rework of the RAT compartment door seal attachment.
We estimate that this proposed AD affects 570 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 15, 2019.
None.
This AD applies to Embraer S.A. airplanes, identified in paragraphs (c)(1) through (c)(3) of this AD, certificated in any category.
(1) Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, -200 STD, and -200 LL airplanes, as identified in Embraer Service Bulletin SB170-53-0142, Revision 01, dated December 12, 2018.
(2) Model ERJ 190-100 STD, -100 LR, and -100 IGW airplanes; and ERJ 190-200 STD, -200 LR, and -200 IGW airplanes, as identified in Embraer Service Bulletin SB190-53-0098, Revision 01, dated December 12, 2018.
(3) Model ERJ 190-100 ECJ airplanes, as identified in Embraer Service Bulletin SB190LIN-53-0072, Revision 01, dated January 9, 2019.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by reports of the ram air turbine (RAT) compartment door seal peeling off and tangling up on the RAT rotor during flight test. We are issuing this AD to address the possible loss of the RAT function, which associated with an emergency electrical event, can result in the loss of airplane controllability.
Comply with this AD within the compliance times specified, unless already done.
(1) For airplanes identified in paragraphs (c)(1) and (c)(2) of this AD: Within 750 flight hours after the effective date of this AD, do a general visual inspection of the RAT compartment door seal for peeling-off condition (disbonding), do all applicable bonding, and rework the RAT compartment door seal attachment, in accordance with the Accomplishment Instructions of the service information identified in paragraph (c)(1) or (c)(2) of this AD, as applicable. Do all applicable bonding before further flight.
(2) For airplanes identified in paragraph (c)(3) of this AD: Within 400 flight hours or 6 months after the effective date of this AD, whichever occurs first, do all applicable
This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Embraer Service Bulletin 170-53-0142, dated December 8, 2017; Embraer Service Bulletin 190-53-0098, dated December 8, 2017; or Embraer Service Bulletin 190LIN-53-0072, dated December 15, 2017; as applicable.
The following provisions also apply to this AD:
(1)
(2)
(3)
(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. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. 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.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Brazilian AD 2019-02-02, dated February 28, 2019, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Krista Greer, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3221.
(3) For service information identified in this AD, contact Embraer S.A., Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—Brasil; telephone +55 12 3927-5852 or +55 12 3309-0732; fax +55 12 3927-7546; email
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a permanent special local regulation to enable vessel movement restrictions for certain waters of the Zimovia Strait. This action is necessary to provide for the safety of life on these navigable waters near Wrangell Harbor during power boat races on July 4, 2019 and every subsequent year on July 4. This proposed rulemaking would prohibit persons and vessels from transiting through, mooring, or anchoring within the special local regulation race area unless authorized by the Captain of the Port Southeast Alaska or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before June 28, 2019.
You may submit comments identified by docket number USCG-2019-0223 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Kristi Sloane, Sector Juneau, Waterways Management Division, Coast Guard: Telephone 907-463-2846, email
On January 16, 2019, the Wrangell Chamber of Commerce notified the Coast Guard that it will be conducting high speed boat races from 11 a.m. to 7 p.m. on July 4, 2019, as part of the Wrangell 4th of July Celebration. The boat races will be taking place approximately 100 yards off of the city dock in Wrangell, AK. The Captain of the Port Southeast Alaska (COTP) has determined that potential hazards associated with the high speed races is a safety concern for anyone within the zone.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a race area before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a special local regulation from 11 a.m. to 7 p.m. on July 4, 2019, and every subsequent year on July 4th. The special local regulation would cover all navigable waters within the race area to include Wrangell Harbor entrance and an area extending Northwest along the shoreline approximately 1000 yards and Southwest approximately 500 yards. No vessel or person would be permitted to enter the special local regulation area 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.
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, duration, and time-of-day of the special local regulation. Vessel traffic would be able to safely transit around the proposed race area, which would impact a small designated area in Wrangell Harbor for 8 hours. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the race area, and the rule would allow vessels to seek permission to enter or transit through the race area.
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 special local regulation area may be small entities, for the reasons stated in section IV.A above, this proposed rule would 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 Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
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 special local regulation lasting eight (8) hours that would prohibit entry or transit through the area without obtaining permission from the COTP or a designated representative. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
We view public participation as essential to effective rulemaking, and we 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
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
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Centers for Medicare & Medicaid Services (CMS), HHS.
Proposed rule; correction.
This document corrects technical errors in the proposed rule that appeared in the April 24, 2019
This correction to the proposed rule published at 84 FR 17244 through 17335 on April 24, 2019, is applicable May 28, 2019.
Kate Brooks, (410) 786-7877.
In FR Doc. 2019-07885 (84 FR 17244), the proposed rule entitled, “Medicare Program; Inpatient Rehabilitation Facility (IRF) Prospective Payment System for Federal Fiscal Year 2020 and Updates to the IRF Quality Reporting Program” (referred to hereafter as the “FY 2020 IRF PPS proposed rule”), there were technical errors that are identified and corrected in this correcting document. The correction is applicable as of May 28, 2019.
On page 17329 of the FY 2020 IRF PPS proposed rule, we inadvertently misstated the additional minutes on admission as 7.4 instead of 7.8 and the total minutes of additional clinical staff time as 8.9 instead of 18.9 in our calculation of the estimated burden for the IRF quality reporting program (QRP).
In FR Doc. 2019-07885 (84 FR 17244), published April 24, 2019, on page 17329, first column, second paragraph, lines 8 through 13, the sentence “Specifically, we believe that there will be an addition of 7.4 minutes on admission, and 11.1 minutes on discharge, for a total of 8.9 minutes of additional clinical staff time to report data per patient stay.” is corrected to read “Specifically, we believe that there will be an addition of 7.8 minutes on admission, and 11.1 minutes on discharge, for a total of 18.9 minutes of additional clinical staff time to report data per patient stay.”.
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule; extension of comment period.
DOD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the National Defense Authorization Act for Fiscal Year 2017 that require review and approval for certain cost-reimbursement contract types at specified thresholds and established time periods and the use of firm fixed-price contract types for foreign military sales unless an exception or waiver applies. The comment period on the proposed rule is extended 14 days.
The comment period for the proposed rule published on April 1, 2019 (84 FR 12179), is extended. Submit comments by June 14, 2019.
Submit comments identified by DFARS Case 2017-D024, using any of the following methods:
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Comments received generally will be posted without change to
Ms. Kimberly Bass, telephone 571-372-6174.
On April 1, 2019, DoD published a proposed rule in the
• Cost-reimbursement contracts in excess of $50 million to be awarded after October 1, 2018, and before October 1, 2019; and
• Cost-reimbursement contracts in excess of $25 million to be awarded on or after October 1, 2019.
Section 830 provides requirements, exceptions, and waiver authority for the use of firm-fixed-price contracts for foreign military sales (FMS). It requires contracting officers to use firm fixed-price contracts unless specified exceptions or a waiver applies. Contracting officers are required to use a different contract type if the FMS customer has established in writing a preference for a different contract type or has requested in writing that a different contract type be used for a specific FMS. The waiver authorizes contracting officers the ability to use other than firm-fixed-price contract type on a case by case basis when determined it is in the best interest of the United States and American taxpayers.
The comment period for the proposed rule is extended 14 days, from May 31, 2019, to June 14, 2019, to provide additional time for interested parties to comment on the proposed DFARS changes.
Government procurement.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM); withdrawal.
FRA withdraws the March 15, 2016 NPRM concerning train crew staffing. In withdrawing the NPRM, FRA is providing notice of its affirmative decision that no regulation of train crew staffing is necessary or appropriate for railroad operations to be conducted safely at this time.
As of May 29, 2019, the NPRM published on March 15, 2016 (81 FR 13918), is withdrawn.
Alan H. Nagler, Senior Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, Room W31-309, 1200 New Jersey Avenue SE, Washington, DC 20590, 202-493-6038.
FRA has the authority to regulate train crew staffing pursuant to its broad authority to, “as necessary, . . . prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.”
On August 29, 2013, RSAC accepted a task (No. 13-05) entitled “Appropriate Train Crew Size” and formed a Working Group. The task statement noted that in light of the Lac-Mégantic accident, “FRA believes it is appropriate to review whether train crew staffing practices affect railroad safety.” Because FRA did not have reliable or conclusive statistical data to suggest whether one-person crew operations are safer or less safe than multiple-person crew operations, FRA hoped that RSAC would provide useful analysis, including conclusive data addressing whether there is a safety benefit or detriment from crew redundancy (
Despite meeting five times from October 2013 to March 2014, the RSAC Working Group was unable to reach consensus on any recommendation or identify conclusive, statistical data to suggest whether there is a safety benefit or detriment from crew redundancy. As noted in the NPRM, the accident data railroads provided did not capture accidents where the cause or contributing factor was a lack of a second crewmember and thus that data did not aid the Working Group.
Although RSAC was unable to identify data necessary to determine whether a regulation was needed to address train crew staffing, FRA believed it was important to give the broader public an opportunity to provide input on this issue. Accordingly, on March 15, 2016, FRA issued the NPRM with an initial 60-day comment period. FRA then extended the comment period for an additional month
FRA received nearly 1,600 comments on the NPRM from industry stakeholders and individuals, including current, former, and retired crewmembers. FRA also received comments from the National Transportation Safety Board (NTSB), two members of Congress, and numerous state and local government officials. A general summary of the comments is provided below.
Approximately 1,545 of the written comments were in support of some kind of train crew staffing requirements, although not necessarily the exact proposed requirements found in the NPRM. Two railroad employee unions, the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the International Association of Sheet Metal, Air, Rail and Transportation Workers Transportation Division (SMART TD), submitted comments advocating for changes to the proposed rule. Commenters supportive of the rule commonly sought more stringent requirements that would mandate fewer, or no, exceptions to a two-person train crew, or require the second person be a certified conductor under FRA's requirements in 49 CFR part 242. The four central points of these comments were that: (1) A train crew's duties are too demanding for one person; (2) new technology will make the job more complex; (3) unpredictable scheduling makes fatigue a greater factor when there is only a one-person crew; and (4) the idea of a one-person train crew is seemingly in conflict with the statutory and regulatory requirements for certification of both locomotive engineers and conductors.
The vast majority of comments supporting crew staffing requirements, approximately 1,418, were filed by members of the public on behalf of themselves as individuals. Most of these individual commenters identified themselves as current, former, or retired train crewmembers. These commenters largely provided anecdotal information supporting why they thought trains staffed with fewer than two persons created unsafe conditions. For example, Mike Rankin, who also testified at the public hearing, recalled that he was a conductor working with a locomotive engineer and was able to “cut” (separate) a train in half after a grade crossing accident. He stated that his actions likely saved a teenager's life by allowing emergency first responders quick access to the injured teenager though the grade crossing, and enabling hospital treatment much faster than if only one train crewmember had been present and the crossing remained blocked.
A variety of governmental officials and organizations also indicated support for train crew staffing requirements, but with a greater focus on safety for the communities in proximity to railroad tracks, as opposed to the safety of the rail operation itself. For example, FRA heard testimony at the public hearing from Mayor Karen Darch of Barrington, Illinois. Mayor Darch explained that local governments and railroads face the same task of determining appropriate staffing levels, with the local governments focusing on police, fire, and emergency medical services. She testified “FRA should be concerned that industry may be tempted to bet on its favorable accident odds and make overly hasty staffing decisions to reduce operating costs.” She asked FRA to “balance the interests of the public living or traveling with proximity to” railroad track, because the economies of “villages, towns, and cities are negatively impacted on a daily basis by train or grade crossing warning device malfunctions that block crossings.” FRA also heard testimony from Mr. Ronnie C. Harris, Executive Director of the Louisiana Municipal Association, an organization that represents 303 cities, towns, and villages, and two consolidated parish governments in Louisiana. Mr. Harris expressed concern about dangerous commodities being transported by rail on long trains that have reached as long as 11,000 feet in length, and that, without two crewmembers, any blocked crossings would remain blocked for considerably longer than the time it would take a two-person crew to unblock a crossing.
Two Members of Congress commented on the rule, and they echoed the concerns of State and local governmental commenters, as well as the labor unions. For instance, then-Senator Heidi Heitkamp (North Dakota) testified at the public hearing that, as a representative of a State that moves a lot of oil by rail, the people she represented are concerned about safety and they want to know that their government is doing everything possible from a regulatory standpoint to keep the movement of oil and other hazardous materials safe. Senator Heitkamp testified that she supports a crew staffing rule because she has heard from rail workers in her State that believe having two crew members is essential for their safety and the public's safety. Senator Heitkamp further added that the NPRM provided the right balance as it proposed to allow exceptions grounded in a safety rationale. Then-Rep. Richard M. Nolan (8th District, Minnesota) also commented in support of the rule. Like BLET and SMART TD, Rep. Nolan supported FRA adopting a more stringent requirement that the second crewmember must be a certified conductor.
The Western Organization of Resource Councils (WORC), a regional network of grassroots community organizations that includes 12,200 members, many of whom are farmers, ranchers, and others directly affected by coal, oil, and gas development and who live in communities along rail lines, raised
The Environmental Law & Policy Center, an organization dedicated to the protection of the environment, commented that a second crewmember can be critical in containing environmental damage or making operational moves that could prevent accidents, and thus believes it is common sense that two crewmembers are better than one.
The National League of Cities (NLC), an advocate for more than 19,000 cities, villages, and towns, supported the NPRM. NLC commented that local officials are concerned with the significant increase in the volume of hazardous materials shipments combined with rail operators seeking to reduce crew sizes. NLC supported the rule as a response to “preventable tragedies of the past.”
Railroads, railroad associations, other associations and organizations, and some individual commenters submitted approximately 39 comments that largely took the position that FRA should not regulate train crew size for a variety of reasons. The Association of American Railroads (AAR) commented that FRA's admission as to a lack of safety data meant the rule was “arbitrary,” indicating that AAR believed the rule could be determined unlawful through judicial review as a challenge under the Administrative Procedure Act (APA). AAR supported the NTSB's approach encouraging FRA to first modify its accident report form to include the number of crewmembers in the controlling cab at the time of an accident and then use the data it gathers to evaluate the safety adequacy of current regulatory requirements.
The American Short Line and Regional Railroad Association (ASLRRA) objected to the NPRM for several reasons. ASLRRA was concerned about the financial impact and paperwork burden the rule would have on short line railroads, which generally are small entities, and questioned whether FRA adequately followed existing legal requirements that protect small businesses. ASLRRA challenged FRA's lack of data and FRA's internal survey of its regional personnel to determine the extent of one-person crew operations. Also, ASLRRA commented that its members would have a competitive disadvantage compared to the trucking industry, if the NPRM was finalized, and it submitted an economic paper suggesting the proposed rule's requirements may induce railroads to reallocate scarce resources away from upgrades to track and equipment.
While FRA continues to monitor the potential safety impact of train crew staffing, for the reasons provided below, FRA finds that no regulation of train crew staffing is necessary or appropriate at this time. FRA believes that current safety programs and actions taken following the Lac-Mégantic and Casselton accidents are the appropriate avenues for addressing those accidents. Moreover, despite studying this issue in-depth and performing extensive outreach to industry stakeholders and the general public, FRA's statement in the NPRM that it “cannot provide reliable or conclusive statistical data to suggest whether one-person crew operations are generally safer or less safe than multiple-person crew operations” still holds true today. Accordingly, FRA withdraws the NPRM.
Although the Lac-Mégantic and Casselton accidents initially led FRA to review the potential impact of train crew staffing on safety, FRA subsequently determined that no direct conclusions could be drawn about train crew staffing's safety impact on those accidents. As FRA acknowledged in the NPRM, the TSB of Canada's investigation report on the Lac-Mégantic accident concluded it would have been possible for a single operator to apply a sufficient number of hand brakes within a reasonable amount of time to have secured the train involved in that
While the NPRM noted some indirect connections between crew staffing and railroad safety with respect to the Lac-Mégantic and Casselton accidents, those connections are tangential at best and do not provide a sufficient basis for FRA regulation of train crew staffing requirements. For example, TSB of Canada made indirect connections in the Lac-Mégantic accident between the railroad's poor safety culture and the one train crewmember's alleged failure to properly secure the train. However, in making this connection, TSB of Canada emphasized that a single crewmember could have prevented or helped avoid the catastrophic accident by following the railroad's rule requiring a proper hand brake effectiveness test (
Likewise, after reviewing the facts of the Casselton accident as described in the NPRM,
FRA's current safety programs and actions taken by FRA and DOT following the Lac-Mégantic and Casselton accidents appropriately address safety concerns raised by those accidents. In direct response to the Lac-Mégantic derailment, FRA has taken the following actions to ensure the safe transportation of products by rail in the United States, with a particular focus on certain hazardous materials that present an immediate danger for communities and the environment in the event of a train accident.
• FRA issued Emergency Order (E.O.) 28 to address the immediate dangers that arise from unattended equipment left unsecured on mainline tracks.
• FRA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) jointly issued a Safety Advisory to railroads and commodity shippers detailing eight recommended actions the industry should take to better ensure the safe transport of hazardous materials.
• FRA and PHMSA jointly issued a follow-up Safety Advisory.
• FRA and PHMSA jointly issued a Safety Advisory specifically regarding the transportation of petroleum crude oil.
• FRA coordinated with PHMSA on a PHMSA final rule adopting new operational requirements for certain trains transporting large quantities of flammable liquids known as “high-hazard flammable trains”; enhancing safety improvements in tank car design standards; providing a sampling and classification program for unrefined petroleum-based products; and mandating notification requirements.
• FRA issued a final rule to strengthen existing securement regulations, which mitigate risks associated with the unintended
In addition to those actions, FRA previously addressed post-accident protocols for passenger trains through the passenger train emergency preparedness regulation.
As identified in the NPRM, FRA is also in the process of developing regulations requiring Class I railroads, other freight railroads with inadequate safety performance, and all passenger railroads to implement safety risk reduction programs (RRPs).
In particular, as new technologies are introduced that may be connected to future reductions in crew size (
FRA's accident/incident safety data
[T]here is insufficient data to demonstrate that accidents are avoided by having a second qualified person in the cab. In fact, the NTSB has investigated numerous accidents in which both qualified individuals in a two-person crew made mistakes and failed to avoid an accident.
FRA reviewed accident/incident data over a seventeen-year period ending in 2018 and could not determine that any of the accidents/incidents involving a one-person crew would have been prevented by having multiple crewmembers.
For these reasons, this accident/incident data does not support a train crew staffing regulation. Rather, the accident/incident data FRA presented in the NPRM suggests that a railroad with a higher rate of train accidents involving the transportation of hazardous materials could find itself more likely to continue that trend, regardless of the size of the crew, assuming the railroad takes no further action to prevent such accidents from occurring.
Without “data to prove a direct correlation between higher rates of safety and multiple person crews,”
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Based on its review and careful consideration of all the comments to the NPRM, FRA has determined that no regulation of train crew staffing is necessary or appropriate at this time. The comments do not provide conclusive data suggesting that there have been any previous accidents involving one-person crew operations that could have been avoided by adding a second crewmember or that one-person crew operations are less safe.
While the comments note some indirect connections between crew staffing and railroad safety, such as post-accident response or handling of disabled trains, those indirect connections do not provide a sufficient basis for FRA regulation of train crew staffing requirements. Moreover, FRA believes the indirect safety connections cited in the comments could be achieved with fewer than two crewmembers with a well-planned, disabled-train/post-accident protocol that quickly brings railroad employees to the scene of a disabled train or accident. FRA expects railroads would consider these protocols as mitigation options under their RRPs when evaluating any changes to train crew staffing levels. Thus, FRA believes that its previously discussed current safety programs, along with other actions taken by FRA and DOT, more appropriately address the safety concerns raised by the commenters.
FRA also does not concur with commenters who assert that the idea of a one-person train crew is seemingly in conflict with the statutory and regulatory requirements for certification of both locomotive engineers and conductors. There are no specific statutes or regulations prohibiting a one-person train crew, nor is there a specific requirement that would prohibit autonomous technology from operating a locomotive or train in lieu of a certified locomotive engineer. However, the NPRM identified several regulations that a railroad would need to be cognizant of when adjusting its crew staffing levels, while acknowledging that none of those regulations requires a minimum number of crewmembers to achieve compliance.
FRA's current regulatory regime is largely based on traditional or “legacy” equipment and systems
DOT's approach to achieving safety improvements begins with a focus on removing unnecessary barriers and issuing voluntary guidance, rather than regulations that could stifle innovation. In furtherance of these goals, on March 29, 2018, FRA published a request for information (RFI) on the subject of automation in the railroad industry.
By requiring a minimum number of crewmembers for certain trains, finalizing the train crew staffing rule would have departed from FRA's long-standing regulatory approach of not endorsing any particular crew staffing arrangement.
In issuing this withdrawal, FRA has determined that no regulation of train crew staffing is necessary or appropriate at this time and intends for the withdrawal to preempt all state laws attempting to regulate train crew staffing in any manner. FRA believes that nine states have laws in place regulating crew size in some manner: California, West Virginia, and Wisconsin require a minimum of two crew members for certain trains;
Provisions of the federal railroad safety statutes, specifically the former Federal Railroad Safety Act of 1970 (FRSA), repealed and recodified at 49 U.S.C. 20106, mandate that laws, regulations, and orders “related to railroad safety” be nationally uniform.
This notice of withdrawal provides what the Supreme Court referred to as “negative” or “implicit” preemption. The Court recognized that “where failure of . . . federal officials affirmatively to exercise their full authority takes on the character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute,” any state law enacting such a regulation is preempted.
After closely examining the train crew staffing issue and conducting significant outreach to industry and public stakeholders, FRA determined that issuing any regulation requiring a minimum number of train crewmembers would not be justified because such a regulation is unnecessary for a railroad operation to be conducted safely at this time. Thus, this notice of withdrawal provides FRA's determination that no regulation of train crew staffing is appropriate and that FRA intends to negatively preempt any state laws concerning that subject matter.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding: Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information 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 regarding this information collection received by June 28, 2019 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
State agency will use this information performing mandated checks against both eDRS and the SSA Death Master File, send an email to their FNS Regional Office SNAP Program Director to provide the verification, and any additional recordkeeping associated with this burden. States must perform this verification once a year and must retain these records for 3 years. FNS will use this information to ensure compliance and program integrity.
The data reported on the Program Activity Statement (FNS 366B) enables FNS to identify areas that may need improvement and to provide more effective technical assistance to State agencies. An increase in reporting frequency will allow for greater access to timely program data. It will help States, FNS, and other stakeholders identify trends, inconsistencies and inefficiencies earlier in each fiscal year. FNS uses the data to monitor State agency activity levels and performance, ensure program integrity and to identify and provide technical assistance to State agencies in need of performance improvements.
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).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with March anniversary dates. In accordance with Commerce's regulations, we are initiating those administrative reviews.
Applicable May 29, 2019.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Commerce has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with March anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (POR), it must notify Commerce within 30 days of publication of this notice in the
In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the POR. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, Commerce has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.
Section 504 of the Trade Preferences Extension Act of 2015 amended the Act by adding the concept of particular market situation (PMS) for purposes of constructed value under section 773(e) of the Act.
Neither section 773(e) of the Act nor 19 CFR 351.301(c)(2)(v) set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of initial responses to section D of the questionnaire.
In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, Commerce analyzes each entity exporting the subject merchandise. In accordance with the separate rates criteria, Commerce assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, Commerce requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on Commerce's website at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than March 31, 2020.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested.
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with the procedures outlined in Commerce's regulations at 19 CFR 351.305. Those procedures apply to administrative reviews included in this notice of initiation. Parties wishing to participate in any of these administrative reviews should ensure that they meet the requirements of these procedures (
Commerce's regulations identify five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). These regulations require any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The regulations, at 19 CFR 351.301, also provide specific time limits for such factual submissions based on the type of factual information being submitted. Please review the final rule, available at
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
Parties may request an extension of time limits before a time limit established under Part 351 expires, or as otherwise specified by the Secretary.
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that eight of the 13 companies under review have not demonstrated eligibility for a separate rate and the other five companies under review had no shipments of subject merchandise during the period of review (POR) January 1, 2017, through December 31, 2017.
Applicable May 29, 2019.
Howard Smith, AD/CVD Operations, Office IV, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5193.
On December 12, 2018, Commerce published its
Commerce exercised its discretion to toll all deadlines affected by the partial federal government closure from December 22, 2018, through the resumption of operations on January 29, 2019.
The product covered by the
In the
For additional details,
Pursuant to section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.212(b), Commerce has determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. Commerce intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. Commerce will instruct CBP to liquidate any entries of subject merchandise exported during this POR by Decca and the other seven companies noted above which did not qualify for separate rate status, at the China-wide rate.
Additionally, pursuant to Commerce's practice in non-market economy cases, if there are any suspended entries of subject merchandise during the POR under the case numbers of the five companies that claimed no shipments of subject merchandise during the POR, they will be liquidated at the China-wide rate.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date in the
These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.
This notice of the final results of this antidumping duty administrative review is issued and published in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213 and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On April 24, 2019, the Department of Commerce (Commerce) published in the
Applicable May 29, 2019.
Susan Pulongbarit or Benito Ballesteros, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone 202-482-4031 or 202-482-7425, respectively.
On April 24, 2019, Commerce published in the
A ministerial error, as defined in section 751(h) of the Tariff Act of 1930, as amended (the Act), includes “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.”
In the
In accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the
We intend to disclose the calculations performed for these amended final results of review within five days of the date of publication of this notice in the
Commerce shall determine, and U.S. Customs Border Protection (CBP) shall assess antidumping duties on all appropriate entries covered by this review pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b).
Where the respondent reported reliable entered values, we calculated importer- (or customer-) specific
Pursuant to Commerce's assessment practice, for entries that were not reported in the U.S. sales databases submitted by companies individually examined during this review, Commerce will instruct CBP to liquidate such entries at the China-wide entity rate. Additionally, if Commerce determines that an exporter had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (
The following cash deposit requirements will be effective retroactively on any entries made on or after April 24, 2019, the date of publication of the
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) 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 Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. 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 violation which is subject to sanction.
These amended final results and notice are issued and published in accordance with sections 751(h) and 777(i) of the Act and 19 CFR 351.224(e).
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).
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the countervailing duty order on welded stainless pressure pipe (WSPP) from India for the period January 1, 2017, through December 31, 2017.
Applicable May 29, 2019.
Emily Halle or Charles Doss, 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) 482-0176 and (202) 482-4474, respectively.
On November 1, 2018, Commerce published a notice of opportunity to request an administrative review of the countervailing duty (CVD) order on WSPP from India.
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review, in whole or in part, if the party or parties who requested the review withdraw(s) the request within 90 days of the date of publication of the notice of initiation of the requested review. Hindustan Inox, Sun Mark, and the petitioners timely withdrew their requests for an administrative review, and no other party requested a review of these companies. Therefore, we are rescinding the administrative review of the CVD order on WSPP from India covering the period January 1, 2017, to December 31, 2017, in its entirety.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. Because Commerce is rescinding this administrative review in its entirety, the entries to which this administrative review pertains shall be assessed countervailing duties that are equal to the cash deposits of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice in the
This notice serves as a final reminder to parties subject to an administrative protective order (APO) of their
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
National Institute of Standards and Technology, Department of Commerce.
Notice of open meeting.
The Judges Panel of the Malcolm Baldrige National Quality Award (Judges Panel) will meet on Wednesday, June 5, 2019, from 9:00 a.m. to 3:30 p.m. Eastern Time. The purpose of this meeting is to discuss and review the role and responsibilities of the Judges Panel and information received from the National Institute of Standards and Technology (NIST) in order to ensure the integrity of the Malcolm Baldrige National Quality Award (Award) selection process. The agenda will include: Judges Panel roles and processes; Baldrige Program updates; new business/public comment; lessons learned from the 2018 judging process; and the 2019 Award process.
The Judges Panel will meet on Wednesday, June 5, 2019 from 9:00 a.m. until 3:30 p.m. Eastern Time. The meeting will be open to the public.
The meeting will be held at the National Institute of Standards and Technology, Building 101, Lecture Room A, 100 Bureau Drive, Gaithersburg, MD 20899. Please note participation instructions under the
Robert Fangmeyer, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, MD 2899-1020, 301-975-2361. Mr. Fangmeyer's email address is
15 U.S.C. 3711a(d)(1) as amended, and the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the Judges Panel of the Malcolm Baldrige National Quality Award will meet on Wednesday, June 5, 2019 from 9:00 a.m. to 3:30 p.m. Eastern Time. The Judges Panel is composed of twelve members, appointed by the Secretary of Commerce, chosen for their familiarity with quality improvement operations and competitiveness issues of manufacturing companies, service companies, small businesses, nonprofits, health care providers, and educational institutions. The primary purpose of this meeting is to assemble to discuss and review the role and responsibilities of the Judges Panel and information received from NIST in order to ensure the integrity of the Malcolm Baldrige National Quality Award selection process. The agenda may change to accommodate Judges Panel business. The final agenda will be posted on the NIST website at
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's/Board's business are invited to request a place on the agenda. Approximately 30 minutes will be reserved for public comments and speaking times will be assigned on a first-come, first-serve basis. The amount of time per speaker will be determined by the number of requests received but is likely to be about 3 minutes each. Questions from the public will not be considered during this period. Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to participate are invited to submit written statements to the Baldrige Performance Excellence Program, Attention: Robyn Verner, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, Maryland 20899-1020, via fax at (301) 975-4967, or electronically by email to
All visitors to the NIST site are required to pre-register to be admitted. Please submit your full name, time of arrival, email address, and phone number to Robyn Verner by 4:00 p.m. Eastern Time, Friday, May 31, 2019. Non-U.S. citizens must submit additional information; please contact Ms. Verner. Ms. Verner's email address is
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 65 Data Webinar II for HMS Atlantic blacktip shark.
The SEDAR 65 assessment process of HMS Atlantic blacktip shark will consist of a Data Workshop, a series of data and assessment webinars, and a Review Workshop. See
The SEDAR 65 Data Webinar II will be held June 20, 2019, from 1 p.m. to 3 p.m. Eastern Standard Time.
The meeting will be held via webinar. The webinar is open to members of the public. Those interested in participating should contact Julie A. Neer at SEDAR (see
Julie A. Neer, SEDAR Coordinator; (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop, (2) a series of assessment webinars, and (3) A Review Workshop. The product of the Data Workshop is a report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The assessment webinars produce a report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The product of the Review Workshop is an Assessment Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion during the webinar are as follows:
Panelists will review the data sets being considered for the assessment and discuss initial modeling efforts.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C 1801
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.
Notice of public meetings.
The Pacific Fishery Management Council (Pacific Council) and its advisory entities will hold public meetings.
The Pacific Council and its advisory entities will meet June 19-25, 2019. The Pacific Council meeting will begin on Thursday, June 20, 2019 at 9 a.m. Pacific Daylight Time (PDT), reconvening at 8 a.m. each day through Tuesday, June 25, 2019. All meetings are open to the public, except a closed session will be held from 8 a.m. to 9 a.m., Thursday, June 20 to address litigation and personnel matters. The Pacific Council will meet as late as necessary each day to complete its scheduled business.
Meetings of the Pacific Council and its advisory entities will be held at the DoubleTree by Hilton Mission Valley, 7450 Hazard Center Drive, San Diego, CA; telephone: (619) 297-5466.
Mr. Chuck Tracy, Executive Director; telephone: (503) 820-2280 or (866) 806-7204 toll-free; or access the Pacific Council website,
The June 19-25, 2019 meeting of the Pacific Council will be streamed live on the internet. The broadcasts begin initially at 9 a.m. PST Thursday, June 20, 2019 and continue at 8 a.m. daily through Tuesday, June 25, 2019. Broadcasts end daily at 5 p.m. PDT or when business for the day is complete. Only the audio portion and presentations displayed on the screen at the Pacific Council meeting will be broadcast. The audio portion is listen-only; you will be unable to speak to the Pacific Council via the broadcast. To access the meeting online, please use the following link:
The following items are on the Pacific Council agenda, but not necessarily in this order. Agenda items noted as “Final Action” refer to actions requiring the Council to transmit a proposed fishery management plan, proposed plan amendment, or proposed regulations to the U.S. Secretary of Commerce, under Sections 304 or 305 of the Magnuson-Stevens Fishery Conservation and Management Act. Additional detail on agenda items, Council action, advisory entity meeting times, and meeting rooms are described in Agenda Item A.4, Proposed Council Meeting Agenda, and will be in the advance June 2019 briefing materials and posted on the Pacific Council website at
Advisory body agendas will include discussions of relevant issues that are on the Pacific Council agenda for this meeting, and may also include issues that may be relevant to future Council meetings. Proposed advisory body agendas for this meeting will be available on the Pacific Council website
Although non-emergency issues not contained in this agenda may come before the Pacific Council for discussion, those issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Pacific Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2411 at least 10 business days prior to the meeting date.
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.
Written comments must be submitted on or before July 29, 2019.
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 Kathleen Ernst (
The NOAA RESTORE Science Program is committed to improving ecosystem-based management practices throughout the Gulf of Mexico by funding project teams that bring together scientists and resource managers to produce findings and products that (1) increase knowledge and understanding of the ecosystem as a whole, and (2) inform ecosystem-based management. To assess progress towards these outcomes, the Science Program established a long-term outcome metric for the program: The management of the Gulf of Mexico ecosystem and its resources is informed by a comprehensive understanding of the dynamic linkages between the components of the ecosystem and there is growing confidence in, and capacity for, taking an ecosystem-based approach to management. A survey instrument has been developed that will assess the state of ecosystem based management practices across the Gulf of Mexico. This survey instrument will be electronically distributed to resource managers from not-for-profit institutions and local, state, tribal, and federal government agencies. Potential participants can print the survey, or receive the survey by mail if they so choose. Currently, no survey instrument assessing the state of ecosystem-based management practices in the Gulf of Mexico has been undertaken at the regional scale. This survey instrument is intended to create a baseline of understanding regarding ecosystem-based management practices and progress in the Gulf of Mexico region of the United States.
Information will primarily be collected electronically using a survey instrument to record responses. The survey instrument will be available as a Google Form, and partial responses will be recorded if a participant submits the survey but does not complete all survey questions. An option to print the survey instrument and mail it to the NOAA RESTORE Science Program Offices is also available at this url:
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 state of California repealed their requirement, effective July 1, 2019, therefore, NMFS must create a federal requirement in order to not lose logbook coverage from trawl vessels in California. This federal requirement duplicates the logbook structure and process that the state of California was using in order to minimize disruption or confusion for fishery participants. Under this rule, NMFS will contract with the Pacific States Marine Fisheries Commission (PSMFC) to distribute and collect the same logbook these fishermen have been using previously. These data are used regularly by NMFS, the Pacific Fishery Management Council, the West Coast Groundfish Observer Program, NMFS Office of Law Enforcement, and the Coast Guard for fisheries management and enforcement.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of solicitation.
Notice is hereby given that ONMS will solicit applications to fill seats on its 13 national marine sanctuary advisory councils and the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council (advisory councils), under the National Marine Sanctuaries Act and the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Executive Order, respectively. Vacant seats, including positions (
Please visit individual site web pages, or reach out to a site as identified in this notice's
Vacancies and applications are specific to each site's advisory council. As such, questions about a specific council or vacancy, including questions about advisory council applications, should be directed to a site. Contact Information for Each Site is contained in the
For further information on a particular advisory council or available seats, please contact the site as identified in this notice's
Section 315 of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1445A) allows the Secretary of Commerce to establish advisory councils to advise and make recommendations regarding the designation and management of national marine sanctuaries. Executive Order 13178 similarly established a Coral Reef Ecosystem Reserve Council pursuant to the NMSA for the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve. In this Supplementary Information section, NOAA provides details regarding the Office of National Marine Sanctuaries, the role of advisory councils, and contact information for each site.
ONMS serves as the trustee for a network of underwater parks encompassing more than 600,000 square miles of marine and Great Lakes waters from Washington state to the Florida Keys, and from Lake Huron to American Samoa. The network includes a system of 13 national marine sanctuaries and Papahānaumokuākea and Rose Atoll marine national monuments. National marine sanctuaries protect our nation's most vital coastal and marine natural and cultural resources, and through active research, management, and public engagement, sustain healthy environments that are the foundation for thriving communities and stable economies.
One of the many ways ONMS ensures public participation in the designation and management of national marine sanctuaries is through the formation of advisory councils. Advisory councils are community-based advisory groups established to provide advice and recommendations to ONMS on issues including management, science, service, and stewardship; and to serve as liaisons between their constituents in the community and the site. Pursuant to Section 315(a), advisory councils are exempt from the requirements of the Federal Advisory Committee Act. Additional information on ONMS and its advisory councils can be found at
Under Section 315 of the NMSA, advisory council members may be appointed from among: (1) Persons employed by federal or state agencies with expertise in management of natural resources; (2) members of relevant regional fishery management councils; and (3) representatives of local user groups, conservation and other public interest organizations, scientific organizations, educational organizations, or others interested in the protection and multiple use management of sanctuary resources. For the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council, Executive Order 13178 Section 5(f) specifically identifies member and representative categories.
The charter for each advisory council defines the number and type of seats and positions on the council; however, as a general matter, available seats could include: Conservation, education,
For each of the 14 advisory councils, applicants are chosen based upon their particular expertise and experience in relation to the seat for which they are applying; community and professional affiliations; views regarding the protection and management of marine or Great Lakes resources; and possibly the length of residence in the area affected by the site. Applicants chosen as members or alternates should expect to serve two- or three-year terms, pursuant to the charter of the specific national marine sanctuary advisory council or Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council.
More information on advisory council membership and processes, and materials related to the purpose, policies, and operational requirements for advisory councils can be found in the charter for a particular advisory council (
• Channel Islands National Marine Sanctuary Advisory Council: Channel Islands National Marine Sanctuary, University of California, Santa Barbara, Ocean Science Education Building 514, MC 6155, Santa Barbara, CA 93106; 805-893-6437;
• Cordell Bank National Marine Sanctuary Advisory Council: Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950; 415-464-5260;
• Florida Keys National Marine Sanctuary Advisory Council: Florida Keys National Marine Sanctuary, 33 East Quay Road, Key West, FL 33040; 305-809-4700;
• Flower Garden Banks National Marine Sanctuary Advisory Council: Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, Galveston, TX 77551; 409-621-5151;
• Gray's Reef National Marine Sanctuary Advisory Council: Gray's Reef National Marine Sanctuary, 10 Ocean Science Circle, Savannah, GA 31411; 912-598-2345;
• Greater Farallones National Marine Sanctuary Advisory Council: Greater Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129; 415-561-6622;
• Hawaiian Islands Humpback Whale National Marine Sanctuary Advisory Council: Hawaiian Islands Humpback Whale National Marine Sanctuary, NOAA Inouye Regional Center, NOS/ONMS/HIHWNMS, 1845 Wasp Boulevard, Building 176, Honolulu, HI 96818; 808-879-2818;
•
• Monterey Bay National Marine Sanctuary Advisory Council: Monterey Bay National Marine Sanctuary, 99 Pacific Street, Building 455A, Monterey, CA 93940; 831-647-4201;
• Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council: NOAA Inouye Regional Center, NOS/ONMS/PMNM, 1845 Wasp Boulevard, Building 176, Honolulu, HI 96818; 808-725-5800;
• Olympic Coast National Marine Sanctuary Advisory Council: Olympic Coast National Marine Sanctuary, 115 East Railroad Avenue, Suite 301, Port Angeles, WA 98362; 360-457-6622;
• Stellwagen Bank National Marine Sanctuary Advisory Council: Stellwagen Bank National Marine Sanctuary, 175 Edward Foster Road, Scituate, MA 02066; 781-545-8026;
• Thunder Bay National Marine Sanctuary Advisory Council: Thunder Bay National Marine Sanctuary, 500 West Fletcher Street, Alpena, MI 49707; 989-356-8805;
16 U.S.C. 1431
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings and a partially closed meeting.
The Western Pacific Fishery Management Council (Council) will hold its 132nd Scientific and Statistical Committee (SSC) meeting, Fishery Data Collection and Research Committee (FDCRC), 178th Council meeting and associated meetings to take actions on fishery management issues in the Western Pacific Region. A portion of the Council's Executive, Budget and Legislative Standing Committee meeting will be closed to the public for a briefing on litigation by counsel.
The meetings will be held between June 18 and June 27, 2019. For specific times and agendas, see
The 132nd SSC, FDCRC, the Council's Executive, Budget and Legislative Standing Committee and Pelagic and International Standing Committee meetings will be held at the Council office, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, phone: (808) 522-8220. The 178th Council meeting will be held at the Laniakea YWCA, Fuller Hall, 1040 Richards Street, Honolulu HI 96813, phone: (808) 538-7061. The Fishers Forum will be held at the Ala Moana Hotel, 410 Atkinson Dr, Honolulu, HI 96814, phone: (808) 955-4811.
Contact Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council; phone: (808) 522-8220.
The 132nd SSC meeting will be held between 8:30 a.m. and 5 p.m. on June 18-20, 2019. The FDCRC meeting will be held between 8:30 a.m. and 12 noon on June 24, 2019. The Executive, Budget and
Agenda items noted as “Final Action Items” refer to actions that result in Council transmittal of a proposed fishery management plan, proposed plan amendment, or proposed regulations to the U.S. Secretary of Commerce, under Sections 304 or 305 of the MSA. In addition to the agenda items listed here, the Council and its advisory bodies will hear recommendations from Council advisors. An opportunity to submit public comment will be provided throughout the agendas. The order in which agenda items are addressed may change and will be announced in advance at the Council meeting. The meetings will run as late as necessary to complete scheduled business. Background documents will be available from, and written comments should be sent to, Kitty M. Simonds, Executive Director; Western Pacific Fishery Management Council, 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, phone: (808) 522-8220 or fax: (808) 522-8226.
Non-emergency issues not contained in this agenda may come before the Council for discussion and formal Council action during its 178th meeting. However, Council action on regulatory issues will be restricted to those issues specifically listed in this document and any regulatory issue arising after publication of this document that requires emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take action to address the emergency.
These meetings are accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kitty M. Simonds, (808) 522-8220 (voice) or (808) 522-8226 (fax), at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Oceanic and Atmospheric Administration, Commerce.
Notice; withdrawal.
This notice withdraws the Department of Commerce's May 22, 2019, notice for the Survey to Develop Estimates of Marine-Related Economic Activity in the United States. The Department of Commerce is withdrawing this notice requesting comments published in the May 22, 2019 issue of the
Applicable May 23, 2019, the document published at 84 FR 23525 on May 22, 2019, is withdrawn.
Jennifer Jessup, Director of Policy and Governance, PRA Clearance Officer, Office of Policy, and Governance, Office of the Chief Information Officer, Office of the Secretary, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at
The Department of Commerce wishes to inform the public it is withdrawing a 60-day public notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 68 Stock ID scoping webinar for Gulf of Mexico and Atlantic scamp.
The SEDAR 68 assessment of Gulf of Mexico and Atlantic scamp will consist of a Data workshop, a series of assessment webinars, and a Review workshop.
The SEDAR 68 Stock Identification (ID) scoping webinar will be held on Wednesday, June 19, 2019, from 10 a.m. to 12 p.m., Eastern Standard Time.
The meeting will be held via webinar. The webinar is open to members of the public. Those interested in participating should contact Julie A. Neer at SEDAR (see
Julie A. Neer, SEDAR Coordinator; (843) 571-4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report that compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report that describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the Stock ID webinars are as follows:
1. Participants will use review genetic studies, growth patterns, existing stock definitions, prior SEDAR stock ID recommendations, and any other relevant information on scamp stock structure.
2. Participants will make recommendations on biological stock structure and define the unit stock or stocks to be addressed through this assessment.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Equal Credit Opportunity Act (Regulation B) 12 CFR 1002.”
Written comments are encouraged and must be received on or before June 28, 2019 to be assured of consideration.
Comments in response to this notice are to be directed towards OMB and to the attention of the OMB Desk Officer for the Bureau of Consumer Financial Protection. You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
•
In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.
Documentation prepared in support of this information collection request is available at
The ECOA also prescribes that creditors inform applicants of decisions made on credit applications. In particular, where creditors make adverse actions on credit applications or existing accounts, creditors must inform consumers as to why the adverse action was taken, such that credit applicants can challenge errors or learn how to become more creditworthy. Creditors must retain all application information for 25 months, including notices they sent and any information related to adverse actions.
Finally, the ECOA requires creditors who furnish applicant information to a consumer reporting agency to reflect participation of the applicant's spouse, if the spouse if permitted to use or contractually liable on the account.
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Consumer Financial Protection (Bureau) is requesting to renew the Office of Management and Budget (OMB) approval for an existing information collection titled, “Report of Terms of Credit Card Plan.”
Written comments are encouraged and must be received on or before June 28, 2019 to be assured of consideration.
Comments in response to this notice are to be directed towards OMB and to the attention of the OMB Desk Officer for the Bureau of Consumer Financial Protection. You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
•
In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.
Documentation prepared in support of this information collection request is available at
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled the AmeriCorps National Civilian Community Corps (NCCC) Service Project Application for review and approval in accordance with the Paperwork Reduction Act.
Comments may be submitted, identified by the title of the information collection activity, by June 28, 2019.
Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the
(1)
(2)
Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Jacob Sgambati, at 202-606-6839 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Air Force Research Laboratory Information Directorate, Rome, New York, Department of the Air Force, DoD.
Notice of intent to issue an exclusive software license.
Pursuant to the Code of Federal Regulations, which implements Public Law, the Department of the Air Force announces its intention to grant On The Curb, Inc., a New York corporation, having a place of business at 326 Broad Street, Utica, New York 13501, an exclusive license under the authority of Section 801 of Public Law 113-66 (2014 National Defense Authorization Act) limited to the field of use in Finance, Hospitality, and Consumer Products, to any right, title and interest the United States Air Force has in: Data Sculptor Version 1 and Data Sculptor Version 2 Source Code and Software Documentation (collectively “Licensed Software”).
An exclusive license in the aforesaid field of use for this software will be granted unless a written objection is received within fifteen (15) days from the date of publication of this Notice. Written objections should be sent to: Stephen Colenzo, Air Force Research Laboratory, Office of the Staff Judge Advocate, AFRL/RIJ, 26 Electronic Parkway, Rome, New York 13441-4514. Email:
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by June 28, 2019.
Comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments, identified by docket number and title, by the following method:
Written requests for copies of the information collection proposal should be sent to Ms. James at
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by June 28, 2019.
Comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra, DoD Desk Officer, at
You may also submit comments, identified by docket number and title, by the following method:
Written requests for copies of the information collection proposal should be sent to Ms. James at
Department of the Navy, DoD.
Notice of partially closed meeting.
The U.S. Naval Academy Board of Visitors will meet to make such inquiry, as the Board shall deem necessary, into the state of morale and discipline, the curriculum, instruction, physical equipment, fiscal affairs, and academic methods of the Naval Academy.
The open session of the meeting will be held on September 16, 2019, from 9:00 a.m. to 11:15 a.m. The executive session held from 11:15 a.m. to 12:00 p.m. will be the closed portion of the meeting.
The meeting will be held at the Library of Congress in Washington, DC. The meeting will be handicap accessible.
Lieutenant Commander Lawrence Heyworth IV, USN, Executive Secretary to the Board of Visitors, Office of the Superintendent, U.S. Naval Academy, Annapolis, MD 21402-5000, 410-293-1503.
This notice of meeting is provided per the Federal Advisory Committee Act, as amended (5 U.S.C. App.). The executive session of the meeting from 11:15 a.m. to 12:00 p.m. on September 16, 2019, will consist of discussions of new and pending administrative or minor disciplinary infractions and non-judicial punishments involving midshipmen attending the Naval Academy to include but not limited to, individual honor or
5 U.S.C. 552b.
National Center for Education Statistics (NCES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before June 28, 2019.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kashka Kubzdela, 202-245-7377 or email
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Fossil Energy, Department of Energy.
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during April 2019, it issued orders granting authority to import and export natural gas, to import and export liquefied natural gas (LNG), and a procedural order. These orders are summarized in the attached appendix and may be found on the FE website at
They are also available for inspection and copying in the U.S. Department of Energy (FE-34), Division of Natural Gas Regulation, Office of Regulation, Analysis, and Engagement, Office of Fossil Energy, Docket Room 3E-033, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585, (202) 586-9478. The Docket Room is open between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
Bonneville Power Administration (Bonneville), Department of Energy (DOE).
Record of decision (ROD).
The Bonneville Power Administration has decided to implement a portion of the Agency Preferred Alternative from the
Idaho Power Company (IPC) has proposed to construct the approximately 290-mile-long B2H Project, a portion of which would occupy the Boardman-to-Ione transmission line right-of-way. The environmental effects of removing the Boardman-to-Ione transmission line from NWSTF Boardman were analyzed in the B2H Project Final EIS, and removal of this line was identified as part of the Agency Preferred Alternative in the Final EIS. The U.S. Bureau of Land Management (BLM) was the lead federal agency under the National Environmental Policy Act (NEPA) for preparation of the B2H Project Final EIS. Bonneville and nineteen other public entities were involved in the EIS as cooperating agencies under NEPA. Bonneville hereby adopts the relevant portions of the Final EIS to support its decision to amend the Boardman-to-Ione transmission line land use agreement.
Several other federal agencies—including the BLM, the U.S. Forest Service, and the U.S. Bureau of Reclamation—have issued approvals to
This ROD will be available to all interested parties and affected persons and agencies. Copies of this ROD can be obtained from Bonneville's Public Information Center, P.O. Box 3621, Portland, Oregon, 97208-3621; by calling Bonneville's nationwide toll-free request line at 1-800-622-4520; or by accessing Bonneville's Project website at:
Jamie Murray, Supervisory Realty Specialist, Bonneville Power Administration—TERR-Kalispell; 2520 US Highway 2 E., Kalispell, MT 59912; toll-free telephone number 1-800-622-4519; or email
Bonneville is a federal agency that owns and operates the majority of the high-voltage electric transmission system in the Pacific Northwest. This system is referred to as the Federal Columbia River Transmission System (FCRTS). The 69-kV Boardman-to-Ione transmission line is part of the FCRTS. This line extends about 30 miles from Bonneville's Boardman Substation to near the Ione Substation, both of which are located in Morrow County, Oregon. About 14 miles of the Boardman-to-Ione transmission line is located along the eastern and southern boundary of the NWSTF Boardman, which is managed by the Navy. This 14-mile-long section currently occupies a 90-foot-wide right-of-way. The structures in this section of right-of-way have height restrictions (100 feet) based on requirements to operate within NWSTF Boardman. The existing land use agreement between Bonneville and the Navy was executed in February of 1971 and subsequently amended in March 2013. This existing land use agreement allows Bonneville to construct, reconstruct, operate, maintain, and access the Boardman-to-Ione transmission line in its current location on NWSTF Boardman.
In 2007, IPC formally proposed the B2H Project by initiating an application process with the BLM to construct, maintain, and operate the B2H Project on BLM-managed lands. As proposed by IPC, the project includes about 290 miles of single-circuit 500-kV transmission line and other ancillary facilities extending from the proposed Longhorn Substation in Morrow County, Oregon, to the existing Hemingway Substation in Owyhee County, Idaho.
The BLM initiated a NEPA process for consideration of IPC's application by publishing a Notice of Intent (NOI) to prepare an EIS for the B2H Project in the
The BLM, in coordination with the cooperating agencies, published a Draft EIS for the B2H Project on December 19, 2014. The Final EIS for the B2H Project was published on November 28, 2016. The Final EIS identified an Agency Preferred Alternative for the B2H Project that was composed of various segments of the Project analyzed in the EIS. This Agency Preferred Alternative included the removal of the Boardman-to-Ione transmission line from NWSTF Boardman, along with potential relocation of this line to nearby private lands.
In November of 2017, the BLM issued a ROD that authorized issuance of a right-of-way grant to IPC for a 250-foot-wide right-of-way for the B2H Project on 85.6 miles of BLM-managed lands, consistent with the route alignment for the Agency Preferred Alternative identified in the Final EIS. In February of 2018, the U.S. Bureau of Reclamation published a ROD authorizing a right-of-way grant to IPC for the portion of the B2H Project right-of-way that crosses about one mile of U.S. Bureau of Reclamation lands under the Agency Preferred Alternative. In November of 2018, the U.S. Forest Service issued a ROD that selected the Agency Preferred Alternative and approved an Electric Transmission Line Easement Special Use Authorization and associated forest plan amendments, including terms and conditions to IPC contained in an easement. The RODs documenting other federal agencies' decisions are in process.
On April 17, 2018, IPC submitted to the Navy an application to obtain an easement to construct about seven miles of the B2H Project within Bonneville's existing Boardman-Ione transmission line right-of-way on NWSTF Boardman, consistent with the Agency Preferred Alternative identified in the B2H Project Final EIS. The easement application states that if IPC constructs the B2H Project within a portion of the Boardman-to-Ione transmission line right-of-way on NWSTF Boardman, then IPC will remove the entire Bonneville Boardman-to-Ione transmission line currently on NWSTF Boardman. The removal of the Boardman-to-Ione transmission line will potentially occur in phases. IPC's application was deemed complete by the Navy on May 16, 2018.
Specific to the removal of the Boardman-to-Ione transmission line from NWSTF Boardman, the B2H Project Final EIS identified and evaluated three design options for the removal and relocation of the Boardman-to-Ione transmission line. Design Option 1 involves partial removal of this transmission line from NWSTF Boardman. Design Option 2 involves full removal of this line from NWSTF Boardman. Finally, Design Option 3 also involves full Removal of this line from NWSTF Boardman but also includes construction of a new step-down substation. These design options are described in Section 2.5.2.1 of the Final EIS.
As part of implementing any of these design options, amendment of the existing land use agreement between Bonneville and the Navy for the Boardman-to-Ione transmission line on NWSTF Boardman is required. The amended land use agreement requires the following conditions be met before Bonneville relinquishes the right-of-way for this line on the NWSTF Boardman:
• A new transmission line and associated infrastructure on the east side of Bombing Range Road be constructed to allow Bonneville to continue service to its customer(s);
• Bonneville is able to secure transmission service under reasonable terms and conditions or own capacity on the new line to continue to provide cost effective and reliable service to its customer(s);
• The B2H Project funds the costs associated with Bonneville relinquishing the right-of-way and replacing the existing service capability and reliable service to its customer; and
• The resolution of any associated real property or commercial issues.
Under the amended land use agreement, if these conditions are realized, Bonneville will relinquish, potentially in phases, its right-of-way along the boundary of NWSTF
If the B2H Project is not constructed on NWSTF Boardman or the Navy does not grant an easement to the B2H project, all terms of the existing land use agreement, including all previous amendments, between Bonneville and the Navy for the Boardman-to-Ione transmission line right-of-way will remain in place and unchanged.
The B2H Project Final EIS also included a No Action Alternative. Under the No Action Alternative, Bonneville would not amend the Boardman-to-Ione transmission line's land use agreement. The B2H Project would not be constructed within the existing Boardman-to-Ione transmission line right-of-way. There would be no changes to the location, operation, maintenance, or Bonneville access for the Boardman-to-Ione transmission line on NWSTF Boardman. Because there would be no ground disturbance or other new environmental impacts related to this portion of the existing Boardman-to-Ione transmission line, the No Action Alternative would be considered the environmentally preferable alternative for Bonneville's action that is the subject of this ROD.
In making its decision to amend the land use agreement with the Navy for the Boardman-to-Ione transmission line, Bonneville has considered and balanced a variety of relevant factors. Bonneville considered the environmental impacts described in the Final EIS, as well as public comments received throughout the NEPA process and on the Draft and Final EISs. Bonneville also considered the following Bonneville purposes (
• Maintain Bonneville's transmission system reliability and performance
• Meet Bonneville's contractual and statutory obligations
• Minimize impacts on the environment
• Minimize costs while meeting Bonneville's power and transmission service needs
Finally, Bonneville considered the decisions by the BLM, U.S. Bureau of Reclamation, and U.S. Forest Service to grant respective approvals, in part, based on the analysis contained in the Final EIS for the B2H Project, for rights-of-way over the lands they manage for the Agency Preferred Alternative. After considering and balancing all of these factors, Bonneville has decided to amend the land use agreement with the Navy that authorizes the on-going operation and maintenance of the 69-kV Boardman-to-Ione transmission line on NWSTF Boardman in Morrow County, Oregon.
Amending the land use agreement will not interfere with or otherwise affect Bonneville's ability to maintain the stability and reliability of its transmission system or for Bonneville to meet contractual or statutory obligations. The implementation of the removal actions based on the reliability and customer conditions identified in the amended land use agreement will ensure that any change in transmission infrastructure will continue to meet Bonneville's system stability and reliability needs and to provide service to its customer(s).
The removal of the Boardman-to-Ione transmission line from NWSTF Boardman and any supporting infrastructure construction, such as a stepdown substation or access roads, will likely result in impacts to soils, land uses, vegetation, wildlife habitat, and, potentially, some sensitive resources. The impacts associated with these activities were analyzed in the B2H Project Final EIS, which also identifies numerous mitigation measures and required design features to reduce, avoid, or compensate for B2H Project impacts. IPC has committed to implement these design features and mitigation measures as part of the development of the B2H Project. Specific to removing the line, methods would be used to minimize ground disturbance and restrict vehicle access in order to minimize potential environmental impacts. In addition, final removal plans would be coordinated with NWSTF Boardman personnel as well as Morrow County Public Works, Oregon Department of Transportation, adjacent landowners, and other relevant agencies. As additional site-specific information to refine the location and nature of the Boardman-to-Ione transmission line's removal activities are further known, Bonneville may identify additional necessary minimization and/or mitigation actions.
Should the Boardman-to-Ione transmission line be removed to accommodate the B2H Project, the estimated cost of the removal and replacement activities will be about $16 million dollars, which will be paid for by the B2H Project. Should the B2H Project not be built, the Boardman-to-Ione transmission line will remain in place and there will be no costs associated with removal and replacement activities. Either way, costs to Bonneville would be minimal to non-existent.
A complete list of required environmental protection measures designed to avoid and/or minimize environmental harm from B2H Project construction, operation, and maintenance activities, is available in Chapter 2 (Table 2-7) of the Final EIS and in Appendix D of BLM's ROD. All the mitigation measures that apply to removal of the Boardman-to-Ione transmission line from NWSTF Boardman are adopted. IPC will be responsible for implementing mitigation measures for their actions identified in the EIS. As additional site-specific information to refine the location and nature of the Boardman-to-Ione transmission line's removal activities are further known, Bonneville may identify additional necessary minimization and/or mitigation actions. Before Bonneville takes any action to begin removal of the Boardman-to-Ione transmission line, Bonneville will prepare a Mitigation Action Plan for all mitigation it intends to implement.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on May 15, 2019, Tennessee Gas Pipeline Company, L.L.C. (Tennessee), 1001 Louisiana Street, Houston, Texas 77002, filed in the above referenced docket, a prior notice request pursuant to sections 157.205, 157.208 and 157.210 of the Commission's regulations under the Natural Gas Act (NGA) and Tennessee's blanket certificate issued in Docket No. CP82-413-000, for authorization to
The filing may also be viewed on the web at
Any questions regarding this prior notice request should be directed to Ben J. Carranza, Director of Regulatory for Tennessee Gas Pipeline Company, L.L.C., 1001 Louisiana Street, Houston, Texas 77002, or call (713) 420-5535, or by email
Specifically, Tennessee proposes to replace existing Solar Turbine Taurus 70-10302S compressor unit at CS 321 with a Taurus 70-10802S compressor unit. The new turbine engine will have 9 ppm SoLoNO
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding; or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's EA.
Any person may, within 60 days after the issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention. Any person filing to intervene or the Commission's staff may, pursuant to section 157.205 of the Commission's Regulations under the NGA (18 CFR 157.205) file a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for protest. If a protest is filed and not withdrawn within 30 days after the time allowed for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
The Commission strongly encourages electronic filings of comments, protests, and interventions via the internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's website (
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, interventions, and protests is June 24, 2019. The Commission strongly encourages electronic filing. Please file motions to intervene, protests and comments using the Commission's eFiling system at
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m. This filing may be viewed on the Commission's website at
n. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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q. Agency Comments—Federal, state, and local agencies are invited to file comments on the described proceeding. If any agency does not file comments within the time specified for filing comments, it will be presumed to have no comments.
On May 14, 2019, InPipe Energy filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed La Brea Regulation Station Hydroelectric Project would have a total installed capacity of up to 100 kilowatts (kW), and would be located in the La Brea Regulation Station, which is on the City of Los Angeles' water supply system. The project would be located in the City of Los Angeles in Los Angeles County, California.
A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.
Deadline for filing motions to intervene is 30 days from the issuance date of this notice.
Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.
The Commission strongly encourages electronic filing. Please file motions to intervene and comments using the Commission's eFiling system at
Take notice that the following hydroelectric application has been filed with the Federal Energy Regulatory Commission and is available for public inspection:
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c.
d.
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f.
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j. Deadline for filing comments, motions to intervene, and protests is 30 days from the issuance of this notice by the Commission. The Commission strongly encourages electronic filing. Please file motions to intervene, protests, and comments using the Commission's eFiling system at
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection FERC-740 (Availability of E-Tag Information to Commission Staff) and submitting the information collection to the Office of Management and Budget (OMB) for review. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. On March 22, 2019, the Commission published a Notice in the
Comments on the collection of information are due June 28, 2019.
Comments filed with OMB, identified by OMB Control No. 1902-0254, should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Commission, in Docket No. IC19-18-000, by either of the following methods:
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Ellen Brown may be reached by email at
Order No. 771 provided the Commission access to e-Tags by requiring that Purchasing-Selling Entities
In early 2014, the North American Energy Standards Board (NAESB) incorporated the “CC” list requirement on e-Tags as part of the tagging process.
The Commission expects that PSEs and BAs will continue to use existing, automated procedures to create and validate the e-Tags in a way that automatically provides the Commission with access to them. In the rare event that a newly formed. non-U.S. BA would need to alert e-Tag administrators that certain tags it generates qualify for exemption under the Commission's regulations (
Take notice that Federal Energy Regulatory Commission (Commission) staff will convene a staff-led public meeting on Monday, July 15, 2019, beginning at 10:00 a.m. (ET). The public meeting will be held in the Commission Meeting Room at Commission headquarters, 888 First Street NE, Washington, DC 20426. Commissioners may attend and participate.
On July 2, 2018, the Commission directed the ISO New England Inc. (ISO-NE) to submit permanent revisions to the ISO-NE Transmission, Markets and Services Tariff (Tariff) reflecting improvements to its market design to better address regional fuel security concerns,
This staff-led public meeting will consist of three, 90-minute presentations by ISO-NE, NEPOOL stakeholders, and representatives from New England states with time for questions and answers reserved at the end of the meeting. Questions will only be permitted from Commission staff and Commissioners. Further information
All interested persons may attend the public meeting. Registration is not required. However, in-person attendees are encouraged to pre-register on-line at:
The public meeting will be webcast. A link to the webcast of this event will be available in the Commission Calendar of Events at
The public meeting will not be transcribed. PowerPoint slides or printed documents used in the public meeting will be entered into the record in Docket No. EL18-182-000.
Commission public meetings are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this public meeting, please contact Frank Swigonski by phone at (202) 502-8089 or by email at
On May 21, 2019, the Commission issued an order in Docket No. EL19-73-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether Birdsboro Power LLC's proposed initial reactive power tariff to provide Reactive Supply and Voltage Control from Generational or Other Sources Service may be unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL19-73-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL19-73-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2018), within 21 days of the date of issuance of the order.
Environmental Protection Agency (EPA).
Notice, correction.
EPA issued a notice in the
Christopher Green, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 341-0367; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2018-0014, is available at
This notice is being issued to correct Table 1 of the cancellation notice that published in the
1. On page 10068, in Table 1, remove the complete entries for: “264-736 and 264-740”.
2. Insert the following table below Table 1.
The registrants of the two registrations in Table 1A, have requested the cancellations to be effective on December 31, 2020.
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
In accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing a notice of receipt of requests by registrants to voluntarily cancel certain pesticide registrations. EPA intends to grant these requests at the close of the comment period for this announcement unless the Agency receives substantive comments within the comment period that would merit its further review of the requests, or unless the registrants withdraw its requests. If these requests are granted, any sale, distribution, or use of the products listed in this notice will be permitted after the registrations have been cancelled only if such sale, distribution, or use is consistent with the terms as described in the final order.
Comments must be received on or before June 28, 2019.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2019-0091, by one of the following methods:
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Christopher Green, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (703) 347-0367; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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2.
This notice announces receipt by EPA of requests from registrants to cancel certain pesticide product registrations. The affected products and the registrants making the requests are identified in Tables 1 and 2 of this unit.
Unless a request is withdrawn by the registrant or if the Agency determines that there are substantive comments that warrant further review of this requests, EPA intends to issue an order canceling the affected registrations.
Table 2 of this unit includes the names and addresses of record for the registrants of the products listed in Table 1 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1 of this unit.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Section 6(f)(1)(B) of FIFRA (7 U.S.C. 136d(f)(1)(B)) requires that before acting on a request for voluntary cancellation,
1. The registrants request a waiver of the comment period, or
2. The EPA Administrator determines that continued use of the pesticide would pose an unreasonable adverse effect on the environment.
The registrants have requested that EPA waive the 180-day comment period.
Accordingly, EPA will provide a 30-day comment period on the proposed requests.
Registrants who choose to withdraw a request for product cancellation should submit the withdrawal in writing to the person listed under
Existing stocks are those stocks of registered pesticide products that are currently in the United States and that were packaged, labeled, and released for shipment prior to the effective date of the action. If the requests for voluntary cancellation are granted, the Agency intends to publish the cancellation order in the
In any order issued in response to these requests for cancellation of product registrations, EPA proposes to include the following provisions for the treatment of any existing stocks of the products listed in Table 1 of Unit II.
For voluntary product cancellations, registrants will be permitted to sell and distribute existing stocks of voluntarily canceled products for 1 year after the effective date of the cancellation, which will be the date of publication of the cancellation order in the
Persons other than the registrant may sell, distribute, or use existing stocks of canceled products until supplies are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products.
7 U.S.C. 136
Environmental Protection Agency (EPA).
Notice.
The Clean Air Act (CAA), Act to Prevent Pollution from Ships (APPS) and regulations require that the United States Environmental Protection Agency (EPA) provide notice to interested parties before any contractor may be provided access to confidential business information (CBI). EPA is providing notice that several subcontractors of a previously identified contractor will be given access to CBI. This permits the CBI owners and any other interested parties to comment on the subcontractors' proposed access to CBI so that EPA's Office of Enforcement and Compliance Assurance can utilize the named subcontractors to provide compliance assistance and enforcement services without providing individualized notice to CBI owners.
Comments must be received on or before June 3, 2019. Subcontractors' access to information collected under the CAA Titles I and II, and the APPS, will begin on June 4, 2019.
You may send comments, identified by Docket ID No. EPA HQ-OECA-2012-0978, by any of the following methods:
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Jeffrey Kimes, Air Enforcement Division, Office of Enforcement and Compliance Assurance (Mail Code 8MSU), Environmental Protection Agency, 1595 Wynkoop St., Denver, CO 80202; telephone number: (303) 312-6445; fax number (303) 312-7208; email address:
This action is directed to the general public. However, this action may be of particular interest to certain parties, including: Vehicle manufacturers and importers; engine manufacturers and importers; motor vehicle fuel and fuel additive producers and importers; manufacturers, importers, distributors and installers of vehicle and engine emission control equipment and parts; and any other parties subject to the CAA, APPS and regulations found in 40 CFR parts 79, 80, 85, 86, 89-92, 94, 1033, 1036, 1037, 1039, 1042, 1043, 1045, 1048, 1051, 1054, 1060, 1065, and 1068.
This
EPA has established a public docket for this
All documents in the docket are identified in the docket index available at
Materials listed under Docket ID No. EPA-HQ-OECA-2012-0978 will be available for public viewing at the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20460. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742.
EPA's OECA has responsibility for protecting public health and the environment by regulating air pollution from motor vehicles, engines, and the fuels used to operate them, and by encouraging travel choices that minimize emissions. In order to implement various Clean Air Act programs, and to give regulated entities flexibility in meeting regulatory requirements (
On March 12, 2019, EPA provided notice in the
Under Contract Number 68HERH19C0004, ERG provides enforcement support for EPA's CAA mobile source regulatory and enforcement activities, including field inspections, investigations, audits, and other CAA regulatory and enforcement support that involve access to information claimed as CBI. ERG also employs subcontractors, who support these activities, under the above-listed contract. These subcontractors include: Sunblock Systems, Inc.; PG Environmental, LLC; BDO USA, LLP; Dr. James J. Carroll; Dr. Yiqun Huang; Dr. Maureen Kaplan; and Capital Reporting Company. Access to data, including information claimed as CBI, will commence six days after the date of publication of this notice in the
Parties who wish to obtain further information about this
Federal Communications Commission.
Notice.
In this document, the FCC announces and provides an agenda for the first meeting of the re-chartered Broadband Deployment Advisory Committee (BDAC).
Thursday, June 13, 2019. The meeting will come to order at 9:30 a.m.
Federal Communications Commission, 445 12th Street SW, Room TW-C305, Washington, DC 20554.
Justin L. Faulb, Designated Federal Authority (DFO) of the BDAC, at
This meeting is open to members of the general public. The FCC will accommodate as many participants as possible; however, admittance will be limited to seating availability. The FCC will also provide audio and/or video coverage of the meeting over the internet from the FCC's web page at
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request.
Federal Housing Finance Agency.
60-Day notice of submission of information collection for approval from Office of Management and Budget.
In accordance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the Federal Housing Finance Agency (FHFA) is seeking public comments concerning an information collection known as the “American Survey of Mortgage Borrowers,” which has been assigned control number 2590-0015 by the Office of Management and Budget (OMB). FHFA intends to submit the information collection to OMB for review and approval of a three-year extension of the control number, which is due to expire on July 31, 2019.
Interested persons may submit comments on or before July 29, 2019.
Submit comments to FHFA, identified by “Proposed Collection; Comment Request: `American Survey of Mortgage Borrowers, (No. 2019-N-04)'” by any of the following methods:
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We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA website at
Saty Patrabansh, Manager, National Mortgage Database Program,
FHFA is seeking OMB clearance under the PRA for a collection of information known as the “American Survey of Mortgage Borrowers” (ASMB). The ASMB is an annual, voluntary survey of individuals who currently have a first mortgage loan secured by single-family residential property. The 2018 survey questionnaire consisted of 93 questions designed to learn directly from mortgage borrowers about their mortgage experience, any challenges they may have had in maintaining their mortgage and, where applicable, in terminating a mortgage. It requested specific information on: the mortgage; the mortgaged property; the borrower's experience with the loan servicer; and the borrower's financial resources and financial knowledge. FHFA is also seeking clearance to pretest future iterations of the survey questionnaire and related materials from time to time through the use of focus groups. A copy of the 2018 survey questionnaire appears at the end of this notice.
The ASMB is a component of the “National Mortgage Database” (NMDB) Program, which is a joint effort of FHFA and the Consumer Financial Protection Bureau (CFPB). The NMDB Program is designed to satisfy the Congressionally-mandated requirements of section 1324(c) of the Federal Housing Enterprises Financial Safety and Soundness Act.
As a means of fulfilling these and other statutory requirements, as well as to support policymaking and research regarding the residential mortgage markets, FHFA and CFPB jointly established the National Mortgage Database Program in 2012. The Program is designed to provide comprehensive information about the U.S. mortgage market and has three primary components: (1) The NMDB; (2) the quarterly National Survey of Mortgage Originations (NSMO); and (3) the ASMB.
The NMDB is a de-identified loan-level database of closed-end first-lien residential mortgage loans that is representative of the market as a whole, contains detailed loan-level information on the terms and performance of the mortgages and the characteristics of the associated borrowers and properties, is continually updated, has an historical component dating back to 1998, and provides a sampling frame for surveys to collect additional information. The core data in the NMDB are drawn from a random 1-in-20 sample of all closed-end first-lien mortgage files outstanding at any time between January 1998 and the present in the files of Experian, one of
The NMDB also draws information on mortgages in the NMDB datasets from other existing sources, including the Home Mortgage Disclosure Act (HMDA) data that are maintained by the Federal Financial Institutions Examination Council (FFIEC), property valuation models, and data files maintained by Fannie Mae and Freddie Mac and by federal agencies. FHFA obtains additional data from the quarterly NSMO, which provides critical and timely information on newly-originated mortgages and those borrowing that are not available from any existing source, including: The range of nontraditional and subprime mortgage products being offered, the methods by which these mortgages are being marketed, and the characteristics of borrowers for these types of loans.
While the NSMO provides information on newly-originated mortgages, the ASMB solicits information on borrowers' experience with maintaining their existing mortgages, including their experience maintaining mortgages under financial stress, their experience in soliciting financial assistance, their success in accessing federally-sponsored programs designed to assist them, and, where applicable, any challenges they may have had in terminating a mortgage loan. This type of information is not available from any other source. Beginning in 2016, the ASMB questionnaire has been sent out annually to a stratified random sample of 10,000 borrowers in the NMDB. In 2018, the ASMB had an 18.7 percent overall response rate, which yielded 1,793 survey responses.
When fully processed, the information collected through the ASMB will be used, in combination with information obtained from existing sources in the NMDB, to assist FHFA in understanding how the performance of existing mortgages is influencing the residential mortgage market, what different borrower groups are discussing with their servicers when they are under financial stress, and consumers' opinions of federally-sponsored programs designed to assist them. This important, but otherwise unavailable, information will assist FHFA in the supervision of its regulated entities (Fannie Mae, Freddie Mac, and the Federal Home Loan Banks) and in the development and implementation of appropriate and effective policies and programs. The information will also be used for research and analysis by CFPB and other federal agencies that have regulatory and supervisory responsibilities/mandates related to mortgage markets and to provide a resource for research and analysis by academics and other interested parties outside of the government.
As it has done in the past, FHFA expects to continue to sponsor focus groups to pretest possible survey questions and revisions to the survey materials. Such pretesting ultimately helps to ensure that the survey respondents can and will answer the survey questions and will provide useful data on their experiences with maintaining their existing mortgages. FHFA uses information collected through the focus groups to assist in drafting and modifying the survey questions and instructions, as well as the related communications, to read in the way that will be most readily understood by the survey respondents and that will be most likely to elicit usable responses. Such information is also used to help determine how best to organize and format the survey questionnaire.
This information collection comprises two components: (I) The ASMB survey; and (II) the pre-testing of the survey questionnaire and related materials through the use of cognitive testing. FHFA conducted the survey annually from 2016 through 2018. Although the ASMB is nominally an annual survey, the decision as to whether the ASMB will be conducted in 2019 and thereafter depends upon the availability of funding and on assessments as to whether there is a continuing need for the type of data collected through the survey. For purposes of these burden estimates, however, FHFA assumes that it will conduct the survey once annually over the next three years and that it will conduct two rounds of pre-testing on each set of survey materials.
FHFA has analyzed the total hour burden on members of the public associated with conducting the survey (5,000 hours) and with pre-testing the survey materials (24 hours) and estimates the total annual hour burden imposed on the public by this information collection to be 5,024 hours. The estimate for each phase of the collection was calculated as follows:
FHFA estimates that the ASMB questionnaire will be sent to 10,000 recipients each time it is conducted. Although it expects that only about 1,800 of those surveys will be returned, FHFA has calculated the burden estimates below as if all of the surveys will be returned. Based on the reported experience of respondents to earlier ASMB questionnaires, FHFA estimates that it will take each respondent 30 minutes to complete each survey, including the gathering of necessary materials to respond to the questions. This results in a total annual burden estimate of 5,000 hours for the survey phase of this collection (1 survey per year × 10,000 respondents per survey × 30 minutes per respondent = 5,000 hours).
FHFA estimates that it will sponsor two focus groups prior to conducting each annual survey, with 12 participants in each focus group, for a total of 24 focus group participants. It estimates the participation time for each focus group participant to be one hour, resulting in a total annual burden estimate of 24 hours for the pre-testing phase of the collection (2 focus groups per year × 12 participants in each group × 1 hour per participant = 24 hours).
FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of FHFA's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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.
10:00 a.m., Wednesday, June 5, 2019.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW, Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and § 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD, Relay/1-800-877-8339 for toll free.
1-(866) 867-4769
10:00 a.m., Tuesday, June 4, 2019.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW, Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will hear oral argument in the matter
Any person attending this oral argument who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and § 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD, Relay/1-800-877-8339 for toll free.
1-(866) 867-4769, Passcode: 678-100
The notificants listed below have applied under the Change in Bank Control Act (“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 6, 2019.
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Federal Trade Commission (“Commission” or “FTC”).
Notice of information collection; request for comment.
The FTC requests that the Office of Management and Budget (“OMB”) extend for an additional three years the current Paperwork Reduction Act (“PRA”) clearance for information collection requirements in its regulation “Duties of Furnishers of Information to Consumer Reporting Agencies” (“Information Furnishers Rule”), which applies to certain motor vehicle dealers, and its shared enforcement with the Consumer Financial Protection Bureau (“CFPB”) of the furnisher provisions (subpart E) of the CFPB's Regulation V
Comments must be submitted on or before June 28, 2019.
Comments in response to this notice should be submitted to the OMB Desk Officer for the Federal Trade Commission within 30 days of this notice. You may submit comments using any of the following methods:
Jamie Elliott Hine, Attorney, Division of Privacy and Identity Protection, Bureau of Consumer Protection, (202) 326-2188, 600 Pennsylvania Ave. NW, CC-8232, Washington, DC 20580.
Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The total estimated burden is 17,055 hours and $878,307 in associated labor costs. Commission staff believes that the Information Furnishers Rule and subpart E of Regulation V impose negligible capital or other non-labor costs, as the affected entities are already likely to have the necessary supplies and/or equipment (
These burden figures reflect solely the FTC's estimates assigned to itself, including a portion reflective of its sole enforcement authority for certain motor vehicle dealers subject to the FTC rule.
On March 19, 2019, the Commission sought comment on the information collection requirements associated with the Information Furnishers Rule and the Commission's shared enforcement with the CFPB of the furnisher provisions in subpart E of the CFPB's Regulation V. 84 FR 10074. No relevant comments were received. Pursuant to the OMB regulations, 5 CFR part 1320, that implement the PRA, 44 U.S.C. 3501
Your comment—including your name and your state—will be placed on the public record of this proceeding. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential” as provided in Section 6(f) of the FTC Act 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns devices, manufacturing processes, or customer names.
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 28, 2019.
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. FDA Adverse Event Reports; Electronic Submissions—21 CFR 310.305, 314.80, 314.98, 314.540, 329.100, 514.80, 600.80, 1271.350, and Part 803 OMB Control Number 0910-0645—Extension
The Safety Reporting Portal (SRP) and the Electronic Submission Gateway (ESG) are the Agency's electronic systems for collecting, submitting, and processing adverse event reports, product problem reports, and other safety information for FDA-regulated products. To ensure the safety and identify any risks, harms, or other
Some adverse event reports are required to be submitted to FDA (mandatory reporting) and some adverse event reports are submitted voluntarily (voluntary reporting). Requirements regarding mandatory reporting of adverse events or product problems have been codified in 21 CFR parts 310, 314, 329, 514, 600, 803, and 1271, specifically §§ 310.305, 314.80, 314.98, 314.540, 329.100, 514.80, 600.80, 803.30, 803.40, 803.50, 803.53, 803.56, and 1271.350(a) (21 CFR 310.305, 314.80, 314.98, 314.540, 329.100, 514.80, 600.80, 803.30, 803.40, 803.50, 803.53, 803.56, and 1271.350(a)). While adverse event reports submitted to FDA in paper format using Forms FDA 3500, 3500A, 1932, and 1932a are approved under OMB control numbers 0910-0284 and 0910-0291, this notice solicits comments on adverse event reports filed electronically via the SRP and the ESG, and currently approved under OMB control number 0910-0645.
FDA currently has OMB approval to receive several types of adverse event reports electronically via the SRP using rational questionnaires. In this notice, FDA seeks comments on the extension of OMB approval for the following rational questionnaires and the proposed revision of the existing rational questionnaire for tobacco products.
The Food and Drug Administration Amendments Act of 2007 (Pub. L. 110-085) (FDAAA) amended the Federal Food, Drug, and Cosmetic Act (FD&C Act) by creating section 417 (21 U.S.C. 350f), Reportable Food Registry (RFR). Section 417 of the FD&C Act defines “reportable food” as an article of food (other than infant formula or dietary supplements) for which there is a “reasonable probability that the use of, or exposure to, such article of food will cause serious adverse health consequences or death to humans or animals.” (See section 417(a)(2) of the FD&C Act.) We designed the RFR report rational questionnaire to enable us to quickly identify, track, and remove from commerce an article of food (other than infant formula and dietary supplements) for which there is a reasonable probability that the use of, or exposure to, such article of food will cause serious adverse health consequences or death to humans or animals. FDA's Center for Food Safety and Applied Nutrition uses the information collected to help ensure that such products are quickly and efficiently removed from the market to prevent foodborne illnesses. The data elements for RFR reports remain unchanged in this request for extension of OMB approval.
Section 512(l) of the FD&C Act (21 U.S.C. 360b(l)) and § 514.80(b) of FDA's regulations (21 CFR 514.80(b)) require applicants of approved new animal drug applications (NADAs) and approved abbreviated new animal drug applications (ANADAs) to report adverse drug experiences and product/manufacturing defects to the Center for Veterinary Medicine (CVM). This continuous monitoring of approved NADAs and ANADAs affords the primary means by which we obtain information regarding potential problems with the safety and efficacy of marketed approved new animal drugs as well as potential product/manufacturing problems. Postapproval marketing surveillance is important because data previously submitted to FDA may no longer be adequate, as animal drug effects can change over time and less apparent effects may take years to manifest.
To report adverse drug experiences and product/manufacturing defects using the Agency's paper forms, respondents are required to use Form FDA 1932, “Veterinary Adverse Drug Reaction, Lack of Effectiveness, Product Defect Report.” Periodic drug experience reports and special drug experience reports must be accompanied by a completed Form FDA 2301, “Transmittal of Periodic Reports and Promotional Material for New Animal Drugs” (see § 514.80(d)). Form FDA 1932a, “Veterinary Adverse Drug Reaction, Lack of Effectiveness or Product Defect Report,” allows for voluntary reporting of adverse drug experiences or product/manufacturing defects by veterinarians and the general public. Collection of information using existing paper Forms FDA 2301, 1932, and 1932a is approved under OMB control number 0910-0284.
Alternatively, however, we encourage respondents to report adverse drug experiences and product/manufacturing defects electronically. The electronic submission data elements to report adverse drug experiences and product/manufacturing defects electronically remain unchanged in this request for extension of OMB approval.
Section 1002(b) of FDAAA directed the Secretary of Health and Human Resources to establish an early warning and surveillance system to identify adulteration of the pet food supply and outbreaks of illness associated with pet food. We developed the Pet Food Early Warning System rational questionnaire as a user-friendly data collection tool, as well as a questionnaire for collecting voluntary adverse event reports associated with livestock food. Information collected in these voluntary adverse event reports contribute to CVM's ability to identify adulteration of the livestock food supply and outbreaks of illness associated with livestock food. We use the information collected to help ensure that such products are quickly and efficiently removed from the market to prevent foodborne illnesses. The electronic submission data elements to report adverse events associated with animal food remain unchanged since last OMB review.
Section 909(a) of the FD&C Act (21 U.S.C. 387i(a)) authorizes FDA to establish regulations with respect to mandatory adverse event reports associated with the use of a tobacco product. We collect voluntary adverse event reports associated with the use of tobacco products from interested parties such as healthcare providers, researchers, consumers, and other users of tobacco products. Information collected in voluntary adverse event reports contributes to FDA's Center for Tobacco Products (CTP's) ability to be informed of, and assess the real consequences of, tobacco product use.
The need for this collection of information derives from our responsibility to obtain current, timely, and policy-relevant information to carry out our statutory functions. CTP has been receiving adverse event and product problem reports through the SRP since January 2014. CTP has developed two voluntary rational questionnaires on the SRP. The first is utilized by consumers and concerned citizens to report tobacco product adverse event or product problems. A second rational questionnaire is used by tobacco product investigators in clinical
The Dietary Supplement and Nonprescription Drug Consumer Protection Act (DSNDCPA) (Pub. L. 109-462, 120 Stat. 3469) amended the FD&C Act with respect to serious adverse event reporting and recordkeeping for dietary supplements and nonprescription drugs marketed without an approved application.
Section 761(b)(1) of the FD&C Act (21 U.S.C. 379aa-1(b)(1)) requires the manufacturer, packer, or distributor whose name (under section 403(e)(1) of the FD&C Act (21 U.S.C. 343(e)(1)) appears on the label of a dietary supplement marketed in the United States to submit to FDA all serious adverse event reports associated with the use of a dietary supplement, accompanied by a copy of the product label. The manufacturer, packer, or distributor of a dietary supplement is required by the DSNDCPA to use the MedWatch form (Form FDA 3500A) when submitting a serious adverse event report to FDA. In addition, under section 761(c)(2) of the FD&C Act, the submitter of the serious adverse event report (referred to in the statute as the “responsible person”) is required to submit to FDA a followup report of any related new medical information the responsible person receives within 1 year of the initial report.
As required by section 3(d)(3) of the DSNDCPA, FDA issued guidance to describe the minimum data elements for serious adverse event reports for dietary supplements. The guidance document entitled “Guidance for Industry: Questions and Answers Regarding Adverse Event Reporting and Recordkeeping for Dietary Supplements as Required by the Dietary Supplement and Nonprescription Drug Consumer Protection Act,” discusses how, when, and where to submit serious adverse event reports for dietary supplements and followup reports. The guidance also provides FDA's recommendation on records maintenance and access for serious and non-serious adverse event reports and related documents.
Reporting of serious adverse events for dietary supplements to FDA serves as an early warning sign of potential public health issues associated with such products. Without notification of all serious adverse events associated with dietary supplements, FDA would be unable to investigate and followup promptly, which in turn could cause delays in alerting the public when safety problems are found. In addition, the information received provides a reliable mechanism to track patterns of adulteration in food that supports efforts by FDA to target limited inspection resources to protect the public health. FDA uses the information collected to help ensure that such products are quickly and efficiently removed from the market to prevent foodborne illnesses.
Paper mandatory dietary supplement adverse event reports are submitted to FDA on the MedWatch form, Form FDA 3500A, and paper voluntary reports are submitted on Form FDA 3500. Forms FDA 3500 and 3500A are available as fillable pdf forms. Dietary supplement adverse event reports may be electronically submitted to the Agency via the SRP. This method of submission is voluntary. A manufacturer, packer, or distributor of a dietary supplement who is unable to or chooses not to submit reports using the electronic system will still be able to provide their information by paper MedWatch form, Form FDA 3500A (by mail or Fax). There is no change to the mandatory information previously required on the MedWatch form. The electronic submission data elements to report adverse events associated with dietary supplement products remain unchanged in this request for extension of OMB approval.
Rational questionnaires have also been developed for submitting adverse event reports for food, infant formula, and cosmetics. The electronic submission data elements to report adverse events associated with food, infant formula, and cosmetics products remain unchanged in this request for extension of OMB approval.
In the
We estimate the burden of this collection of information as follows:
Our estimate of the number of respondents and the total annual responses in table 1, Estimated Annual Reporting Burden, is based primarily on mandatory and voluntary adverse event reports electronically submitted to the Agency. The estimated total annual responses are based on initial reports. Followup reports, if any, are not counted as new reports. Based on our experience with adverse event reporting, we assume it takes respondents 0.6 hour to submit a voluntary adverse event report via the SRP, 1 hour to submit a mandatory adverse event report via the SRP, and 0.6 hour to submit a mandatory adverse event report via the ESG (gateway-to-gateway transmission). Both mandatory and voluntary RFR reports must be submitted via the SRP. We assume it takes respondents 0.6 hour to submit an RFR report, whether the submission is mandatory or voluntary.
The burden hours required to complete paper FDA reporting forms (Forms FDA 3500, 3500A, 1932, and 1932a) are reported under OMB control numbers 0910-0284 and 0910-0291. While we do not charge for the use of the ESG, we require respondents to obtain a public key infrastructure certificate in order to set up the account. This can be obtained in-house or outsourced by purchasing a public key certificate that is valid for 1 year to 3 years. The certificate typically costs from $20 to $30.
Our estimated burden for the information collection reflects an overall increase of 688,547 hours and a corresponding increase of 1,145,763 responses. We attribute this adjustment to an increase in the number of submissions we have received over the last few years.
The Indian Health Service (IHS) Office of Direct Service and Contracting Tribes (ODSCT), is accepting applications for grants for the Tribal Management Grant (TMG) Program. This program is authorized under: 25 U.S.C. 5322(b)(2) and 25 U.S.C. 5322(e) of the Indian Self-Determination and Education Assistance Act (ISDEAA), Public Law 93-638, as amended. This program is described in the Assistance Listings located at
The TMG Program is a competitive grant program that is capacity building and developmental in nature and has been available for federally recognized Indian Tribes and Tribal Organizations (T/TOs) since shortly after enactment of the ISDEAA in 1975. The TMG Program was established to assist T/TOs to prepare for assuming all or part of existing IHS programs, functions, services, and activities (PFSAs) and further develop and improve Tribal health management capabilities. The TMG Program provides competitive grants to T/TOs to establish goals and performance measures for current health programs; assess current management capacity to determine if new components are appropriate; analyze programs to determine if a T/TO's management is practicable; and develop infrastructure systems to manage or organize PFSAs.
The purpose of this IHS grant program is to enhance and develop health management infrastructure and assist T/TOs in assuming all or part of existing IHS PFSAs through a Title I ISDEAA contract and assist established Title I ISDEAA contractors and Title V ISDEAA compactors to further develop and improve management capability. In addition, Tribal Management Grants are available to T/TOs under the authority of 25 U.S.C. 5322(e) for the following: (1) Obtaining technical assistance from providers designated by the Tribe/Tribal Organization (including T/TOs that operate mature contracts) for the purposes of program planning and evaluation, including the development of any management systems necessary for contract management, and the development of cost allocation plans for indirect cost rates; and (2) planning, designing, monitoring, and evaluating Federal programs serving T/TOs, including Federal administrative functions.
Grant.
The total funding identified for fiscal year (FY) 2019 is approximately $2,465,000. Individual award amounts for the first budget year are anticipated to be between $50,000 and $150,000. The funding available for competing and subsequent continuation awards issued under this announcement is subject to the availability of appropriations and budgetary priorities of the Agency. The IHS is under no obligation to make awards that are selected for funding under this announcement.
Approximately 12-14 awards will be issued under this program announcement.
The Tribal Management Grant (TMG Project) period of performance vary based on the project type selected. Period of performance could run from 1 to 3 years. Please refer to “Eligible TMG Project Types, Maximum Funding Levels, and Periods of Performance,” for additional details.
“Indian Tribes” and “Tribal Organizations” (T/TOs) as defined by the ISDEAA are eligible to apply for the TMG Program. The definitions for each entity type are outlined below. Only one application per Tribe/Tribal organization is allowed.
• An Indian Tribe as defined by 25 U.S.C. 5304(e). The term “Indian tribe” means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or group or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601
• A Tribal organization as defined by 25 U.S.C. 5304(
Please refer to Section IV.2 (Application and Submission Information/Subsection 2, Content and Form of Application Submission) for additional proof of applicant status documents required, such as Tribal resolutions, proof of non-profit status, etc.
1. FEASIBILITY STUDY (Maximum funding/project period: $70,000/12 months).
A feasibility study must include a study of a specific IHS program or segment of a program to determine if Tribal management of the program is possible. The study shall present the planned approach, training, and resources required to assume Tribal management of the program. The study must include the following four components:
• Health needs and health care service assessments that identify existing health care services and delivery systems, program divisibility issues, health status indicators, unmet needs, volume projections, and demand analysis.
• Management analysis of existing management structures, proposed management structures, implementation plans and requirements, and personnel staffing requirements and recruitment barriers.
• Financial analysis of historical trends data, financial projections, and new resource requirements for program management costs and analysis of potential revenues from federal/non-federal sources.
• Decision statement/report that incorporates findings; conclusions; and recommendations; the presentation of the study and recommendations to the Tribal governing body for determination regarding whether Tribal program assumption is desirable or warranted.
2. PLANNING (Maximum funding/project period: $50,000/12 months).
Planning projects involve data collection to establish goals and performance measures for health programs operation or anticipated PFSAs under a Title I contract. Planning projects will specify the design of health programs and the management systems (including appropriate policies and procedures) to accomplish the health priorities of the T/TO. For example, planning projects could include the development of a Tribe-specific health plan or a strategic health plan, etc. Please note that updated Healthy People information and Healthy People 2020 objectives are available in electronic format at the following website:
3. EVALUATION STUDY (Maximum funding/project period: $50,000/12 months).
An evaluation study must include a systematic collection, analysis, and interpretation of data for the purpose of determining the value of a program. The extent of the evaluation study could relate to the goals and objectives, policies and procedures, or programs regarding targeted groups. The evaluation study could also be used to determine the effectiveness and efficiency of a T/TO's program operations (
4. HEALTH MANAGEMENT STRUCTURE (Average funding/project period: $100,000/12 months; maximum funding/project period: $300,000/36 months).
The first year maximum funding level is limited to $150,000 for multi-year projects. The Health Management Structure component allows for implementation of systems to manage or organize PFSAs. Management structures include health department organizations, health boards, and financial management systems, including systems for accounting, personnel, third-party billing, medical records, management information systems, etc. This includes the design, improvement, and correction of management systems that address weaknesses identified through quality control measures, internal control reviews, and audit report findings under required financial audits and ISDEAA requirements.
For the minimum standards for the management systems used by a T/TO when carrying out Self-Determination contracts, please see 25 CFR part 900, Contracts Under the Indian Self-Determination and Education Assistance Act, Subpart F—“Standards for Tribal or Tribal Organization Management Systems,” §§ 900.35-900.60. For operational provisions applicable to carrying out Self-Governance compacts, please see 42 CFR part 137, Tribal Self-Governance, Subpart I,—“Operational Provisions,” §§ 137.160-137.220.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
Applications with budget requests that exceed the highest dollar amount outlined under II. Award Information, Estimated Funds Available, or exceed the period of performance outlined under II. Award Information, Period of Performance will be considered not responsive and will not be reviewed. The Division of Grants Management (DGM) will notify the applicant.
A. Tribal Organizations applying for technical assistance and/or training grants must provide written notice that the Tribal Organization is applying upon the request of the Indian Tribe and/or Tribes it intends to serve.
B. Documentation for Priority I participation requires a copy of the
C. Documentation for Priority II participation requires a copy of the most current transmittal letter and Attachment A from the Department of Health and Human Services (HHS), Office of Inspector General (OIG), National External Audit Review Center (NEAR). See “Funding Priorities” for more information. If an applicant is unable to provide a copy of the most recent transmittal letter or needs assistance with audit issues; information or technical assistance may be obtained by contacting the IHS Office of Finance and Accounting, Division of Audit by telephone at (301) 443-1270, or toll-free at the NEAR help line at (800) 732-0679 or (816) 426-7720. Recognized Indian Tribes or Tribal Organizations not subject to Single Audit Act requirements must provide a financial statement identifying the federal dollars received in the footnotes. The financial statement must also identify specific weaknesses/recommendations that will be addressed in the TMG proposal and that are related to 25 CFR part 900, subpart F—“Standards for Tribal or Tribal Organization Management Systems.”
D. Documentation of Consortium participation—If an applicant is a member of an eligible intertribal consortium, the Tribe must:
•
•
Priority II participation is only applicable to the Health Management Structure project type. For more information, see “Eligible TMG Project Types, Maximum Funding Levels, and Project Periods,” in Section II.
•
•
The funding of approved Priority I applicants will occur before the funding of approved Priority II applicants. Priority II applicants will be funded before approved Priority III applicants. Priority III applicants will be funded before approved Priority IV applicants. Funds will be distributed until depleted.
The following definitions are applicable to the PRIORITY II category:
The audit findings are identified in Attachment A of the transmittal letter received from the HHS/OIG/NEAR. Please identify the material weaknesses to be addressed by underlining the item(s) listed in Attachment A.
Tribes and Tribal Organizations not subject to Single Audit Act requirements must provide a financial statement identifying the federal dollars received in the footnotes. The financial statement should also identify specific weaknesses/recommendations that will be addressed in the TMG proposal and that are related to 25 CFR part 900, “Subpart F, “Standards for Tribal and Tribal Organization Management Systems.”
A decision to award a TMG does not represent a determination from the IHS regarding the T/TO's eligibility to contract for a specific PFSA under the ISDEAA. An application for a TMG does not constitute a contract proposal.
The DGM must receive an official, signed Tribal resolution prior to issuing a Notice of Award (NoA) to any applicant selected for funding. An Indian T/TO that is proposing a project affecting another Indian Tribe must include resolutions from all affected Tribes to be served. However, if an official, signed Tribal resolution cannot be submitted with the application prior to the application deadline date, a draft Tribal resolution must be submitted with the application by the deadline date in order for the application to be considered complete and eligible for review. The draft Tribal resolution is not in lieu of the required signed resolution, but is acceptable until a signed resolution is received. If an official signed Tribal resolution is not received by DGM when funding decisions are made, then a NoA will not be issued to that applicant and it will not receive IHS funds until it has submitted a signed resolution to the Grants Management Specialist listed in this funding announcement.
Organizations claiming non-profit status must submit a current copy of the 501(c)(3) Certificate with the application.
The application package and detailed instructions for this announcement are hosted on
Please direct questions regarding the application process to Mr. Paul Gettys at (301) 443-2114 or (301) 443-5204.
The applicant must include the project narrative as an attachment to the application package. Mandatory documents for all applicants include:
• Abstract (one page) summarizing the project.
• Application forms:
○ SF-424, Application for Federal Assistance.
○ SF-424A, Budget Information—Non-Construction Programs.
○ SF-424B, Assurances—Non-Construction Programs.
• Project Narrative (not to exceed 15 pages). See IV.2.A Project Narrative for instructions.
○ Background information on the organization.
○ Proposed scope of work, objectives, and activities that provide a description of what the applicant plans to accomplish.
• Budget Justification and Narrative (not to exceed 5 pages). See IV.2.B Budget Narrative for instructions.
• One-page Timeframe Chart.
• Tribal Resolution(s).
• Letters of Support from organization's Board of Directors (if applicable).
• 501(c)(3) Certificate (if applicable).
• Biographical sketches for all Key Personnel.
• Contractor/Consultant resumes or qualifications and scope of work.
• Disclosure of Lobbying Activities (SF-LLL).
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost rate (IDC) agreement (required in order to receive IDC).
• Organizational Chart (optional).
• Documentation of current Office of Management and Budget (OMB) Financial Audit (if applicable). Acceptable forms of documentation include:
○ Email confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
○ Face sheets from audit reports. Applicants can find these on the FAC website:
All federal public policies apply to IHS grants and cooperative agreements with the exception of the Discrimination Policy.
A.
Be sure to succinctly answer all questions listed under the evaluation criteria (refer to Section V.1, Evaluation Criteria) and place all responses and required information in the correct section noted below or they will not be considered or scored. If the narrative exceeds the page limit, the application will be considered not responsive and not be reviewed. The 15-page limit for the narrative does not include the work plan, standard forms, Tribal resolutions, budget, budget justifications, narratives, and/or other appendix items.
There are three parts to the narrative: Part 1—Program Information; Part 2—Program Planning and Evaluation; and Part 3—Program Report. See below for additional details about what must be included in the narrative.
The page limits below are for each narrative and budget submitted.
Describe how the T/TO has determined the need to either enhance or develop Tribal management capability to either assume PFSAs or not in the interest of Self-Determination. Note the progression of previous TMG projects/awards if applicable.
Describe fully and clearly the direction the T/TO plans to take with the selected TMG Project type in addressing their health management infrastructure, including how the T/TO's plans to demonstrate improved health and services to the community or communities it serves. Include proposed timelines.
Describe fully and clearly the improvements that will be made by the T/TO that will impact their management capability or prepare them for future improvements to their organization that will allow them to manage their health care system and identify the anticipated or expected benefits for the Tribe.
Please identify and describe significant program achievements associated with the delivery of quality health services. Provide a comparison of the actual accomplishments to the goals established for the project period, or if applicable, provide justification for the lack of progress.
Please identify and summarize recent significant health related project activities of the work done during the project period.
Provide a budget narrative that explains the amounts requested for each line of the budget. The budget narrative should specifically describe how each item will support the achievement of proposed objectives. Be very careful about showing how each item in the “other” category is justified. For subsequent budget years, the narrative should highlight the changes from year 1 or clearly indicate that there are no substantive budget changes during the period of performance. Do NOT use the budget narrative to expand the project narrative.
Applications must be submitted through
If technical challenges arise and assistance is required with the application process, contact
The IHS will not acknowledge receipt of applications.
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are allowable up to 90 days before the start date of the award provided the costs are otherwise allowable if awarded. Pre-award costs are incurred at the risk of the applicant.
• The available funds are inclusive of direct and indirect costs.
• Only one grant will be awarded per applicant.
All applications must be submitted via
If the applicant cannot submit an application through
Once the waiver request has been approved, the applicant will receive a confirmation of approval email containing submission instructions. A copy of the written approval must be included with the application that is submitted to DGM. Applications that are submitted without a copy of the signed waiver from the Director of the DGM will not be reviewed. The Grants Management Officer of the DGM will notify the applicant via email of this decision. Applications submitted under waiver must be received by the DGM no later than 5:00 p.m., EDT, on the Application Deadline Date. Late applications will not be accepted for processing. Applicants that do not register for both the System for Award Management (SAM) and
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application, please contact
• Upon contacting
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please follow the instructions on
• Applicants must comply with any page limits described in this funding announcement.
• After submitting the application, the applicant will receive an automatic acknowledgment from
Applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B, which uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, please access the request service through
The Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), requires all HHS recipients to report information on sub-awards. Accordingly, all IHS grantees must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that are not registered with SAM will need to obtain a DUNS number first and then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, are available on the IHS Grants Management, Policy Topics website:
Weights assigned to each section are noted in parentheses. The 15-page narrative should include only the first year of activities; information for multi-year projects should be included as an appendix. See “Multi-year Project Requirements” at the end of this section for more information. The narrative section should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. Points will be assigned to each evaluation criteria adding up to a total of 100 possible points. Points are assigned as follows:
(1) Describe the T/TO's current health operation. Include a list of programs and services that are currently provided (
(2) Describe the population to be served by the proposed project. Include the total number of eligible IHS beneficiaries currently using the services.
(3) Describe the geographic location of the proposed project, including any geographic barriers to health care users in the area to be served.
(4) Identify all TMGs received since FY 2013, dates of funding, and a summary of project accomplishments. State how previous TMG funds facilitated the progression of health development relative to the current proposed project. (Copies of reports will not be accepted.)
(5) Identify the eligible project type and priority group of the applicant.
(6) Explain the need or reason for the proposed TMG project. Identify specific weaknesses and gaps in service or infrastructure that will be addressed by the proposal. Explain how these gaps and weaknesses will be assessed.
(7) If the proposed TMG project includes information technology (
(8) Describe the effect of the proposed TMG project on current programs (
(9) Address how the proposed TMG project relates to the purpose of the TMG Program by addressing the appropriate description that follows:
• Identify whether the T/TO is an IHS Title I contractor. Address if the Self-Determination contract is a master contract of several programs or if individual contracts are used for each program. Include information regarding whether or not the T/TO participates in a consortium contract (
• Identify if the T/TO is not an IHS Title I contractor. Address how the proposed TMG project will enhance the organization's management capabilities, what programs and services the organization is currently seeking to contract and an anticipated date for contract.
• Identify if the T/TO is an IHS Title V compactor. Address when the T/TO entered into the compact and how the proposed project will further enhance the organization's management capabilities.
(1) The proposed project objectives must be:
• Measureable and (if applicable) quantifiable;
• results-oriented;
• time-limited.
(2) For each objective address how the proposed TMG project will result in change or improvement in program operations or processes. Also address what tangible products are expected from the project (
(3) Address the extent to which the proposed project will build local capacity to provide, improve, or expand services that address the needs of the target population.
(4) Submit a work plan in the Appendix that includes the following:
• Provide action steps on a timeline for accomplishing the proposed project objectives.
• Identify who will perform the action steps.
• Identify who will supervise the action steps taken.
• Identify tangible products that will be produced during and at the end of the proposed project.
• Identify who will accept and/or approve work products during the duration of the proposed TMG project and at the end of the proposed project.
• Include a description of any training activities proposed. This description will identify the target audience and training personnel.
• Include work plan evaluation activities
(5) If consultants or contractors will be used during the proposed project, please complete the following information in their scope of work. (If consultants or contractors will not be used, please make note in this section):
• Educational requirements.
• Desired qualifications and work experience.
• Expected work products to be delivered, including a timeline.
If potential consultants or contractors have already been identified, please include a resume for each consultant or contractor in the Appendix.
(6) Describe updates that will be required for the continued success of the proposed TMG project (
Each proposed objective requires an evaluation activity to assess its progression and ensure completion. This should be included in the work plan.
Describe the proposal's plan to evaluate project processes and outcomes. Outcome evaluation relates to the results identified in the objectives, and process evaluation relates to the work plan and activities of the project.
(1) For outcome evaluation, describe:
• The criteria for determining whether or not each objective was met.
• The data to be collected to determine whether the objective was met.
• Data collection intervals.
• Who will be responsible for collecting the data and their qualifications.
• Data analysis method.
• How the results will be used.
(2) For process evaluation, describe:
• The process for monitoring and assessing potential problems, then identifying quality improvements.
• Who will be responsible for monitoring and managing project improvements based on results of ongoing process improvements and their qualifications.
• Provide details with regards to the ways ongoing monitoring will be used to improve the project.
• Describe any products, such as manuals or policies, that might be developed and how they might lend themselves to replication by others.
• How the T/TO will document what is learned throughout the project period.
(3) Describe any additional evaluation efforts planned after the grant period has ended.
(4) Describe the ultimate benefit to the T/TO that is expected to result from this project. An example would be a T/TO's ability to expand preventive health services because of increased billing and third-party payments.
This section outlines the T/TO's capacity to complete the proposal outlined in the work plan. It includes the identification of personnel responsible for completing tasks and the chain of responsibility for completion of the proposed plan.
(1) Provide the organizational structure of the T/TO.
(2) Provide information regarding plans to obtain management systems if a T/TO does not have an established management system currently in place that complies with 25 CFR part 900, subpart F, “Standards for Tribal or Tribal Organization Management Systems.” State if management systems are already in place and how long the systems have been in place.
(3) Describe the ability of the T/TO to manage the proposed project. Include information regarding similarly sized projects in scope and financial assistance as well as other grants and projects successfully completed.
(4) Describe equipment (
(5) List key project personnel and their titles in the work plan.
(6) Provide the position descriptions and resumes for all key personnel in the Appendix. The included position descriptions should: (1) Clearly describe each position's duties; and (2) indicate desired qualifications and project associated experience. Each resume must include a statement indicating that the proposed key personnel is explicitly qualified to carry out the proposed project activities. If no current candidate for a position exists please provide a statement to that effect in the Appendix.
(7) If an individual is partially funded by this grant, indicate the percentage of his or her time to be allocated to the project and identify the resources used to fund the remainder of that individual's salary.
(8) Address how the T/TO will sustain the proposal created positions after the grant expires. Please indicate if the project requires additional personnel (
(1) Provide a categorical budget for each of the 12-month budget periods requested.
(2) If indirect costs are claimed, indicate and apply the current negotiated rate to the budget. Include a copy of the rate agreement in the Appendix.
(3) Provide a narrative justification explaining why each categorical budget line item is necessary and relevant to the proposed project. Include sufficient cost and other details to facilitate the determination of cost allowability (
Applications must include a brief project narrative and budget (one additional page per year) addressing the developmental plans for each additional year of the project. This attachment will not count as part of the project narrative or the budget narrative.
• Work plan, logic model and/or time line for proposed objectives.
• Position descriptions for key staff.
• Resumes of key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened for eligibility and completeness as outlined in the funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the ORC based on evaluation criteria. Incomplete applications and applications that are not responsive to the administrative thresholds will not be referred to the ORC and will not be funded. The applicant will be notified of this determination.
Applicants must address all program requirements and provide all required documentation.
All applicants will receive an Executive Summary Statement from the IHS ODSCT within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application. The summary statement will be sent to the Authorizing Official identified on the face page (SF-424) of the application.
The Notice of Award (NoA) is the authorizing document for which funds are dispersed to the approved entities and reflects the amount of federal funds awarded, the purpose of the grant, the terms and conditions of the award, the effective date of the award, and the budget/project period. Each entity approved for funding must have a user account in GrantSolutions in order to retrieve the NoA. Please see the Agency Contacts list in Section VII for the systems contact information.
Approved applications not funded due to lack of available funds will be held for one year. If funding becomes available during the course of the year, the application may be reconsidered.
Any correspondence other than the official NoA executed by an IHS grants management official announcing to the project director that an award has been made to their organization is not an authorization to implement their program on behalf of the IHS.
Grants are administered in accordance with the following regulations and policies:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Grants:
• Uniform Administrative Requirements for HHS Awards, located at 45 CFR part 75.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/07.
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” located at 45 CFR part 75, subpart E.
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” located at 45 CFR part 75, subpart F.
This section applies to all recipients that request reimbursement of indirect costs (IDC) in their application budget. In accordance with HHS Grants Policy Statement, Part II-27, IHS requires applicants to obtain a current IDC rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate agreement is provided to the DGM.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation (DCA)
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: (1) The imposition of special award provisions; and (2) the non-funding or non-award of
The reporting requirements for this program are noted below.
Program progress reports are required select semi-annually, within 30 days after the budget period ends. These reports must include a brief comparison of actual accomplishments to the goals established for the period, a summary of progress to date or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final report must be submitted within 90 days of expiration of the period of performance.
Federal Financial Report (FFR or SF-425), Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services, HHS at
Grantees are responsible and accountable for accurate information being reported on all required reports: The Progress Reports and Federal Financial Report.
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by federal agencies. The Transparency Act also includes a requirement for recipients of federal grants to report information about first-tier sub-awards and executive compensation under federal assistance awards.
The IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation dollar threshold met for any specific reporting period. Additionally, all new (discretionary) IHS awards (where the period of performance is made up of more than one budget period) and where: (1) The period of performance start date was October 1, 2010 or after, and (2) the primary awardee will have a $25,000 sub-award obligation dollar threshold during any specific reporting period will be required to address the FSRS reporting.
For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Policy website at
Recipients of federal financial assistance (FFA) from HHS must administer their programs in compliance with federal civil rights law. This means that recipients of HHS funds must ensure equal access to their programs without regard to a person's race, color, national origin, disability, age and, in some circumstances, sex and religion. This includes ensuring your programs are accessible to persons with limited English proficiency. The HHS provides guidance to recipients of FFA on meeting their legal obligation to take reasonable steps to provide meaningful access to their programs by persons with limited English proficiency. Please see
The HHS Office for Civil Rights (OCR) also provides guidance on complying with civil rights laws enforced by HHS. Please see
Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of his/her exclusion from benefits limited by federal law to individuals eligible for benefits and services from the IHS.
Recipients will be required to sign the HHS-690 Assurance of Compliance form which can be obtained from the following website:
The IHS is required to review and consider any information about the applicant that is in the Federal Awardee Performance and Integrity Information System (FAPIIS), at
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, non-federal entities (NFEs) are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10,000,000 for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and the HHS implementing regulations at 45 CFR part 75, effective January 1, 2016, the IHS must require a non-federal entity or an applicant for a federal award to disclose, in a timely manner, in writing to the IHS or pass-through entity all violations of federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the federal award.
Submission is required for all applicants and recipients, in writing, to the IHS and to the HHS Office of Inspector General all information related to violations of federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the federal award. 45 CFR 75.113.
Disclosures must be sent in writing to:
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (See 2 CFR parts 180 & 376 and 31 U.S.C. 3321).
1. Questions on the programmatic issues may be directed to: Ms. Roselyn Tso, Director, Office of Direct Service and Contracting Tribes, Indian Health Service, 5600 Fishers Lane, Mail Stop: 08E17, Rockville, MD 20857, Telephone: (301) 443-1104, Email:
2. Questions on grants management and fiscal matters may be directed to: Ms. Vanietta Armstrong, Grants Management Specialist, Indian Health Service, Office of Management Services/DGM, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443-4792, Fax: (301) 594-0899, Email:
3. Questions on systems matters may be directed to: Mr. Paul Gettys, Grant Systems Coordinator, Indian Health Service, Office of Management Services/DGM, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443-2114; or the DGM main line (301) 443-5204, Fax: (301) 594-0899, Email:
The Public Health Service strongly encourages all grant, cooperative agreement and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103-227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Advisory Council on Alcohol Abuse and Alcoholism, June 6, 2019, 1:30 p.m. to June 6, 2019, 2:15 p.m., National Institutes of Health, National Institute on Alcohol Abuse and Alcoholism, 6700B Rockledge Drive, Room 1206, Bethesda, MD 20892, which was published in the
This meeting notice is amended to change the start time to 1:00 p.m. and the end time to 2:00 p.m. The meeting is closed to the public.
Notice is hereby given of a change in the meeting of the National Advisory Environmental Health Sciences Council, June 4, 2019, 08:30 a.m. to June 5, 2019, 12:00 p.m., National Institute of Environmental Sciences, Building 101, Rodbell Auditorium, 111 T. W. Alexander Drive, Research Triangle Park, NC 27709 which was published in the
This notice is being amended due to time changes in closed and open sessions. The closed session will now be held for June 4th from 1:00 p.m.-1:45 p.m. The open session for June 4th will be held from 2:00 p.m.-5:00 p.m. The open session for June 5th will be held from 8:30 a.m.-4:00 p.m., National Institute of Environmental Sciences, Building 101 Rodbell Auditorium, 111 T. W. Alexander Drive, Research Triangle Park, NC 27709. The meeting is partially closed.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until July 29, 2019.
All submissions received must include the OMB Control Number 1615-0126 in the body of the letter, the agency name and Docket ID USCIS-2012-0004. To avoid duplicate submissions, please use only
(1)
(2)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the document that explains the use of this generic clearance to obtain approvals of qualitative feedback through focus groups by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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U.S. Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Geological Survey (USGS) are proposing a new information collection.
Interested persons are invited to submit comments on or before July 29, 2019.
Send your comments on the information collection request (ICR) by mail to the U.S. Geological Survey, Information Collections Clearance Officer, 12201 Sunrise Valley Drive, MS 159, Reston, VA 20192; or by email to
To request additional information about this ICR, contact Delbert Humberson by email at
In accordance with the Paperwork
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the USGS; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the USGS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the USGS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authorities for this action are the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 26, 2019, under section 337 of the Tariff Act of 1930, as amended, on behalf of Rovi Corporation of San Jose, California and Rovi Guides, Inc. of San Jose, California. The complaint was amended on May 16, 2019. The complaint, as amended, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain digital video receivers, broadband gateways, and related hardware and software components by reason of infringement of certain claims of U.S. Patent No. 8,001,564 (“the '564 patent”); U.S. Patent No. 7,779,445 (“the '445 patent”); U.S. Patent No. 7,386,871 (“the '871 patent”); U.S. Patent No. 8,156,528 (“the '528 patent”); U.S. Patent No. 7,301,900 (“the '900 patent”); and U.S. Patent No. 7,200,855 (“the '855 patent”). The amended complaint further alleges that an industry in the United States exists or is in the process of being established as required by the applicable Federal Statute.
The complainants request that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The amended complaint, except for any confidential information contained therein, is 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, Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “set-top boxes and broadband gateways, and their related hardware and software, such as remote controls and interactive program guides”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the amended complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the amended complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the amended complaint and the notice of investigation. Extensions of time for submitting responses to the amended complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the amended complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the amended complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the amended complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on March 20, 2019, under section 337 of the Tariff Act of 1930, as amended, on behalf of Style Pantry LLC of Beverly Hills, California. An amended complaint was filed on April 24, 2019. The amended complaint alleges violations of section 337 based upon the importation and sale of certain female fashion dresses, jumpsuits, maxi skirts, and accoutrements by reason of false designation, false description, dilution, and obtaining sales by false claim of association, the threat or effect of which is to destroy or substantially injure an industry in the United States.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a general exclusion order, or in the alternative a limited exclusion order, and cease and desist orders.
The amended complaint, except for any confidential information contained therein, is 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, Room 112, Washington, DC 20436, telephone (202) 205-2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(A) of section 337 in the importation into the United States, or in the sale of certain products identified in paragraph (2) by reason of false designation of origin or source, false advertising, or unfair competition in violation of 15 U.S.C. 1125(a), the threat or effect of which is to destroy or substantially injure an industry in the United States;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “female jumpsuit dresses, frill sleeves jumpsuits, buttoned shoulder dolman sleeve jumpsuits, Navy bell sleeve wide leg jumpsuits, folded collar jumpsuits, maxi skirts, wrap bodice dresses, midi dresses, and pant dresses”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Style Pantry LLC, 8950 W. Olympic Boulevard, Suite 505, Beverly Hills, CA 90211.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the amended complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the amended complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the amended complaint and the notice of investigation. Extensions of time for submitting responses to the amended complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the amended complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the amended complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the amended complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
General information concerning the Commission may also be obtained by accessing its internet server at United States International Trade Commission (USITC) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Neodron Ltd. on May 22, 2019. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain touch-controlled mobile devices, computers, and components thereof. The complaint names as respondents: Amazon.com, Inc. of Seattle, WA; Dell Technologies Inc. of Round Rock, TX; Hewlett Packard Enterprise Company of San Jose, CA; Lenovo Group Ltd. of China; Lenovo (United States) Inc. of Morrisville, NC; Microsoft Corporation of Redmond, WA; Motorola Mobility LLC of Chicago, IL; Samsung Electronics Co., Ltd of Korea; and Samsung Electronics America, Inc. of Ridgefield Park, NJ. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders, and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to § 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3389”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The proposed information collection was previously published in the
If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any other additional information, please contact: Neil Troppman, ATF National Tracing Center, Law Enforcement Support Branch, either by mail at 244 Needy Road, Martinsburg, WV 25405, by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Notice is hereby given that, on May 6, 2019, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and CONFERS intends to file additional written notifications disclosing all changes in membership.
On September 10, 2018, CONFERS filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 28, 2019. A notice was published in the
Employment and Training Administration (ETA), Labor.
Notice.
Title I of WIOA requires the U.S. Secretary of Labor (Secretary) to update and publish the LLSIL tables annually, for uses described in the law (including determining eligibility for youth). WIOA defines the term “low income individual” as one whose total family annual income does not exceed the higher level of the poverty line or 70 percent of the LLSIL. This issuance provides the Secretary's annual LLSIL for 2019 and references the current 2019 Health and Human Services “Poverty Guidelines.”
This notice is applicable May 29, 2019.
Samuel Wright, Department of Labor, Employment and Training Administration, 200 Constitution Avenue NW, Room C-4526, Washington, DC 20210; Telephone: 202-693-2870; Fax: 202-693-3015 (these are not toll-free numbers); Email address:
The purpose of WIOA is to provide workforce investment activities through statewide and local workforce investment systems that increase the employment, retention, and earnings of participants. WIOA programs are intended to increase the occupational skill attainment by participants and the quality of the workforce, thereby reducing welfare dependency and enhancing the productivity and competitiveness of the Nation.
LLSIL is used for several purposes under the WIOA. Specifically, WIOA SEC.3(36) defines the term “low income individual” for eligibility purposes, and Sections 127(b)(2)(C) and 132(b)(1)(B)(V)(IV) define the terms “disadvantaged youth” and “disadvantaged adult” in terms of the poverty line or LLSIL for State formula allotments. The governor and state and local workforce development boards use the LLSIL for determining eligibility for youth and adults for certain services. ETA encourages governors and state/local boards to consult the WIOA Final Rule and ETA guidance for more specific guidance in applying LLSIL to program requirements. The U.S. Department of Health and Human Services (HHS) published the most current poverty-level guidelines in the
WIOA Section 3(36)(B) defines LLSIL as “that income level (adjusted for regional, metropolitan, urban and rural differences and family size) determined annually by the Secretary [of Labor] based on the most recent lower living family budget issued by the Secretary.” The most recent lower living family budget was issued by the Secretary in fall 1981. The four-person urban family budget estimates, previously published by the U.S. Bureau of Labor Statistics (BLS), provided the basis for the Secretary to determine the LLSIL. BLS terminated the four-person family budget series in 1982, after publication of the fall 1981 estimates. Currently, BLS provides data to ETA, which ETA then uses to develop the LLSIL tables, as provided in the Appendices to this
This notice updates the LLSIL to reflect cost of living increases for 2018, by calculating the percentage change in the most recent 2018 Consumer Price Index for All Urban Consumers (CPI-U) for an area to the 2018 CPI-U, and then applying this calculation to each of the May 29, 2018 LLSIL figures (published in the
Microsoft Excel files are used in place of the LLSIL tables that were published in the
The website contains updated figures for a four-person family in Table 1, listed by region for both metropolitan and non-metropolitan areas. Incomes in all of the tables are rounded up to the nearest dollar. Since program eligibility for low-income individuals, “disadvantaged adults,” and “disadvantaged youth” may be determined by family income at 70 percent of the LLSIL, pursuant to WIOA Section 3 (36)(A)(ii) and Section 3(36)(B), respectively, those figures are listed as well.
Jurisdictions included in the various regions, based generally on the Census Regions of the U.S. Department of Commerce, are as follows:
Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the U.S. Virgin Islands.
Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, and Wisconsin.
Alabama, American Samoa, Arkansas, Delaware, District of Columbia, Florida, Georgia, Northern Marianas, Oklahoma, Palau, Puerto Rico, South Carolina, Kentucky, Louisiana, Marshall Islands, Maryland, Micronesia, Mississippi, North Carolina, Tennessee, Texas, Virginia, and West Virginia.
Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.
Additionally, the LLSIL Excel file provides separate figures for Alaska, Hawaii, and Guam.
Data for 23 selected Metropolitan Statistical Areas (MSAs) are also available. These are based on annual CPI-U changes for a 12-month period ending in December 2018. The updated LLSIL figures for these MSAs and 70 percent of LLSIL are also available in the LLISL Excel file.
The LLSIL Excel file also lists each of the various figures at 70 percent of the updated 2018 LLSIL for family sizes of one to six persons. Please note, for families larger than six persons, an amount equal to the difference between the six-person and the five-person family income levels should be added to the six-person family income level for each additional person in the family. Where the poverty level for a particular family size is greater than the corresponding 70 percent of the LLSIL figure, the figure is shaded.
The LLSIL Excel file also indicates 100 percent of LLSIL for family sizes of one to six, and is used to determine self-sufficiency as noted at Section 3 (36)(A)(ii) and Section 3 (36)(B) of WIOA.
Governors should designate the appropriate LLSILs for use within the State using the LLSIL Excel files on the website. The governor's designation may be provided by disseminating information on MSAs and metropolitan and non-metropolitan areas within the state or it may involve further calculations. An area can be part of multiple LLSIL geographies. For example, an area in the State of New Jersey may have four or more LLSIL figures. All cities, towns, and counties that are part of a metro area in New Jersey are a part of the Northeast metropolitan; some of these areas can also be a portion of the New York City MSA. New Jersey also has areas that are part of the Philadelphia MSA, a less populated area in New Jersey may be a part of the Northeast non-metropolitan. If a workforce investment area includes areas that would be covered by more than one LLSIL figure, the governor may determine which is to be used.
A state's policies and measures for the workforce investment system shall be accepted by the Secretary to the extent that they are consistent with WIOA and WIOA regulations.
It should be noted that publication of these figures is only for the purpose of meeting the requirements specified by WIOA as defined in the law and regulations. BLS has not revised the lower living family budget since 1981, and has no plans to do so. The four-person urban family budget estimates series has been terminated. The CPI-U adjustments used to update LLSIL for this publication are not precisely comparable, most notably because certain tax items were included in the 1981 LLSIL, but are not in the CPI-U. Thus, these figures should not be used for any statistical purposes, and are valid only for those purposes under WIOA as defined in the law and regulations.
Office of Unemployment Insurance (OUI), Employment and Training Administration (ETA), Department of Labor (DOL).
Request for public comment.
The Department of Labor (Department) is seeking public comment on the following proposed performance measures:
Reemployment Rate for all UI Eligible Individuals after the 2nd Quarter of Program Exit (a Core Measure);
Reemployment Rate after the 2nd Quarter of Program Exit for Reemployment Service and Eligibility Assessment (RESEA) Program participants (a Program Performance Measure); and
Median Wage in the 2nd Quarter after Program Exit for RESEA Program Participants (a Program Performance Measure).
These measures are designed to align with the common performance measures for other workforce programs authorized by WIOA and will assist ETA in overseeing states' performance related to reemployment of UI claimants.
This notice also informs states of the Department's discontinuance of the UI Facilitate Reemployment Core Measure.
Submit written comments to the office listed in the addresses section below on or before June 28, 2019.
Questions or comments in response to this notice can be submitted electronically to
Ms. Rhonda Cowie, Office of Unemployment Insurance, Room S-4524, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210 at 202 693-3821 (this is not a toll-free number), TTY 1-877-889-5627 (this is not a toll-free number). Due to security-related concerns, there may be a significant delay in the receipt of submissions by United States mail. You must take this possible delay into consideration when preparing to meet the deadline for submitting comments. The Department will respond to comments directly as necessary. The Department recommends that comments not include personal information such as social security number, personal address, telephone number, email address, or confidential business information in the event comments are publically published. It is the responsibility of the commenter to determine what is personal or confidential business information.
Historically, it has been a goal of the UI system, the Wagner-Peyser Employment Service, and other workforce programs, to support reemployment of UI claimants as quickly as possible. Doing so helps the claimant quickly reestablish earning power and also saves state UI trust funds from paying more benefits than necessary. The relatively recent enactments of both the Workforce Innovation and Opportunity Act of 2014 (Pub. L. 113-128) and the Bi-Partisan Budget Act of 2018 (Pub. L. 115-123), which permanently authorized the RESEA program, reinforce this goal. In addition, WIOA provides for the common performance outcomes for public workforce programs broadly.
The proposed performance measures for the overall UI program and for the RESEA program provide standardized metrics that align with the WIOA common performance measures and enable state workforce agencies to assess their efforts to secure positive employment outcomes for UI claimants.
WIOA was signed into law on July 22, 2014, and is designed to help job seekers access employment, education, training, and support services to succeed in the labor market and match employers with the skilled workers they need to compete in the global economy. Section 116 of WIOA requires states that operate core programs of the publicly-funded workforce system to comply with common performance accountability requirements. The vision of WIOA is that all workforce programs will adopt these measures as appropriate. The UI program is a mandatory partner in the publicly-funded workforce system and, as such, it is logical and appropriate for both the regular UI program and the RESEA program to adopt and align performance measures related to reemployment of UI claimants with the WIOA measures.
Under WIOA, states are required to submit common performance data to demonstrate that specified performance levels are achieved. States currently collect and report the data needed for calculating these proposed measures through the Workforce Integrated Performance System (WIPS). WIPS is an electronic performance reporting system for the Department's employment and training grants. Since September 30, 2016, states have been submitting individual record data through WIPS as part of the state quarterly and annual performance reporting process using the Participant Individual Record Layout (PIRL) (ETA 9172). The PIRL provides a standardized set of data elements, definitions, and reporting instructions used to describe the characteristics, activities, and outcomes of WIOA participants.
The WIOA performance indicators (performance measures) incorporate a statistical adjustment model, developed by the Department to establish performance year targets. The model is based on the actual economic conditions and characteristics of WIOA participants and is updated and refined with ongoing use and application as WIOA outcome data become available. ETA intends to use this previously established statistical adjustment model to establish performance year targets for the proposed Core Measure.
The RESEA program was permanently authorized by the Bipartisan Budget Act of 2018, adding a new Section 306 to the Social Security Act. One of the key goals of the RESEA program is to improve employment outcomes of individuals that receive unemployment compensation and to reduce average duration of receipt of such compensation through reemployment. A second key goal is to promote alignment with the WIOA vision of increased program integration and service delivery. Using the WIOA common measures to evaluate the states' RESEA program will effectively promote both of these goals.
To promote greater integration of the RESEA program into the workforce system through the alignment with the WIOA common measures and to support calculation of the measures, ETA requires that RESEA participants be co-enrolled in Wagner-Peyser-funded Employment Services as part of the initial RESEA session. This co-enrollment requirement was implemented in Fiscal Year 2017. As part of this enrollment, RESEA participants must be appropriately documented in Wagner-Peyser case management and performance reporting systems. The co-enrollment requirement enables implementation of the proposed Program Performance Measures to be done without any new reporting burden for states.
Effective October 1, 2019, ETA is discontinuing the UI Facilitate Reemployment Core Measure and the requirement that states quarterly submit to ETA the ETA 9047 (Reemployment of UI Benefits Recipients) report. The ETA 9047 report collects data based on the prior Workforce Innovation Act (WIA) requirement that reemployment be measured in the quarter after a claimant began receiving UI benefits. The sole explanatory variable used in the statistical adjustment model for this measure was the Total Unemployment Rate and, during a declining economy,
To support reemployment goals for UI claimants and the vision of WIOA for common performance measurement across workforce programs, ETA proposes the following measures to assess UI program performance in the reemployment of claimants:
This proposed Core Measure captures the percentage of UI eligible individuals who are in unsubsidized employment during the second quarter after this same group exits from the WIOA program.
This proposed Program Performance Measure captures the percentage of RESEA participants (a sub-set of UI participants) who are in unsubsidized employment during the second quarter after this same group exits from the WIOA program.
This proposed Program Performance Measure captures the wage amount that is at the midpoint of all the wages (PIRL element 1704) between the highest and lowest wage earned in the second quarter after exit for all RESEA participants who exited a core program. Wages are currently reported as a data element in the PIRL.
These proposed measures support the role of the UI program, including RESEA, as a one-stop partner in American Job Centers by recognizing and measuring the UI programs' effectiveness in contributing to the reemployment of UI claimants;
Targets for the proposed Reemployment Rate for All Eligible Individuals after the 2nd Quarter of Program Exit Core Measure will be based on the performance targets established for Wagner-Peyser program participants in the WIOA Performance Negotiation Tool. This tool is intended to facilitate the process for setting performance targets, which are based on the Statistical Adjustment Model. The Statistical Adjustment Model is required by Sec. 116(b)(3)(viii), of WIOA, and established by the Department as an objective statistical regression model to be used to make adjustments to the state negotiated levels of performance for actual economic conditions and the characteristics of participants served at the end of the program year. It also is a key factor to be used in arriving at mutual agreement on state negotiated levels of performance. State-level actual performance outcomes are a function of (a) the characteristics of the participants being served, and (b) the labor market conditions in which those participants are being served. WIOA specifically requires that both of these factors be accounted for, and the use of a statistical model enables accounting for variations as a result of both factors when negotiating performance targets.
More detailed information is available for both the WIOA Performance Negotiation Tool and the Statistical Adjustment Model at the Department website:
No performance targets will be set for the first performance period following implementation of the proposed Reemployment Rate for all UI eligible individuals after the 2nd Quarter of Program Exit Core Measure. State baseline data collected in the first performance period will inform performance targets in subsequent performance periods based on the Wagner-Peyser targets as established in the WIOA Performance Negotiation Tool. The Statistical Adjustment Model does not apply to the Reemployment Rate after the 2nd Quarter of Program Exit for RESEA Program Participants and Median Wage in the 2nd Quarter after Program Exit for RESEA Program Participants Program Performance Measures, and no performance targets will be established for these two measures.
As noted above, the data to support the proposed performance measures will come from the PIRL (ETA 9172). The PIRL framework allows states to organize data in a standardized format within WIPS using the various elements or data points. The following PIRL elements are used in the calculation of the measures described in Section IV above:
Date of Program Exit—The quarter in which 90 days has passed and a WIOA participant has not received staff assisted services and is exited from the program (Data Element 901).
UI Eligible Status—A WIOA participant who meets Unemployment Compensation (UC) Eligible Status Criteria by receiving or exhausting UI benefits (also called a UI Eligible Participant) (Data Element 401).
RESEA Participants—Meets UC Eligible Status Criteria (Data Element 401=1, RESEA).
Employed In 2nd Quarter after Exit Quarter (Data Element 1602).
Other Reasons for Exit Criteria (Data Element 923).
Wages in 2nd Quarter After the WIOA program Exit Quarter (Data Element 1704).
Additional information on the above PIRL elements can be found at the link below:
There is no additional reporting burden to states as a result of implementing these measures since ETA will use data that is currently collected and reported via the PIRL (ETA 9172).
The performance period for these measures is the one-year period ending March 31 of the performance year.
Because these proposed measures use data currently collected through the ETA 9172 report (OMB Control #1205-0521—Workforce Innovation and Opportunity Act Performance Accountability, Information, and Reporting System), there will be no data collection start-up costs or any costs in addition to the current reporting requirements associated with the ETA 9172 report.
Signed in Washington, DC.
Notice.
The Department of Labor's (DOL) Employment and Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “Occupational Code Assignment.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by July 29, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free by contacting Lauren Fairley by telephone at (202) 693-3731 (this is not a toll-free number), TTY/TDD 1-877-889-5627 (this is not a toll-free number), or by email at
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Employment and Training Administration—Division of National Programs Tools and Technical Assistance, 200 Constitution Avenue NW, C4526, Washington, DC 20210, by email:
Lauren Fairley by telephone at (202) 693-3015 (this is not a toll-free number) or by email at
The DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the OMB for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are
The Occupational Code Assignment form (ETA 741) was developed as a public service to the users of the Occupational Information Network (O*NET), in an effort to help them in obtaining occupational codes and titles for jobs that they are unable to locate in O*NET. The O*NET system classifies nearly all jobs in the United States economy. However, new specialties are constantly evolving and emerging. The use of the OCA is voluntary and is provided: (1) As a uniform format to the public and private sector to submit information in order to receive assistance in identifying an occupational code; (2) to assist the O*NET system in identifying potential occupations that may need to be included in future O*NET data collection efforts; and (3) to provide input to a database of alternative (lay) titles to facilitate searches for occupational information in the O*NET websites including O*NET OnLine (
The OCA process is designed to help the occupational information user relate an occupational specialty or a job title to an occupational code and title within the framework of the Standard Occupational Classification (SOC) based O*NET system. The O*NET-SOC system consists of a database that organizes the work done by individuals into approximately 1,000 occupational categories. In addition, O*NET occupations have associated data on the importance and level of a range of occupational characteristics and requirements, including Knowledge, Skills, Abilities, Tasks and Work Activities. Since the O*NET-SOC system is based on the SOC system, identifying an O*NET-SOC code and title also facilitates linkage to national, state, and local occupational employment and wage estimates. Section 308 of the Workforce Innovation and Opportunity Act authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
DOL is particularly interested in comments that:
• 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, (
44 U.S.C. 3506(c)(2)(A).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) titled, “Current Population Survey Disability Supplement,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before June 28, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA to reinstate the Current Population Survey (CPS) Disability Supplement information collection without change from when it was most recently approved. The Disability Supplement will provide information on labor force participation rates for people with disabilities; the use of and satisfaction with programs that prepare people with disabilities for employment; the work history, barriers to employment, and workplace accommodations reported by persons with a disability; and the effect of financial assistance programs on the likelihood of working. Because the Disability Supplement is part of the CPS, the same detailed demographic information collected in the CPS will be available about respondents to the supplement. The BLS Authorizing Statute authorizes this information collection.
This proposed information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Bureau of Labor Statistics (BLS) sponsored information collection request (ICR) titled, “International Training Application,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before June 28, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-BLS, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202-693-4129, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the International Training Application information collection. The BLS is one of the largest labor statistics organizations in the world and has provided international training in labor market information and price indexes since 1945. Each year the BLS conducts training programs of 1 to 2 weeks duration at its training facilities in Washington, DC Potential participants, their employers, or sponsors complete the Training Application in order to provide information required to determine suitability for the BLS international training and to enroll those deemed suitable. The BLS Authorizing Statue and the Foreign Assistance Act of 1961 authorize this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on May 31, 2019. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). 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. The Bureau of Labor Statistics (BLS) is soliciting comments concerning the proposed extension of the “American Time Use Survey.” A copy of the proposed information collection request (ICR) can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
Send comments to Erin Good, BLS Clearance Officer, Division of Management Systems, Bureau of Labor Statistics, Room 4080, 2 Massachusetts Avenue NE, Washington, DC 20212. Written comments also may be transmitted by fax to 202-691-5111 (this is not a toll free number).
Erin Good, BLS Clearance Officer, at 202-691-7763 (this is not a toll free number). (See
The ATUS is the Nation's first federally administered, continuous survey on time use in the United States. It measures, for example, time spent with children, working, sleeping, or doing leisure activities. In the United States, several existing Federal surveys collect income and wage data for individuals and families, and analysts often use such measures of material prosperity as proxies for quality of life. Time-use data substantially augment these quality-of-life measures. The data also can be used in conjunction with wage data to evaluate the contribution of non-market work to national economies. This enables comparisons of production between nations that have different mixes of market and non-market activities.
The ATUS develops nationally representative estimates of how people spend their time. Respondents also report who was with them during activities, where they were, how long each activity lasted, and if they were paid. All of this information has numerous practical applications for sociologists, economists, educators, government policymakers, businesspersons, health researchers, and others, answering questions such as:
• Do the ways people use their time vary across demographic and labor force characteristics, such as age, sex, race, ethnicity, employment status, earnings, and education?
• How much time do parents spend in the company of their children, either actively providing care or being with them while socializing, relaxing, or doing other things? How has this changed over time?
• How are earnings related to leisure time—do those with higher earnings spend more or less time relaxing and socializing?
• How much time do people spend working at their workplaces and in their homes?
The ATUS data are collected on an ongoing basis nearly every day of the year, allowing analysts to identify changes in how people spend their time.
Office of Management and Budget clearance is being sought for the American Time Use Survey. This survey collects information on how individuals in the United States use their time. Collection is done on a continuous basis with the sample drawn monthly. The survey sample is drawn from
Because the ATUS sample is a subset of households completing interviews for the CPS, the same demographic information collected from that survey is available for ATUS respondents. Comparisons of activity patterns across characteristics such as sex, race, age, disability status, and education of the respondent, as well as the presence of children and the number of adults living in the respondent's household, are possible.
The Bureau of Labor Statistics is particularly interested in comments that:
• 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.
• 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 submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they also will become a matter of public record.
National Credit Union Administration (NCUA).
Notice and request for comment.
The National Credit Union Administration (NCUA), as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the following revision of a currently approved collection, as required by the Paperwork Reduction Act of 1995.
Written comments should be received on or before July 29, 2019 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Dawn Wolfgang, National Credit Union Administration, 1775 Duke Street, Suite 5080, Alexandria, Virginia 22314; Fax No. 703-519-8579; or Email at
Address requests for additional information to the address above or telephone 703-548-2279.
The financial and statistical information is essential to NCUA in carrying out its responsibility for supervising federal credit unions. The information also enables NCUA to monitor all federally insured credit unions with National Credit Union Share Insurance Fund (NCUSIF) insured share accounts.
The burden hours will reflect an adjustment to the number of respondents due to the decline in the number of federally insured credit unions. The number of federally insured credit unions completing the Call Report and Profile dropped from 5,530 to 5,375. The reduction of 3,720 burden hours reflects this adjustment.
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on May 21, 2019.
National Science Foundation.
Notice.
The National Science Foundation (NSF) is announcing plans to renew this collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting Office of Management and Budget (OMB) clearance of this collection for no longer than 3 years.
Written comments on this notice must be received by July 29, 2019 to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to the address below.
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Suite W18200, Alexandria, Virginia 22314; telephone (703) 292-7556; or send email to
“To promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense. . . .”
The Act authorized and directed NSF to initiate and support:
• Basic scientific research and research fundamental to the engineering process;
• Programs to strengthen scientific and engineering research potential;
• Science and engineering education programs at all levels and in all the various fields of science and engineering;
• Programs that provide a source of information for policy formulation; and
• Other activities to promote these ends.
NSF's core purpose resonates clearly in everything it does: Promoting achievement and progress in science and engineering and enhancing the potential for research and education to contribute to the Nation. While NSF's vision of the future and the mechanisms it uses to carry out its charges have evolved significantly over the last six decades, its ultimate mission remains the same.
Support is made primarily through grants, contracts, and other agreements awarded to approximately 2,000 colleges, universities, academic consortia, nonprofit institutions, and small businesses. The awards are based mainly on merit evaluations of proposals submitted to the Foundation.
The Foundation has a continuing commitment to monitor the operations of its information collection to identify and address excessive reporting burdens as well as to identify any real or apparent inequities based on gender, race, ethnicity, or disability of the proposed principal investigator(s)/project director(s) or the co-principal investigator(s)/co-project director(s).
9:30 p.m., Tuesday, June 18, 2019.
NTSB Conference Center, 429 L'Enfant Plaza SW, Washington, DC 20594.
The one item is open to the public.
58913 Highway Accident Report—School Bus Run-Off-Road Crash and Fire, Oakland, Iowa, December 12, 2017.
Telephone: (202) 314-6100. The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.
Individuals requesting specific accommodations should contact
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Schedule updates, including weather-related cancellations, are also available at
Candi Bing at (202) 314-6403 or by email at
Keith Holloway at (202) 314-6144 or by email at
Postal Regulatory Commission.
Notice.
The Commission is acknowledging a recent filing by the Postal Service of its intention to change prices not of general applicability to reflect a range of prices to take effect on a date determined by the Postal Service Governors. 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.
On May 20, 2019, the Postal Service filed a notice of a proposed range of prices for Inbound Letter Post Small Packets and Bulky Letters (E format), and for associated Inbound Registered Service.
Current Inbound E format Letter Post prices, known as terminal dues, were set through the Universal Postal Union (UPU). Notice at 2. The UPU terminal dues system has long been a concern of the Commission, and the Commission has noted that the current pricing regime results in noncompensatory terminal dues.
On August 23, 2018, President Donald J. Trump issued a presidential memorandum to the Postmaster General and the Chairman of the Commission, among others, entitled “Modernizing the Monetary Reimbursement Model for the Delivery of Goods Through the International Postal System and Enhancing the Security and Safety of International Mail.”
Consistent with the policy objectives outlined in the Presidential Memorandum, the Secretary of State gave notice to the UPU on October 17, 2018, that the United States would withdraw as a member country, effective one year from the announcement.
Since issuing its notice to withdraw from the UPU, the United States has continued to negotiate with other UPU member countries to “reach a mutually acceptable solution to satisfy the aims of the Presidential Memorandum.” Notice at 5. The Postal Service states that because it does not yet know the result of current State Department negotiations on achieving “the President's stated goal to remain within the UPU following elimination of the economic distortion” in the current system, it posits that a range of rates for E format items that accommodates those negotiations is “in the best interests of the United States and the Postal Service.”
In Order No. 4980, the Commission conditionally approved the transfer of Inbound E format Letter Post items from the market dominant to competitive products list. Order No. 4980 at 23.
The Postal Service's Notice includes an application for non-public treatment of materials filed under seal (Attachment 1), a Statement of Explanation and Justification for the proposed rate range (Attachment 2), and a certification of prices (Attachment 3). Notice, Attachments 1-3. The Postal Service filed the proposed rates and underlying workpapers under seal in this docket.
The Postal Service states that the proposed range of prices would conform to the requirements for competitive products under 39 U.S.C. 3633. Notice at 12. The Postal Service states that the proposed prices cover attributable costs, avoid cross-subsidization, and do not impede competitive products' collective ability to cover the appropriate share of institutional costs.
The Postal Service states that the proposed prices will be available only to postal operators, citing fundamental differences between postal operators and private carriers.
The Postal Service addresses concerns regarding Private Express Statutes (PES).
The Postal Service states that in addition to satisfying all statutory requirements, the proposed prices are consistent with the policies and reforms outlined in the Presidential Memorandum.
The Commission establishes Docket No. CP2019-155 to consider the Postal Service's Notice. Interested persons may express views and offer comments on whether the planned changes are consistent with 39 U.S.C. 3632 and 3633 and 39 CFR part 3015. The Commission also invites comments on whether the proposed prices are consistent with the policies outlined in the Presidential Memorandum.
1. The Commission establishes Docket No. CP2019-155 to provide interested persons an opportunity to express views and offer comments on whether the planned changes are consistent with 39 U.S.C. 3632 and 3633 and 39 CFR part 3015.
2. The Commission also invites interested persons to express views and offer comments on whether the proposed prices are consistent with the policies outlined in the Presidential Memorandum.
3. Comments are due no later than June 21, 2019.
4. Pursuant to 39 U.S.C. 505, the Commission appoints Katalin K. Clendenin to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
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 filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(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.
1.
2.
This Notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently filed Postal Service request proposing modifications to its market dominant service performance measurement systems. This document informs the public of this proceeding and the technical conference, 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.
On May 21, 2019, the Postal Service filed a request, pursuant to 39 U.S.C. 3691(b)(2) and 39 CFR 3055.5, proposing modifications to its market dominant service performance measurement systems.
The Postal Service proposes modifications in three areas. First, the Postal Service provides an update to the text of the Service Performance Measurement plan, which removes references to legacy measurement systems that are no longer in use. Request at 4. The update is being provided at the request of the Commission.
Second, the Postal Service proposes to replace certain external service performance measurement systems with internal service performance measurement systems.
Third, the Postal Service requests that it be allowed to use domestic service performance measurement data as a proxy for certain aspects of inbound and outbound Single-Piece First-Class Mail International letters and flats service performance.
Interested persons are invited to comment on any or all aspects of the Postal Service's proposed modifications concerning the service performance measurement systems. Comments are due June 17, 2019. The Commission does not anticipate the need for reply comments at this time. The Commission intends to evaluate the comments received and use those suggestions to help carry out its service performance measurement responsibilities under the Postal Accountability and Enhancement Act. Material filed in this docket will be available for review on the Commission's website,
1. The Commission establishes Docket No. PI2019-1 for the purpose of considering the Postal Service's proposed modifications to its market dominant service performance measurement systems.
2. Interested persons may submit written comments on any or all aspects of the Postal Service's proposals no later than June 17, 2019.
3. Lyudmila Y. Bzhilyanskaya is designated to represent the interests of the general public in this docket.
4. The Secretary shall arrange for publication of this notice in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth Reed, 202-268-3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on May 22, 2019, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Rule 967NY (Price Protection—Orders) to enhance its current price protection mechanisms and adopt certain new price protection functionality for orders. 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 Rule 967NY (Price Protection—Orders) to enhance its current price protection mechanisms and adopt certain new price protection functionality for Limit Orders, specifically, Price Reasonability Checks.
The Exchange has in place various price check mechanisms that are designed to prevent incoming orders from automatically executing at potentially erroneous prices.
Proposed Rule 967NY(c) would provide Price Reasonability Checks (the “Price Checks” or “Checks”) for Limit Orders based on the principle that an option order is in error and should be rejected (or canceled) when the same result can be achieved on the market for the underlying equity security at a lesser cost.
Proposed Rule 967NY(c)(1) would protect buyers of puts and calls from presumptively erroneous executions. A buy order in a put series provides the right to
A buy order in a call series provides the right to
The following examples illustrate this proposed functionality. For each example SeriesA is a call series based on Underlying ABC, which has a last sale price of $50.00.
Proposed Rule 967NY(c)(2) would protect sellers of calls and puts based on the “Intrinsic Value” of an option, which is measured as the difference between the strike price and the last sale price. A sell order in a call series creates an obligation to
Proposed Rule 967NY(c)(2)(A) would provide that orders to sell for both calls and puts would be canceled or rejected as presumptively erroneous if the price of the order is equal to or lower than its Intrinsic Value, minus a threshold percentage (the “threshold percentage”) to be determined by the Exchange and announced by Trader Update.
The following examples illustrate this proposed functionality.
Consistent with the operation of the MM Quote Price Checks,
The proposed change would enable the Exchange to implement the Price Checks and apply the Checks to securities for which there is reliable price data for the underlying security to perform the Check. Specifically, like the MM Quote Checks, the Exchange would exclude any options series for which the underlying security has a non-standard cash or stock deliverable as part of a corporate action because the last sale information would not have been adjusted for the non-standard deliverable, and would therefore be unreliable. Also, like the MM Quote Checks, options whose underlying security is traded OTC or Pink Sheets would be considered Excluded Options because the last sale information for such underlying securities is not available on an active market data feed. The Exchange would also exclude any options series overlying a stock index because Exchange does not subscribe to
Consistent with the MM Quote Checks, the Exchange also proposes to exempt from the Price Check any option series for which the Exchange determines it is necessary to exclude underlying securities in the interests of maintaining a fair and orderly market.
Rule 967NY(b) describes the Limit Order Filter, which is another price protection that rejects limit orders that are priced a specified percentage away from the contra-side NBB or NBO feature offered by Exchange. The current Rule provides that limit orders received prior to the open “will be rejected immediately before the Exchange conducts a Trading Auction of Rule 952NY.” The Exchange proposes to clarify that such orders are not “rejected immediately,” but are instead accepted and then “canceled” before the Exchange conducts the Trading Auction “per Rule 952NY”—as “of Rule 952NY” is not grammatically correct.
The Exchange will announce by Trader Update the implementation date of the proposed rule change.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
In particular, the Exchange believes the proposed Price Checks would protect investors and the public interest and maintain fair and orderly markets by mitigating potential risks associated with market participants entering orders at unintended prices and orders trading at prices that are potentially erroneous, which may likely have resulted from human or operational error. The proposed Price Checks of the reasonability of Limit Order prices would assist in the maintenance of a fair and orderly market and protect investors by rejecting (or canceling) orders that exceed the corresponding benchmark. With regard to the proposed use of the specified dollar amount (as relates to buy orders for call options) and the threshold percentage (as relates to sell orders for puts and calls), the Exchange notes that in certain situations, market participants may opt to execute certain trades (that may be part of a strategy) even if such trades occur outside/away from the last sale price of the underlying or intrinsic value at seemingly erroneous prices. The Exchange believes it is appropriate to provide market participants flexibility to allow them to execute these trading strategies and therefore to adopt a buffer to permit the execution of such trades.
Similarly, the Exchange believes it is appropriate to have this flexibility to determine times when the check should not apply to respond to market events, such as times of extreme price volatility. This assists the Exchange's maintenance of a fair and orderly market, which ultimately removes impediments to and perfects the mechanism of a free and open market and protects investors and the public interest.
With regard to the Excluded Options, the Exchange believes that where no reliable pricing data is available, it is appropriate to exclude such options from the Price Checks. Without such pricing information, there is risk that the Exchange may cancel or reject appropriately priced Limit Orders, which could negatively impact market participants. Further, the Exchange believes it is appropriate to have the flexibility to disable the Price Checks in response to a market event (for example, if dissemination of data was delayed and resulting in unreliable underlying values) to maintain a fair and orderly market. This will promote just and equitable principles of trade and ultimately protect investors.
The Exchange believes that the proposed Price Checks, which are substantially similar to the MM Quote Checks, would further mitigate the risk to market participants that orders are executed at erroneous prices. Specifically, the Exchange believes that the Price Checks, which are responsive to member input, will facilitate transactions in securities and perfect the mechanism of a free and open market by providing ATP Holders with additional functionality that will assist them with managing their risk. Thus, the Exchange is proposing the Price Checks for the benefit of, and in consultation with, ATP Holders. The Exchange believes the proposed rule change will help the Exchange to maintain a fair and orderly market, and provide a valuable service to investors.
The Exchange notes that the proposed change to Rule 967NY(b) regarding the treatment of certain orders subject to the Limit Order Filter would provide clarity and transparency to Exchange rules and would promote just and equitable principles of trade and remove impediments to, and perfect the
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change adds price protection mechanisms for option orders of all ATP Holders submitted to the Exchange to help further prevent potentially erroneous executions, which benefits all market participants. The Price Checks apply in same manner to all ATP Holders that submit orders that are subject to the Price Checks. The Exchange believes the proposed rule change would provide market participants with additional protection from anomalous or erroneous executions.
The Exchange does not believe that the proposed enhancement to the existing price protections would impose a burden on competing options exchanges. Rather, it provides ATP Holders with the opportunity to avail themselves of similar protections that are currently available on the Exchange for Market Maker quotes and on another exchange for orders.
Finally, the Exchange does not believe that the proposed clarifications to Limit Order Filter would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act as these changes are not intended to address any competitive issues and would instead add more specificity, clarity and transparency regarding this functionality.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's transaction fees and credits at Equity 7, Section 118(a), as described further below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange operates on the “taker-maker” model, whereby it pays credits to members that take liquidity and charges fees to members that provide liquidity. Currently, the Exchange has a schedule, at Equity 7, Section 118(a), which consists of several different credits that it provides for orders in securities priced at $1 or more per share that access liquidity on the Exchange and several different charges that it assesses for orders in such securities that add liquidity on the Exchange. With limited exceptions, the Exchange's system of credits and charges presently applies to orders in securities in all Tapes.
The purpose of the proposed rule change is to amend the Exchange's schedule of fees and credits with the objective of increasing net incentives for members to remove liquidity from the Exchange in securities in Tape B, where the Exchange has seen less activity than it has in Tape A and C securities.
The Exchange proposes to achieve its objective of increasing removal activity in securities in Tape B, in part, by establishing a new series of credits for orders in securities in Tape B that remove liquidity from the Exchange (“Tape B Credits”). As is explained below, the proposed Tape B Credits will apply in lieu of most of the existing generally applicable liquidity removal credits. The existing credits will continue to apply, but only as to orders in securities in Tapes A and C (the “Tape A and C Credits”). The proposed Tape B Credits will generally be higher than the Tape A and C Credits, which again the Exchange proposes as a means of targeting an increase in liquidity removal activity in securities in Tape B. The availability of the proposed Tape B Credits will also be tied to the level of a member's liquidity adding activity in Tape B securities as a means of incentivizing liquidity adding activity even as the Exchange proposes to increase its charges for orders that add liquidity in Tape B.
Specifically, the Exchange proposes to adopt the following Tape B Credits:
• $0.0026 per share executed for orders that access liquidity in securities in Tape B (excluding orders with Midpoint pegging and excluding orders that receive price improvement and execute against an order with a Non-displayed price) entered by a member that adds liquidity in Tape B securities equal to or exceeding 0.025% of total Consolidated Volume
• $0.0024 per share executed for orders that access liquidity in securities in Tape B (excluding orders with Midpoint pegging and excluding orders that receive price improvement and execute against an order with a Non-displayed price) entered by a member that adds liquidity equal to or exceeding an average daily volume of 50,000 shares during a month.
The Exchange also proposes to eliminate the following two existing credits, which apply specifically to orders in securities in Tape B, insofar as the Exchange will replace these existing credits with the higher proposed Tape B Credits:
• $0.0019 per share executed for orders that access liquidity in securities in Tape B (excluding orders with Midpoint pegging and excluding orders that receive price improvement and execute against an order with a Non-displayed price) entered by a member that: (i) Accesses liquidity equal to or exceeding 0.15% of total Consolidated Volume during a month; and (ii) accesses 20% more liquidity as a percentage of Consolidated Volume than the member accessed in December 2018; and
• $0.0019 per share executed for orders that access liquidity in securities in Tape B (excluding orders with Midpoint pegging and excluding orders that receive price improvement and execute against an order with a Non-displayed price) entered by a member that, during a given month: (i) Has a total volume (accessing and adding liquidity) equal to or exceeding 0.40% of total Consolidated Volume during that month; (ii) has a total volume that is at least 20% greater (as a percentage of Consolidated Volume) than its total volume in December 2018; and (iii) of the 20% or more increase in total volume described in (ii) herein, at least 30% is attributable to adding liquidity.
Lastly, as noted above, the proposed Tape B Credits will not supplant all of the existing credits. Instead, the Exchange proposes that the following existing credits will continue to apply to orders in securities in Tape B (as well as to orders in Tapes A and C):
• $0.0000 per share executed for an order that receives price improvement and executes against an order with a Non-displayed price; and
• $0.0000 per share executed for an order with Midpoint pegging that removes liquidity.
Additionally, the Exchange proposes to amend its existing $0.0001 per share executed “catch-all” credit that applies to “all other orders” that remove liquidity from the Exchange. The Exchange proposes to amend the credit so that it applies to an order in securities in Tapes A and C (excluding an order with midpoint pegging and excluding an order that receives price improvement and execute against an order with a non-displayed price) that remove liquidity from the Exchange that are entered by a member that adds at least an average daily volume of 50,000 shares to the Exchange during a month. The Exchange proposes these changes to incentivize members to engage in meaningful liquidity adding activity during a month.
As explained above, the Exchange presently operates on the taker-maker model, such that it currently does not charge a fee for executions on the Exchange of orders that remove liquidity from the Exchange. However, the Exchange now proposes to establish such a fee for members that do not add a meaningful amount of liquidity to the Exchange during a month. The purpose of the fee is to help ensure that, as the Exchange seeks to establish new Tape B Credits to incentivize liquidity removal in Tape B securities, and also seeks to offset the costs of those Tape B Credits by increasing fees for adding Tape B liquidity, the Exchange continues to provide incentives to members to add meaningful amounts of liquidity to the Exchange each month.
Specifically, the Exchange proposes to charge a fee of $0.0003 per share
As an example of the operation of the proposed liquidity removal fee, a member that adds an average daily volume of 49,000 shares in any Tape to the Exchange would pay a $0.0003 fee per share executed for all of its orders that remove liquidity from the Exchange during that month. If in the subsequent month, however, the member increases its average daily volume of shares added to the Exchange to 50,000 shares, then it would no longer pay that $0.0003 fee, but it would instead qualify for the $0.0001 per share executed credit on its orders in securities in Tapes A and C that remove liquidity from the Exchange and the $0.0024 per share executed credit on its orders in securities in Tape B that remove liquidity from the Exchange during that month (excluding orders with Midpoint pegging and excluding orders that receive price improvement and execute against an order with a Non-displayed price).
As a means of offsetting the costs of providing the Tape B Credits, the Exchange proposes to establish a new series of charges for displayed and non-displayed orders in securities in Tape B that add liquidity to the Exchange (“Tape B Charges”). As is explained below, the proposed Tape B Charges will apply in lieu of most of the existing generally applicable liquidity adding charges. The existing charges will continue to apply, but only as to orders in securities in Tapes A and C (the “Tape A and C Charges”). The proposed Tape B Charges are similarly structured to the existing Tape A and C Charges, which are also tied to liquidity adding activity, except that the Tape B charges will generally be higher than the Tape A and C Charges. Again, the Exchange proposes higher Tape B Charges as a means of offsetting the costs of its efforts to increase liquidity removal activity in securities in Tape B. However, relative to each other, the new displayed order charges will be lower for members that add higher volumes of Tape B liquidity during a month.
Specifically, the Exchange proposes to adopt the following Tape B Charges:
• $0.0026 per share executed for a displayed order in securities in Tape B entered by a member that adds Tape B liquidity equal to or exceeding 0.025% total Consolidated Volume during a month;
• $0.0028 per share executed for a displayed order in securities in Tape B entered by a member that adds Tape B liquidity that is less than 0.025% total Consolidated Volume during a month; and
• $0.0028 per share executed for a non-displayed order in securities in Tape B (other than orders with Midpoint pegging) entered by a member that adds Tape B liquidity equal to or exceeding 0.025% total Consolidated Volume during a month.
Lastly, as noted above, the proposed Tape B Charges will not supplant all of the existing charges. Instead, the Exchange proposes that following existing charges will continue to apply to orders in securities in Tape B (as well as to orders in Tapes A and C):
• $0.0005 per share executed for an order with Midpoint pegging entered by a member that adds 0.02% of total Consolidated Volume of non-displayed liquidity excluding a buy (sell) order that receives an execution price that is lower (higher) than the midpoint of the NBBO;
• $0.0015 per share executed for an order with Midpoint pegging entered by entered by other member excluding a buy (sell) order that receives an execution price that is lower (higher) than the midpoint of the NBBO;
• $0.0024 per share executed for a buy (sell) order with Midpoint pegging that receives an execution price that is lower (higher) than the midpoint of the NBBO;
• $0.0030 per share executed for all other non-displayed orders; and
• charges for BSTG, BSCN, BMOP, BTFY, BCRT, BDRK, and BCST orders that execute in a venue other than the Nasdaq BX Equities System.
The Exchange presently charges a $0.0017 per share executed fee for displayed orders entered by a member that adds liquidity equal to or exceeding 0.15% of total Consolidated Volume during a month as well as a $0.0014 per share executed fee for displayed orders entered by a member that adds liquidity equal to or exceeding 0.25% of total Consolidated Volume during a month.
To effectuate the foregoing changes in a way that is readily comprehensible to members, the Exchange proposes to reorganize and re-format Equity 7, Section 118(a). Specifically, the Exchange proposes to indicate in a chart the applicability of each credit and charge to securities in Tapes A, B, and C. Where a credit or charge does not apply to securities in a particular Tape, the chart will so indicate with the term “N/A.”
The Exchange also proposes to re-format and emphasize in bold type the headings for the credits and fees that comprise the schedule so that members can distinguish these sections more easily. Finally, the Exchange proposes to insert a new heading—“Other charges for entering orders in the Nasdaq BX Equities System”—that will apply to charges for BSTG, BSCN, BMOP, BTFY, BCRT, BDRK, and BCST orders that execute in a venue other than the Nasdaq BX Equities System.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its
Likewise, in
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers'. . . .”
The Exchange believes that it is reasonable to establish a new system of Tape B Credits and Tape B Charges, which will largely supplant the schedule of credits and charges that applies presently to orders in Tape B securities. The Exchange has designed this new system of Tape B Credits and Tape B Charges to provide new incentives to members to increase their liquidity removal activity in Tape B securities, while also maintaining significant levels of liquidity adding activity on the Exchange.
The Exchange believes that the proposed Tape B Credits are reasonable because they are structured similarly to existing liquidity removal credits in that they apply only when members achieve certain thresholds of participation on the Exchange. Increased participation on the Exchange will help to improve transparency and price discovery and will enhance execution opportunities for members on the Exchange. In particular, it is reasonable for the Exchange to propose to tie the availability of Tape B Credits to a member achieving certain thresholds of liquidity addition, rather than certain levels of liquidity removal (as is the case with existing credits), because the Exchange seeks to ensure that as it provides higher removal credits for orders in securities in Tape B, it also maintains adequate incentives for members to continue to add liquidity to the Exchange.
Moreover, the Exchange believes that is reasonable, equitable, and not unfairly discriminatory to propose higher credits to members that remove Tape B liquidity than it does to members that remove liquidity in securities in Tapes A and C because the Exchange has experienced less activity in Tape B securities relative to Tapes A and C securities and it wishes to specifically target increased activity with respect to Tape B securities.
The Exchange believes that its proposals are equitable and not unfairly discriminatory because they will apply to all similarly situated member firms. That is, any member may qualify for receipt of the higher credits by achieving the requisite volume of liquidity adding activity during a month.
Likewise, the Exchange believes it is reasonable, equitable, and not unfairly discriminatory to establish new charges for displayed and non-displayed orders in securities in Tape B entered by members that add liquidity to the Exchange. The Exchange formulated the Tape B Charges similarly to the existing Tape A and C Charges in that they trigger when members add liquidity equal to or exceeding certain threshold volumes. Moreover, it is equitable and not unfairly discriminatory for the Exchange to charge higher fees to members that add Tape B liquidity than it does to members that add liquidity in securities in Tapes A and C because these new Tape B Charges will help the Exchange to specifically offset the costs of the new, higher Tape B Credits. The Exchange notes that it will also offset some of the added costs of the Tape B Charges by tying the availability of the Tape B Credits to members that achieve or maintain certain monthly levels of liquidity adding activity.
The Exchange also believes that these proposals are not unfairly discriminatory because they will apply to all similarly situated member firms. Any member will be entitled to receive the new credits or incur the new fees if they add certain minimum levels of liquidity in a month. Conversely, any member may avoid imposition of the new fees by reducing or avoiding liquidity-adding activity.
The Exchange believes it is reasonable to charge its members a fee for removing liquidity from the Exchange even though the Exchange otherwise operates on a taker-maker model. Although the concept of a liquidity removal fee is new to the Exchange, it is not novel on taker-maker exchanges. Indeed, the Exchange notes that the proposed fee is similar to a liquidity removal fee that NYSE National recently imposed on its members.
Additionally, the Exchange believes that the proposed fee is reasonable because it is intended to incentivize members that engage primarily in liquidity removal activity on the Exchange to also maintain a meaningful level of liquidity adding activity as well. In particular, the Exchange believes that its members would seek to avoid incurring the proposed fee, and instead qualify for a liquidity removal credit, by increasing the extent to which it adds liquidity to the Exchange.
The Exchange believes that the proposed fee is equitable and not unfairly discriminatory because it would apply to all similarly situated members and because any member may avoid imposition of the fee by adding the requisite level of liquidity to the Exchange during a month.
The Exchange believes that it is reasonable to amend its existing $0.0001 per share executed “catch-all” credit so that it applies only to orders in
The Exchange believes that it is reasonable to increase the total Consolidated Volume threshold necessary to trigger its existing $0.0014 per share executed fee that the Exchange charges for a displayed order (going forward, in securities in Tapes A and C only) that adds liquidity entered by a member that adds liquidity equal to or exceeding 0.25% of total Consolidated Volume during a month. The proposed increase in qualifying total Consolidated Volume will increase member incentives to add liquidity to the Exchange. The Exchange notes that the fee remains unchanged and therefore continues to be reasonable. The Exchange believes that increase to the total Consolidated Volume requirement is an equitable allocation and is not unfairly discriminatory because the Exchange will apply the same fee to all similarly situated members. Any member may choose to avoid the fee by adding less than the level of Consolidated Volume that will trigger it. Moreover, the proposed change is equitable because it will incentivize members to engage in market-improving behavior.
The Exchange believes that it is reasonable to reorganize and re-format Equity 7, Section 118(a) so that it implements the foregoing changes in a manner that is readily comprehensible to readers. The Exchange believes that the proposed reorganization is equitable and non-discriminatory in that the proposal changes will render the fee schedule easier to read and understand for all members.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the proposed changes to the Exchange's charges assessed and credits available to member firms for execution of securities in Tape B do not impose a burden on competition because the Exchange's execution services are completely voluntary and subject to extensive competition both from other exchanges and from off-exchange venues.
The Exchange intends for the proposed changes, in the aggregate, to increase member incentives to remove Tape B liquidity from the Exchange while maintaining adequate incentives for members to continue to add meaningful levels of liquidity to the Exchange. The Exchange proposes to achieve these objectives by adding a new system of Tape B Credits that are significantly higher than the credits presently available to members with orders that remove Tape B liquidity from the Exchange. It also intends to establish new and higher Tape B Charges to offset the costs of the new Tape B Credits, but it proposes to offset the costs of the new Tape B Charges, in part, by tying the availability of the new Tape B Credits to members adding certain threshold volumes of liquidity to the Exchange.
The Exchange's efforts to incentivize market-improving activity are not limited to orders in securities in Tape B. Indeed, the Exchange proposes to modify the $0.001 “catch-all” credit applicable to orders that remove liquidity in securities in Tapes A and C so that it is available only to firms that also make meaningful contributions to liquidity on the Exchange, and it proposes to establish a liquidity removal fee for orders in securities in all Tapes for members that fail to make baseline contributions to liquidity. Finally, the Exchange proposes to increase the total Consolidated Volume threshold that triggers a $0.0014 per share executed fee for a displayed order in securities in Tapes A and C entered by a member that adds liquidity to the Exchange.
In the aggregate, all of these changes are procompetitive and reflective of the Exchange's efforts to make it an attractive and vibrant venue to market participants.
In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 27, 2019, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider this proposed rule change and the comments received. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, the Securities and Exchange Commission will hold an Open Meeting on Wednesday, June 5, 2019, at 10:00 a.m.
The meeting will be held in Auditorium LL-002 at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will begin at 10:00 a.m. (ET) and will be open to the public. Seating will be on a first-come, first-served basis. Visitors will be subject to security checks. The meeting will be webcast on the Commission's website at
The subject matters of the Open Meeting will be the Commission's consideration of:
1. Whether to adopt a new rule to establish a standard of conduct for broker-dealers and natural persons who are associated persons of a broker-dealer when making a recommendation to a retail customer of any securities
2. Whether to adopt new and amended rules and forms to require registered investment advisers and registered broker-dealers to provide a brief relationship summary to retail investors.
3. Whether to publish a Commission interpretation of the standard of conduct for investment advisers.
4. Whether to publish a Commission interpretation of the solely incidental prong of section 202(a)(11)(C) of the Investment Advisers Act of 1940.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information, please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend Exchange Rule 503, Openings on the Exchange.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 503, Openings on the Exchange, to amend subsection (f)(2)(iv)(A)2. to adopt new rule text relating to the price at which an Intermarket Sweep Order (“ISO”) is routed in order to align the rule text to the operation of the System.
The Exchange's Opening Process
As described in the Exchange's current rule, the Exchange will route to other markets disseminating prices better than the Exchange's opening price and will also route to other markets disseminating prices equal to the Exchange opening price if necessary.
The Exchange believes that the System is operating correctly and that the rule text inadvertently described the price being used for these orders as the Exchange's opening price. The Exchange now proposes to amend subsection 2. of Rule 503(f)(2)(iv)(A) to adopt new rule text to replace the phrase, “Exchange's opening price” with the phrase, “away market's displayed price.” The new proposed rule will state that any order that is routed pursuant to this Rule will be marked as an Intermarket Sweep Order (“ISO”), as defined in Rule 1400(h), with a limit price equal to the away market's displayed price. This proposed change conforms the rule to the System's behavior.
The Exchange believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange's proposal removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest by ensuring that interest routed as a result of an imbalance on the Exchange during its Opening Process is properly priced for execution. This reduces the risk of trading through
The Exchange's proposal more accurately describes how the System prices interest being routed pursuant to the Opening Process. The Exchange believes its proposal provides accuracy and clarity to the rule and protects investors and the public interest by clearly and accurately describing Exchange functionality which may influence investors' decisions concerning the submission of their orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe the proposed rule change will impose any burden on inter-market competition as exchanges routinely route orders to one another and the Exchange has been operating in this fashion since it began operations on March 1, 2019.
Additionally, the Exchange does not believe that the proposed rule change will impose any burden on intra-market competition as the Opening Process affects all Members equally, and the specific situation that the proposal addresses occurs only in the limited instance as described herein.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Independence Policy of the Board of Directors of the Exchange (“Independence Policy”) by removing obsolete and unused references and making other non-substantive changes. 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 Independence Policy by removing obsolete and unused references and making other non-substantive changes.
Pursuant to rule changes, the Exchange no longer has allied members
• Delete the following text from category 1(b) of “Independence Qualifications”: “ `allied members' (as defined in Rule 23 of NYSE American LLC), `allied persons' (as defined in Rule 1.1(b) of NYSE Arca, Inc.”; and
• Delete the references to allied members and allied persons from the title “Members, Allied Members, Allied Persons and Approved Persons” and the accompanying paragraph.
The Exchange proposes to revise statement 5 under “Independence Qualifications” to delete the references to NYSE Arca and the Chicago Stock Exchange, Inc. (now NYSE Chicago, Inc. (“NYSE Chicago”)), as under the proposed changes they are not referenced by name elsewhere in the text.
In a non-substantive administrative change, the Exchange proposes to add the title “Approval and Adoption” and a sentence setting forth the dates that the Board of Directors of the Exchange approved and adopted the Independence Policy and the date it became effective.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act
The Exchange believes that the proposed change would remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the changes would remove obsolete references to allied persons and allied members, thereby adding clarity and transparency to the Independence Policy by removing any confusion that may result if the Independence Policy retained such obsolete references. Similarly, it would make the Independence Policy more consistent with the rules of the Exchange and NYSE Arca, thereby ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Independence Policy.
The Exchange believes that the proposed amendments to the Independence Policy would remove impediments to and perfect the mechanism of a free and open market and a national market system by adding clarity and transparency to the Independence Policy through removing unused references to NYSE Arca and NYSE Chicago. Each of NYSE Arca and NYSE Chicago would continue to be an “Exchange” as defined in the Independence Policy under “Purpose.” Similarly, the Exchange believes that adding the date on which the Independence Policy was approved and adopted and the date on which it became effective would add clarity and transparency to the Independence Policy. The Exchange further believes that market participants would benefit from the increased clarity, thereby reducing potential confusion.
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 Exchange Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
1:00 p.m. on Thursday, May 30, 2019.
The meeting will be held at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matters of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Consideration of amicus participation;
Resolution of litigation claims; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The Exchange is filing a proposal to amend Exchange Rule 515, Execution of Orders.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Exchange Rule 515, Execution of Orders. Specifically, the Exchange proposes to amend subsection (d)(2), Managed Interest Process for Non-Routable Orders, to remove unnecessary rule text from subsection (d)(2)(iv) relating to timestamps on orders being managed to conform the operation of the rule to the current System
Currently, the rule provides that an order subject to the Managed Interest Process for Non-Routable Orders under subsection (d)(2) will retain its original limit price irrespective of the prices at which such order is booked and displayed and will maintain its original timestamp, provided however each time the order is booked and displayed at a more aggressive Book price, the order will receive a new timestamp. All orders that are re-booked and re-displayed pursuant to the Managed Interest Process for Non-Routable Orders will retain their priority as compared to other orders subject to the Managed Interest Process for Non-Routable Orders, based upon the time such order was initially received by the Exchange.
The Exchange now proposes to remove the provision that each time the order is booked and displayed at a more aggressive Book price, the order will receive a new timestamp. This provision is unnecessary as orders subject to the Managed Interest Process for Non-Routable Orders are all managed to the same ABBO,
The Managed Interest Process for Non-Routable Orders provides that if the limit price of an order locks or crosses the current opposite side NBBO
The following example illustrates multiple non-routable orders being managed under the Exchange's Managed Interest Process for Non-Routable Orders.
The Post-Only interest cannot be posted at its limit price of $2.70 as it would create a locked market, therefore it is managed under the Managed Interest Process for Non-Routable Orders as described in Exchange Rule 515(d)(2)(ii) and booked at a price that locks the current opposite side NBBO and displayed at a price that is one MPV away from the opposite side NBBO.
The example demonstrates that the relative priority between non-routable orders remains the same regardless of whether the orders receive a new timestamp each time they are booked and displayed at a more aggressive Book price. In this example Order One is received 60 seconds before Order Two, thereby establishing its time priority. If Order One and Order Two were to receive new timestamps when each order was booked and displayed at a more aggressive price, Order One would still retain its priority over Order Two due to the fact that it would be handled first in accordance to its original timestamp and as a result would receive a timestamp before Order Two.
The Exchange has a separate Post-Only Price (“POP”) Process
Following is an example of the Post-Only Price Process.
(i)
(ii)
The Exchange's proposal to amend the Managed Interest Process for Non-Routable Orders to remove the provision from subsection (d)(iv) that provided that each time an order is booked and displayed at a more aggressive Book price, the order would receive a new timestamp conforms the rule to the operation of the System. It is not necessary for the System to give these orders a new timestamp each time that the order is re-booked and re-displayed as all orders being managed under the Managed Interest Process for Non-Routable Orders will maintain their relative priority to each other as all interest is being managed together to the same ABBO. Conversely, only Post-Only Orders are subject to the POP Process and are managed to the PBBO, therefore it is necessary to timestamp this interest as there may be non-routable interest that supersedes Post-Only interest as a result of the Post-Only designation which requires that Post-Only Orders not remove liquidity from the Book.
The Exchange believes that its proposed rule changes are consistent with Section 6(b) of the Act
The Exchange believes its proposal removes impediments to and perfects the mechanisms of a free and open market and a national market system as the removal of the proposed rule text does not have a substantive effect on the relative priority of non-routable orders being managed under the Exchange's Managed Interest Process for Non-Routable Orders. Non-routable orders will retain their priority relative to other orders subject to the Managed Interest Process for Non-Routable Orders based upon the time each order is received by the Exchange.
The Exchange's proposal to remove unnecessary rule text from its rules promotes just and equitable principles of trade and removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest, by adding clarity and precision to the Exchange's rules. The Exchange believes it is the interest of investors and the public to accurately describe the behavior of the Exchange's System in its rules.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to add additional clarity and detail to the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on intra-market competition as the rules of the Exchange apply equally to all Members.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email
• 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 order under sections 6(b) and 6(e) of the Investment Company Act of 1940 (the “Act”) granting an exemption from all provisions of the Act and the rules and regulations thereunder, except sections 9, 17, 30, and 36 through 53 of the Act, and the rules and regulations thereunder (the “Rules and Regulations”). With respect to sections 17(a), (d), (e), (f), (g) and (j) and 30(a), (b), (e), and (h) of the Act, and the Rules and Regulations, and rule 38a-1 under
Applicants request an order to exempt certain limited partnerships, limited liability companies, business trusts or other entities (“Funds”) formed for the benefit of eligible employees of Tudor Investment Corporation (“Tudor”) and its affiliates from certain provisions of the Act. Each series of a Fund will be an “employees' securities company” within the meaning of section 2(a)(13) of the Act.
The Company and Tudor Employee Investment Fund LLC. The requested order would supersede a prior order.
The application was filed on December 1, 2017 and was amended on October 19, 2018, April 4, 2019, and May 14, 2019.
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 14, 2019, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090; Applicants: 200 Elm Street, Stamford, CT 06902.
Jennifer O. Palmer, Senior Counsel, at (303) 844-1012, or Kaitlin C. Bottock, Branch Chief, at (202) 551-6821 (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 by searching for the file number, or for an applicant using the Company name box, at
1. Tudor and its “affiliates,” as defined in rule 12b-2 under the Securities Exchange Act of 1934 (the “Exchange Act”) (collectively, the “Tudor Group,” and each, a “Tudor Group Entity”), have organized Tudor Employee Investment Fund LLC, a Delaware limited liability company (the “Investment Fund”) and will in the future organize limited partnerships, limited liability companies, business trusts or other entities (each a “Future Fund” and, collectively with the Investment Fund, the “Funds”) as “employees' securities companies,” as defined in section 2(a)(13) of the Act. The Funds are intended to provide investment opportunities that are competitive with those at other investment management and financial services firms and to facilitate the recruitment and retention of high caliber professionals.
2. The Investment Fund was formed on November 14, 2005 as a Delaware limited liability company. Tudor currently serves as the managing member and investment adviser to the Investment Fund. The Investment Fund operates as a closed-end management investment company. It seeks to achieve long-term capital appreciation through investment in affiliated and non-affiliated private investment funds, which will generally be exempt from registration under the Act pursuant to section 3(c)(1) or section 3(c)(7) of the Act and may also be funds not primarily engaged in the business of investing, reinvesting, or trading in securities,
3. A Future Fund may be structured as a domestic or offshore limited or general partnership, limited liability company, corporation, business trust or other entity. The Tudor Group may also form parallel funds organized under the laws of various jurisdictions in order to create the same investment opportunities for Eligible Employees (defined below) in other jurisdictions. Interests in a Fund may be issued in one or more series, each of which corresponds to particular Fund investments (each, a “Series”). In such event, each Series will be an “employees' securities company” within the meaning of section 2(a)(13) of the Act. A Fund will operate as a management investment company, and a particular Fund may operate as a “diversified” or “non-diversified” vehicle within the meaning of the Act. The investment objectives and policies may vary from one Fund to the next.
4. The Tudor group will control each Fund within the meaning of section 2(a)(9) of the Act. Each Fund has, or will have, a Tudor Group Entity serving as a general partner, managing member or other such similar entity that manages, operates and controls such Fund (a “Manager”). The Manager will be responsible for the overall management of the Fund. The same or a different Tudor Group Entity will serve as investment adviser (“Investment Adviser”) to each Fund and will be responsible for making all investment decisions on behalf of the Fund.
5. Each of the Manager and the Investment Adviser will be an investment adviser within the meaning of sections 9 and 36 of the Act and subject to those sections. The Investment Adviser may be paid a management fee for its services to a Fund. The Manager or Investment Adviser may receive a performance-based fee or allocation (a “Carried Interest”) based on the net gains of the Fund's investments, in addition to any amount allocable to the Manager's or Investment Adviser's capital contribution.
6. If the Manager or Investment Adviser elects to recommend that a Fund enter into any side-by-side investment with an unaffiliated entity, the Manager or Investment Adviser will be permitted to engage as sub-investment adviser the unaffiliated entity (an “Unaffiliated Subadviser”), which will be responsible for the management of such side-by-side investment.
7. Interests in the Funds will be offered in a transaction exempt from registration under section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), or Regulation D or Regulation S promulgated thereunder, and will be sold only to Qualified Participants, which term refers to: (i)
8. The term “Eligible Employees” is defined as current or former employees, officers and directors of the Tudor Group (including people in administration, marketing and operations) and current consultants engaged on retainer to provide services and professional expertise on an ongoing basis to the Tudor Group (“Consultants”).
9. A Qualified Participant may purchase an interest through an Eligible Investment Vehicle only if either (i) the investment vehicle is an accredited investor, as defined in rule 501(a) of Regulation D under the 1933 Act or (ii) the Eligible Employee is a settlor
10. The terms of each Fund will be fully disclosed to each Qualified Participant (or person making the investment on behalf of the Qualified Participant) at the time the Qualified Participant is invited to participate in the Fund. The Fund will send its investors an annual financial statement in accordance with Rule 206(4)-2(b)(4)(i) under the Advisers Act. The financial statement will be audited
11. Interests in a Fund will not be transferable except with the express consent of the Manager, and then only to a Qualified Participant. No sales load or similar fee of any kind will be charged in connection with the sale of interests in a Fund.
12. A Fund may or may not offer investors the right to redeem their interests at such times and subject to such conditions as are set forth in the governing documents of the Fund. A Manager may have the right, but not the obligation, to repurchase, redeem, cancel or transfer to another Qualified Participant the interest of (i) an Eligible Employee who ceases to be an employee, officer, director or current consultant of any Tudor Group Entity for any reason or (ii) any Eligible Family Member of any person described in clause (i). The governing documents for each Fund will describe, if applicable, the amount that an investor would receive upon repurchase, redemption, cancellation or transfer of its interest.
13. Among other assets, a Fund may invest in one or more pooled investment vehicles (including private funds relying on sections 3(c)(1) and 3(c)(7) under the Act) sponsored by the Tudor Group or by third parties (each, an “Underlying Fund”).
14. A Fund may co-invest in a portfolio company (or a pooled investment vehicle) with a Tudor Group Entity or with an investment fund or separate account organized primarily for the benefit of investors who are not affiliated with the Tudor Group (“Third Party Investors) and over which a Tudor Group Entity exercises investment discretion or which is sponsored by a Tudor Group Entity (a “Tudor Group Third Party Fund”). Co-investments with a Tudor Group Entity or with a Tudor Group Third Party Fund in a transaction in which the Tudor Group's investment was made pursuant to a contractual obligation to a Tudor Group Third Party Fund will not be subject to Condition 3 below. All other side-by-side investments held by Tudor Group entities will be subject to Condition 3.
15. If the Tudor Group makes loans to a Fund, the lender will be entitled to receive interest, provided that the interest rate will be no less favorable to the borrower than the rate obtainable on an arm's length basis. The possibility of any such borrowings, as well as the terms thereof, would be disclosed to Qualified Participants prior to their investment in a Fund. Any indebtedness of the Fund will be the debt of the Fund and without recourse to the investors. A Fund will not borrow from any person if the borrowing would cause any person not named in section 2(a)(13) of the Act to own securities of the Fund (other than short-term paper). A Fund will not lend any funds to a Tudor Group Entity.
16. A Fund will not acquire any security issued by a registered investment company if immediately after such acquisition such Fund will own more than 3% of the outstanding voting stock of the registered investment company.
1. Section 6(b) of the Act provides that the Commission shall exempt employees' securities companies from the provisions of the Act if and to the extent that such exemption is consistent with the protection of investors. Section 6(b) provides that the Commission will consider, in determining the provisions of the Act from which the company should be exempt, the company's form of organization and capital structure, the persons owning and controlling its securities, the price of the company's securities and the amount of any sales load, how the company's funds are invested, and the relationship between the company and the issuers of the securities in which it invests. Section 2(a)(13) defines an employees' securities company, in relevant part, as any investment company all of whose securities (other than short-term paper) are beneficially owned (a) by current or former employees, or persons on retainer, of one or more affiliated employers, (b) by immediate family members of such persons, or (c) by such employer or employers together with any of the persons in (a) or (b).
2. Section 7 of the Act generally prohibits investment companies that are not registered under section 8 of the Act from selling or redeeming their securities. Section 6(e) of the Act provides that in connection with any order exempting an investment company from any provision of section 7, certain specified provisions of the Act shall be applicable to such company, and to other persons in their transactions and relations with such company, as though such company were registered under the Act, if the Commission deems it necessary and appropriate in the public interest or for the protection of investors. Applicants submit that it would be appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policies and provisions of the Act for the Commission to issue an order under sections 6(b) and 6(e) of the Act exempting the Funds from all provisions of the Act and the rules and regulations thereunder, except sections 9, 17, 30, and 36 through 53 of the Act, and the Rules and Regulations. With respect to sections 17(a), (d), (e), (f), (g) and (j) and 30(a), (b), (e), and (h) of the Act, and the Rules and Regulations, and rule 38a-1 under the Act, Applicants request a limited exemption as set forth in the application.
3. Section 17(a) of the Act generally prohibits any affiliated person of a registered investment company, or any affiliated person of such a person, acting as principal, from knowingly selling or purchasing any security or other property to or from the investment company. Applicants request an exemption from section 17(a) to the extent necessary to (a) permit a Tudor Group Entity or a Tudor Group Third Party Fund (or any affiliated person of such Tudor Group Entity or Tudor Group Third Party Fund), or any affiliated person of a Fund (or affiliated persons of such persons), acting as principal, to engage in any transaction directly or indirectly with any Fund or any company controlled by such Fund; and (b) to permit a Fund to invest or engage in any transaction with any Tudor Group Entity, acting as principal, (i) in which such Fund, any company controlled by such Fund or any Tudor Group Entity or any Tudor Group Third Party Fund has invested or will invest, or (ii) with which such Fund, any company controlled by such Fund or any Tudor Group Entity or Tudor Group Third Party Fund is or will become otherwise affiliated; and (c) permit a Third Party Investor, acting as a principal, to engage in any transaction directly or indirectly with a Fund or any company controlled by such Fund. The transactions to which any Fund is a party will be effected only after a determination by the Manager that the requirements of Conditions 1, 2 and 6 (set forth below) have been satisfied. Applicants, on behalf of the Funds, represent that any transactions otherwise subject to section 17(a) of the Act, for which exemptive relief has not been requested, would require approval of the Commission.
4. Applicants submit that an exemption from section 17(a) is consistent with the policy of each Fund and the protection of investors. Applicants state that the investors in each Fund will have been fully informed of the possible extent of such Fund's dealings with the Tudor Group and of the potential conflicts of interest that may exist. Applicants also state that, as professionals employed in the investment management and securities businesses, or in administrative, financial, accounting, legal, sales, marketing, risk management or operational activities related thereto, the investors will be able to understand and evaluate the attendant risks. Applicants assert that the community of interest among the investors in each Fund, on the one hand, and the Tudor Group, on the other hand, is the best insurance against any risk of abuse. Applicants acknowledge that the requested relief will not extend to any transactions between a Fund and an Unaffiliated Subadviser or an affiliated person of the Unaffiliated Subadviser, or between a Fund and any person who is not an employee, officer or director of the Tudor Group or is an entity outside of the Tudor Group and is an affiliated person of the Fund as defined in section 2(a)(3)(E) of the Act (“Advisory Person”) or any affiliated person of such person.
5. Section 17(d) of the Act and rule 17d-1 thereunder prohibit any affiliated person or principal underwriter of a registered investment company, or any affiliated person of such a person or principal underwriter, acting as principal, from participating in any joint arrangement with the company unless authorized by the Commission. Applicants request an exemption from section 17(d) and rule 17d-1 to the
6. Applicants assert that compliance with section 17(d) would prevent each Fund from achieving a principal purpose, which is to provide a vehicle for Eligible Employees (and other permitted investors) to co-invest with the Tudor Group or, to the extent permitted by the terms of the Fund, with other employees, officers, directors or consultants of the Tudor Group or Tudor Group entities or with an Tudor Group Third Party Fund. Applicants further contend that compliance with section 17(d) would cause a Fund to forego investment opportunities simply because an investor in such Fund or other affiliated person of such Fund also had, or contemplated making, a similar investment. Applicants submit that it is likely that suitable investments will be brought to the attention of a Fund because of its affiliation with the Tudor Group's large capital resources and investment management experience, and that attractive investment opportunities of the types considered by a Fund often require each participant in the transaction to make funds available in an amount that may be substantially greater than those the Fund would independently be able to provide. Applicants contend that, as a result, a Fund's access to such opportunities may have to be through co-investment with other persons, including its affiliates. Applicants assert that the flexibility to structure co-investments and joint investments will not involve abuses of the type section 17(d) and rule 17d-1 were designed to prevent. In addition, Applicants represent that any transactions otherwise subject to section 17(d) of the Act and rule 17d-1 thereunder, for which exemptive relief has not been requested, would require approval by the Commission.
7. Co-investments with a Tudor Group Entity or with a Tudor Group Third Party Fund in a transaction in which the Tudor Group's investment was made pursuant to a contractual obligation to a Tudor Group Third Party Fund will not be subject to Condition 3 below. Applicants believe that the interests of the Eligible Employees participating in a Fund will be adequately protected in such situations because the Tudor Group is likely to invest a portion of its own capital in Tudor Group Third Party Fund investments, either through such Tudor Group Third Party Fund or on a side-by-side basis (which Tudor Group investments will be subject to substantially the same terms as those applicable to such Tudor Group Third Party Fund, except as otherwise disclosed in the governing documents of the relevant Fund). Applicants assert that if Condition 3 were to apply to the Tudor Group's investment in these situations, the Tudor Group Third Party Fund would be indirectly burdened by the requirements of Condition 3. Applicants further assert that the relationship of a Fund to a Tudor Group Third Party Fund is fundamentally different from such Fund's relationship to the Tudor Group. Applicants contend that the focus of, and the rationale for, the protections contained in the requested relief are to protect the Funds from any overreaching by the Tudor Group in the employer/employee context, whereas the same concerns are not present with respect to the Funds vis-à-vis the investors in a Tudor Group Third Party Fund.
8. Section 17(e) of the Act and rule 17e-1 thereunder limit the compensation an affiliated person may receive when acting as agent or broker for a registered investment company. Applicants request an exemption from section 17(e) to permit a Tudor Group Entity (including the Manager) that acts as an agent or broker to receive placement fees, advisory fees, or other compensation from a Fund in connection with the purchase or sale by the Fund of securities, provided that the fees or other compensation are deemed “usual and customary.” Applicants state that for purposes of the application, fees or other compensation that are charged or received by a Tudor Group Entity will be deemed to be “usual and customary” only if (i) the Fund is purchasing or selling securities alongside other unaffiliated third parties, Tudor Group Third Party Funds or Third Party Investors who are also similarly purchasing or selling securities, (ii) the fees or other compensation being charged to the Fund are also being charged to the unaffiliated third parties, Tudor Group Third Party Funds or Third Party Investors, and (iii) the amount of securities being purchased or sold by the Fund does not exceed 50% of the total amount of securities being purchased or sold by the Fund and the unaffiliated third parties, Tudor Group Third Party Funds or Third Party Investors. Applicants state that compliance with section 17(e) would prevent a Fund from participating in a transaction in which the Tudor Group, for other business reasons, does not wish to appear as if the Fund is being treated in a more favorable manner (by being charged lower fees) than other third parties also participating in the transaction. Applicants assert that the concerns of overreaching and abuse that section 17(e) and rule 17e-1 were designed to prevent are alleviated by the conditions that ensure that (i) the fees or other compensation paid by a Fund to a Tudor Group Entity are those negotiated at arm's length with unaffiliated third parties and (ii) the unaffiliated third parties have as great or greater interest as the Fund in the transactions as a whole.
9. Rule 17e-1(b) under the Act requires that a majority of directors who are not “interested persons” (as defined in section 2(a)(19) of the Act) take actions and make approvals regarding commissions, fees, or other remuneration. Rule 17e-1(c) under the Act requires each Fund to comply with the fund governance standards defined in rule 0-1(a)(7) under the Act. Applicants request an exemption from rule 17e-1(b) to the extent necessary to permit each Fund to comply with rule 17e-1(b) without the necessity of having a majority of the directors of the Fund who are not “interested persons” take such actions and make such approvals as are set forth in rule 17(e)-1(b). Applicants note that in the event that all the directors of the Manager will be affiliated persons, a Fund could not comply with rule 17(e)-1(b) without the relief requested. Applicants represent that in such an event, the Fund will comply with rule 17e-1(b) by having a majority of the directors (or members of a comparable body) of the Fund or its Manager take such actions and make such approvals as are set forth in rule 17e-1(b). Applicants state that each Fund will otherwise comply with all other requirements of rule 17e-1(b). Applicants further request an exemption from rule 17(e)-1(c) to the extent necessary to permit each Fund to comply with rule 17e-1 without the necessity of having a majority of the
10. Section 17(f) of the Act provides that the securities and similar investments of a registered management investment company must be placed in the custody of a bank, a member of a national securities exchange or the company itself in accordance with Commission rules. Rule 17f-2 under the Act specifies the requirements that must be satisfied for a registered management investment company to act as a custodian of its own investments. Applicants request relief from section 17(f) and rule 17f-2 to permit the following exceptions from the requirements of rule 17f-2: (a) A Fund's investments may be kept in the locked files of the Manager or the Investment Adviser for purposes of paragraph (b) of the rule; (b) for purposes of paragraph (d) of the rule, (i) employees of Tudor Group or its affiliates (including the Manager) will be deemed to be employees of the Funds, (ii) officers or managers of the Manager of a Fund will be deemed to be officers of the Fund and (iii) the Manager of a Fund or its board of directors will be deemed to be the board of directors of the Fund; and (c) in place of the verification procedure under rule 17f-2(f), verification will be effected quarterly by two employees of the Manager who are also employees of the Tudor Group responsible for the administrative, legal and/or compliance functions for funds managed or sponsored by the Tudor Group and who have specific knowledge of custody requirements, policies and procedures of the Funds. Applicants expect that, with respect to certain Funds, many of their investments will be evidenced only by partnership agreements, participation agreements or similar documents, rather than by negotiable certificates that could be misappropriated. Applicants assert that for such a Fund, these instruments are most suitably kept in the files of the Manager or its Investment Adviser, where they can be referred to as necessary. Applicants represent that they will comply with all other provisions of rule 17f-2, including the recordkeeping requirements of paragraph (e).
11. Section 17(g) of the Act and rule 17g-1 thereunder generally require the bonding of officers and employees of a registered investment company who have access to its securities or funds. Rule 17g-1 requires that a majority of directors who are not “interested persons” of a registered investment company take certain actions and give certain approvals relating to fidelity bonding. Among other things, the rule also requires that the board of directors of an investment company relying on the rule satisfy the fund governance standards defined in rule 0-1(a)(7). Applicants request an exemption from rule 17g-1 to the extent necessary to permit a Fund to comply with rule 17g-1 by having the Manager of the Fund take such actions and make such approvals as are set forth in rule 17g-1. Applicants state that in the event all the directors of the Manager will be affiliated persons, a Fund could not comply with rule 17g-1 without the requested relief. Applicants also request an exemption from the requirements of rule 17g-1(g) and (h) relating to the filing of copies of fidelity bonds and related information with the Commission and the provision of notices to the board of directors and from the requirements of rule 17g-1(j)(3). Applicants contend that the filing requirements are burdensome and unnecessary as applied to the Funds and represent that the Manager of each Fund will designate a person to maintain the records otherwise required to be filed with the Commission under rule 17g-1(g). Applicants further contend that the notices otherwise required to be given to the board of directors will be unnecessary as the Funds typically will not have boards of directors. Applicants represent that, to the extent a Fund does have a board of directors, such notices will be delivered in compliance with rule 17g-1. Applicants represent that each Fund will comply with all other requirements of rule 17g-1.
12. Section 17(j) of the Act and rule 17j-1 require that every registered investment company adopt a written code of ethics that contains provisions reasonably necessary to prevent “access persons” from violating the anti-fraud provisions of the rule. Under rule 17j-1, the investment company's access persons must report to the investment company with respect to transactions in any security in which the access person has, or by reason of the transaction acquires, any direct or indirect beneficial ownership in such security. Applicants request an exemption from section 17(j) and the provisions of rule 17j-1 (except for the anti-fraud provisions of rule 17j-1(b)) because they assert that these requirements are burdensome and unnecessary as applied to the Funds. The relief requested will extend only to entities within the Tudor Group and is not requested with respect to any Unaffiliated Subadviser or Advisory Person.
13. Sections 30(a), (b) and (e) of the Act and the rules thereunder generally require that registered investment companies prepare and file with the Commission and mail to their shareholders certain periodic reports and financial statements. Applicants contend that the forms prescribed by the Commission for periodic reports have little relevance to a Fund and would entail administrative and legal costs that outweigh any benefit to the investors in such Fund. Applicants request relief under sections 30(a), (b) and (e) to the extent necessary to permit each Fund to report annually to its investors in the manner described in the application. Section 30(h) of the Act requires that every officer, director, member of an advisory board, investment adviser or affiliated person of an investment adviser of a closed-end investment company be subject to the same duties and liabilities as those imposed upon similar classes of persons under section 16(a) of the Exchange Act. Applicants request an exemption from section 30(h) of the Act to the extent necessary to exempt the Manager of each Fund, directors and officers of the Manager and any other persons who may be deemed members of an advisory board or investment adviser (and affiliated persons thereof) of such Fund from filing Forms 3, 4, and 5 with respect to their ownership of interests in such Fund under section 16 of the Exchange Act. Applicants assert that, because there will be no trading market and the transfers of interests are severely restricted, these filings are unnecessary for the protection of investors and burdensome to those required to make them.
14. Rule 38a-1 requires registered investment companies to adopt, implement and periodically review written policies reasonably designed to prevent violation of the federal securities laws and to appoint a chief compliance officer. Each Fund will comply will rule 38a-1(a), (c) and (d), except that: (i) To the extent the Fund does not have a board of directors, the board of directors of the Manager will fulfill the responsibilities assigned to the Fund's board of directors under the rule; (ii) to the extent the board of directors of the Manager does not have any disinterested members, approval by a majority of the disinterested board members required by rule 38a-1 will not be obtained; and (iii) to the extent
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Each proposed transaction otherwise prohibited by section 17(a) or section 17(d) of the Act and rule 17d-1 thereunder to which a Fund is a party (the “Section 17 Transactions”) will be effected only if the Manager determines that: (a) The terms of the Section 17 Transaction, including the consideration to be paid or received, are fair and reasonable to the Fund and the investors and do not involve overreaching of such Fund or its investors on the part of any person concerned; and (b) the Section 17 Transaction is consistent with the interests of the Fund and the investors, such Fund's organizational documents and such Fund's reports to its investors.
In addition, the Manager will record and preserve a description of all Section 17 Transactions, the Manager's findings, the information or materials upon which the findings are based and the basis for such findings. All such records will be maintained for the life of the Fund and at least six years thereafter, and will be subject to examination by the Commission and its staff.
2. The Manager will adopt, and periodically review and update, procedures designed to ensure that reasonable inquiry is made, prior to the consummation of any Section 17 Transaction, with respect to the possible involvement in the transaction of any affiliated person or promoter of or principal underwriter for such Fund, or any affiliated person of such a person, promoter or principal underwriter.
3. The Manager will not cause the funds of any Fund to be invested in any investment in which a Co-Investor (as defined below) has acquired or proposes to acquire the same class of securities of the same issuer, where the investment involves a joint enterprise or other joint arrangement within the meaning of rule 17d-1 in which the Fund and a Co-Investor are participants, unless prior to such investment any such Co-Investor agrees, prior to disposing of all or part of its investment, to (a) give the Manager sufficient, but not less than one day's, notice of its intent to dispose of its investment; and (b) refrain from disposing of its investment unless the Fund has the opportunity to dispose of the Fund's investment prior to or concurrently with, on the same terms as, and on a pro rata basis with, the Co-Investor. The term “Co-Investor” with respect to any Fund means any person who is: (a) An “affiliated person” (as defined in section 2(a)(3) of the Act) of the Fund (other than a Tudor Group Third Party Fund); (b) the Tudor Group (except when a Tudor Group Entity co-invests with a Fund and a Tudor Group Third Party Fund pursuant to a contractual obligation to the Tudor Group Third Party Fund); (c) an officer or director of a Tudor Group Entity; or (d) an entity (other than a Tudor Group Third Party Fund) in which the Tudor Group acts as general partner or has similar capacity to control the sale or other disposition of the entity's securities. The restrictions contained in this condition, however, shall not be deemed to limit or prevent the disposition of an investment by a Co-Investor: (a) To its direct or indirect wholly-owned subsidiary, to any company (a “parent”) of which the Co-Investor is a direct or indirect wholly-owned subsidiary or to a direct or indirect wholly-owned subsidiary of its parent; (b) to immediate family members of the Co-Investor, including step or adoptive relationships, or a trust or other investment vehicle established for any Co-Investor or any such family member; or (c) when the investment is comprised of securities that are (i) listed on a national securities exchange registered under section 6 of the Exchange Act, (ii) NMS stocks, pursuant to section 11A(a)(2) of the Exchange Act and rule 600(a) of Regulation NMS thereunder, (iii) government securities as defined in section 2(a)(16) of the Act, (iv) “Eligible Securities” as defined in rule 2a-7 under the Act, or (v) listed or traded on any foreign securities exchange or board of trade that satisfies regulatory requirements under the law of the jurisdiction in which such foreign securities exchange or board of trade is organized similar to those that apply to a national securities exchange or a national market system for securities.
4. Each Fund and its Manager will maintain and preserve, for the life of such Fund and at least six years thereafter, such accounts, books and other documents as constitute the record forming the basis for the audited financial statements that are to be provided to the investors in such Fund, and each annual report of such Fund required to be sent to such investors, and agree that all such records will be subject to examination by the Commission and its staff.
5. Within 120 days after the end of each fiscal year of each Fund, or as soon as practicable thereafter, the Manager of each Fund will send to each investor in such Fund who had an interest in any capital account of the Fund, at any time during the fiscal year then ended, Fund financial statements audited by the Fund's independent accountants, except in the case of a Fund formed to make a single portfolio investment. In such cases, financial statements may be unaudited, in which event each investor will receive financial statements of the single portfolio investment audited by such entity's independent accountants. At the end of each fiscal year and at other times as necessary in accordance with customary practice, the Manager will make a valuation or cause a valuation to be made of all of the assets of the Fund as of the fiscal year end. In addition, as soon as practicable after the end of each tax year of a Fund, the Manager of such Fund will send a report to each person who was an investor in such Fund at any time during the fiscal year then ended, setting forth such tax information as shall be necessary for the preparation by the investor of his, her or its U.S. federal and state income tax returns and a report of the investment activities of the Fund during that fiscal year.
6. If a Fund makes purchases or sales from or to an entity affiliated with the Fund by reason of an officer, director or employee of the Tudor Group (a) serving as an officer, director, general partner or investment adviser of the entity, or (b) having a 5% or more investment in the entity, such individual will not participate in the Fund's determination of whether or not to effect the purchase or sale.
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 (“Act”),
The Exchange proposes to amend the Independence Policy of the Board of Directors of the Exchange (“Independence Policy”) by removing obsolete and unused references and making other non-substantive changes. 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 Independence Policy by removing obsolete and unused references and making other non-substantive changes.
Pursuant to rule changes, NYSE American LLC (“NYSE American”) no longer has allied members
• Delete the following text from category 1(b) of “Independence Qualifications”: “ `allied members' (as defined in Rule 23 of NYSE American LLC), `allied persons' (as defined in Rule 1.1(b) of NYSE Arca, Inc.”; and
• Delete the references to allied members and allied persons from the title “Members, Allied Members, Allied Persons and Approved Persons” and the accompanying paragraph.
The Exchange proposes to revise statement 5 under “Independence Qualifications” to delete the references to NYSE Arca and the Chicago Stock Exchange, Inc. (now NYSE Chicago, Inc. (“NYSE Chicago”)), as under the proposed changes they are not referenced by name elsewhere in the text.
In a non-substantive administrative change, the Exchange proposes to add the title “Approval and Adoption” and a sentence setting forth the dates that the Board of Directors of the Exchange approved and adopted the Independence Policy and the date it became effective.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Exchange Act
The Exchange believes that the proposed change would remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, protect investors and the public interest because the changes would remove obsolete references to allied persons and allied members, thereby adding clarity and transparency to the Independence Policy by removing any confusion that may result if the Independence Policy retained such obsolete references. Similarly, it would make the Independence Policy more consistent with the rules of NYSE American and NYSE Arca, thereby ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public can more easily navigate and understand the Independence Policy.
The Exchange believes that the proposed amendments to the Independence Policy would remove impediments to and perfect the mechanism of a free and open market and a national market system by adding clarity and transparency to the Independence Policy through removing unused references to NYSE Arca and NYSE Chicago. Each of NYSE Arca and NYSE Chicago would continue to be an “Exchange” as defined in the Independence Policy under “Purpose.” Similarly, the Exchange believes that adding the date on which the Independence Policy was approved and adopted and the date on which it became effective would add clarity and transparency to the Independence Policy. The Exchange further believes that market participants would benefit from the increased clarity, thereby reducing potential confusion.
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 Exchange Act.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Texas dated 05/22/2019.
Issued on 05/22/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 15965 C and for economic injury is 15966 0.
The State which received an EIDL Declaration # is Texas.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, as amended, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 02/32-0648 issued to Michigan Growth Capital Partners SBIC, L.P. said license is hereby declared null and void.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, as amended, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 09/09-0461 issued to Alpine Investors IV SBIC, LP said license is hereby declared null and void.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Texas dated 05/22/2019.
Issued on 05/22/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 15963 C and for economic injury is 15964 0.
The State which received an EIDL Declaration # is Texas.
Pursuant to the authority granted to the United States Small Business Administration under the Small Business Investment Act of 1958, as amended, under Section 309 of the Act and Section 107.1900 of the Small Business Administration Rules and Regulations (13 CFR 107.1900) to function as a small business investment company under the Small Business Investment Company License No. 08/08-0162 issued to Utah Ventures III, LP said license is hereby declared null and void.
U.S. Small Business Administration.
Notice.
This is a notice of an Economic Injury Disaster Loan (EIDL) declaration for the State of California, dated 05/22/2019.
Issued on 05/22/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's EIDL declaration, applications for economic injury disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for economic injury is 159600.
The States which received an EIDL Declaration # are California, Arizona.
Pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2781), and Executive Order 13637, as amended, I hereby determine and certify to the Congress that the following countries are not cooperating fully with United States antiterrorism efforts: Iran, Democratic People's Republic of Korea (DPRK, or North Korea), Syria, and Venezuela. This determination and certification shall be transmitted to the Congress and published in the
Federal Highway Administration (FHWA), DOT.
Notice of limitation on claims for judicial review of actions by FHWA and other Federal agencies.
This notice announces actions taken by FHWA and other Federal Agencies that are final. The actions relate to the I-20/26/126 Carolina Crossroads Corridor Project, located in Lexington and Richland Counties, South Carolina. This action grants FHWA approval of the project.
By this notice, FHWA is advising the public of a final agency action subject to 23 U.S.C. 139(l)(1). A claim seeking review of the Federal agency action on the highway project will be barred unless the claim is filed on or before October 28, 2019. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
For FHWA: Emily O. Lawton, Division Administrator, Federal Highway Administration, Strom Thurmond Federal Building, 1835 Assembly Street, Suite 1270, Columbia, South Carolina 29201, Telephone: (803) 765-5411, Email:
Notice is hereby given that FHWA and other Federal agencies have taken final agency actions by issuing a Record of Decision (ROD) for the I-20/26/126 Carolina Crossroads Corridor Project in Richland and Lexington Counties, South Carolina. The Carolina Crossroads project would reconstruct the I-20/26 interchange, the I-26/126 interchange, and service interchanges in the project study area on I-20, I-26, and I-126. In addition, an additional travel lane would be added in each direction on I-26 from the Broad River Road interchange to just past the I-126 interchange. The project would improve mobility and enhance traffic operations by reducing existing traffic congestion within the I-20/26/126 corridor while accommodating future traffic needs. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Combined Final Environmental Impact Statement (FEIS)/Record of Decision (ROD) for the project, approved on May 2, 2019, and in other documents in the project records. The Combined FEIS/ROD and other documents in the project file are available by contacting the FHWA or SCDOT at the addresses above. The Combined FEIS/ROD along with referenced technical documents can also be viewed and downloaded from the project website at
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Record of Decision (ROD) for the project and in other documents in the project file. The ROD and other documents in the project file are available by contacting FHWA or SCDOT at the addresses provided above. This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139(l)(1).
Federal Transit Administration, DOT.
Notice of intent to prepare a Supplemental Draft Environmental Impact Statement.
The Federal Transit Administration (FTA) and the Los Angeles County Metropolitan Transportation Authority (Metro) issue this Notice of Intent (NOI) to prepare a Supplemental Draft Environmental Impact Statement (EIS) for the Eastside Transit Corridor Phase 2 Project (Project) pursuant to the National Environmental Policy Act (NEPA).
The purpose of this notice is to alert interested parties regarding the intent to prepare the Supplemental Draft EIS, to provide information on the nature of the proposed Project, potential minimal operable segments, and possible alternatives, and to invite public participation in the EIS process. With this notice, FTA and Metro invite public comments on the scope of the Supplemental Draft EIS and announce public scoping meetings that will be conducted. Consistent with Executive Order 11988: Floodplain Management and Executive Order 11990: Protection of Wetlands, this NOI also serves as a notice to the public that one or more of the alternatives under consideration may affect floodplains and/or wetlands.
Written comments on the scope of the Supplemental Draft EIS, including the project's purpose and need, the alternatives to be considered, the impacts to be evaluated, and the methodologies to be used in the evaluations should be sent to Metro on or before July 15, 2019. An interagency scoping meeting will be held on June 10, 2019 at 3:00 p.m.-5:00 p.m. at Metro Headquarters One Gateway Plaza, Los Angeles, CA 90012, Gateway Plaza Conference Room, 3rd floor. See
The meeting facilities are accessible to persons with disabilities. Individuals who require special assistance, such as a sign language interpreter, to participate in the scoping meeting or scoping materials in alternate formats may contact Ms. Lillian De Loza Gutierrez, Community Relations Manager, Metro, at (213) 922-7479, or
Comments will be accepted at the public scoping meetings or they may be sent via mail to Ms. Jenny Cristales-Cevallos, Senior Manager, Los Angeles County Metropolitan Transportation Authority, One Gateway Plaza, Mail Stop 99-22-6, Los Angeles, CA 90012, or via email at
Ms. Mary Nguyen, Environmental Protection Specialist, Federal Transit Administration, 888 South Figueroa Street, Suite 440, Los Angeles, CA 90017, phone (213) 202-3960, email
A Draft EIS was circulated for public review on August 22, 2014. Since that time, changes to the alternatives have occurred and additional studies have been conducted. Therefore, a
The proposed Project would extend the Metro Gold Line, a light rail transit line (LRT), from its current terminus at Atlantic Station in the unincorporated area of East Los Angeles to eastern Los Angeles County. The extension would serve the cities and communities of Commerce, Montebello, Monterey Park, Pico Rivera, Rosemead, Santa Fe Springs, South El Monte, and Whittier, and unincorporated areas of Los Angeles County, which include East Los Angeles and West Whittier-Los Nietos.
The Supplemental Draft EIS will be prepared in accordance with the requirements of NEPA and its implementing regulations. Metro will also use the environmental document, in conjunction with the Recirculated Draft EIR to comply with CEQA.
Scoping is the process of determining the scope, focus, and content of an EIS. FTA and Metro invite all interested individuals and organizations, public agencies, and Native American Tribes to comment on the scope of the Supplemental Draft EIS, including the project's purpose and need, the alternatives to be studied, the impacts to be evaluated, and the evaluation methods to be used. Comments should focus on: Alternatives that may be less costly or have less environmental or community impacts while achieving similar transportation objectives and the identification of any significant social, economic, or environmental issues relating to the alternatives.
NEPA “scoping” has specific and limited objectives, one of which is to identify the significant issues associated with alternatives that will be examined in detail in the document, while simultaneously limiting consideration and development of issues that are not truly significant. It is in the NEPA scoping process that potentially significant environmental impacts—those that give rise to the need to prepare an environmental impact statement—should be identified; impacts that are deemed not to be significant need not be developed extensively in the context of the impact statement, thereby keeping the statement focused on impacts of consequence. Transit projects may also generate environmental benefits; these should be highlighted as well—the impact statement process should draw attention to positive impacts, not just negative impacts.
The Draft EIS/EIR indicated that the purpose of the Eastside Transit Corridor Phase 2 Project is to improve transit access and mobility by connecting communities of eastern Los Angeles County to Metro's regional transit system. The Draft EIS/EIR indicated that Project would serve the large number of transit-dependent and low-income populations in the project area and increase access to major employment centers, activity centers, and destinations in the project area and Los Angeles County. The Draft EIS/EIR included that the Project also aims to reduce travel times on local and regional transportation networks and offer a convenient and reliable transportation alternative to address increased travel demand and projected employment and population growth in eastern Los Angeles County. This information, in addition to the project Purpose and Need, will be updated as part of the Supplemental Draft EIS.
Mobility problems and potential improvements for this corridor have been well documented in many studies that are available from Metro's Records Management Department, including numerous Metro Red Line planning studies,
The Eastside Transit Corridor Phase 2 Project is located in eastern Los Angeles County and is generally bounded by Pomona Boulevard and State Route 60 (SR 60) Freeway to the north, Peck Road and Painter Avenue to the east, Olympic and Washington Boulevards to the south, and Atlantic Boulevard to the west. The project area consists of portions of eight jurisdictions, including the cities of Commerce, Montebello, Monterey Park, Pico Rivera, Rosemead, Santa Fe Springs, South El Monte, Whittier and portions of unincorporated areas in Los Angeles County which include East Los Angeles and West Whittier-Los Nietos. A diverse mix of land uses are located within the project area, including single- and multi-family residences, commercial and retail uses, industrial development, parks and recreational uses including the Whittier Narrows Recreation Center, health and medical uses, educational institutions, flood control facilities, and vacant land.
The Project would extend the existing Metro Gold Line from 6.9 to approximately 16 miles, depending on the alternative, from its current terminus at Atlantic Station in the unincorporated area of East Los Angeles to eastern Los Angeles County. It would traverse densely populated, low-income, and heavily transit-dependent communities with major activity centers within the Gateway Cities and San Gabriel Valley subregions of Los Angeles County.
The project Alternatives Analysis (AA) was initiated in 2007 wherein 47 alternatives were evaluated. In January 2009, the Metro Board approved the AA and identified two build alternatives to be carried forward for environmental review. The project is identified in Metro's 2009 Long-Range Transportation Plan, as amended, and is a transit project funded by local tax measures, Measure R (approved by voters in November 2008) and Measure M (approved by voters in November 2016).
A Notice of Intent to prepare a Draft EIS/EIR was issued in 2010. The Draft EIS/EIR analyzed the two build alternatives—State Route 60 (SR 60) and Washington Boulevard—in addition to the No Build and Transportation Systems Management (TSM) Alternatives. To address technical issues regarding proximity to the Operating Industries, Inc. (OII) Superfund site and in close coordination with the United States Environmental Protection Agency (EPA), the SR 60 North Side Design Variation (SR 60 NSDV) was added as a design variation. A total of 24 agencies accepted the invitation to become a Participating Agency and EPA, United States Army Corps of Engineers (USACE), and Caltrans (as assigned by the Federal Highway Administration [FHWA]) requested to be Cooperating Agencies. Outreach efforts to agencies affiliated with the project included agency scoping meetings, participation in the Technical Advisory Committee (TAC), and 37 individual agency coordination meetings with EPA, USACE, Caltrans, Southern California
The Draft EIS/EIR was released on August 22, 2014 for a public comment period of 60 days. In November 2014, the Metro Board approved carrying forward two build alternatives for further study: The SR 60 NSDV, referred to herein as the SR 60 Alternative, and the Washington Boulevard Alternative. Based on the volume and scope of comments received on the Draft EIS/EIR, the Board deferred the selection of a Locally Preferred Alternative (LPA) and determined that additional technical investigation, a Post Draft EIS/EIR Technical Study, would be needed to address major areas of concern raised by Cooperating Agencies, corridor cities and stakeholders for both build alternatives. The Metro Board also eliminated the Garfield Avenue aerial segment of the Washington Boulevard Alternative and directed staff to carry out additional technical work, including identifying a new north-south alignment to connect to the Washington Boulevard Alternative, and explore the feasibility of operating both the SR 60 and Washington Boulevard Alternatives.
Extensive coordination with Caltrans, EPA, USACE, CDFW and SCE occurred on the design of the SR 60 Alternative to address these agencies' respective comments on the Draft EIS/EIR throughout the technical investigation process. Some of the issues discussed with resource agencies throughout the technical study included: Addressing concerns related to the former OII Superfund site; minimizing impacts to adjacent developments such as the MarketPlace in Monterey Park; minimizing potential impacts to the ability to add high-occupancy vehicle (HOV) lanes to the SR 60 Freeway; avoiding impacts to the on and off-ramps at Paramount Boulevard; mitigating conflicts with transmission lines; and preserving the ability to develop a station and park and ride structure on Santa Anita Avenue.
The route planning process for the Washington Boulevard Alternative started with 27 potential connection options to Washington Boulevard. These route options were evaluated based on several factors including physical constraints, ridership, cost, travel time, access to major activity centers, economic development opportunities, transit-oriented communities potential, and consistency with community goals. Three north-south connection options were shared at community meetings held in March 2016, June 2016, and February 2017. The community provided extensive feedback on the Washington Boulevard Alternative north-south connection options. The feedback was instrumental in confirming Metro's understanding of key issues for each routing concept and in focusing the conceptual design studies. Based on the technical analysis, design refinements and feedback received from the community and key stakeholders, the Atlantic Boulevard below-grade option was recommended for Board approval as part of the new Washington Boulevard Alternative
In May 2017, the Metro Board received the findings of the Post Draft EIS/EIR Technical Study Report and decided to advance the No Build Alternative and the following build alternatives for environmental review:
• SR 60 Alternative (previously referred to as the SR 60 NSDV Alternative);
• Washington Boulevard Alternative with the Atlantic Boulevard below-grade option (referred to as the Washington Boulevard Alternative); and
• Combined Alternative, defined as full build out of the SR 60 and Washington Boulevard Alternatives.
Each build alternative proposes to develop an LRT facility with four to 10 stations, depending on the alternative, and identify transit-oriented community land use concepts and first/last mile pedestrian/bicycle connectivity opportunities associated with the proposed stations. The Project will also consider the development of minimal operable segments and ancillary facilities. A minimal operable segment is construction of a segment of the LRT route under a build alternative, which would be able to operate both as a stand-alone system and also include a maintenance and storage facility. Stakeholder coordination, design refinement, and impact assessment of the Project are ongoing. As a result, there will continue to be Project design iteration. As such, it is anticipated that the Supplemental Draft EIS document may include, but is not limited to, variations to station number and locations; options for vertical alignments; options for parking facilities; specific alignment refinements; ancillary improvements; and leveraged improvements in collaboration with Metro's local partners and betterments to address these issues. Therefore, interested parties are advised to stay informed and engaged with the numerous Project engagement and communication channels via the project website below.
From the existing Atlantic Station, the alignment would transition from at-grade west of Woods Avenue to below-grade. A design option may include changing the existing Atlantic Station to a below-grade station. The alignment
Stations, parking, minimal operating segments, ancillary facilities such as a maintenance and storage facility/job training center, traction power substations, and grade separation structures, tail tracks and storage tracks, track sidings and crossovers, track signalization, communication facilities, along the Project alignment would be part of each LRT alternative.
The purpose of this EIS/EIR process is to study, in a public setting, the effects of the proposed project and its alternatives on the physical, human, and natural environment. The FTA and Metro will evaluate all significant environmental, social, and economic impacts of the construction and operation of the proposed project. The probable impacts will be determined as a part of project scoping. Unless further screening illuminates areas of possible impact, resource areas will be limited to those uncovered during scoping. Measures to avoid, minimize, and mitigate adverse impacts will also be identified and evaluated. Key environmental factors to be addressed include:
• Air Quality;
• Climate Change and Greenhouse Gases;
• Community & Neighborhood Impacts;
• Construction Impacts;
• Cumulative Impacts;
• Economic & Fiscal Impacts;
• Ecosystems/Biological Resources;
• Energy;
• Environmental Justice;
• Geotechnical/Subsurface/Seismic/Hazardous Materials;
• Growth Inducing Impacts;
• Historic, Archeological, Tribal Cultural Resources, and Paleontological Impacts;
• Land Use & Planning;
• Noise & Vibration;
• Parklands and Community Facilities;
• Real Estate & Acquisitions;
• Safety & Security;
• Transportation;
• Water Resources & Hydrology; and
• Visual & Aesthetics.
The regulations implementing NEPA require that FTA and Metro do the following: (1) Extend an invitation to other Federal and non-Federal agencies and Native American tribes that may have an interest in the proposed project to become “participating agencies;” (2) provide an opportunity for involvement by participating agencies and the public to help define the purpose and need for a proposed project, as well as the range of alternatives for consideration in the EIS; and (3) establish a plan for coordinating public and agency participation in, and comment on, the environmental review process. In 2010, three agencies were asked and have accepted to be cooperating agencies: EPA, USACE, and Caltrans, as assigned by FHWA. A total of 24 agencies accepted the invitation to become a participating agency. An update to participating and cooperating agencies, with scoping materials appended, was sent to Federal and non-Federal agencies and Native American tribes that may have an interest in the proposed project. Any Federal or non-Federal agency or Native American tribe interested in the proposed project that did not receive an invitation to become a participating agency should notify at the earliest opportunity the Project Manager, Ms. Jenny Cristales-Cevallos, Senior Manager, Los Angeles County Metropolitan Transportation Authority, One Gateway Plaza, Mail Stop 99-22-6, Los Angeles, CA 90012 by mail, or via email at
A comprehensive public involvement program and a Coordination Plan for public and interagency involvement will be developed for the project and posted on the Eastside Transit Corridor Phase 2 Project web page:
The Supplemental EIS will be prepared in accordance with NEPA and its implementing regulations issued by the Council on Environmental Quality (40 CFR parts 1500-1508) and with the FTA/FHWA/Federal Railroad Administration regulations “Environmental Impact and Related Procedures” (23 CFR part 771). FTA will comply with all Federal environmental laws, regulations, and executive orders applicable to the proposed project during the environmental review process to the maximum extent practicable. These requirements include, but are not limited to, cooperation and consultation with the Secretary of the Interior and Administrator of EPA and compliance with NEPA provisions of Federal transit laws (49 U.S.C. 5323(c)); the project-level air quality conformity regulations of EPA (40 CFR part 93); the Section 404(b)(1) guidelines of EPA (40 CFR part 230); the regulations implementing Section 106 of the National Historic Preservation Act (36 CFR part 800); the regulations implementing Section 7 of the Endangered Species Act (50 CFR part 402); Section 4(f) of the Department of Transportation Act (23 CFR 774 and 49 U.S.C. 303); and Executive Orders 12898 on environmental justice, 11988 on floodplain management, and 11990 on wetlands. FTA is considering combining the Final EIS and the Record of Decision pursuant to 23 U.S.C. 139(n)(2).
The Paperwork Reduction Act seeks, in part, to minimize the cost to the taxpayer of the creation, collection, maintenance, use, dissemination, and disposition of information. Consistent with this goal and with principles of economy and efficiency in government, it is FTA policy to limit insofar as possible distribution of complete printed sets of environmental documents. Accordingly, unless a specific request for a complete printed set of the environmental document is received before the document is printed, FTA and its project sponsors will distribute only electronic copies of the environmental document. At a minimum, a complete printed set of the environmental document will be available for review at the project sponsor's offices; an electronic copy of the complete environmental document and scoping materials will be available on the project website at
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0080 by any one of the following methods:
•
•
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 SALT is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121 * * *.
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0083 by any one of the following methods:
•
•
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 2 DREAM is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121. * * *
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on
Submit comments on or before June 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0085 by any one of the following methods:
•
•
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 STRIKER RICH is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121. * * *
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0082 by any one of the following methods:
•
•
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 DRAGONFLY is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121. * * *
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0079 by any one of the following methods:
•
•
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 DELPHINIUS is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121. * * *
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0088 by any one of the following methods:
•
•
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 RENAISSANCE is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT 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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0084 by any one of the following methods:
•
•
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey
As described by the applicant the intended service of the vessel DESTINY III is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121 * * *.
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0086 by any one of the following methods:
•
•
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 SURF RAIDER is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121. * * *
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 requirements of the coastwise trade laws to allow the carriage of no more than twelve passengers for hire on vessels, which are three years old or more. 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 28, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0081 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
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 MC 1218TX is:
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. Include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121. * * *.
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Denial of petition for a defect investigation.
This notice sets forth the reasons for the denial of a petition submitted on August 6, 2014, by Mr. Donald Friedman to the National Highway Traffic Safety Administration's (NHTSA) Office of Defects Investigation (ODI). The petition requests that the agency commence a proceeding to determine the existence of a defect related to motor vehicle safety with respect to the rollover crash performance of the model year (MY) 2010 Chevrolet Tahoe and similarly constructed General Motors (GM) vehicles. The petition alleges that the rollover side curtain air bag system in these vehicles is defectively designed and can allow second and third row occupants to be ejected in rollover crashes. In addition, the petition alleges that the side window glass, rear seat belts, and roof structure are defectively designed. After examination of the petition and available data relating to the rollover crash performance of the subject vehicles, NHTSA does not believe that a safety-related defect currently exists in the design of the rollover side curtain air bags in the MY 2010 Chevrolet Tahoe and other similarly designed Chevrolet Tahoe and GMC Yukon vehicles. The agency has accordingly denied the petition. The petition is hereinafter identified as DP15-004.
Mr. Michael Lee, Vehicle Defect Division C, Office of Defects Investigation, NHTSA, 1200 New Jersey Ave. SE, Washington, DC 20590.
By letter dated August 6, 2014, Mr. Donald Friedman of Santa Barbara, CA, submitted a petition requesting that the agency investigate the rollover crash performance of the MY 2010 Chevrolet Tahoe. The petitioner alleges that the rollover side curtain air bag (RSCAB) system in the MY 2010 Chevrolet Tahoe and similarly constructed GM vehicles is defectively designed and can allow second and third row occupants to be ejected in rollover crashes when the RSCAB has deployed. The petitioner also broadly requested NHTSA's ODI to conduct an investigation of the “structural and consumer expectation defects in millions of General Motors vehicles that result in severe injury and death.” In support of these claims, the petitioner submitted a two-page summary of his investigation and analysis of a rollover crash involving a MY 2010 Chevrolet Tahoe in which a second row passenger was fatally ejected, a summons and complaint from an ensuing lawsuit against GM, an electronic data recorder (EDR) readout from the vehicle, and his rebuttal of various expert opinions offered by GM during its defense of the lawsuit.
The petitioner alleges the following defects in the Chevrolet Tahoe allow ejection of second and third row occupants in rollover crashes despite a fully deployed RSCAB:
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On August 20, 2011, a MY 2010 Chevrolet Tahoe traveling on a highway in McAllen, Texas, rolled over several times in a grassy median after being hit by another vehicle. Of the eight occupants riding in the Chevrolet Tahoe, three were ejected. A 72-year-old
Although the petitioner claims the fatal occupant was wearing her 3-point seat belt based on forensic and other evidence, the police accident report and GM's analysis indicate she and the two other ejected occupants were not restrained at the time of the crash. Based on the available information, including a review of all forensic evidence provided in the petition, ODI cannot reasonably determine whether or not the fatal occupant was wearing her seat belt and that any potential defect in the seat belt system exists.
The petition also states that the vehicle's roof was defectively designed in that it did not have sufficient strength to protect the occupants in the rollover crash. No data was submitted in support of this allegation. Instead, the petitioner provided his own historical account of GM's purported resistance to, and deceptive conduct in opposition of, increased roof strength standards for passenger vehicles. ODI was unable to draw any conclusions of inference about potential defects from this material.
Mr. Friedman's petition similarly alleged that the side window design was defective because the glazing fractured during the crash and the window opening provided an exit path through which occupants could leave the vehicle during a rollover. Again, no data was provided in support of this conclusory allegation, and ODI is unable to determine if, or how, this material supports the commencement of a defect investigation by NHTSA.
The central allegation in the petition is that the side curtain air bags in the MY 2010 Chevrolet Tahoe are defectively designed. GM began installing RSCABs in the Chevrolet Tahoe and its other full-size and large SUV vehicles with optional or standard third row seating starting in, or around, MY 2007 production. GM also refers to the RSCABs as “rollover-capable roof rail air bags.” The RSCAB system in the MY 2007 to 2014 Chevrolet Tahoe and other GM SUVs includes a cushion/bag that covers the side windows from the A- to C-pillar (first and second row seats) and another smaller cushion covering the C- to D-pillar area (third row seat). The larger cushion is tethered to the A-pillar and the smaller cushion is tethered to the D-pillar.
According to NHTSA's report on ejection mitigation, the cushions and tethers in the MY 2007 (and newer) Chevrolet Tahoe appear to have been designed to the state of the art for the mid-to-late 2000's time period.
Starting on September 1, 2013, and with a four-year phase-in schedule, all new passenger cars and light trucks must comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 226,
The ejection mitigation testing specified in FMVSS No. 226 involves impacting a head-form mass into a deployed RSCAB in four locations at each side window and at different impact speeds and at different times after deployment.
ODI also examined complaint, claim, and crash data relating to the petitioner's claims. ODI's consumer complaint database does not contain any complaints of occupant ejections in crashes in any MY 2007-2015 Chevrolet Tahoe (and its similar GMC Yukon) or other similar-vintage, full-size SUV vehicles equipped with RSCABs, so-called peer vehicles.
Early Warning Reporting (EWR) reports of death or injury incidents caused by an alleged defect were also examined by ODI. As of November 28, 2018, ODI received three ejection-related death reports on MY 2007-2015 Chevrolet Tahoe and GMC Yukon vehicles in GM's EWR data.
The first report states that a single-vehicle, single-occupant rollover crash resulted in the death of an unbelted driver. The RSCABs deployed in the MY 2015 Chevrolet Tahoe
The second report, like the first, was a single-vehicle, single-occupant rollover crash that resulted in an ejection death of an unbelted driver of a MY 2007 Chevrolet Tahoe. However, in this crash, the RSCABs allegedly did not deploy. While a non-deployment is a matter of concern, the defect alleged by Mr. Friedman's petition does not involve a failure to deploy.
The third report indicates a media reporter contacting a police department about “two rollover police fatalities” involving MY 2009 Chevrolet Tahoe vehicles. No other details were included in this report.
ODI conducted a review of crash data in evaluating this petition. NHTSA's Fatality Analysis Reporting System (FARS) tracks all fatal crashes involving motor vehicles occurring on public roadways in the U.S. An analysis of fatal crashes of full-size SUVs, where the vehicle rolled over, indicates the fatal occupant ejection rate of the MY 2007-2014 Chevrolet Tahoe and GMC Yukon vehicles (subject vehicles) does not stand out from the similar-vintage peer vehicles. The Chevrolet Tahoe and GMC Yukon had fatal ejection rates of 15.2 and 6.1 per million registered vehicles, respectively, while five peer vehicle models had rates higher than the Chevrolet Tahoe, nine models had rates lower than the GMC Yukon, and four models had rates that were between the Chevrolet Tahoe and GMC Yukon rates.
NHTSA's National Automotive Sampling System (NASS) has records of a sampling of crashes and an analysis that may include, among other things,
Based on the information available at the present time, NHTSA does not believe that a safety-related defect currently exists in the design of the rollover side curtain air bags in the MY 2010 Chevrolet Tahoe and other similarly designed Chevrolet Tahoe and GMC Yukon vehicles. Therefore, the petition is denied. However, the agency will take further action if warranted by changing future circumstances.
49 U.S.C. 30162(d); delegations of authority at CFR 1.50 and 501.8.
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
The Specially Designated Nationals and Blocked Persons List (SDN List) and additional information concerning OFAC sanctions programs are available on OFAC's website (
On May 23, 2019, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
1. BRUNETTI, Luciano (a.k.a. “BIFF TANNEN”; a.k.a. “LUCHO”), Buenos Aires, Argentina; DOB 30 Aug 1988; POB Argentina; nationality Argentina; Gender Male; Passport AAC206993 (Argentina); D.N.I. 34142353 (Argentina) (individual) [SDNTK]. Designated pursuant to section 805(b)(3) of the Foreign Narcotics Kingpin Designation Act (“Kingpin Act”), 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
2. FERRARI, Sergio David (a.k.a. “Yagy”), Chivilcoy 3157 Piso 2 Depto D, Buenos Aires 1417, Argentina; Buenos Aires, Argentina; DOB 10 Feb 1968; POB Buenos Aires, Argentina; nationality Argentina; Gender Male; Passport AAA760416 (Argentina); D.N.I. 20010866 (Argentina); C.U.I.T. 20200108664 (Argentina) (individual) [SDNTK] (Linked To: SMILE TECHNOLOGIES S.A.; Linked To: SMILE PROPERTY & TRAVEL LTD; Linked To: SMILEWALLET S.A.S.; Linked To: SMILE TECHNOLOGIES CANADA LTD). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
3. FRENZEL, Conrado Adolfo (a.k.a. “OTTO”), Buenos Aires, Argentina; DOB 07 Nov 1968; POB Buenos Aires, Argentina; nationality Argentina; Gender Male; Passport AAA435057 (Argentina); D.N.I. 20608046 (Argentina); C.U.I.T. 23206080469 (Argentina) (individual) [SDNTK] (Linked To: HIGH NUTRITION SOCIEDAD DE RESPONSABILIDAD LIMITADA; Linked To: B-WORK S.A.S.). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
4. PAURA, Jorge Alejandro (a.k.a. “LARRY”), Buenos Aires, Argentina; DOB 31 Oct 1967; POB Buenos Aires, Argentina; nationality Argentina; Gender Male; Passport AAB376848 (Argentina); D.N.I. 18580686 (Argentina); C.U.I.T. 20185806864 (Argentina) (individual) [SDNTK] (Linked To: BAJER S.R.L.; Linked To: HIGH NUTRITION SOCIEDAD DE RESPONSABILIDAD LIMITADA). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
5. PAURA, Lucas Daniel, Buenos Aires, Argentina; DOB 04 Jan 1988; POB Buenos Aires, Argentina; nationality Argentina; Gender Male; Passport 33533978N (Argentina); D.N.I. 33533978 (Argentina) (individual) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
6. PEREZ SANTORO, Roberto Javier (a.k.a. PEREZ SANTORO, Javier), Buenos Aires, Argentina; DOB 10 Sep 1983; POB Buenos Aires, Argentina; nationality Argentina; Gender Male; Passport AAB523976 (Argentina); D.N.I. 30312556 (Argentina) (individual) [SDNTK] (Linked To: SMILE TECHNOLOGIES S.A.; Linked To: SMILE PROPERTY & TRAVEL LTD; Linked To: SMILEWALLET S.A.S.; Linked To: SMILEWALLET B.V.). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
7. TOMAGHELLI, Gaston, Buenos Aires, Argentina; DOB 17 Nov 1977; POB Argentina; nationality Argentina; Gender Male; Passport AAD186419 (Argentina); D.N.I. 26201272 (Argentina) (individual) [SDNTK] (Linked To: DTS CONSULTING S.A.). Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, the GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION, a foreign person identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act.
8. VIDEMATO, Santiago (a.k.a. “JAMES DUGGAN”; a.k.a. “RAMONA IBARRA”), Buenos Aires, Argentina; DOB 04 Oct 1983; POB Buenos Aires, Argentina; nationality Argentina; Gender Male; Passport AAA920679 (Argentina); D.N.I. 30555776 (Argentina) (individual) [SDNTK].
1. BAJER S.R.L. (a.k.a. BAJER SOCIEDAD DE RESPONSABILIDAD LIMITADA), Nazarre 3336, Buenos Aires 1417, Argentina; C.U.I.T. 30712314156 (Argentina) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Jorge Alejandro PAURA, a foreign person designated pursuant to the Kingpin Act.
2. B-WORK S.A.S., Libertador del Av. 6025 piso 4, Buenos Aires, Argentina [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Conrado Adolfo FRENZEL, a foreign person designated pursuant to the Kingpin Act.
3. DTS CONSULTING S.A., 25 de Mayo 611, piso 4 of. 2, Buenos Aires, Argentina [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Gaston TOMAGHELLI, a foreign person designated pursuant to the Kingpin Act.
4. GOLDPHARMA DRUG TRAFFICKING & MONEY LAUNDERING ORGANIZATION (a.k.a. GOLDPHARMA DRUG TRAFFICKING AND MONEY LAUNDERING ORGANIZATION), Buenos Aires, Argentina [SDNTK]. Identified as a significant foreign narcotics trafficker pursuant to section 805(b)(1) of the Kingpin Act, 21 U.S.C. 1904(b)(1).
5. HIGH NUTRITION SOCIEDAD DE RESPONSABILIDAD LIMITADA (a.k.a. HIGH NUTRITION S.R.L.), Adolfo Carranza 2216, Buenos Aires, Argentina [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Jorge Alejandro PAURA, a foreign person designated pursuant to the Kingpin Act.
6. LA FLORIDA INVESTMENTS GROUP LLC, Sunny Isles, FL, United States; Registration ID L12000070773 (United States) [SDNTK]. Property within the United States that is owned or controlled by Jorge Alejandro PAURA and Conrado Adolfo FRENZEL, and therefore is blocked pursuant to section 805(b) of the Kingpin Act, 21 U.S.C. 1904(b).
7. OYSTER INVESTMENTS LLC, Lewes, DE, United States; 1250 S Miami Ave, Unit 1004, Miami, FL, United States; 1250 S Miami Ave, Unit 1603, Miami, FL, United States; 170 SE 14 St, Unit 1606, Miami, FL, United States; 170 SE 14 St, Unit 2405, Miami, FL, United States; File Number 5277495 (United States) [SDNTK]. Property within the United States that is owned or controlled by Gaston TOMAGHELLI, and therefore is blocked pursuant to section 805(b) of the Kingpin Act, 21 U.S.C. 1904(b).
8. SMILE PROPERTY & TRAVEL LTD (a.k.a. QUARTIERLATINAPARTMENTS; a.k.a. SMILE BITCARD; a.k.a. SMILE PROPERTY AND TRAVEL LTD), Flat 1 73a White Lion Street, Islington, London N1 9PF, United Kingdom; 72 High Street Haslemere, Surrey GU27 2LA, United Kingdom; website
9. SMILE PROPERTY & TRAVEL LTD. (a.k.a. SMILE PROPERTY AND TRAVEL LTD.), San Antonio, TX, United States; Tax ID No. 32066912794 (United States) [SDNTK]. Property within the United States that is owned or controlled by Sergio David FERRARI, and therefore is blocked pursuant to section 805(b) of the Kingpin Act, 21 U.S.C. 1904(b).
10. SMILE TECHNOLOGIES CANADA LTD (a.k.a. SMILE TECHNOLOGIES CANADA LIMITED; a.k.a. SMILE WALLET; a.k.a. SMILETRAVELS; a.k.a. SMILEWALLET; a.k.a. SWEET APARTMENTS), 5825 Tiz Road, Mississauga, Ontario L5N0B6, Canada; 731 States Street, Mississauga, Ontario L5R 0B6, Canada; 2 Robert Speck Parkway, 7th Floor, Mississauga, Ontario L4Z 1H8, Canada; website
11. SMILE TECHNOLOGIES S.A. (a.k.a. SMILE PAYMENTS; a.k.a. SMILE WALLET LIMITED; a.k.a. SMILE WALLET LTD), Avenida Chivilcoy 3157, piso 2, departamento D, Buenos Aires, Argentina; website
12. SMILE TECHNOLOGIES S.A. LLC, San Antonio, TX, United States; Tax ID No. 32066912711 (United States) [SDNTK]. Property within the United States that is owned or controlled by Sergio David FERRARI, and therefore is blocked pursuant to section 805(b) of the Kingpin Act, 21 U.S.C. 1904(b).
13. SMILEPAYMENTS, LLC, Wilmington, DE, United States; File Number 5736292 (United States) [SDNTK]. Property within the United States that is owned or controlled by Sergio David FERRARI, and therefore is blocked pursuant to section 805(b) of the Kingpin Act, 21 U.S.C. 1904(b).
14. SMILEWALLET B.V., Herengracht 420, Amsterdam 1017BZ, Netherlands; website
15. SMILEWALLET S.A.S., CR 15 #146 29 Casa 1, Bogota, DC, Colombia; NIT #9011450176 (Colombia) [SDNTK]. Designated pursuant to section 805(b)(3) of the Kingpin Act, 21 U.S.C. 1904(b)(3), for being owned, controlled, or directed by, or acting for or on behalf of, Sergio David FERRARI and Roberto Javier PEREZ SANTORO, foreign persons designated pursuant to the Kingpin Act.
16. SMILEWALLET, LLC, San Antonio, TX, United States; Tax ID No. 32065536529 (United States) [SDNTK]. Property within the United States that is owned or controlled by Sergio David FERRARI, and therefore is blocked pursuant to section 805(b) of the Kingpin Act, 21 U.S.C. 1904(b).
17. WATER HILL CORP., Miami, FL, United States; Identification Number P16000064887 (United States) [SDNTK]. Property within the United States that is owned or controlled by Gaston TOMAGHELI, and therefore is blocked pursuant to section 805(b) of the Kingpin Act, 21 U.S.C. 1904(b).
Notice.
The Department of Veterans Affairs (VA) is seeking nominations of qualified candidates to be considered for appointment to the Veterans' Family, Caregiver and Survivor Advisory Committee (hereinafter in this section referred to as “the Committee”).
Nominations for membership on the Committee must be received no later than 5:00 p.m. EST on July 1, 2019.
All nominations should be mailed to the Veterans Experience Office, Department of Veterans Affairs, 810 Vermont Avenue NW (30), Washington, DC 20420; or sent electronically to the Advisory Committee Management Office mailbox at
Dr. Betty Moseley Brown, Designated
The Veterans' Family, Caregiver, and Survivor Advisory Committee was established to advise the Secretary of VA on issues related to:
(1) Veterans' families, caregivers, and survivors across all generations, relationships, and Veteran status;
(2) The use of VA care, benefits and memorial services by Veteran's families, caregivers, and survivors, and possible adjustments to such care, benefits and memorial services;
(3) Veterans' family, caregiver, and survivor experiences, and VA policies, regulations, and administrative requirements related to the transition of Service members from the Department of Defense to enrollment in VA that impact Veteran's families, caregivers, and survivors; and
(4) Factors that influence access to quality of, and accountability for services and benefits for Veterans' families, caregivers, and survivors.
The Committee responsibilities include:
(1) Advising the Secretary on how VA can assist and represent Veterans' families, caregivers, and survivors, including recommendations regarding expanding services and benefits to Veterans' family members, caregivers, and survivors who are not currently served by VA, and related policy. Administrative, legislative, and/or regulatory actions.
(2) Advising the Secretary on incorporating lessons learned from current, and previous, successful family research and outreach efforts that measure the impact of provided care and benefits services on Veterans' family, caregivers, and/or survivors;
(3) Advising the Secretary on collaborating with family support programs within VA and engaging with other VA and non-VA advisory committees focused on specific demographics of Veterans and their families, caregivers, and survivors;
(4) Advising the Secretary on working with interagency, intergovernmental, private/non-profit, community, and faith-based organizations to identify and address gaps in services;
(5) Advising the Secretary on utilizing journey mapping or other means to depict the experience life cycle of families, caregivers, and survivors of Veterans to create a more holistic understanding of important life cycle events, moments that matter, and their impacts, and to ensure accountability;
(6) Advising the Secretary on Veterans' family, caregiver, and survivor experiences, and the impact of VA policies, regulations, and administrative requirements related to the transition of Service members from the Department of Defense to the enrollment of Veterans;
(7) Advising the Secretary on integrating Veterans' families, caregivers, and survivors into key VA initiatives such as access to care, suicide prevention, and homelessness; and
(8) Providing such reports as the Committee deems necessary, but not less than one report a per year, to the Secretary, through the Chief Veterans Experience Officer, Veterans Experience Office to describe the Committee's activities, deliberations, and findings, which may include but are not limited to: (1) Identification of current challenges and recommendations for remediation related to access to care, benefits and memorial services of Veterans' families, caregivers, and survivors; and (2) identification of current best practices in care and benefits delivery to Veterans' families, caregivers, and survivors, and the impact on such best practices.
The Committee was established by the directive of the Secretary of VA, in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C., App. 2.
Membership Criteria and Qualifications: VA is requesting nominations for Committee membership. The Committee is composed of up to 20 members and several ex-officio members. The members of the Committee are appointed by the Secretary of Veteran Affairs from the general public, from various sectors and organizations, including but not limited to:
(1) Veteran's family members, caregivers, and survivors;
(2) Veteran-focused organizations;
(3) Military history and academic communities;
(4) National Association of State Directors of Veterans Affairs;
(5) The Federal Executive Branch;
(6) Research experts and service providers; and
(7) Leaders of key stakeholder associations and organizations.
In accordance with the Committee Charter, the Secretary shall determine the number (up to 20), terms of service, and pay and allowances of Committee members, except that a term of service of any such member may not exceed two years. The Secretary may reappoint any Committee member from additional terms of service.
To the extent possible, the Secretary seeks members who have diverse professional and personal qualifications including but not limited to subject matter experts in the areas described above.
We ask that nominations include any relevant experience information so that VA can ensure diverse Committee membership.
Nominations should be typed (one nomination per nominator). Nomination package should include:
(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
(2) The nominee's contact information, including name, mailing address, telephone numbers, and email address;
(3) The nominee's curriculum vitae, not to exceed three pages and a one-page cover letter; and
(4) A summary of the nominee's experience and qualifications relative to the membership consideration described above.
Individuals selected for appointment to the Committee shall be invited to serve a two-year term. Committee members will receive per diem and reimbursement for eligible travel expenses incurred.
The Department makes every effort to ensure that the membership of VA Federal advisory committees is diverse in terms of points of view represented and the committee's capabilities. Appointments to this Committee shall be made without discrimination because of a person's race, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
Securities and Exchange Commission.
Proposed rules.
We are proposing amendments to the accelerated filer and large accelerated filer definitions to promote capital formation for smaller reporting issuers, by more appropriately tailoring the types of issuers that are included in the categories of accelerated and large accelerated filers and revising the transition thresholds for accelerated and large accelerated filers. The proposed amendments would exclude from the accelerated and large accelerated filer definitions an issuer that is eligible to be a smaller reporting company and had annual revenues of less than $100 million in the most recent fiscal year for which audited financial statements are available. In addition, the proposed amendments would increase the transition thresholds for accelerated and large accelerated filers becoming non-accelerated filers from $50 million to $60 million and for exiting large accelerated filer status from $500 million to $560 million. Finally, the proposed amendments would add a revenue test to the transition thresholds for exiting both accelerated and large accelerated filer status. As a result of the amendments, certain low-revenue issuers would not be required to have their assessment of the effectiveness of internal control over financial reporting attested to, and reported on, by an independent auditor, although they would continue to be required to make such assessments and to establish and maintain the effectiveness of their internal control over financial reporting.
Comments should be received on or before July 29, 2019.
Comments may be submitted by any of the following methods:
• Use our internet comment form (
• Send an email to
• Send paper comments to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
We or the staff may add studies, memoranda, or other substantive items to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on our website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
John Fieldsend, Special Counsel, or Jennifer Riegel, Special Counsel, in the Division of Corporation Finance, at (202) 551-3430, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-3628.
We are proposing amendments to 17 CFR 12b-2 (“Rule 12b-2”) under the Securities Exchange Act of 1934 (“Exchange Act”).
In 2002, the Commission introduced a reporting regime that categorized issuers subject to the Exchange Act reporting requirements as non-accelerated, accelerated, and large accelerated filers.
A significant requirement that applies to accelerated and large accelerated filers, but not to non-accelerated filers, is the requirement that an issuer's independent auditor must attest to, and report on, management's assessment of the effectiveness of the issuer's internal control over financial reporting (“ICFR”).
Initially, the categories of issuers under the accelerated and large accelerated filer reporting regime existed separately from categories that the Commission created to provide regulatory relief to smaller entities.
This alignment changed in June 2018 when the Commission adopted amendments
In conjunction with these amendments, the Commission also revised the accelerated filer and large accelerated filer definitions in Rule 12b-2 to remove the condition that, for an issuer to be an accelerated filer or a large accelerated filer, it must not be eligible to use the SRC accommodations.
At the time of the SRC Adopting Release, as noted in that release, the Chairman directed the staff to formulate recommendations to the Commission for possible rule amendments that, if adopted, would have the effect of reducing the number of issuers that qualify as accelerated filers to promote capital formation by reducing compliance costs for certain registrants, while maintaining appropriate investor protections.
We are proposing to amend the accelerated and large accelerated filer definitions in Rule 12b-2 to exclude any issuer that is eligible to be an SRC under the SRC revenue test. The effect of this proposal would be that such an issuer would not be subject to accelerated or large accelerated filing deadlines for its annual and quarterly reports or to the ICFR auditor attestation requirement.
Additionally, we are proposing to revise the transition provisions set forth in the “Entering and exiting accelerated filer and large accelerated filer status” section applicable to the Rule 12b-2 accelerated and large accelerated filer definitions. The proposed amendments would revise the public float transition threshold for accelerated and large accelerated filers to become a non-accelerated filer from $50 million to $60 million. Also, the proposed amendments would increase the exit threshold in the large accelerated filer transition provision from $500 million to $560 million in public float to align the SRC and large accelerated filer transition thresholds. Finally, the proposed amendments would allow an accelerated or a large accelerated filer to become a non-accelerated filer if it becomes eligible to be an SRC under the SRC revenue test.
Prior to the SRC amendments, the SRC category of filers generally did not overlap with either the accelerated or large accelerated filer categories.
• A public float of $75 million or more, but less than $250 million, regardless of annual revenues; or
• Less than $100 million in annual revenues, and a public float of $250 million or more, but less than $700 million.
When the Commission proposed the amendments to the SRC definition,
Issuer obligations with respect to internal accounting controls and ICFR derive primarily from the Foreign Corrupt Practices Act (“FCPA”), which added Section 13(b)(2)(B) to the Exchange Act;
Similarly, pursuant to SOX Section 302, the Commission adopted rules requiring the principal executive and financial officers of certain issuers filing reports pursuant to Exchange Act Section 13(a) or 15(d) to certify that, among other things, they are responsible for establishing and maintaining ICFR, have designed ICFR to ensure material information relating to the issuer and its consolidated subsidiaries is made known to such officers by others within those entities, and evaluated and reported on the effectiveness of the issuer's ICFR.
Although SOX Section 404 generally requires and directs the Commission to adopt rules regarding internal accounting controls and ICFR that apply to every issuer that is required to file reports pursuant to Exchange Act Section 13(a) or 15(d), RICs under Section 8 of the Investment Company Act of 1940 (“Investment Company Act”)
Additionally, business development companies (“BDCs”) are subject to the rules adopted by the Commission to implement SOX Section 404. BDCs are a type of closed-end investment company that is not registered under the Investment Company Act and, therefore, not within the exemption provided by SOX Section 405.
In addition to the responsibility of the issuer's management to establish and maintain an effective internal control structure and procedures for financial reporting, the independent accounting firm that prepares or issues a financial statement audit report also helps support effective ICFR. SOX Section 404(b) requires any issuer subject to the rules the Commission adopted related to SOX Section 404(a), other than an emerging growth company (“EGC”),
Similar to other issuers, BDCs that qualify as an EGC or as a non-accelerated filer are not subject to the auditor attestation requirement in SOX Section 404(b). Unlike the Commission's SRC definition, the statutory definition of EGC does not exclude BDCs.
The ICFR auditor attestation requirement is intended to enhance the reliability of management's disclosure related to ICFR. It also may help an issuer identify and disclose a significant deficiency or material weakness in ICFR that had not been identified or properly characterized by management.
We are proposing amendments to revise the accelerated and large accelerated filer definitions to exclude from those definitions issuers that are eligible to be an SRC under the SRC revenue test. Permitting these issuers to avoid the burdens of being an accelerated or large accelerated filer may enhance their ability to preserve capital without significantly affecting the ability of investors to make informed investment decisions based on the financial reporting of those issuers. Additionally, the benefits of having those issuers comply with the accelerated and large accelerated filer requirements may be more limited than for other issuers. Further, the proposed amendments are targeted at issuers whose representation in public markets has decreased over the years, and may be a positive factor in the decision of additional companies to register their offering or a class of their securities, which would provide an increased level of transparency and investor protection with respect to those companies. As discussed below,
Under the existing accelerated filer definition in Rule 12b-2, an issuer must satisfy three conditions to be an accelerated filer. First, the issuer must have a public float of $75 million or more, but less than $700 million, as of the last business day of the issuer's most recently completed second fiscal quarter. Second, the issuer must have been subject to the requirements of Exchange Act Section 13(a) or 15(d) for a period of at least twelve calendar months. Third, the issuer must have filed at least one annual report pursuant to those same Exchange Act sections. Similarly, to be a large accelerated filer, an issuer must meet the second and third conditions just described and have a public float of $700 million or more as of the same measurement date.
The table below summarizes the current and proposed conditions to be considered an accelerated and large accelerated filer under Rule 12b-2.
The proposed new conditions would only be available to issuers that are eligible to be an SRC under the SRC revenue test.
The SRC definition excludes ABS issuers, RICs, BDCs, and majority-owned subsidiaries of issuers that do not qualify as an SRC. ABS issuers are exempt from ICFR reporting obligations.
We considered potential amendments to the definition of accelerated filer and large accelerated filer that would specifically address BDCs. Unlike investors in low-revenue non-investment company issuers, investors in BDCs may place greater significance on the financial reporting of BDCs, many of which hold illiquid portfolio securities valued using level three inputs of the U.S. GAAP fair value hierarchy.
The tables below summarize the current and proposed relationships
The proposed amendments would increase the number of issuers that are exempt from the ICFR auditor attestation requirement by increasing the number of non-accelerated filers. Although the proposed amendments could, in some cases, result in investors receiving less or different disclosure about material weaknesses in ICFR at low-revenue SRCs than under our current rules, based on our experience with these matters, including in the cases of EGCs, SRCs, and other smaller reporting issuers, we believe it is unlikely there would be a significant effect on the ability of investors to make informed investment decisions based on the financial reporting of those issuers. A non-accelerated filer that meets the SRC revenue test would remain subject to many of the same obligations as accelerated and large accelerated filers with respect to ICFR, including the requirements for establishing, maintaining, and assessing the effectiveness of ICFR and for management to assess internal controls.
Additionally, pursuant to the PCAOB's recently adopted risk assessment standards in financial statement audits, in many cases auditors are testing operating effectiveness of certain internal controls even if they are not performing an integrated audit. For instance, an auditor may rely on internal controls to reduce substantive testing in the financial statement audit. To rely on internal controls, the auditor must obtain evidence that the controls selected for testing are effectively designed and operating effectively during the entire period of reliance.
The proposed amendments would not relieve an independent auditor of its obligation to consider ICFR in the performance of its financial statement audit of an issuer, if applicable, regardless of whether the issuer is subject to the ICFR auditor attestation requirement, as is the case today with respect to issuers that are non-accelerated filers.
Also, evaluation and communication to management and the audit committee of significant deficiencies and material weaknesses in ICFR are required in both a financial statement audit and an ICFR attestation audit.
We note that, because certain of the information considered by the independent auditor for the ICFR attestation is also considered by the auditor for purposes of the issuer's financial statement audit, some of the audit fees and the other audit-related costs associated with the ICFR auditor
As discussed in more detail in the Economic Analysis section below,
Although certain requirements and costs of the ICFR attestation overlap with those associated with a financial statement audit, we continue to believe that the ICFR auditor attestation requirement incrementally can contribute to the reliability of financial disclosures, particularly for issuers that typically have more complex financial reporting requirements and processes. Accordingly, the proposed amendments would not eliminate the requirement for all accelerated filers that are SRCs. Instead, the proposed amendments reflect a more tailored approach that recognizes that the impact of the ICFR auditor attestation requirement on the reliability of an issuer's financial disclosures is not necessarily the same across all issuers, including all SRCs.
As noted in this section above, and discussed in greater detail below,
Further, the benefits of the ICFR auditor attestation requirement may be smaller for issuers with low revenues because they may be less susceptible to the risk of certain kinds of misstatements, such as those related to revenue recognition. Also, it is possible that low-revenue issuers may have less complex financial systems and controls and, therefore, be less likely than other issuers to fail to detect and disclose material weaknesses in the absence of an ICFR auditor attestation. Additionally, we note the financial statements of low-revenue issuers may, in many cases, be less critical to assessing their valuation given, for example, the relative importance of their future prospects.
Providing this benefit to low-revenue SRCs is consistent with our historical practice of providing scaled disclosure and other accommodations for smaller issuers
We are also proposing to amend the transition thresholds for issuers exiting accelerated and large accelerated filer status. First, the proposed amendments would revise the public float transition threshold for accelerated and large accelerated filers to become a non-accelerated filer from $50 million to $60 million.
Under the current rules, once an issuer is an accelerated or a large accelerated filer, it will not become a non-accelerated or accelerated filer until its public float falls below a specified lower threshold than the public float threshold that it needed to become an accelerated or large accelerated filer initially. The purpose of this lower threshold is to avoid situations in which an issuer frequently enters and exits accelerated and large accelerated filer status due to small fluctuations in its public float.
Currently, an issuer initially becomes an accelerated filer after it first meets certain conditions as of the end of its fiscal year, including that it had a public
As another example, an issuer that has not been a large accelerated filer but had a public float of $700 million or more on the last business day of its most recently completed second fiscal quarter would then become a large accelerated filer at the end of its fiscal year. If, on the last business day of its subsequently completed second fiscal quarter, the issuer's public float fell to $600 million, it would remain a large accelerated filer because its public float did not fall below $500 million. If, however, the issuer's public float fell to $490 million at the end of its most recently-completed second fiscal quarter, it would become an accelerated filer at the end of the fiscal year because its public float fell below $500 million. Similarly, if the issuer's public float fell to $49 million, the issuer would become a non-accelerated filer.
The table below summarizes the existing transition thresholds and how an issuer's filer status changes based on its subsequent public float determination.
The proposed amendments would revise the transition threshold for becoming a non-accelerated filer from $50 million to $60 million and the transition threshold for leaving the large accelerated filer status from $500 million to $560 million. We preliminarily believe it would be appropriate to increase these transition thresholds because doing so would make the public float transition thresholds 80% of the initial thresholds, which would be consistent with the percentage used in the transition thresholds for SRC eligibility. In the SRC Adopting Release,
In addition, the proposed amendments would add the SRC revenue test to the public float transition thresholds for accelerated and large accelerated filers. We are proposing that an issuer that is already an accelerated filer will remain one unless either its public float falls below $60 million or it becomes eligible to use
As discussed above, paragraph (2) of the SRC definition states that an issuer qualifies as an SRC if its annual revenues are less than $100 million and it has no public float or a public float of less than $700 million. Paragraph (3)(iii)(B) of the SRC definition states, among other things, that an issuer that initially determines it does not qualify as an SRC because its annual revenues are $100 million or more cannot become an SRC until its annual revenues fall below $80 million.
For example, assuming the proposed amendments were in effect, an issuer with a December 31 fiscal year end that has a public float as of June 29, 2018 of $230 million and annual revenues for the fiscal year ended December 31, 2017 of $101 million would be eligible to be an SRC under the public float test, but because the issuer would not be eligible to be an SRC under the SRC revenue test it would be an accelerated filer (assuming the other conditions described in Table 1 were also met). At the next determination date (June 28, 2019), if its public float as of June 28, 2019 remained at $230 million and its annual revenues for the fiscal year ended December 31, 2018 were less than $100 million, that issuer would be eligible to be an SRC under the SRC revenue test (in addition to the public float test) and thus it would also become a non-accelerated filer.
On the other hand, assuming the proposed amendments were in effect, an issuer with a December 31 fiscal year end that has a public float as of June 29, 2018 of $400 million and annual revenues for the fiscal year ended December 31, 2017 of $101 million would not be eligible to be an SRC under either the public float test or the SRC revenue test and would be an accelerated filer (assuming the other conditions described in Table 1 were also met). At the next determination date (June 28, 2019), if its public float as of June 28, 2019 remained at $400 million, that issuer would not be eligible to be an SRC under the SRC revenue test unless its annual revenues for the fiscal year ended December 31, 2018 were less than $80 million, at which point it would be eligible to be an SRC under the SRC revenue test and also become a non-accelerated filer.
Similarly, we are proposing conforming amendments to the large accelerated filer transition provisions that describe when an issuer that is already a large accelerated filer transitions to either accelerated or non-accelerated filer status. As discussed above, to transition out of large accelerated filer status at the end of the issuer's fiscal year, an issuer would need to have a public float below $560 million as of the last business day of its most recently completed second fiscal quarter or meet the revenue test in paragraph (2) or (3)(iii)(B), as applicable, of the SRC definition. A large accelerated filer would become an accelerated filer at the end of its fiscal year if its public float fell to $60 million or more but less than $560 million as of the last business day of its most recently completed second fiscal quarter and its annual revenues are not below the applicable revenue threshold ($80 million or $100 million). The large accelerated filer would become a non-accelerated filer if its public float fell below $60 million or it meets the revenue test in paragraph (2) or (3)(iii)(B), as applicable, of the SRC definition.
For a large accelerated filer to meet the SRC revenue test, generally, its public float would need to fall below $560 million as of the last business day of its most recently completed second fiscal quarter and its annual revenues would need to fall below the applicable revenue threshold ($80 million or $100 million). One exception to this requirement is that an issuer that was a large accelerated filer whose public float had fallen below $700 million (but remained $560 million or more) but became eligible to be an SRC under the SRC revenue test in the first year the SRC amendments became effective would become a non-accelerated filer even though its public float remained at or above $560 million.
We request and encourage any interested person to submit comments regarding the proposed amendments, specific issues discussed in this release and other matters that may have an effect on the proposals. We note that comments are of the greatest assistance if accompanied by supporting data and analysis of the issues addressed in those comments.
1. Should we exclude an issuer that is eligible to be an SRC under the SRC revenue test from the accelerated and large accelerated filer definitions, as proposed? Why or why not? Are there investor protection benefits in distinguishing an issuer that is eligible to be an SRC under the SRC revenue test from an SRC that does not meet the revenue test and therefore would be an accelerated or large accelerated filer? Should we use different criteria to identify issuers to exclude from the accelerated and large accelerated filer definitions? If so, what criteria should we use and why?
2. With respect to the ICFR auditor attestation requirement, is the issuer's level of revenues relevant to the complexity of its financial systems and controls and the nature of its ICFR? If so, how does that complexity affect the benefits and costs of ICFR auditor attestation? How do the benefits and costs of the ICFR auditor attestation requirement vary with the complexity of an issuer's financial reporting? Are the financial statements of low-revenue issuers less susceptible to the risk of material misstatements or control deficiencies such that the effect of an ICFR auditor attestation may be less significant than for other types of issuers? Would the proposed approach allow low-revenue issuers to benefit from cost savings without significantly affecting the ability of investors to make informed investment decisions based on the financial reporting of those issuers?
3. As an alternative, should we instead exclude all SRCs from the accelerated and large accelerated filer definitions? Why or why not? What would be the effects, including the benefits and costs, of such an approach for issuers and investors? What would be the effects on the reliability of such issuers' financial reporting or their
4. In the SRC Adopting Release, the Commission established the SRC revenue test to include issuers with annual revenues of less than $100 million if they have no public float or a public float of less than $700 million. The proposed amendments would use the SRC revenue test's $100 million annual revenue threshold to determine whether an issuer would qualify as an accelerated or large accelerated filer. Should the proposed amendments use the SRC revenue test's $100 million annual revenue threshold? Why or why not? Should there be a different annual revenue threshold for determining whether an issuer is an accelerated or large accelerated filer? Why or why not?
5. Would it be more appropriate to determine filer status for any given year by using the average of an issuer's public float, or applying some other metric, such as the issuer's volume-weighted average price (“VWAP”)? What would be the appropriate way to calculate an issuer's VWAP? If filer status were determined through the use of a VWAP calculation, should shares held by affiliates be included in the calculation of the issuer's market value or public float? Why or why not? Should a VWAP calculation reflect the average VWAP over a longer period of time? If so, what longer period of time (
6. Should all SRCs that meet the accelerated filer definition be excluded from only the accelerated reporting deadlines? Would investors be adversely affected by expanding the population of issuers that would report later than they do today?
7. Should we increase the non-accelerated filer transition threshold from $50 million to $60 million and/or the large accelerated filer transition threshold from $500 million to $560 million, as proposed? Why or why not? Should we revise the non-accelerated filer transition threshold to one other than $60 million and/or the large accelerated filer transition threshold to one other than $560 million? If so, what threshold would be appropriate?
8. Should we align the transition thresholds in the accelerated filer and large accelerated filer definitions with the SRC revenue test transition threshold, as proposed? Why or why not? Instead of aligning the transition thresholds, should we consider other approaches to the transition thresholds in the accelerated filer and large accelerated filer definitions? For example, should we adjust the transition provisions of the large accelerated filer definition to permit all issuers with a public float below $700 million and annual revenues below $100 million to become non-accelerated filers even if such issuers would not meet the transition thresholds to qualify as SRCs? Why or why not? For example, what would be the effects of any such alternatives on the frequency with which an issuer enters and exits large accelerated, accelerated, or non-accelerated filer status due to small fluctuations in public float or revenues?
9. Should we adjust the transition provisions of the accelerated filer and large accelerated filer definitions to include the respective public float and annual revenue thresholds in the definitions, rather than referencing the SRC revenue test? Why or why not?
10. We request comment on alternative approaches that would include or exclude additional issuer types from the accelerated and large accelerated filer definitions. For example, should we exclude FPIs from the proposed amendments? Why or why not? Should we permit BDCs and majority-owned subsidiaries of non-SRCs, which are excluded from the definition of SRC, to be non-accelerated filers if they meet the SRC revenue test thresholds? Why or why not? The SRC revenue test thresholds are based, in part, on an issuer's annual revenues. Are there alternative metrics that should be applied for BDCs instead of revenue? For example, should we use investment income received by the BDC rather than revenue? Should we include realized gains and losses from the sale of portfolio securities? Should unrealized gains and losses affect a BDC's revenue for this purpose, and if so, how? Should we use the net increase or decrease in net assets resulting from operations? Alternatively, should we also exclude BDCs if they meet the public float test in the SRC definition alone? Should we have a specific BDC test of $250 million or less in public float and $50 million or less in investment income?
11. Should we provide a definition for the term “non-accelerated filer?” If so, should we define it as a filer that is not an accelerated or large accelerated filer? Why or why not? Should we use some other definition?
12. The proposed rule would refer to “paragraphs (2) or (3)(iii)(B)” of the SRC definition instead of referring to the actual numerical thresholds specified in those paragraphs. Should we include the actual numerical thresholds? Why or why not?
13. For the low-revenue issuers that would be newly exempted from the ICFR auditor attestation requirement under the proposed amendments, would an auditor engaged for the purpose of a financial statement only audit be as likely to test the operating effectiveness of certain of the issuer's internal
14. Should we consider any changes in how and where issuers report their accelerated filer status, public float, or revenue? Should we consider any new disclosure requirements associated with the proposed amendments? For example, should we permit or require issuers that voluntarily comply with SOX Section 404(b) to disclose that information, such as on the cover page of their periodic filings? If so, should we require issuers that voluntarily comply with SOX Section 404(b) to include the ICFR auditor attestation with the filing?
15. In lieu of, or in addition to, the proposed amendments, should we consider amendments that would result in ICFR attestation audits being required at a reduced frequency? For example, should we require the proposed affected issuers to provide an ICFR auditor attestation only once every three years? If required once every three years, what financial reporting periods should we require the ICFR attestation audit to cover? Currently, the ICFR attestation audit is required to cover only the current period. Should we require the ICFR attestation audit to cover only the current period or should it include all three years?
We are mindful of the costs and benefits of the proposed amendments. Exchange Act Section 3(f) requires us, when engaging in rulemaking that requires us to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of shareholders, whether the action will promote efficiency, competition, and capital formation.
The discussion below addresses the economic effects of the proposed amendments, including their anticipated costs and benefits, as well as the likely effects of the proposed amendments on efficiency, competition, and capital formation. We also analyze the potential costs and benefits of reasonable alternatives to what is proposed. Where practicable, we have attempted to quantify the economic effects of the proposal; however, in certain cases, we are unable to do so because either the necessary data are unavailable or certain effects are not quantifiable. In these cases, we provide a qualitative assessment of the likely economic effects.
As discussed above, we are proposing amendments to the definition of “accelerated filer” that will expand the number of issuers that qualify as non-accelerated filers. Currently, issuers with no public float or public float of less than $75 million are generally non-accelerated filers. The proposed amendments would generally extend non-accelerated filer status to issuers with a greater public float if they are eligible to be SRCs and their revenues are less than $100 million. As non-accelerated filers, these issuers would not be required to obtain an ICFR auditor attestation pursuant to SOX Section 404(b). They also would be permitted an additional 15 days and five days, respectively, after the end of each period to file their annual and quarterly reports, relative to the deadlines that apply to accelerated filers.
As discussed above, the ICFR auditor attestation requirement was introduced together with other changes to the financial reporting control environment with the intention of improving the accuracy and reliability of corporate disclosures. Section III.C.4.a discusses the evidence that the imposition of the ICFR auditor attestation requirement has been associated with benefits to issuers and investors. However, this requirement has also been associated with significant compliance costs. Relative to other issuers that are subject to this requirement, the affected issuers may find the costs to be particularly burdensome, while the ICFR auditor attestation requirement may, on average, provide fewer benefits related to the accuracy and reliability of these issuers' financial statements. Further, issuers exempted from this requirement may choose to voluntarily obtain an ICFR auditor attestation if investors demand it or the issuers otherwise deem it, from their perspective, to be the best use of their resources.
In particular, we estimate that the affected issuers have median annual revenues of about $40 million and a median number of employees of about 125, while their median public float is about $145 million.
We find preliminary evidence consistent with the argument that, compared to other issuers subject to the ICFR auditor attestation requirement, the affected issuers may be less susceptible to the risk of certain kinds of misstatements (such as those related to revenue recognition). Although we expect that exempting these issuers may result in some adverse effects on the effectiveness of their ICFR and their
The discussion that follows examines the potential benefits and costs of the proposed amendments in detail, with consideration for the likelihood that the effects of the ICFR auditor attestation have changed over time with changes in auditing standards and other market conditions.
To assess the economic impact of the proposed amendments, we are using as our baseline the current state of the market under the existing definition of “accelerated filer.” This section discusses the current regulatory requirements and market practices. It also provides statistics characterizing accelerated filers, the timing of filings, disclosures about ineffective ICFR, and restatement rates under the baseline.
Our baseline includes existing statutes and Commission rules that govern the responsibilities of issuers with respect to financial reporting, as well as PCAOB auditing standards and market standards related to the implementation of these responsibilities.
In particular, accelerated and large accelerated filers are subject to accelerated filing deadlines for their periodic reports relative to non-accelerated filers. These deadlines are summarized in Table 6 below. All registrants can file Form 12b-25 (“Form NT”) to avail themselves of an additional 15 calendar days to file an annual report, or an additional five calendar days to file a quarterly report, and still have their report deemed to have been timely filed.
Section II.B. above discusses in detail the issuer and auditor responsibilities with respect to disclosure controls and procedures and ICFR for issuers of different filer types. These responsibilities reflect the FCPA requirements with respect to internal accounting controls as well as a number of different changes to the financial reporting control environment that were introduced by SOX.
In particular, all issuers
Beyond these requirements, accelerated filers and large accelerated filers other than EGCs, RICs, and ABS issuers are required under SOX Section 404(b) and related rules to include an ICFR auditor attestation in their annual reports. In addition, certain banks, even if they are non-accelerated filers, are required under Federal Deposit Insurance Corporation (“FDIC”) rules to have their auditor attest to, and report on, management's assessment of the effectiveness of the bank's ICFR and reporting procedures (the “FDIC auditor attestation requirement”).
Audits of ICFR and the associated ICFR auditor attestation reports are made in accordance with AS 2201,
The adoption of AS 2201 in 2007 has been found to have lowered audit fees.
In 2010, the PCAOB adopted enhanced auditing standards related to the auditor's assessment of and response to risk.
Based on the results of inspections in the several years after the adoption of the new risk assessment auditing standards, the PCAOB expressed concern about the number and significance of deficiencies in auditing firm compliance with these standards, but also noted promising improvements in the application of these standards.
We also note that there have been some recent changes in accounting and auditing that are part of our baseline and could increase the uncertainty of our analysis due to their effects on factors such as audit fees, restatements, and ICFR. For example, three new reporting standards have been issued recently by FASB, on the topics of revenue recognition, leases, and credit losses, which could temporarily increase audit fees as issuers and auditors adjust to the new standards.
Per Table 7, there were approximately 1,500 accelerated filers in total in 2017. Figure 2 presents the distribution of public float across these issuers.
The distribution
Figure 3 presents the distribution of revenues across those accelerated filers that have less than $1 billion in revenues. While the full population of accelerated filers has revenues of up to over $8 billion, about 90% of accelerated filers have less than $1 billion in revenues. We restrict the figure to this subset in order to more clearly display the distribution in this range.
The distribution
While a large range of industries are represented among accelerated filers, a small number of industries account for the majority of these issuers. The “Banking” industry accounts for about 14.2% of accelerated filers, followed by “Pharmaceutical Products” (12.8%), “Financial Trading” (7.7%), “Business Services” (6.7%), “Computer Software” (4.5%), “Electronic Equipment” (4.3%) and “Petroleum and Natural Gas” (4.0%).
As discussed above, non-accelerated, accelerated, and large accelerated filers face different filing deadlines for their periodic reports. In Table 8, we present the timing in recent years of annual report filings by these different groups of issuers relative to their corresponding deadlines.
Table 8
We next consider the current rates of ineffective ICFR and restatements
Based on
We next consider the persistence of material weaknesses across these issuer categories. Table 10 presents the percentage of issuers that reported two, three, or four consecutive years of ineffective ICFR culminating in 2017, by filer type.
Compared
Table 11 presents the rate of restatements among each of these filer types, excluding EGCs, and for EGCs separately. For each year, we consider the percentage of issuers that eventually restated the financial statements for that year. The reporting lag before restatements are filed results in a lower observed rate in the later years of our sample, particularly for 2016 (and even more so for 2017, which we do not report for this reason), as issuers may yet restate their results from recent years.
The
The costs and benefits of the proposed amendments, including impacts on efficiency, competition, and capital formation, are discussed below. We first address the population and characteristics of issuers that would newly qualify as non-accelerated filers under the proposed amendments, and then introduce certain categories of issuers that are used for comparison purposes. We next discuss the anticipated costs and benefits associated with the proposed change in applicability of the ICFR auditor attestation requirement. Following this discussion, we consider the costs and benefits associated with the proposed changes with respect to filing deadlines, exit thresholds, and other required disclosures. Finally, we consider the relative benefits and costs of the principal reasonable alternatives to the proposed amendments.
We estimate that the proposed amendments would result in 539 additional issuers being classified as non-accelerated filers, and therefore no longer subject to the filing deadlines and ICFR auditor attestation requirement applicable to accelerated
The total number of affected issuers includes an estimated 36 foreign private issuers and 181 EGCs.
We estimate that approximately 90% of the affected issuers (whether including or excluding EGCs) have securities that are listed on national exchanges.
Figure 4 presents the distribution of public float across the full sample of affected issuers.
Relative
Figure 5 presents the distribution of revenues across the 525 accelerated filers (or large accelerated filers with public float of less than $560 million) that would be newly classified as non-accelerated filers because they have revenues of less than $100 million.
Other
The affected issuers are estimated to have median total assets of about $175 million, a median number of employees of about 125, and a median age of about 11 years.
The proposed amendments would extend the exemption from the ICFR auditor attestation requirement to certain issuers that would be classified as accelerated filers under current rules and that have revenues of less than $100 million. To analyze the effects of this
Our analyses of data from 2014 through 2017 include, per year, 367 to 423 low-revenue accelerated filers (other than EGCs), 995 to 1,170 low-revenue non-accelerated filers (other than EGCs), and 136 to 647 low-revenue EGCs.
The issuers in both comparison groups will thus tend to be smaller, and the EGCs younger, than the affected issuers, which may reduce the reliability of estimates of the potential effects on audit fees, the effectiveness of ICFR, and restatement rates that are derived in part based on comparisons to these issuers.
These associations may result in a greater disparity between the audit fees, rates of ineffective ICFR, and rates of restatement between the category of affected issuers and the two comparison samples than would be expected if these samples were more comparable in terms of their size and age. We believe that the experience of the issuers in these comparison groups is still informative to our analysis but note that they may be more likely to provide an upper bound rather than a direct reflection of the likely outcomes for the affected issuers as a result of the proposed amendments.
The ICFR auditor attestation requirement has been associated with
We begin by summarizing evidence on the non-compliance costs and net costs of the ICFR auditor attestation requirement. We then estimate the anticipated effects on audit fees and on other compliance costs of eliminating this requirement for the affected issuers, using reported audit fees, survey data, and existing studies. Finally, we discuss the implications of the cost savings and other potential benefits.
The ICFR auditor attestation requirement may impose costs on issuers and investors beyond the direct costs of compliance. For example, an increased focus on ICFR as a result of the ICFR auditor attestation requirement could have negative effects on issuer performance, if it creates a distraction from operational matters or reduces investment or risk-taking.
Our analysis separately considers the costs and benefits of extending the exemption from the ICFR auditor attestation requirement. While we are unable to quantify the extent to which the expected cost savings exceed any loss of benefits associated with the ICFR auditor attestation requirement, we note that researchers have attempted to estimate such “net costs” of the requirement in specific contexts. For example, studies have demonstrated that smaller reporting issuers find the total compliance costs associated with the ICFR auditor attestation requirement to be significant by providing evidence that non-accelerated filers may seek to avoid crossing the $75 million public float threshold and becoming accelerated filers.
One study attempts to quantify and compare certain costs and benefits of exempting non-accelerated filers from the ICFR auditor attestation requirement, focusing on those costs and benefits that the study deems to be measurable, and finds that the cost savings associated with exempting these issuers (an estimated $388 million in aggregate audit fee savings) have been less than the lost benefits (
Studies have also used stock market reactions to changes in the applicability of the ICFR auditor attestation requirement to estimate its net costs or benefits, because the stock market valuation should incorporate both expected costs and expected benefits from a shareholder's perspective. We
The rate of voluntary compliance with the ICFR auditor attestation requirement among exempt issuers has generally been low,
While issuers disclose their total audit fees, they are not required to disclose the portion of these fees that is attributable to the ICFR auditor attestation requirement. Studies of the initial implementation of the ICFR auditor attestation requirement found that it was associated with a roughly 100% increase in audit fees for small accelerated filers.
We therefore begin by considering current audit fees for accelerated filers that are subject to the ICFR auditor attestation requirement and have revenues of less than $100 million, as well as issuers in our comparison populations (non-accelerated filers, other than EGCs, and EGCs, neither of which is required to comply with the ICFR auditor attestation requirement) that also have revenues of less than $100 million. Table 12 presents the average total audit fees for these categories of filers.
For
Some part of this 25 to 60% difference is likely attributable to the ICFR auditor attestation requirement. However, as discussed in Section III.C.2, audit fees have been found in general to increase with total assets and other measures of issuer size, and the median issuer in the comparison populations is substantially smaller than the median affected issuer (in terms of total assets, number of employees, or public float). To account for the fact that some portion of the 25 to 60% difference in audit fees across these groups may be attributable to their difference in size,
This estimate is generally consistent with a range of estimates from other sources that use data from after the 2007 change in the ICFR auditing standard, but that are not focused on low-revenue issuers. These other estimates, which range from approximately five to 35% of total audit fees, are based on a variety of samples and methodologies. For example, the 2008-09 Survey asked respondents what portion of their audit fees were attributable to the ICFR auditor attestation. The average reported percentage for the fiscal year in progress at the time of the survey was 34% for issuers with public float between $75 million and $700 million.
We note that these studies do not separately consider the audit fees of low-revenue issuers and may not fully incorporate the effects of recent developments, such as the increased focus of PCAOB inspections on ICFR auditor attestations beginning around 2010 and the new risk assessment auditing standards. Given the average total audit fees of about $440,000 per year for accelerated filers with revenues of less than $100 million, we preliminarily estimate that about 25% of these fees, or about $110,000 per year, would be saved on average by the affected issuers as a result of the proposed amendments. The audit fee savings are expected to vary across the affected issuers, with some experiencing smaller savings and some experiencing much larger savings depending on their individual circumstances. For example, a few of the commenters to the SRC Proposing Release cited costs of $400,000 to over $1 million associated with the ICFR auditor attestation requirement (though it is possible that these estimates include costs other than audit fees, which are discussed below).
The ICFR auditor attestation requirement is associated with substantial other compliance costs beyond audit fees, including outside vendor costs and internal labor costs.
The 2008-09 Survey asked respondents to report their non-audit costs of SOX Section 404 in general, such as their outside vendor costs, labor, and non-labor costs (such as software, hardware and travel costs), as well as the percentage of the outside vendor costs and labor hours that were attributable to the ICFR auditor attestation requirement. For the fiscal year in progress at the time of the survey, the mean (median) annual costs for issuers with between $75 million and $700 million in public float were $134,691 ($50,000) for outside vendors, $489,302 ($242,000) for internal labor costs, and $79,348 ($20,000) for non-labor costs. Respondents indicated that, on average, ten percent of the outside vendor costs and 25% of the internal labor costs were attributable to the ICFR auditor attestation requirement. A breakdown was not provided for the non-labor costs, which we believe are primarily attributable to management's ICFR responsibilities under SOX Section 404(a) rather than the ICFR auditor attestation.
The average non-audit costs attributable to the ICFR auditor attestation requirement at the time of the survey were thus approximately $125,000 per year ($134,691 times ten percent, plus $489,302 times 25%). In more recent years, the adoption of the new risk assessment auditing standards may have increased the non-audit costs of a financial statement only audit, and thus reduced the incremental costs attributable to the ICFR auditor attestation requirement. We therefore adjust the historical cost downward slightly and estimate that the average non-audit costs attributable to the ICFR auditor attestation requirement are approximately $100,000 per year. This estimate is subject to uncertainty because it is unclear exactly how the current costs may differ from the survey responses a decade ago, and the costs may be different for low-revenue issuers. As in the case of audit fees, some of the affected issuers are expected to experience lower cost savings while others would experience greater savings, depending on their individual circumstances. For example, some issuers have reported potential cost savings other than audit fees ranging from about $110,000 to about $350,000.
While we estimate the average compliance cost associated with the ICFR auditor attestation requirement for the affected issuers, it is more difficult to discern whether incurring the costs of this requirement represents the most effective use of funds for these issuers. As discussed in Section III.C.4.c below, issuers for whom the requirement is eliminated may determine that it is worthwhile to use these funds to voluntarily undergo an audit of ICFR.
In total, we estimate an average cost savings of $210,000 per issuer per year, with some of the affected issuers experiencing lesser or greater savings. This represents a significant cost savings for issuers with less than $100 million in revenue and may thus have beneficial economic effects on competition and capital formation.
In particular, because of the fixed costs component of compliance costs, smaller issuers generally bear proportionately higher compliance costs than larger issuers. For example, we estimate that total audit fees for the past three years have represented about 22% of revenues on average for accelerated filers with less than $100 million in revenues, versus 0.5% of revenue for those above $100 million in revenues. Reducing the affected issuers' costs would reduce their overhead expenses and may enhance their ability to compete with larger issuers. Importantly, low-revenue issuers are likely to face financing constraints because they do not have access to internally-generated capital.
The alleviation of these costs could be a positive factor in the decision of additional companies to enter public markets,
Exempting the affected issuers from the ICFR auditor attestation requirement may result, over time, in management at this category of issuers being less likely to maintain effective ICFR, which in turn may result in less reliable financial statements, on average, for these issuers. The discussion below explores this potential effect and its implications in detail. We also consider two mitigating factors that could be associated with the affected issuers on average, though they may not apply equally to all of the affected issuers. First, low-revenue issuers may be less susceptible to the risk of certain kinds of misstatements, such as errors associated with revenue recognition.
Exempting the affected issuers from the ICFR auditor attestation requirement could also reduce the information available to investors for gauging the reliability of these issuers' financial statements. In this regard, we discuss below the potential effects related to the identification and disclosure of material weaknesses in ICFR at the affected issuers. However, given the recent findings discussed in Section III.C.4.a below on how ICFR auditor attestations may provide limited information about the risk of future restatements,
This section summarizes a number of broad economic considerations related to the possible effects of an ICFR auditor attestation requirement on financial reporting in order to provide context for the more detailed analysis of the costs of exempting the affected parties from this requirement that follows. As discussed below, the anticipated effects of changes to the population of issuers subject to the ICFR auditor attestation requirement will depend on the characteristics of the specific group of issuers that would be affected. In this regard we note that prior research has not focused on the effects of the ICFR auditor attestation requirement on low-revenue issuers in particular. As discussed in Section III.B.1, there also have been significant changes over time in the implementation of the ICFR auditor attestation requirement, the standards applying to a financial statement audit even in the absence of an audit of ICFR, and the execution of audits of financial statements and of ICFR, which may have had the effect of reducing both the incremental costs and incremental benefits of an ICFR auditor attestation since the periods studied in much of the existing research. We therefore acknowledge that, while we believe that consideration of the past research is an important part of our analysis, these factors limit our ability to rely on the findings of past research to predict how the proposed amendments would affect the particular class of issuers implicated by this rulemaking.
ICFR auditor attestations can have two primary types of benefits. First, the ICFR auditor attestation reports can provide incremental information to investors about the reliability of the financial statements. Second, the reliability of the financial statements can itself be enhanced. That is, the expectation of, or process involved in, the ICFR auditor attestation could lead issuers to maintain better controls, which could lead to more reliable financial reporting. Importantly for our evaluation of these possible benefits, however, we do not directly observe the effectiveness of ICFR and the reliability of financial statements, but only the associated disclosures by issuers. For example, while restatements may indicate that controls have failed, such restatements are often predicated on the underlying misstatements being detected. Given such limitations with the available data, the analysis in existing studies and in this release is necessarily less than definitive.
Regarding the first possible benefit of ICFR auditor attestations, academic research provides some evidence that ICFR auditor attestation reports contain information about the reliability of financial statements, but also demonstrates that the incremental information provided by these reports may be limited. The 2011 SEC Staff Study summarizes evidence that ICFR auditor attestations generally resulted in the identification and disclosure of material weaknesses that were not previously identified or whose severity was misclassified when identified by management in its assessment of ICFR, and that investor risk assessments and investment decisions were associated with the findings in auditor attestation reports.
However, more recent studies have found that auditor identification of material weaknesses in ICFR tends to be concurrent with the disclosure of restatements, rather than providing advance warning of the potential for restatements.
A further reason why ICFR auditor attestation reports may provide only a weak warning about future restatements is that the audit of ICFR may contribute to the avoidance of misstatements, leading us to observe only the residual restatements where the misstatement risk was not foreseen or a misstatement was not detected for reasons unrelated to internal controls. Thus, the second possible benefit we consider is that the audit of ICFR may encourage management to maintain more effective controls and thereby deter accounting errors and fraud. The academic research discussed below documents substantial evidence that would be consistent with such effects, though, as is common in financial economics, it is difficult to determine whether the documented differences can be causally linked to the audit of ICFR.
In particular, while issuers are subject to a number of requirements discussed above that are intended to help to ensure adequate internal controls and reliable financial statements,
To the extent that the ICFR auditor attestation requirement leads to more effective ICFR, this requirement may thereby lead to more reliable financial statements. Some studies have found that a failure to maintain effective ICFR has been associated with a higher rate of future restatements and lower earnings quality,
To evaluate the economic implications of any effects the ICFR auditor attestation requirement has on ICFR and financial statements, these effects can be tied to their possible effects on factors such as production or investment at the issuer or market level. For example, at the issuer level, more reliable disclosures are generally expected, based on economic theory, to lead investors to demand a lower expected return to hold an issuer's securities (
More effective ICFR and more reliable financial reporting may also lead to improved efficiency of production if managers themselves thereby have access to more reliable data that facilitates better operating and investing decisions.
The ICFR auditor attestation requirement may also result in benefits at the market level, though these are more difficult to measure than those at the issuer level.
Importantly, all of these benefits, at both the issuer and market level, likely vary across issuers of different types. For example, younger, loss-incurring issuers with lower market capitalization and lower institutional ownership, as well as those with more segments, tend to be more likely to newly disclose material weaknesses as they transition into the ICFR auditor attestation requirement.
The academic literature discussed in Section III.C.4.a above suggests that the scrutiny associated with the ICFR auditor attestation may lead issuers that are required to obtain this attestation to maintain more effective ICFR and to remediate material weaknesses in ICFR more quickly, leading to more reliable financial statements. Further, as discussed above, studies have highlighted that smaller reporting issuers are disproportionately represented in populations of issuers with ineffective ICFR and financial statements that require material restatement. In addition, smaller issuers are less likely to have significant external scrutiny in the form of analyst and media coverage and monitoring by institutional owners,
However, one study cited above finds that the ICFR auditor attestation requirement was associated with less reliable financial statements for lower market capitalization issuers from 2007 through 2013,
This section therefore provides an analysis of low-revenue issuers using recent data to complement the existing studies and better inform our consideration of the possible costs of the proposed amendments. However, some uncertainty will remain due to the challenges discussed above in measurement and in ascribing causality in any such analysis, the limited sample sizes that result when restricting the analysis to recent years, and the general difficulty of predicting how the parties involved would react to the proposed changes. As discussed in Section III.C.2 above, our analysis includes an examination of two comparison populations of issuers that are not subject to the ICFR auditor attestation requirement but that otherwise have similar responsibilities with respect to ICFR (
We first consider possible effects related to the effectiveness of the affected issuers' ICFR. Because the issuers in our comparison groups are not required to obtain an ICFR auditor attestation, we focus on the findings of SOX Section 404(a) management reports on ICFR, with the caveat that management may not report as many material weaknesses in the absence of an audit of ICFR. The percentage of issuers reporting ineffective ICFR in their management report by issuer type and revenue category for each of the last four years is presented in Table 13.
Among
Because we must rely on disclosed rates of ineffective ICFR, it is difficult to separate the extent to which these rates are affected by the detection and disclosure of material weaknesses in ICFR as opposed to actual underlying material weaknesses in ICFR. As discussed in Section III.C.4.a above, studies have found that audits of ICFR often result in the identification and disclosure of material weaknesses that were not previously identified or whose severity was misclassified in management's initial assessment. Thus, extending the exemption from the ICFR auditor attestation requirement to the affected issuers may decrease the likelihood that, when these issuers have underlying material weaknesses in ICFR, these material weaknesses are detected and disclosed.
It is possible that low-revenue issuers may be less likely than other issuers to fail to detect and disclose material weaknesses in the absence of an ICFR auditor attestation, perhaps because they have less complex financial systems and controls.
Regardless of the extent to which the detection of material weaknesses may be improved by an ICFR auditor attestation, the pattern across the comparison populations in Table 13 suggests that, in the absence of an ICFR auditor attestation requirement, low-revenue issuers are less likely than higher revenue issuers to have effective ICFR in place or to remediate their material weaknesses in ICFR. This may not be surprising, as certain material weaknesses in ICFR may be corrected by, for example, hiring additional staff, which managers of an issuer that is not currently producing much revenue may prefer to defer to a later time. Indeed, about 80 to 85% of the low-revenue issuers reporting ineffective ICFR in the comparison populations in 2017 reported at least one staffing-related material weakness, though these were generally accompanied by other types of material weaknesses.
As discussed in Section III.C.2, the issuers in the comparison groups may have higher rates of ineffective ICFR than would a group of issuers that is more comparable to the affected issuers in terms of size and maturity. In addition, besides having low revenues, the issuers in the comparison groups have lower-valued assets and fewer employees than the corresponding accelerated filers, and may therefore be less inclined to expend resources on remediating their ICFR. However, because the rates of ineffective ICFR are similar for the higher revenue issuers of all types in Table 13, but low-revenue issuers that are not subject to the ICFR auditor attestation requirement report ineffective ICFR at much higher rates than the corresponding higher revenue issuers, it is likely that these differences are due at least in part to the nature of low-revenue issuers rather than being driven solely by the differences between the affected issuers and our comparison populations.
We therefore expect that extending the exemption from the ICFR auditor attestation requirement, as proposed, may result over time in a lower number of the affected issuers establishing or maintaining effective ICFR. While low-revenue issuers in the comparison populations report ineffective ICFR at rates that average 15 to 25% percentage points higher than low-revenue accelerated filers, given the differences in the affected issuers versus the comparison populations, we look to the low end of this range and preliminarily estimate that, over time, an additional 15% of the affected issuers may fail to maintain effective ICFR. This estimate is consistent with the estimated effect on ICFR based on a study of issuers transitioning into the ICFR auditor attestation requirement.
We next consider to the extent to which this possible effect might translate into less reliable financial statements. By definition, material weaknesses represent a reasonable possibility that a material misstatement of the issuer's financial statements will not be prevented or detected on a timely basis, and as discussed above, existing studies have demonstrated that ineffective ICFR is associated with less reliable financial statements. Thus, our estimated increase in the rate of ineffective ICFR likely would translate into a decrease in the reliability of the financial statements of the affected issuers. However, low-revenue issuers could be less susceptible, on average, to at least certain kinds of misstatements. In particular, ten to 20% of restatements and about 60% of the cases of financial disclosure fraud in recent times have been associated with improper revenue recognition,
We explore this possibility empirically in Table 14, which presents the percentage of issuers in different categories that eventually restated some of the financial statements that they reported for a given year. We consider financial statements associated with years 2014 through 2016, but we note that the restatement rates that we observe for 2016 are lower than for previous years (and would be even lower for 2017) because of the lag between the initial reporting of financial statements and the detection and filing of restatements for those disclosures.
Table 14
As discussed above, observed restatements reflect misstatements that were detected and may only be a subset of actual misstatements. However, because we see the same pattern in each column of Table 14 when moving from low revenue to higher revenue, including for accelerated filers other than EGCs (which have relatively low rates of ineffective ICFR), we preliminarily believe that the lower restatement rates for low-revenue issuers are not driven by a difference in the ability to detect misstatements among these categories of issuers.
Despite the lower restatement rates of low-revenue issuers, we expect that the proposed amendments will have some eventual adverse impact on the restatement rates of the affected issuers. Table 14 demonstrates that, among low-revenue issuers, the accelerated filers other than EGCs have a two percent (relative to non-accelerated filers other than EGCs) or five percent (relative to EGCs) lower restatement rate than the issuers in the comparison populations, which are not subject to the ICFR auditor attestation requirement. However, as discussed in Section III.C.2 above, the issuers in the comparison groups may have higher rates of restatement than would a group of issuers that is more comparable to the affected issuers in terms of size and maturity. We therefore look to the low end of this range and preliminarily estimate that, over time, the rate of restatements among the affected issuers may increase by two percentage points. However, given their lower current rates of restatement, even after such an increase the affected issuers may, on average, restate their financial
While we anticipate that the frequency of ineffective ICFR and, to a lesser extent, restatements may increase among the affected issuers as a result of the proposed amendments, the economic effects of these changes may be mitigated by another factor that may apply to many of these issuers. In particular, the usefulness of more reliable financial statements is linked to the degree to which they factor into the decisions of investors,
For
Finally, we anticipate that the potential adverse effects of the proposed amendments will develop gradually and are likely to be relatively limited in the short term. The preceding discussion is based on the comparison of steady-state differences across issuers in different categories, and represents an analysis of the eventual effects of the proposed amendments. Because the proposed amendments would allow some current accelerated filers to transition to non-accelerated filer status, some issuers that have already been subject to an audit of ICFR for one or more years may no longer be required to obtain an ICFR auditor attestation. While other issuers will enter into the affected issuers category without having previously obtained an ICFR auditor attestation, and such issuers are likely to represent a larger fraction of the affected issuers over time, initially issuers with experience with ICFR auditor attestations are expected to represent a substantial fraction of the affected issuers. Nevertheless, we recognize that a delay in realizing some of the associated costs from the proposed amendments would not necessarily mitigate their ultimate effects.
Newly exempt issuers may have implemented control improvements that would persist regardless of a transition. For example, they may have made investments in systems, procedures, or training that are unlikely to be reversed. It is difficult to predict the degree of inertia in ICFR and financial reporting in order to gauge how quickly, if at all, issuers that cease audits of ICFR may evolve such that their ICFR and the reliability of their financial statements is more characteristic of exempt issuers.
Affected issuers with experience with audits of ICFR may also be more likely to continue to obtain an ICFR auditor attestation on a voluntary basis than other exempt issuers are to begin voluntary audits of ICFR. This may be due to such issuers having already incurred certain start-up costs or facing demand from their current investors to continue to provide ICFR auditor
Per the discussion in Section III.C.4.a above, any impact of the proposed amendments on the effectiveness of ICFR and the reliability of financial statements may have issuer-level implications as well as market-level implications. At the issuer level, the potential increase, on average, in the rate of ineffective ICFR and restatements may lead investors to charge a somewhat higher average cost of capital for the affected issuers. An issuer's cost of capital, or the expected return that investors demand to hold its securities, determines the price at which it can raise funds. Thus, any such increase may be associated with a reduction in capital formation to the extent that it decreases the rate at which the affected issuers raise new capital towards new investments. Further, the affected issuers may also experience reduced operational efficiency because of the reduced reliability of financial information available to management for the purpose of making operating decisions. These potential effects are supported by a number of studies discussed above.
The potential issuer-level effects on cost of capital and operating performance are difficult to confirm and to quantify for the affected issuers because the existing studies may not be generalizable to the affected issuers and to the current nature of ICFR auditor attestations (after the 2007 change in the ICFR auditing standard, the 2010 change in risk assessment auditing standards, and recent PCAOB inspections focused on these aspects of audits). Further, some of these studies provide mixed evidence, as discussed in Section III.C.4.a above. Moreover, the methods used in previous studies are difficult to apply to a comparable sample of low-revenue issuers in more recent years because, for example, there would only be a small sample of such issuers that recently switched filing status and because methods of measuring the implied cost of capital are particularly problematic for such issuers.
The available evidence supports the qualitative, directional effects noted above. However, the previous section demonstrated that the potential increase in material weaknesses in ICFR that we estimate could occur may translate into a more limited effect on the reliability of disclosures, as measured by the rate of restatements, for the affected issuers. Also, based on our analysis, the financial metrics of these issuers have lower explanatory power for investors' determination of their value than in the case of other issuers. These two factors may mitigate the potential adverse effects on the affected issuers' cost of capital and operating performance.
Importantly, some of the costs of extending the exemption from the ICFR auditor attestation requirement to additional issuers may be further mitigated by the fact that some issuers, even if exempted, may voluntarily choose to bear the costs of obtaining such an attestation.
Issuers and other market participants may also adapt to the proposed changes in other ways, which may serve to enhance or mitigate the anticipated costs. However, these actions, and therefore their net effects, are difficult to predict. For example, it has been posited that issuers reacted to the requirements of SOX by reducing accruals-based earnings management and, in its stead, making suboptimal business decisions for the purpose of real earnings management.
While the preceding analysis considers the average effects across the affected issuers on the effectiveness of ICFR and the reliability of financial statements, the potential issuer-level costs of the proposed extension of the exemption from the ICFR auditor attestation requirement likely vary
Among issuers with (or that develop) material weaknesses in ICFR, some may fully detect and disclose these in their SOX Section 404(a) management reports even in the absence of an ICFR auditor attestation requirement. For such issuers, evidence suggests that the removal of the ICFR auditor attestation requirement may reduce the likelihood that they remediate, or the speed with which they remediate, such material weaknesses.
Other issuers with (or that develop) material weaknesses in ICFR may not detect or disclose all of these material weaknesses in the absence of an ICFR auditor attestation requirement. Those that would, however, report ineffective ICFR when subject to the ICFR auditor attestation requirement
To the extent that the reliability of financial statements is somewhat reduced on average at the issuer level for the affected issuers, the efficient allocation of capital at the market level may be negatively affected given a diminished ability to reliably evaluate different investment alternatives.
In this section we consider the potential effects of the proposed amendments with regard to other implications of accelerated filer status, specifically with respect to the timing of filing deadlines, certain required disclosures, and the determination of filer status. We also consider below some incremental effects of the proposed amendments to the thresholds for exiting accelerated and large accelerated filer status.
As discussed in Section III.B.1 above, non-accelerated filers are permitted an additional 15 days and five days, respectively, beyond the deadlines that apply to accelerated filers, to file their annual and quarterly reports. Extending these later deadlines to the affected issuers may provide these issuers with additional flexibility in preparing their disclosures, while modestly decreasing the timeliness of the data for investors.
Table 8 in Section III.B.3 demonstrates that while the filing deadlines are not a binding constraint for most accelerated filers, with 64% filing their annual reports over five days early in recent years, some accelerated filers would benefit from an extended deadline. For example, filing Form NT automatically provides a grace period of an additional 15 days to file an annual report, and over the past four years, about five percent of accelerated filers filed their annual reports within this grace period rather than by the original deadline. A further four percent of accelerated filers filed their annual reports after these additional 15 days had passed.
Even affected issuers that would otherwise have filed by the accelerated filer deadline may avail themselves of the additional time provided under the proposed amendments to balance other obligations or to prepare higher quality disclosures. The 2003 acceleration of filing deadlines for accelerated filers from 90 to 75 days was associated, at least initially, with a higher rate of restatements for the affected issuers.
On the other hand, allowing the affected issuers to file according to the
One study found that the 2003 acceleration of filing deadlines was associated with a decrease in the market reaction to the disclosure of annual reports for accelerated filers.
Non-accelerated filers are not required to provide disclosure regarding the availability of their filings under Item 101(e)(4) of Regulation S-K. While some investors may benefit from reduced search costs due to such disclosures, we do not expect that extending the exemption from these disclosures to the affected issuers would have significant economic effects.
Non-accelerated filers are not required to provide disclosure required by Item 1B of Form 10-K or Item 4A of Form 20-F about unresolved staff comments on their periodic and/or current reports. Studies have found that the eventual disclosure of staff comments and related correspondence, as well as interim information about these comments before they are made public, are value-relevant (in that they affect the pricing of securities) for investors.
The proposed amendments include revisions to the transition thresholds that address when an accelerated filer or large accelerated filer can transition into a different filer status. The proposed amendments would allow accelerated or large accelerated filers to become non-accelerated filers if they qualify under the SRC revenue test or meet a revised public float transition threshold. An issuer whose revenues previously exceeded the SRC initial revenue threshold of $100 million will not qualify under the SRC revenue test unless its revenues fall below $80 million. The $80 million transition threshold for the SRC revenue test is 80% of the initial threshold of $100 million in revenue. An issuer whose public float previously exceeded the $75 million initial threshold for accelerated filer status would become a non-accelerated filer if its public float fell below $60 million, or 80% of that initial threshold, as opposed to the current threshold of $50 million. Finally, the proposed amendments also revise the public float transition threshold for exiting large accelerated filer status and becoming an accelerated filer from $500 million to $560 million in public float, or 80% of the $700 million entry threshold, to align with the transition threshold for entering SRC status after having exceeded $700 million in public float.
The filer type exit thresholds in Rule 12b-2 are set below the corresponding entry thresholds to provide some stability in issuer classification given normal variation in public float and revenues. The exact placement of these thresholds involves a tradeoff between the degree of volatility in classification versus the extent to which the categories persistently include issuers that are below the initial entry thresholds. Table 16 illustrates this tradeoff using 20 years of data on the evolution of company year-end market capitalizations and revenues. While market capitalization is different from public float, we expect the volatility of these measures to be similar because changes in stock price represent the dominant source of variation in both measures.
Consider
Table 16 demonstrates that the balance between limiting filer status volatility while enabling filer status mobility provided by an exit threshold of 80% is similar around a $250 million, $75 million, and $700 million market capitalization. We therefore expect the proposed increase in the thresholds to exit accelerated and large accelerated filer status to $60 and $560 million, or 80% of the entry thresholds, to lead to a similar tradeoff in these factors as the 80% public float threshold to re-enter SRC status. Table 16 also demonstrates that revenue is more stable than market capitalization, so the 80% threshold in the revenue test for exiting accelerated and large accelerated filer status is expected to provide a lower degree of filer status fluctuations for a comparable degree of filer status mobility. Overall, we expect the proposed transition thresholds to provide a tradeoff between filer status mobility and volatility that is consistent with the tradeoff provided by the recently revised SRC transition provisions.
Below we consider the relative costs and benefits of reasonable alternatives to the implementation choices in the proposed amendments.
We have considered excluding all SRCs from the accelerated filer definition, consistent with the past alignment of the SRC and non-accelerated filer categories. This alternative would include SRCs that meet the revenue test, as proposed, as well as those that have a public float of less than $250 million when initially determining SRC status.
This alternative would have several benefits, such as promoting regulatory simplicity and reducing any frictions or confusion caused by issuers having to make multiple determinations of their filer type. It would also expand the benefits of the proposed amendments to additional issuers. We estimate that 357 additional issuers
To estimate the benefits to these additional issuers, we begin by considering the audit fees of lower-float issuers of different types, as we did for low-revenue issuers in Table 12 of Section III.C.3. These results are presented in Table 17.
The analysis includes,
Adding this cost savings to our estimate of additional potential compliance cost savings beyond audit fee savings of $100,000 from Section III.C.3.d above, for which the analysis for lower public float issuers would not differ, we estimate an average cost savings of $415,000 for the additional issuers that would be affected under this alternative, with some of these issuers experiencing lesser or greater savings. This represents a significant cost savings for issuers with less than $250 million in public float and may thus have beneficial economic effects on competition and capital formation. As discussed above, smaller issuers generally bear proportionately higher compliance costs than larger issuers. Reducing these additional issuers' costs would reduce their overhead expenses and may enhance their ability to compete with larger issuers. To the extent that the cost savings for the additional affected issuers enable capital investments that would not otherwise be made, this alternative would also lead to additional benefits in capital formation.
This alternative could also impose several costs. Overall, we expect costs of this alternative to be greater than for the proposed amendments, primarily due to the broader application of the exemption from the ICFR auditor attestation requirement and the diminished impact of some of the mitigating factors discussed in Section III.C.4 above on SRCs that meet the public float test rather than the revenue test.
To explore these potential costs further, we follow the analysis set forth in Section III.C.4 above. We begin by considering the potential impact of an exemption from the ICFR auditor attestation requirement on the effectiveness of ICFR and reliability of financial statements for these issuers. Table 18 presents our estimates of the percentage of issuers with public float below $250 million and those with public float of at least $250 million that report ineffective ICFR in their management report in recent years. We compare accelerated filers (other than EGCs) to EGCs because the latter are not currently subject to the ICFR auditor attestation requirement but may have public float that is greater or less than $250 million (while non-accelerated filers are not suitable for this analysis because they would generally not have public float of greater than $250 million). We omit the year 2014 in the second panel because of an insufficient sample of EGCs with public float greater than $250 million in 2014.
As in the case
Table 19 presents the rate of restatements in recent years by issuers in these categories. As in the case of Table 18, 2014 is excluded in the second panel due to an insufficient sample size of high float EGCs.
In this case,
To the extent that extending the exemption from the ICFR auditor attestation requirement may reduce the reliability of financial statements for the affected issuers, Table 15 in Section III.C.4 demonstrates that the potential adverse impact of such a change may be mitigated by the lower empirical relevance of financial statements for the market valuation of these issuers. Therefore, we next consider whether a similar proposition could hold for lower public float issuers. In Table 20, we consider the extent to which the variation in stock returns can be explained by the variation in earnings and changes in earnings for these lower and higher public float issuers over a 20-year horizon. We use market capitalization as a rough proxy for public float, given the limited availability of public float data over the horizon of this analysis. We cannot reliably apply the relevance analysis using market capitalization that we considered in the first two rows of Table 15 in this setting because dividing the sample by the same variable that is being analyzed in a regression analysis like this one generally results in biasing estimates downward (an “attenuation bias”), and we are unable to correct for such a bias. However, the analysis below based on stock returns mirrors the analysis in the third row of Table 15 and should not be subject to such a bias.
We
Finally, as in Section III.C.3, we re-examine responses to the 2008-2009 Survey. When asked about the net benefits of complying with SOX Section 404, 16% of respondents at accelerated filers with public float of less than $250 million claimed that the costs far outweighed the benefits, in contrast to, as reported above, 30% of respondents at accelerated filers with revenues of less than $100 million.
We are soliciting comment on our analysis of the benefits and costs of extending non-accelerated filer status to all SRCs and whether there are benefits and/or costs of this alternative that we have overlooked. We particularly invite comment on the methodology used to carry out this analysis and any suggestions for alternative or supplemental methodologies to help inform our analysis.
Alternatively, we have considered approaches that would include or exclude additional issuer types. For example, we could extend non-accelerated filer status to other issuers with between $75 million and $700 million in public float that meet the SRC revenue test but would not be eligible to be SRCs due to other reasons. In particular, BDCs and majority-owned subsidiaries of non-SRCs cannot qualify as SRCs and are not otherwise excluded from the ICFR auditor attestation requirement. We estimate that 28 BDCs and one majority-owned subsidiary of a non-SRC parent would meet the same public float and revenue thresholds as the affected issuers.
Since BDCs do not report revenue on their financial statements, we examined potential alternative metrics to the SRC revenue test threshold of less than $100 million. Of the 29 BDCs with a market capitalization between $75 million and $700 million, our review found that only one BDC reported investment income in excess of $100 million. No BDC reported changes in net realized and unrealized gains and losses or net increase in net assets resulting from operations in amounts greater than $100 million.
We also considered whether to permit BDCs to provide an independent public accountant's report on internal controls, similar to the one required by RICs on Form N-CEN, since both RICs and BDCs prepare financial statements under Article 6 of Regulation S-X,
We have also considered excluding FPIs, which are included in the affected issuers to the extent that they meet the required thresholds and other qualifications, from the proposed amendments. Researchers have found that the restatement rates of foreign issuers may be artificially depressed due to a lower likelihood of detection and disclosure of misstatements for these issuers.
We have considered alternative levels at which a revenue threshold could be set. A $100 million dollar revenue threshold was recommended, in conjunction with a public float threshold, for the accelerated filer definition as well as the SRC definition by the 2017 Small Business Forum and a participant at the September 2017 meeting of the ACSEC.
While filer status is reported prominently on the cover page of annual reports for most issuers, there is not similarly prominent disclosure of whether an ICFR auditor attestation is provided. In addition to, or in lieu of, the proposed amendments, we could permit or require such disclosure, as recommended by the GAO.
Throughout this release, we have discussed the anticipated costs and benefits of the proposed amendments. We request and encourage any interested person to submit comments regarding the proposed amendments and all aspects of our analysis of the potential effects of the amendments. We request comment from the point of view of investors, issuers, and other market participants. With regard to any comments, we note that such comments are particularly helpful to us if accompanied by quantified estimates or other detailed analysis and supporting data regarding the issues addressed in those comments. We also are interested in comments on the alternatives presented in this release, in particular, the alternative of extending non-accelerated filer status to all SRCs, as well as any additional alternatives to the proposed amendments that should be considered.
1. What are the costs and benefits of the proposed amendments for investors and issuers? For example, what are the direct costs associated with an ICFR auditor attestation requirement, such as audit fees, as well as indirect costs, such as those related to managerial time and attention, for the group of SRCs that would be exempted from that requirement under the proposed approach? What would be the effects on potential direct and indirect benefits associated with the ICFR auditor attestation requirement for the group of SRCs that would be exempted from that requirement under the proposed approach? Is it possible to relate the benefits to restatement rates or other measures of financial reporting quality for this group? What would be the effect on these issuers' cost of capital and investor confidence?
2. For issuers with revenues of less than $100 million, how do the costs of ICFR auditor attestations compare with the benefits? Do such issuers have simpler financial statements, less variation in their revenue arrangements, fewer revenue-related records to reconcile, or other characteristics that lead to a lower opportunity for misstatements? Or do such issuers have a greater opportunity for errors, perhaps due to staffing constraints or to lower external scrutiny of their disclosures?
3. Do investors rely to a lesser extent on the financial statements of issuers with revenues of less than $100 million than on the financial statements of other types of issuers when making investment decisions? Or is the reliability of the financial statements of such issuers particularly important for valuation because of the sensitivity of future projections to current data?
4. To what extent is the ability of investors to gauge the reliability of financial statements likely to be affected by the proposed amendments? To what extent is the actual reliability of financial statements likely to be affected by the proposed amendments?
5. We request comment on our estimate of the number of affected issuers, our estimates of the internal and external costs of the ICFR auditor attestation requirement, our estimates of the potential changes in the rates of ineffective ICFR and restatements among the affected issuers, and other estimates made in this release. We also request comment on whether there are additional costs and benefits that we can reliably quantify, and request any data that could allow us to make more precise estimates.
6. We request comment on our analysis of existing studies. Are there additional considerations or additional studies that we should consider?
7. We request comment on the methodologies used to estimate the internal and external costs of the ICFR auditor attestation requirement, to estimate the potential changes in rates of ineffective ICFR and restatements, and to make other estimates in this release. Is our consideration of the experience of issuers that are not currently subject to the ICFR auditor attestation requirement (non-accelerated filers, other than EGCs, and EGCs) in estimating the potential effects on the affected issuers appropriate? Are our estimates and the related adjustments that we make when comparing accelerated filers with issuers that are not currently subject to the ICFR auditor attestation requirement appropriate given the smaller size and lower age of the issuers in our comparison samples? Are there alternative methodologies that we should consider?
8. We request comment on our estimate of the average savings on audit fees that would be associated with the proposed amendments. Is our estimate of audit fee savings of about 25% of total audit fees or about $110,000 per year on average across the issuers that would be newly exempt from the ICFR auditor attestation requirement appropriate, too high, or too low? We request specific estimates of fees paid to auditors by issuers to obtain ICFR auditor attestations, separated to the extent possible from other audit costs and accounting for the risk assessment standards that would apply even to a financial statement only audit. We also request specific estimates of other costs associated with obtaining these attestations, such as the hours of managerial and internal staff time spent to facilitate the audit of ICFR. In addition, we request data that would allow us to better understand how all of these costs vary across issuers of different types.
9. We request statistics on FPIs that would allow us to better characterize the anticipated effects on these issuers. Do low-revenue FPIs have similar characteristics as low revenue domestic issuers?
10. We request statistics and analysis that would allow us to better understand the externalities that the quality of ICFR at one issuer may have on other issuers and on the market as a whole.
11. Would issuers or auditors take actions in response to the proposed amendments that would affect the potential economic effects of the proposed amendments? If so, what actions would they take and why? Do issuers currently take actions to stay below the accelerated filer public float threshold? If so, to what extent would such actions be expected to continue or change under the proposed amendments? Is the pricing of auditing services for all issuers likely to change as a result of the proposed amendments? For example, are auditors likely to change the incremental fees they charge for integrated, rather than financial statement only, audits due to the decrease in the number of companies required to obtain an ICFR auditor attestation?
12. Are there current or developing auditing practices or technology that may impact the economic effects of the proposed amendments? What are those practices or technology and what effects are they likely to have? For example, are there anticipated effects of the proposed amendments on the cost or quality of substantive testing in the financial statement audit? Are there any effects of automation technology in auditing that we should consider? Overall, how would accounting for such auditing practices or technology change the analysis of the benefits and costs of the proposed amendments and alternatives in this release?
13. We request comment on our analysis of the benefits and costs of the alternative of extending non-accelerated filer status to all SRCs, including the quantitative estimates of the number of additional affected issuers, the cost savings, and the potential impact on the rate of ineffective ICFR and restatements
14. We request comment on the alternative of requiring or permitting prominent disclosure of whether an ICFR auditor attestation is provided, either in addition to, or in lieu of, amendments to the accelerated filer and large accelerated filer definitions. For example, what would be the economic effects of requiring issuers to prominently identify whether they voluntarily comply with the ICFR auditor attestation requirement, such as adding a check box to the cover page of appropriate filings? Would such disclosure result in more voluntary compliance with the ICFR auditor attestation requirement? Could prominent disclosure of whether an ICFR auditor attestation is included have the unintended consequence of confusing investors, such as by leading some investors to incorrectly interpret the cover page disclosure as a sign of effective ICFR even if the more detailed disclosure included in the ICFR auditor attestation report shows otherwise?
15. We request comment on alternative approaches that would include or exclude additional issuer types. For example, what would be the economic effects of allowing BDCs and/or subsidiaries of non-SRCs, which are excluded from the definition of an SRC, to be non-accelerated filers if they meet the proposed thresholds? What would be the economic effects of excluding FPIs from the proposed changes? What would be the economic effects of using a different threshold or different metric to identify the additional issuers that would become non-accelerated filers? What would be the economic effects of allowing all BDCs that meet the public float and revenue thresholds in the SRC definition, or those criteria with any alternative metric in lieu of annual revenues, to be non-accelerated filers? For BDCs, what would be the benefits and costs to providing an independent public accountant's report on internal controls required by Form N-CEN as compared to an auditor attestation under SOX Section 404(b)? What would be the economic effects on BDC investors if a Form N-CEN report on internal controls was provided in place of a SOX Section 404(b) attestation? Does it decrease the efficiency of independent auditors to provide different types of internal control audits for RICs and BDCs, even though both types of issuers provide financial reporting under Article 6 of Regulation S-X? Are there other alternatives we should consider?
16. What effect would the proposed amendments have on competition? Would the proposed amendments put any issuers at a significant competitive advantage or disadvantage? If so, what changes to the proposed requirements could mitigate any such impact?
17. What effect would the proposed amendments have on efficiency? How could the proposed amendments be changed to promote any positive effect or to mitigate any negative effect on efficiency?
18. What effect would the proposed amendments have on capital formation? Are there any positive or negative effects of the proposed amendments on capital formation that we have overlooked? How could the proposed amendments be changed to better promote capital formation or to mitigate any negative effect on capital formation resulting from the amendments?
Certain provisions of our rules and forms that would be affected by the proposed amendments contain “collection of information” requirements within the meaning of the Paperwork Reduction Act (“PRA”). We are submitting the proposal to the Office of Management and Budget (“OMB”) for review in accordance with the PRA.
• “Form 10-K” (OMB Control No. 3235-0063);
• “Form 10-Q”
• “Form 20-F” (OMB Control No. 3235-0288);
• “Form 40-F” (OMB Control No. 3235-0381); and
• “Regulation 12B”
The regulation and forms listed above were adopted under the Exchange Act. The regulation and forms set forth the disclosure requirements for periodic reports filed by registrants to help investors make informed investment decisions. A description of the proposed amendments, including the need for the information and its proposed use, as well as a description of the likely respondents, can be found in Section II above, and a discussion of the economic effects of the proposed amendments can be found in Section III above.
We estimate that the proposed amendments would result in approximately 539 additional issuers being classified as non-accelerated filers.
We believe that eliminating the ICFR auditor attestation requirement would reduce the PRA burden for 358 of the 539 affected issuers.
Because
For the $100,000 reduction in annual non-audit costs,
For PRA purposes, an issuer's internal burden is estimated in internal burden hours. We are, therefore, converting the internal portions of the non-audit costs to burden hours. These activities would mostly be performed by a number of different employees with different levels of knowledge, expertise, and responsibility. We believe these internal labor costs will be less than the $400 per hour figure we typically use for outside professionals retained by the issuer. Therefore, we use an average rate of $200 per hour to estimate an issuer's internal non-audit labor costs. Table 25, below, shows the resulting estimated reduction in internal burden hours from the proposed elimination of the ICFR auditor attestation requirement.
As the Commission has recognized previously, changing filing deadlines neither increases nor decreases the burden hours necessary to prepare the filing because there is no change to the amount of information required in the filing.
We believe that eliminating the requirements to provide disclosure regarding the availability of their filings and the disclosure required by Item 1B of Form 10-K and Item 4A of Form 20-F about unresolved staff comments on their periodic and/or current reports would reduce their burden hours and costs, but we do not expect that reduction to be significant. As opposed to the burden reduction resulting from the elimination of the ICFR auditor attestation requirement, which would apply only to 358 of the 539 total affected issuers that are not EGCs, the burden reduction from eliminating these disclosure requirements would apply to all the 539 affected issuers, including the 181 affected issuers that are EGCs. Of these 181 affected EGC issuers, 160 file annual reports on Form 10-K, 21 file annual reports on Form 20-F, and none file annual reports on Form 40-F. For purposes of the PRA, we estimate the reduction to be approximately one hour for each of the 539 affected issuers.
Table 27, below, shows the total estimated reduction in internal burden hours and outside professional costs for all aspects of the proposed amendments.
Pursuant to 44 U.S.C. 3506(c)(2)(B), we request comment in order to:
• Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility;
• Evaluate the accuracy of our assumptions and estimates of the burden of the proposed collection of information;
• Determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected;
• Evaluate whether there are ways to minimize the burden of the collection of information on those who respond, including through the use of automated collection techniques or other forms of information technology; and
• Evaluate whether the proposed amendments would have any effects on any other collection of information not previously identified in this section.
Any member of the public may direct to us any comments concerning the accuracy of these burden estimates and any suggestions for reducing these burdens. Persons submitting comments on the collection of information requirements should direct their comments to the Office of Management and Budget, Attention: Desk Officer for the U.S. Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and send a copy to, Vanessa A. Countryman, Acting Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549, with reference to File No. S7-06-19. Requests for materials submitted to OMB by the Commission with regard to the collection of information requirements should be in writing, refer to File No. S7-06-19 and be submitted to the U.S. Securities and Exchange Commission, Office of FOIA Services, 100 F Street NE, Washington, DC 20549. OMB is required to make a decision concerning the collection of information requirements between 30 and 60 days after publication of the proposed amendments. Consequently, a comment to OMB is best assured of having its full effect if the OMB receives it within 30 days of publication.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”),
• An annual effect on the economy of $100 million or more (either in the form of an increase or a decrease);
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effects on competition, investment, or innovation.
We request comment on whether our proposed amendments would be a “major rule” for purposes of SBREFA. We solicit comment and empirical data on:
• The potential effect on the U.S. economy on an annual basis;
• Any potential increase in costs or prices for consumers or individual industries; and
• Any potential effect on competition, investment, or innovation.
Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
The Regulatory Flexibility Act (“RFA”)
The purpose of the proposed amendments to the accelerated filer and large accelerated filer definitions in Rule 12b-2 is to promote capital formation by more appropriately tailoring the types of issuers that are included in the category of accelerated filers and revising the transition thresholds for accelerated and large accelerated filers. The reasons for, and objectives of, the proposed amendments are discussed in more detail in Sections I and II above.
We are proposing the rule and form amendments contained in this release under the authority set forth in Sections 3(b), 12, 13, 15(d) and 23(a) of the Exchange Act, as amended.
The proposed changes would affect some registrants that are small entities. The RFA defines “small entity” to mean “small business,” “small organization,” or “small governmental jurisdiction.”
We estimate that there are 1,171 issuers that file with the Commission, other than investment companies, which may be considered small entities and are potentially subject to the proposed amendments.
The proposed amendments would reduce the number of accelerated filers, which would reduce the compliance burden for those issuers, some of which may be small entities, because they would no longer have to satisfy the ICFR auditor attestation requirement, comply with accelerated deadlines for filing their Exchange Act periodic reports, provide disclosure regarding the availability of their filings, or provide disclosure required by Item 1B of Form 10-K and Item 4A of Form 20-F about unresolved staff comments on their periodic and/or current reports. Compliance with certain rules affected by the proposed amendments would require the use of professional skills, including accounting and legal skills. The proposed amendments are discussed in detail in Sections I and II above. We discuss the economic effect including the estimated costs and burdens, of the proposed amendments on all registrants, including small entities, in Section III above.
We believe that the proposed amendments would not duplicate, overlap, or conflict with other federal rules.
The RFA directs us to consider alternatives that would accomplish our stated objectives, while minimizing any significant adverse effect on small entities. Accordingly, we considered the following alternatives:
• Establishing different compliance or reporting requirements or timetables that take into account the resources available to small entities;
• Clarifying, consolidating or simplifying compliance and reporting requirements for small entities under our rules as revised by the amendments;
• Using performance rather than design standards; and
• Exempting small entities from coverage of all or part of the amendments.
We do not believe that establishing different compliance or reporting obligations in conjunction with the proposed amendments is necessary. The proposed amendments would not impose any significant new compliance obligations. In fact, the proposed amendments would reduce the compliance obligations of affected issuers by increasing the number of issuers, including small entities, that are subject to the different, less burdensome, compliance and reporting obligations for non-accelerated filers. Similarly, because the proposed amendments would reduce the burdens for these issuers, we do not believe it is appropriate to exempt small entities from all or part of the proposed amendments.
We believe that some of the issuers that would become eligible to be non-accelerated filers if the proposed amendments are adopted may be smaller entities. Therefore, to the extent that any small entities would become newly eligible for non-accelerated filer status under the proposed amendments, their compliance and reporting requirements would be further simplified. We note in this regard that the Commission's existing disclosure requirements provide for scaled disclosure requirements and other accommodations for small entities, and the proposed amendments would not alter these existing accommodations.
Finally, with respect to the use of performance rather than design standards, because the proposed amendments are not expected to have any significant adverse effect on small entities (and may, in fact, relieve burdens for some such entities), we do not believe it is necessary to use performance standards in connection with this rulemaking.
We encourage the submission of comments with respect to any aspect of this IRFA. In particular, we request comments regarding:
• How the proposed rule and form amendments can achieve their objective while lowering the burden on small entities;
• The number of small entities that may be affected by the proposed rule and form amendments;
• The existence or nature of the potential effects of the proposed amendments on small entities discussed in the analysis; and
• How to quantify the effects of the proposed amendments.
Commenters are asked to describe the nature of any effect and provide empirical data supporting the extent of that effect. Comments will be considered in the preparation of the Final Regulatory Flexibility Analysis, if the proposed rules are adopted, and will be placed in the same public file as comments on the proposed rules themselves.
The rule amendments described in this release are being proposed pursuant to Sections 3(b), 12, 13, 15(d) and 23(a) of the Exchange Act, as amended.
Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, the Commission is proposing to amend title 17, chapter II of the Code of Federal Regulations as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c-3, 78c-5, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78n-1, 78o, 78o-4, 78o-10, 78p, 78q, 78q-1, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, 7201
The addition and revisions read as follows:
(iv) The issuer is not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable.
(2) * * *
(iv) The issuer is not eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable.
(3) * * *
(ii) Once an issuer becomes an accelerated filer, it will remain an accelerated filer unless: the issuer determines, at the end of a fiscal year, that the aggregate worldwide market value of the voting and non-voting common equity held by its non-affiliates was less than $60 million, as of the last business day of the issuer's most recently completed second fiscal quarter; or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable. An issuer that makes either of these determinations becomes a non-accelerated filer. The issuer will not become an accelerated filer again unless it subsequently meets the conditions in paragraph (1) of this definition.
(iii) Once an issuer becomes a large accelerated filer, it will remain a large accelerated filer unless: it determines, at the end of a fiscal year, that the aggregate worldwide market value of the voting and non-voting common equity held by its non-affiliates (“aggregate worldwide market value”) was less than $560 million, as of the last business day of the issuer's most recently completed second fiscal quarter or it determines that it is eligible to use the requirements for smaller reporting companies under the revenue test in paragraph (2) or (3)(iii)(B) of the “smaller reporting company” definition in this section, as applicable. If the issuer's aggregate worldwide market value was $60 million or more, but less than $560
By the Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS has received a request from Hilcorp Alaska (Hilcorp) for authorization to take marine mammals incidental to construction and operation of the Liberty Drilling and Production Island (LDPI), over the course of five years. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
Comments and information must be received no later than June 28, 2019.
You may submit comments on this document, identified by NOAA-NMFS-2018-0053, by any of the following methods:
•
•
Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401.
A copy of Hilcorp's application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at
NMFS received an application from Hilcorp requesting five-year regulations and authorization to incidentally take multiple species of marine mammals in Foggy Island Bay, Beaufort Sea, by Level A harassment (non-serious injury) and Level B harassment (behavioral disturbance), incidental to construction and operation of the LDPI and associated infrastructure. Please see “Background” below for definitions of harassment. In addition, a limited unintentional take involving the mortality or serious injury of no more than two ringed seals (
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the “Proposed Mitigation” section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent Letters of Authorization (LOAs). As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.
Following is a summary of the major provisions of this proposed rule Hilcorp would be required to implement. These measures include:
• Use of soft start during impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power;
• Implementation of shutdowns of construction activities under certain circumstances to minimize harassment, including injury;
• Prohibition on impact pile driving during the fall Cross Island bowhead whale hunt and seasonal drilling restrictions to minimize impacts to marine mammals and subsistence users;
• Implementation of best management practices to avoid and minimize ice seal and habitat disturbance during ice road construction, maintenance, and use;
• Use of marine mammal and acoustic monitoring to detect marine mammals and verify predicted sound fields;
• Coordination with subsistence users and adherence to a Plan of Cooperation (POC); and
• Limitation on vessel speeds and transit areas, where appropriate.
The MMPA prohibits the take of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable [adverse] impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
On August 23, 2018, the Bureau of Ocean Energy Management (BOEM) released a Final Environmental Impact Statement (EIS) analyzing the possible environmental impacts of Hilcorp's proposed Liberty development and production plan (DPP). BOEM's Draft EIS was made available for public comment from August 18, 2017 through December 8, 2017. The final EIS may be found at
On August 2, 2017, Hilcorp petitioned NMFS for rulemaking under Section 101(a)(5)(A) of the MMPA to authorize the take of six species of marine mammals incidental to construction and operation of the proposed LDPI in Foggy Island Bay, Alaska. On April 26, 2018, Hilcorp submitted a revised petition which NMFS deemed adequate and complete. On May 9, 2018, we published a notice of receipt of Hilcorp's petition in the
To extract oil and gas in the Liberty Oil Field, Hilcorp is proposing to construct a 9.3 acre artificial island (the LDPI) in 19 feet (ft) (5.8 meters (m)) of water in Foggy Island Bay, approximately 5 miles (mi) (8 kilometers (km)) north of the Kadleroshilik River and install supporting infrastructure (
Hilcorp requests, and NMFS is proposing to authorize, the take, by Level A harassment and Level B harassment, of bowhead whales (
Hilcorp is proposing to construct and operate the LDPI, a self-contained offshore drilling and production facility located on an artificial gravel island. Infrastructure and facilities necessary to drill wells and process and export approximately 60,000 to 70,000 barrels of oil per day to shore would be installed on the island. To transport oil, a pipeline from the island would be installed, tying into the existing Bandami pipeline located on shore between the Sagavanirktok and Kadleroshilik Rivers on Alaska's North Slope. To access the island and move vehicles and equipment, ice roads would be constructed annually. All island construction and pipeline installation would occur during winter months as much as possible; however, pile driving and slope protection could occur during the open water season. Drilling and production, once begun, would occur year round. After island and pipeline construction, Hilcorp would commence and continue drilling and production for approximately 20 to 25 years at which time the island would be decommissioned. The proposed regulations and LOA would cover the incidental take of marine mammals during LDPI construction and operation for the first five years of work. Thereafter, data collected during these five years (
The proposed regulations would be valid for a period of five years from December 1, 2020, through November 30, 2025. Ice road construction and pipeline installation would be limited to winter months. Island construction would be conducted primarily during winter months; however, given construction schedules are subject to delays for multiple reasons. Hilcorp anticipates, at most, up to two weeks of open-water pile driving may be required in the first year to complete any pile driving not finished during the winter. Other work such as island slope armoring may also occur during open-water conditions. All island construction would commence and is expected to be completed in the first year of the proposed regulations (December 2020 through November 2021). Pipeline installation would occur in year 2 of the proposed regulations (December 2021 through November 2022), while drilling and production would begin in year 3 and continue through the life of the proposed regulations. Ice road construction and maintenance activities would occur each winter.
The Liberty field is located in Federal waters of Foggy Island Bay, Beaufort Sea about 8.9 km (5.5 mi) offshore in 6.1 m (20 ft) of water and approximately 8 to 13 km (5 to 8 mi) east of the existing Endicott Satellite Drilling Island (SDI) and approximately 32 km (20 mi) east of Prudhoe Bay. Hilcorp would construct the Liberty project on three leases, OCS-Y-1650, OCS-Y-1886, and OCS-Y-1585. The proposed LDPI would be constructed in 19 ft (5.8 m) of water about 5 mi (8 km) offshore in Foggy Island Bay. The LDPI and all associated infrastructure (
The Liberty Prospect is located 8.85 km offshore in about 6 m of water, inside the Beaufort Sea's barrier islands. Hilcorp, as the Liberty operator, is proposing to develop the Liberty Oil Field reservoir, located on the Outer Continental Shelf (OCS), in Foggy Island Bay, Beaufort Sea, Alaska. The Liberty reservoir is the largest delineated but undeveloped light oil reservoir on the North Slope. It is projected to deliver a peak production rate of between 60,000 and 70,000 barrels of oil per day within two years of initial production. Total recovery over an estimated field life of 15 to 20 years is predicted to be in the range of 80 to 150 million stock tank barrels of oil. The Liberty Oil Field leases were previously owned by BP Exploration Alaska, Inc. (BPXA). In April 2014, BPXA announced the sale of several North Slope assets to Hilcorp including the area where the proposed LDPI would be constructed and other existing oil production islands (Northstar, Endicott, Milne Point). The Liberty Project has many similarities to previous oil and gas islands constructed on the North Slope, including Endicott, Northstar and Oooguruk.
The proposed LDPI project includes development of a mine-site to supply gravel for the construction of the LDPI, construction of the island and annual ice roads, installation of an undersea pipeline that reaches shore from the LDPI and then connects to the existing above-ground Badami pipeline, drilling, production and operation (for simplicity, hence forward we refer to both production and operation as “production”). The mine site is located inland of marine mammal habitat over which NMFS has jurisdiction; therefore, its development will not be discussed further in this proposed rule as no impacts to marine mammals under NMFS jurisdiction would be affected by this project component. Here, we discuss those activities that have the potential to take marine mammals: Ice road construction and maintenance, island construction (pile driving and slope armoring), pipeline installation, drilling and production. We also describe auxiliary activities, including vessel and aircraft transportation. A schedule of all phases on the project and summary of equipment and activities involved are included in Table 1.
Hilcorp will construct ice roads and perform maintenance, as necessary. Ice roads are a route across sea ice created by clearing and grading snow then pumping seawater from holes drilled through the floating ice. Some roads may use grounded ice. Hilcorp would clear away snow using a tractor, bulldozer, or similar piece of equipment then pump seawater from holes drilled through floating ice, and then flood the ice road. The ice roads will generally be constructed by pumper units equipped with an ice auger to drill holes in the sea ice and then pump water from under the ice to flood the surface of the ice. The ice augers and pumping units will continue to move along the ice road alignment to flood the entire alignment, returning to a previous area as soon as the flooded water has frozen. The ice road will be maintained and kept clean of gravel and other solids. Freshwater can be sprayed onto the road surface to form a cap over the main road structure for the top layer or to repair any cracks.
Ice roads will be used for onshore and offshore access, installing the pipeline, hauling gravel used to construct the island, moving equipment on/off island, personnel and supply transit, etc. Ice roads are best constructed when weather is -20 degrees Fahrenheit (F) to -30 degrees F, but temperatures below 0 degree F are considered adequate for ice road construction. Ice road construction can typically be initiated in mid- to late-December and roads maintained until mid-May. At the end of the season, ice roads will be barricaded by snow berm and/or slotted at the entrance to prevent access and allowed to melt naturally. Figure 1 shows the locations of the proposed ice roads.
• Ice road # 1 will extend approximately 11.3 km (7 mi) over shorefast sea ice from the Endicott SDI to the LDPI (the SDI to LDPI ice road). It will be approximately 37 m wide (120 ft) with driving lane of approximately 12 m (40 ft). It would cover approximately 160 acres of sea ice.
• Ice road # 2 (approximately 11.3 km (7 mi)) will connect the LDPI to the proposed Kadleroshilik River gravel mine site and then will continue to the juncture with the Badami ice road (which is ice road # 4). It will be approximately 15 m (50 ft) wide.
• Ice road # 3 (approximately 9.6 km [6 mi], termed the “Midpoint Access Road”) will intersect the SDI to LDPI ice road and the ice road between the LDPI and the mine site. It will be approximately 12 m (40 ft) wide.
• Ice road # 4 (approximately 19.3 km (12 mi)), located completely onshore, will parallel the Badami pipeline and connect the mine site with the Endicott road.
All four ice roads would be constructed for the first three years to support pipeline installation and transportation from existing North Slope roads to the proposed gravel mine site, and from the mine site to the proposed LDPI location in the Beaufort Sea. After year 3, only ice road #1 would be constructed to allow additional materials and equipment to be
In addition to the ice roads, three ice pads are proposed to support construction activities (year 2 and 3). These would be used to support LDPI, pipeline, (including pipe stringing and two stockpile/disposal areas) and facilities construction. A fourth staging area ice pad (approximately 350 feet by 700 feet) would be built on the sea ice on the west side of the LDPI during production well drilling operations.
Other on-ice activities occurring prior to March 1 could also include spill training exercises, pipeline surveys, snow clearing, and work conducted by other snow vehicles such as a Pisten Bully, snow machine, or rollagon. Prior to March 1, these activities could occur outside of the delineated ice road/trail and shoulder areas.
The LDPI will include a self-contained offshore drilling and production facility located on an artificial gravel island with a subsea pipeline to shore. The LDPI will be located approximately 8 kilometers (km) or 5 miles (mi) offshore in Foggy Island Bay and 11.7 km (7.3 mi) southeast of the existing SDI on the Endicott causeway (see Figure 1). The LDPI will be constructed of reinforced gravel in 5.8 meters (m) (19 feet (ft)) of water and have a working surface of approximately 3.8 hectares (ha) (9.3 acres (ac)). A steel sheet pile wall would surround the island to stabilize the placed gravel and the island would include slope protection bench, dock and ice road access and a seawater intake area (Figure 2).
Hilcorp would begin constructing the LDPI during the winter immediately following construction of the ice road from the mine site to the island location. Sections of sea ice at the island's location would be cut using a ditchwitch and removed. A backhoe and support trucks using the ice road would move ice away. Once the ice is removed, gravel will be poured through the water column to the sea floor, building the island structure from the bottom up. A conical pile of gravel (hauled in from trucks from the mine site using the ice road) will form on the sea floor until it reaches the surface of the ice. Gravel hauling over the ice road to the LDPI construction site is estimated to continue for 50 to 70 days, and conclude mid-April or earlier depending on road conditions. The construction would continue with a sequence of removing additional ice and pouring gravel until the surface size is achieved. Following gravel placement, slope armoring and protection installation would occur. Using island-based equipment (
Once the slope protection is in place, Hilcorp would install the sheet pile wall around the perimeter of the island using vibratory and, if necessary, impact hammers. Hilcorp anticipates driving up to 20 piles per day to a depth of 25 ft. A vibratory hammer would be used first followed by an impact hammer to “proof” the pile. Hilcorp anticipates each pile needing 100 hammer strikes over approximately 2 minutes of impact driving to obtain final desired depth for each sheet pile. Per day, this equates to a maximum of 40 minutes and 2,000 strikes of impact hammering per day. For vibratory driving, pile penetration speed can vary depending on ground conditions, but a minimum sheet pile penetration speed is 20 inches (0.5 m) per minute to avoid damage to pile or hammer (NASSPA 2005). For this project, the anticipated duration is based on a preferred penetration speed greater than 40 inches (1 m) per minute, resulting in 7.5 minutes to drive each pile. Given the high storm surge and larger waves that are expected to arrive at the LDPI site from the west and northwest, the wall will be higher on the west side than on the east side. At the top of the sheet-pile wall, overhanging steel “parapet” will be installed to prevent wave passage over the wall.
Within the interior of the island, 16 steel conductor pipes would be driven to a depth of 160 ft (49 m) to provide the initial stable structural foundation for each oil well. They would be set in a well row in the middle of the island. Depending on the substrate the conductor pipes would be driven by impact or vibratory methods or both. During construction of the nearby Northstar Island (located in deeper water), it took 5 to 8.5 hours to drive one conductor pipe (Blackwell
Hilcorp would install a pipe-in-pipe subsea pipeline consisting of a 12-in diameter inner pipe and a 16-in diameter outer pipe to transport oil from the LDPI to the existing Bandami pipeline. Pipeline construction is planned for the winter after the island is constructed. A schematic of the pipeline can be found in Figure 2-3 of BOEM's Final EIS available at
To install the pipeline, a trench will be excavated using ice-road based long reach excavators with pontoon tracks. The pipeline bundle will be lowered into the trench using side booms to control its vertical and horizontal position, and the trench will be backfilled by excavators using excavated trench spoils and select backfill. Hilcorp intends to place all material back in the trench slot. All work will be done from ice roads using conventional excavation and dirt-moving construction equipment. The target trench depth is 9 to 11 ft (2.7 to 3.4 m) with a proposed maximum depth of cover of approximately 7 ft (2.1 m). The pipeline will be approximately 5.6 mi (9 km) long. Hydro-testing (pressure testing using sea water) of the entire pipeline will be completed prior to commissioning.
The final drill rig has yet to be chosen by Hilcorp but has been narrowed to two options and will accommodate drilling of 16 wells. The first option is the use of an existing platform-style drilling unit that Hilcorp owns and operates in the Cook Inlet. Designated as Rig 428, the rig has been used recently and is well suited in terms of depth and horsepower rating to drill the wells at Liberty. A second option that is being investigated is a new build drilling unit that would be built to not only drill Liberty development wells, but would be more portable and more adaptable to other applications on the North Slope. Regardless of drill rig type, the well row arrangement on the island is designed to accommodate up to 16 wells. We note that while Hilcorp is proposing a 16 well design, only 10 wells would be drilled. The 6 additional well slots would be available as backups or for potential in-fill drilling if needed during the project life.
Process facilities on the island will separate crude oil from produced water and gas. Gas and water will be injected into the reservoir to provide pressure support and increase recovery from the field. A single-phase subsea pipe-in-pipe pipeline will transport sales-quality crude from the LDPI to shore, where an aboveground pipeline will transport crude to the existing Badami pipeline. From there, crude will be transported to the Endicott Sales Oil Pipeline, which ties into Pump Station 1 of the TransAlaska Pipeline System (TAPS) for eventual delivery to a refinery.
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
Table 2 lists all species with expected potential for occurrence in Foggy Island Bay and surrounding Beaufort Sea and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. 2017 SAR for Alaska (Muto
All species that could potentially occur in the Beaufort Sea are included in Table 2. However, the temporal and/or spatial occurrence of minke, fin, humpback whales, killer whales, narwhals, harbor porpoises, and ribbon seals are such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. These species, regularly occur in the Chukchi Sea but not as commonly in the Beaufort Sea. Narwhals, Steller sea lions, and hooded seals are considered extralimital to the proposed action area These species could occur in the Beaufort Sea, but are either uncommon or extralimital east of Barrow (located in the Foggy Island Bay area and surveys within the Bay have revealed zero sightings).
In addition, the polar bear may be found in Foggy Island Bay. However, this species is managed by the U.S. Fish and Wildlife Service and is not considered further in this document.
On October 11, 2016, NOAA released the Final Environmental Impact Statement (FEIS) for the Effects of Oil and Gas Activities in the Arctic Ocean (81 FR 72780, October 21, 2016) regarding geological and geophysical (
The only bowhead whale stock found within U.S. waters is the Western Arctic stock, also known as the Bering-Chukchi-Beaufort stock (Rugh
Bowhead whale distribution in the Beaufort Sea during summer-fall has been studied by aerial surveys through the Bowhead Whale Aerial Survey Project (BWASP). This project was funded or contracted by the Minerals Management Service (MMS)/Bureau of Ocean Energy Management (BOEM) and Bureau of Land Management (BLM) annually from 1979 to 2010. The focus of the BWASP aerial surveys was the autumn migration of bowhead whales through the Alaskan Beaufort Sea, although data were collected on all marine mammals sighted. The NMFS National Marine Mammal Laboratory (NMML) began coordinating BWASP in 2007, with funding from MMS. In 2011, an Interagency Agreement between the BOEM and NMML combined BWASP with COMIDA under the auspices of a single survey called Aerial Surveys of Arctic Marine Mammals (ASAMM) (Clarke
During winter and spring, bowhead whales are closely associated with sea ice (Moore and Reeves 1993, Quakenbush
From 2006 through 2014, median distance of bowhead whales from shore was 23.6 km (14.7 mi) in the East Region and 24.2 km (15.0 mi) in the West Region during previous low-ice years, with annual median distances ranging from as close as 6.3 km (3.9 mi) in 2009 to 37.6 km (23.4 mi) in 2013 (Clarke
Historically, there have been few spring, summer, or autumn observations of bowheads in larger bays such as Camden, Prudhoe, and Harrison Bays, although some groups or individuals have occasionally been observed feeding around the periphery of or, less commonly, inside the bays as migration demands and feeding opportunities permit. Observations indicate that juvenile, sub-adult, and cow-calf pairs of bowheads are the individuals most frequently observed in bays and nearshore areas of the Beaufort, while more competitive whales are found in the Canadian Beaufort and Barrow Canyon, as well as deeper offshore waters (Clarke
Clarke
From July 8, 2008, through August 25, 2008, BPXA conducted a 3D seismic survey in the Liberty Prospect, Beaufort Sea. During the August survey a mixed-species group of whales was observed in one sighting near the barrier islands that included bowhead and gray whales (Aerts
Alaska Natives have been taking bowhead whales for subsistence purposes for at least 2,000 years (Marquette and Bockstoce, 1980, Stoker
The eastern North Pacific population of gray whales migrates along the coasts of eastern Siberia, North America, and Mexico (Allen and Angliss 2010; Weller
The gray whale migration may be the longest of any mammalian species. They migrate over 8,000 to 10,000 km (5,000 to 6,200 mi) between breeding lagoons in Mexico and Arctic feeding areas each spring and fall (Rugh
Gray whales are the most coastal of all the large whales and inhabit primarily inshore or shallow, offshore continental shelf waters (Jones and Swartz, 2009); however, they are more common in the Chukchi than in the Beaufort Sea. Throughout the summers of 2010 and 2011, gray whales regularly occurred in small groups north of Point Barrow and west of Barrow (George
From July 8, 2008 through August 25, 2008, BPXA conducted a 3D seismic survey in the Liberty Prospect, Beaufort Sea. During the August survey a mixed-species group of whales was observed in one sighting near the barrier islands that included bowhead and gray whales (Aerts
Five beluga whale stocks are present in Alaska including the Cook Inlet, Bristol Bay, eastern Bering Sea, eastern Chukchi Sea, and Beaufort Sea stocks (O'Corry-Crowe
Satellite telemetry data from 23 whales tagged in Kaseguluk Lagoon in 1998 through 2002 provided information on movements and migrations of eastern Chukchi Sea belugas. Animals initially traveled north and east into the northern Chukchi and western Beaufort seas after capture (Suydam
Most information on distribution and movements of belugas of the Beaufort Sea stock was similarly derived using satellite tags. A total of 30 belugas were tagged in the Mackenzie River Delta, Northwest Territories, Canada, during summer and autumn in 1993, 1995, and 1997 (Richard
O'Corry
Beluga whales were regularly sighted during the September-October BWASP and the more recent ASAMM aerial surveys of the Alaska Beaufort Sea coast. Burns and Seaman (1985) suggest that beluga whales are strongly associated with the ice fringe and that the route of the autumn migration may be mainly determined by location of the drift ice margin. Relatively few beluga whales have been observed in the nearshore areas (on the continental shelf outside of the barrier islands) of Prudhoe Bay. However, groups of belugas have been detected nearshore in September (Clarke
One of five Arctic ringed seal stocks, the Alaska stock, occurs in U.S. waters. The Arctic subspecies of ringed seals was listed as threatened under the ESA on December 28, 2012, primarily due to expected impacts on the population from declines in sea and snow cover stemming from climate change within the foreseeable future (77 FR 76706). However, on March 11, 2016, the U.S. District Court for the District of Alaska issued a decision in a lawsuit challenging the listing of ringed seals under the ESA (
During winter and spring in the United States, ringed seals are found throughout the Beaufort and Chukchi Seas; they occur in the Bering Sea as far south as Bristol Bay in years of extensive ice coverage. Most ringed seals that winter in the Bering and Chukchi Seas are thought to migrate northward in spring with the receding ice edge and spend summer in the pack ice of the northern Chukchi and Beaufort Seas.
Ringed seals are resident in the Beaufort Sea year-round, and based on results of previous surveys in Foggy Island Bay (Aerts
Ringed seals are present in the nearshore and sea ice year-round, maintaining breathing holes and excavating subnivean lairs in the landfast ice during the ice-covered season. Ringed seals overwinter in the landfast ice in and around the LDPI action area. There is some evidence indicating that ringed seal densities are low in water depths of less than 3 m, where landfast ice extending from the shoreline generally freezes to the sea bottom in very shallow waters during the course of the winter (Moulton
Sexual maturity in ringed seals varies with population status. It can be as early as 3 years for both sexes and as late as 7 years for males and 9 years for females. Ringed seals breed annually, with timing varying regionally. Mating takes place while mature females are still nursing their pups on the ice and
Ringed seals are an important resource for Alaska Native subsistence hunters. Approximately 64 Alaska Native communities in western and northern Alaska, from Bristol Bay to the Beaufort Sea, regularly harvest ice seals (Ice Seal Committee, 2016). Based on the harvest data from 12 Alaska Native communities, a minimum estimate of the average annual harvest of ringed seals in 2009-2013 is 1,050 seals (Muto
Other sources of mortality include commercial fisheries and predation by marine and terrestrial predators including polar bears, arctic foxes, walrus, and killer whales. During 2010-2014, incidental mortality and serious injury of ringed seals was reported in 4 of the 22 federally-regulated commercial fisheries in Alaska monitored for incidental mortality and serious injury by fisheries observers: the Bering Sea/Aleutian Islands flatfish trawl, Bering Sea/Aleutian Islands pollock trawl, Bering Sea/Aleutian Islands Pacific cod trawl, and Bering Sea/Aleutian Islands Pacific cod longline fisheries (Muto
Two subspecies of bearded seal have been described:
For the purposes of MMPA stock assessments, the Beringia DPS is considered the Alaska stock of the bearded seal (Muto
Spring surveys conducted in 1999-2000 along the Alaska coast indicate that bearded seals are typically more abundant 20-100 nautical miles (nmi) from shore than within 20 nmi from shore, except for high concentrations nearshore to the south of Kivalina (Bengtson
Although bearded seal vocalizations (produced by adult males) have been recorded nearly year-round in the Beaufort Sea (MacIntyre
During the open-water period, the Beaufort Sea likely supports fewer bearded seals than the Chukchi Sea because of the more extensive foraging habitat available to bearded seals in the Chukchi Sea. In addition, as a result of shallow waters, the sea floor in Foggy Island Bay south of the barrier islands is often scoured by ice, which limits the presence of bearded seal prey species. Nevertheless, aerial and vessel-based surveys associated with seismic programs, barging, and government surveys in this area between 2005 and 2010 reported several bearded seal sightings (Green and Negri, 2005, Green and Negri 2006, Green
Bearded seals are an important resource for Alaska Native subsistence hunters. Approximately 64 Alaska Native communities in western and northern Alaska, from Bristol Bay to the Beaufort Sea, regularly harvest ice seals (Ice Seal Committee, 2016). However, during 2009-2013, only 12 of 64 coastal communities were surveyed for bearded seals; and, of those communities, only 6 were surveyed for two or more consecutive years (Ice Seal Committee, 2016). Based on the harvest data from these 12 communities (Table 2), a minimum estimate of the average annual harvest of bearded seals in 2009-2013 is 390 seals. Harvest surveys are designed to estimate harvest within the surveyed community, but because of differences in seal availability, cultural hunting practices, and environmental
Of the 22 federally-regulated U.S. commercial fisheries in Alaska monitored for incidental mortality and serious injury by fisheries observers, 12 fisheries could potentially interact with bearded seals. During 2010-2014, incidental mortality and serious injury of bearded seals occurred in three fisheries: The Bering Sea/Aleutian Islands pollock trawl, Bering Sea/Aleutian Islands flatfish trawl, and Bering Sea/Aleutian Islands Pacific cod trawl fisheries (Muto
Spotted seals are distributed along the continental shelf of the Bering, Chukchi, and Beaufort seas, and the Sea of Okhotsk south to the western Sea of Japan and northern Yellow Sea. Eight main areas of spotted seal breeding have been reported (Shaughnessy and Fay, 1977) and Boveng
The distribution of spotted seals is seasonally related to specific life-history events that can be broadly divided into two periods: Late-fall through spring, when whelping, nursing, breeding, and molting occur in association with the presence of sea ice on which the seals haul out, and summer through fall when seasonal sea ice has melted and most spotted seals use land for hauling out (Boveng
At Northstar, few spotted seals have been observed. A total of 12 spotted seals were positively identified near the source-vessel during open-water seismic programs in the central Alaskan Beaufort Sea, generally occurring near Northstar from 1996 to 2001 (Moulton and Lawson, 2002). The number of spotted seals observed per year ranged from zero (in 1998 and 2000) to four (in 1999).
During a seismic survey in Foggy Island Bay, PSOs recorded 18 pinniped sightings, of which one was confirmed as a spotted seal (Aerts
Similar to other ice seal species, spotted seals are an important resource for Alaska Native subsistence hunters. Of the 12 communities (out of 64) surveyed during 2010-2014, the minimum annual spotted seal harvest estimates totaled across 12 out of 64 user communities surveyed ranged from 83 (in 2 communities) to 518 spotted seals (in 10 communities). Based on the harvest data from these 12 communities, a minimum estimate of the average annual harvest of spotted seals in 2010-2014 is 328 seals.
From 2011-2015, incidental mortality and serious injury of spotted seals occurred in 2 of the 22 federally-regulated U.S. commercial fisheries in Alaska monitored for incidental mortality and serious injury by fisheries observers: The Bering Sea/Aleutian Islands flatfish trawl and Bering Sea/Aleutian Islands Pacific cod longline fisheries. In 2014, there was one report of a mortality incidental to research on the Alaska stock of spotted seals, resulting in a mean annual mortality and serious injury rate of 0.2 spotted seals from this stock in 2011-2015. This species was also part of the aforementioned 2011-2016 UME.
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
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For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Six marine mammal species (three cetacean and three phocid pinniped) have the potential to co-occur with Hilcorp's LDPI project. Of the three cetacean species that may be present, two are classified as low-frequency cetaceans (
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The
The potential impacts of the proposed LDPI on marine mammals involve both non-acoustic and acoustic effects. Potential non-acoustic effects could result from the physical presence of personnel, structures and equipment, construction or maintenance activities, and the occurrence of oil spills. The LDPI project also has the potential to result in mortality and serious injury of ringed seals via direct physical interaction on ice roads and harass (by Level A harassment and Level B harassment) cetaceans and seals via acoustic disturbance. We first discuss the effects of ice road and ice trail construction and maintenance on ringed seals with respect to direct human interaction followed by an in-depth discussion on sound and potential effects on marine mammals from acoustic disturbance. The potential for and potential impacts from both small and large oil spills are discussed in more detail later in this section; however, please note Hilcorp did not request, nor is NMFS proposing to authorize, take from oil spills.
This section discusses the potential impacts of ice road construction, use and maintenance on ringed seals, the only species likely to be encountered during this activity. Acoustic impacts from this and other activities (
Sea ice is constantly moving and flexing due to winds, currents, and snow load. Sea ice grows (thickens) to its maximum in March, then begins to degrade once solar heating increases above the necessary threshold. Sea ice will thin and crack due to atmospheric pressure and temperature changes. In the absence of ice roads, sea ice is constantly cracking, deforming (creating pressure ridges and hummocks), and thickening or thinning. Ice road construction interrupts this dynamic by permanently thickening and stabilizing the sea ice for the season; however, it thins and weakens sea ice adjacent to ice roads due to weight of the ice road and use as speed and load of vehicles using the road creates pressure waves in the ice, cracking natural ice adjacent to the road (pers. comm., M. Williams, August 17, 2018). These cracks and thinned ice, occurring either naturally or adjacent to ice roads, are easily exploitable habitat for ringed seals.
As discussed in the Description of Marine Mammal section, ringed seals build lairs which are typically concentrated along pressure ridges, cracks, leads, or other surface deformations (Smith and Stirling 1975, Hammill and Smith, 1989, Furgal
Williams
Since 1998, there have been three documented incidents of ringed seal interactions on North Slope ice roads, with one recorded mortality. On April 17, 1998, during a vibroseis on-ice seismic operation outside of the barrier islands east of Bullen Point in the eastern Beaufort Sea, a ringed seal pup was killed when its lair was destroyed by a Caterpillar tractor clearing an ice road. The lair was located on ice over water 9 m (29 ft) deep with an ice thickness of 1.3 m (4.3 ft). It was reported that an adult may have been present in the lair when it was destroyed. Crew found blood on the ice near an open hole approximately 1.3 km (0.8 mi) from the destroyed lair; this could have been from a wounded adult (MacLean, 1998). On April 24, 2018, a Tucker (a tracked vehicle used in snow conditions) traveling on a Northstar sea ice trail broke through a brine pocket. After moving the Tucker, a seal pup climbed out of the hole in the ice, but no adult was seen in the area. The seal pup remained in the area for the next day and a half. This seal was seen in an area with an estimated water depth of 6 to 7 m (20 to 24 ft) (Hilcorp, 2018b). The third reported incident occurred on April 28, 2018, when a contractor performing routine maintenance activities to relocate metal plates beneath the surface of the ice road from Oliktok Point to Spy Island Drill site spotted a ringed seal pup next to what may have been a lair site. No adult was observed in the area. The pup appeared to be acting normally and was seen going in and out of the opening several times (Eni, 2018).
Overall, NMFS does not anticipate the potential for mortality or serious injury of ringed seals to be high given there has been only one documented mortality over 25 years of ice road construction in the Arctic. However, the potential does exist; therefore, we are including a small amount of mortality or serious injury (n = 2) in this proposed rule over the five-year life of the regulations. To mitigate this risk, NMFS and Hilcorp have developed a number of best management practices (BMPs) aimed at reducing the potential of disturbing (
In the following discussion, we provide general background information
This section contains a brief technical background on sound, on the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document. For general information on sound and its interaction with the marine environment, please see,
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in Hz or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)), and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa), while the received level is the SPL at the listener's position (referenced to 1 μPa).
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 μPa
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for sound produced by the pile driving activity considered here. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound, which is defined as environmental background sound levels lacking a single source or point (Richardson
The sum of the various natural and anthropogenic sound sources that comprise ambient sound at any given location and time depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 decibels (dB) from day to day (Richardson
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or intermittent (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
The impulsive sound generated by impact hammers is characterized by rapid rise times and high peak levels. Vibratory hammers produce non-impulsive, continuous noise at levels significantly lower than those produced by impact hammers. Rise time is slower, reducing the probability and severity of injury, and sound energy is distributed over a greater amount of time (
We previously provided general background information on marine mammal hearing (see “Description of Marine Mammals in the Area of the Specified Activity”). Here, we discuss the potential effects of sound on marine mammals.
Richardson
Potential effects from impulsive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton
NMFS defines threshold shift (TS) as a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS, 2018). The amount of threshold shift is customarily expressed in decibels (ANSI, 1995). Threshold shift can be permanent (PTS) or temporary (TTS). As described in NMFS (2018), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern (
Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Finneran, 2015). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans, but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several decibels above (a 40-dB threshold shift approximates PTS onset;
TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin (
NMFS defines TTS as “a temporary, reversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level” (NMFS, 2016). A TTS of 6 dB is considered the minimum threshold shift clearly larger than any day-to-day or session-to-session variation in a subject's normal hearing ability (Schlundt
Depending on the degree (elevation of threshold in dB), duration (
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
NMFS analyzed the potential effects of oil and gas activities, including construction of a gravel island and associated infrastructure, in its 2016 EIS on the Effects of Oil and Gas Activities in the Arctic Ocean (NMFS, 2016; available at
The effects of pile driving on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the depth, intensity, and duration of the pile driving sound; the depth of the water column; the substrate of the habitat; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavioral patterns and/or avoidance of the affected area. These behavioral changes may include (as summarized in Richardson
For all noise-related activities, bowhead and gray whales are not anticipated to be exposed to noise above NMFS harassment threshold often. As previously described, Hilcorp aims to conduct all pile driving during the ice-covered season, as was done at Northstar; however, they are allowing for unforeseen scheduling delays. Bowheads are not present near LDPI during the winter and are not normally found in the development area during mid-summer (July through mid-August) when the whales are further east in the Canadian Beaufort. Therefore there are no impacts on foraging habitat for bowhead whales during mid-summer. Starting in late August and continuing until late October, bowheads may be exposed to sounds from the proposed activities at LDPI or may encounter vessel traffic to and from the island. It is unlikely that any whales would be displaced from sounds generated by activities at the LDPI due to their distance from the offshore migrating whales, and the effects of buffering from the barrier islands. Any displacement would be subtle and involve no more than a small proportion of the passing bowheads, likely less than that found at Northstar (Richardson, 2003, 2004; Mcdonald
Ongoing activities such as drilling may also harass marine mammals; however, drilling sounds from artificial islands are relatively low. As summarized in Richardson
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could lead to effects on growth, survival, or reproduction, such as drastic changes in diving/surfacing patterns or significant habitat abandonment are extremely unlikely in this area (
The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall
Whether impact or vibratory driving, sound sources would be active for relatively short durations, with relation to the durations animals use sound (either emitting or receiving) on a daily basis, and over a small spatial scale
During the life of the proposed regulations, Hilcorp would be actively drilling for crude oil in Foggy Island Bay and transporting that oil via a single-phase subsea pipe-in-pipe pipeline from the LDPI to shore, where an aboveground pipeline will transport crude to the existing Badami pipeline. From there, crude will be transported to the Endicott Sales Oil Pipeline, which ties into Pump Station 1 of the TransAlaska Pipeline System (TAPS) for eventual delivery to a refinery. Whenever oil is being extracted or transported, there is potential for a spill. Accidental oil spills have a varying potential to occur and with varying impacts on marine mammals. For example, if a spill or pipeline leak occurs during the winter, oil would be trapped by the ice. However, response may be more difficult due in part to the presence of ice. If a spill or leak occurs during the open-water season, oil may disperse more widely; however, response time may be more prompt. Spills may also be large or small. Small spills are defined as spills of less than 1,000 barrels (bbls), and a large spill is greater than 1,000 bbls. For reference, 1 bbl equates to 42 gallons.
Based on BOEM's oil spill analyses in its EIS, the only sized spills that are reasonably likely to occur in association with the proposed action are small spills (<1,000 bbls) (BOEM, 2017a). Small spills, although accidental, occur during oil and gas activities with generally routine frequency and are considered likely to occur during development, production, and/or decommissioning activities associated with the proposed action. BOEM estimates about 70 small spills, most of which would be less than 10 bbls, would occur over the life of the Liberty Project. Small crude oil spills would not likely occur before drilling operations begin. Small refined oil spills may occur during development, production, and decommissioning. The majority of small spills are likely to occur during the approximate 22-year production period, which is an average of about 3 spills per year.
The majority of small spills would be contained on the proposed LDPI or landfast ice (during winter). BOEM anticipates that small refined spills that reach the open water would be contained by booms or absorbent pads; these small spills would also evaporate and disperse within hours to a few days. A 3 bbl refined oil spill during summer is anticipated to evaporate and disperse within 24 hours, and a 200 bbl refined oil spill during summer is anticipated to evaporate and disperse within 3 days (BOEM, 2017a).
A large spill is a statistically unlikely event. The average number of large spills for the proposed action was calculated by multiplying the spill rate (Bercha International Inc., 2016; BOEM, 2017a), by the estimated barrels produced (0.11779 bbl or 117.79 Million Barrels). By adding the mean number of large spills from the proposed LDPI and wells (~0.0043) and from pipelines (~0.0024), a mean total of 0.0067 large spills were calculated for the proposed action. Based on the mean spill number, a Poisson distribution indicates there is a 99.33 percent chance that no large spill occurs over the development and production phases of the project, and a 0.67 percent chance of one or more large spills occurring over the same period. The statistical distribution of large spills and gas releases shows that it is much more likely that no large spills or releases occur than that one or more occur over the life of the project. However, a large spill has the potential to seriously harm ESA-listed species and their environment. Assuming one large spill occurs instead of zero allows BOEM to more fully estimate and describe potential environmental effects (BOEM, 2017a).
Hilcorp is currently developing its oil spill response plan in coordination with the Bureau of Safety and Environmental Enforcement (BSEE) who must approve the plan. BSEE oversees oil spill planning and preparedness for oil and gas exploration, development, and production facilities in both state and Federal offshore waters of the United States. NMFS provided BSEE with its recommended marine mammal oil spill response protocols available at
While direct mortality of cetaceans is unlikely, exposure to spilled oil could lead to skin irritation, baleen fouling (which might reduce feeding efficiency), respiratory distress from inhalation of hydrocarbon vapors, consumption of some contaminated prey items, and temporary displacement from contaminated feeding areas. Geraci and St. Aubin (1990) summarize effects of oil on marine mammals, and Bratton
The potential effects on cetaceans are expected to be less than those on seals (described later in this section of the document). Cetaceans tend to occur well offshore where cleanup activities (in the open-water season) are unlikely to be as concentrated. Also, cetaceans are transient and, during the majority of the year, absent from the area. Further, drilling would be postponed during the bowhead whale hunt every fall; therefore, the risk to cetaceans during this time, when marine mammal presence and subsistence use is high, has been fully mitigated.
Ringed, bearded, and spotted seals are present in open-water areas during summer and early autumn, and ringed seals remain in the area through the ice-covered season. Therefore, an oil spill from LDPI or its pipeline could affect seals. Any oil spilled under the ice also has the potential to directly contact seals. The most relevant data of pinnipeds exposed to oil is from the Exxon Valdez oil spill (EVOS).
The largest documented impact of a spill, prior to the EVOS, was on young seals in January in the Gulf of St. Lawrence (St. Aubin, 1990). Intensive and long-term studies were conducted after the EVOS in Alaska. There may
Adult seals rely on a layer of blubber for insulation, and oiling of the external surface does not appear to have adverse thermoregulatory effects (Kooyman
Marine mammals can ingest oil if their food is contaminated. Oil can also be absorbed through the respiratory tract (Geraci and Smith, 1976; Engelhardt
Since ringed seals are found year-round in the U.S. Beaufort Sea and more specifically in the project area, an oil spill at any time of year could potentially have effects on ringed seals. However, they are more widely dispersed during the open-water season. Spotted seals are unlikely to be found in the project area during late winter and spring. Therefore, they are more likely to be affected by a spill in the summer or fall seasons. Bearded seals typically overwinter south of the Beaufort Sea. However, some have been reported around Northstar during early spring (Moulton
Oil spill cleanup activities could increase disturbance effects on either whales or seals, causing temporary disruption and possible displacement (BOEM, 2018). General issues related to oil spill cleanup activities are discussed earlier in this section for cetaceans. In the event of a large spill contacting and extensively oiling coastal habitats, the presence of response staff, equipment, and the many aircraft involved in the cleanup could (depending on the time of the spill and the cleanup) potentially displace seals. If extensive cleanup operations occur in the spring, they could cause increased stress and reduced pup survival of ringed seals. Oil spill cleanup activity could exacerbate and increase disturbance effects on subsistence species, cause localized displacement of subsistence species, and alter or reduce access to those species by hunters. On the other hand, the displacement of marine mammals away from oil-contaminated areas by cleanup activities would reduce the likelihood of direct contact with oil. Impacts to subsistence uses of marine mammals are discussed later in this document (see the “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).
Hilcorp did not request, and NMFS is not proposing to authorize, take of marine mammals incidental to oil spills. Should an oil spill occur and marine mammals are killed, injured, or harassed by the spill, the “taking” would be unauthorized. However, NMFS is including mitigation and reporting measures within these proposed regulations to minimize risk to marine mammals. Should an oil spill occur at the drill site and that oil enter the marine environment such that marine mammals are at risk of exposure, NMFS is proposing to include a mitigation measure that Hilcorp notify NMFS immediately and cease drilling until NMFS can assess the severity of the spill and potential impacts to marine mammals. Should the pipeline leak, crude oil transport via the pipeline would also cease immediately until the pipeline is repaired. In the case of any spill, Hilcorp would immediately initiate communication and response protocol per its Oil Spill Response Plan. Finally, Hilcorp must maintain the frequency of oil spill response training at no less than one two hour session per week.
The footprint of the LPDI would result in permanent impacts to habitats used directly by marine mammals; however, the footprint is minimal compared to available habitat within Foggy Island Bay and, further, few cetaceans use Foggy Island Bay. BOEM has also required mitigation designed to reduce impacts to marine mammal habitat, including water quality and habitat disturbance. For example, initial island construction (fill placement phase) and pipeline installation/backfill will occur in winter when fewer fish species are present and when water currents are low, which will reduce total suspended solids (TSS) distribution. In addition, island armoring will serve to reduce erosion and the spread of silt or gravel over potential prey habitat. However, increased turbidity and suspended solids resulting from artificial island construction or exploratory drilling discharges could have adverse impacts on water quality and, if increases persisted for extended periods of time; these impacts would be localized but could be long term (NOAA, 2016). If oil and gas industry operators comply with the U.S. Environmental Protection Agency's Clean Water Act requirements, then elevations in turbidity and concentrations of total suspended solids resulting from exploratory drilling activity would not result in unreasonable degradation of the marine environment (NOAA, 2016).
The proposed activities could also affect acoustic habitat (see Auditory Masking discussion above), but meaningful impacts are unlikely given the low usage of the area by marine mammals and limited pile driving during open-water conditions (approximately 2 weeks). There are no known foraging hotspots, or habitats of significant biological importance to marine mammals present in the marine waters in Foggy Island Bay. Migratory pathways for cetaceans exist outside the McClure Island group; however, the majority of noise from the project would be confined to Foggy Island Bay with low levels potentially propagating outside of but close to the McClure Islands during vibratory pile driving only (see Figure 5 in Appendix A of Hilcorp's application). In addition, pile driving would not occur during the fall bowhead whale migration (see Proposed Mitigation section); therefore, no impacts to migratory habitats during use is anticipated during this time period.
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fish react to sounds which are especially strong and/or intermittent low-frequency sounds, and behavioral responses such as flight or avoidance are the most likely effects. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. The reaction of fish to noise depends on the physiological state of the fish, past exposures, motivation (
SPLs of sufficient strength have been known to cause injury to fish and fish mortality. However, in most fish species, hair cells in the ear continuously regenerate and loss of auditory function likely is restored when damaged cells are replaced with new cells. Halvorsen
The most likely impact to fish from pile driving activities at the project areas would be temporary behavioral avoidance of the area. The duration of fish avoidance of an area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the expected short daily duration of individual pile driving events and the relatively small areas being affected.
The area likely impacted by the activities is relatively small compared to the available habitat in inland waters in the region. Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the nearby vicinity. As described in the preceding, the potential for the LDPI to affect the availability of prey to marine mammals or to meaningfully impact the quality of physical or acoustic habitat is considered to be insignificant.
This section provides an estimate of the number of incidental takes proposed for authorization through this proposed rule, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use of pile hammers, drill rigs, and ice-based equipment (
No mortality or serious injury is anticipated as a result of exposure to acoustic sources; however, mortality and serious injury of ringed seals may occur from ice road construction, use, and maintenance conducted after March 1, annually. Below we describe how we estimated mortality and serious injury from ice road work followed by a detailed acoustic harassment estimation method.
The only species with the potential to incur serious injury or mortality during the proposed project are ringed seals during ice road construction, use, and maintenance. Other ice seal species are not known to use ice roads within the action area. As described in the Description of Marine Mammals section, pregnant ringed seals establish lairs in shorefast sea ice beginning in early March where pups are born and nursed throughout spring (March through May).
As described in the
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
Hilcorp's Liberty Project includes the use of continuous, non-impulsive (vibratory pile driving, drilling, auguring) and intermittent, impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds are applicable.
Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Hilcorp's proposed activity includes the use of impulsive (
These thresholds are provided in Table 3. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
In shallow water noise propagation is highly dependent on the properties of the bottom and the surface, among other things. Parameters such as depth and the bottom properties can vary with distance from the source. There is a low-frequency cut-off related to the water depth, below which energy is transferred directly into the sea floor. Overall, the transmission loss in shallow water is a combination of cylindrical spreading effects, bottom interaction effects at lower frequencies and scattering losses at high frequencies. To estimate ensonfied area, Hilcorp used the parabolic equation (PE) modelling algorithm RAMGeo (Collins, 1993) to calculate the transmission loss between the source and the receiver (SLR, 2017). The full modeling report, including details on modeling methodology and procedure and ensonification area figures, can be found in the Underwater and Airborne Noise Modelling Report attached as Appendix A in Hilcorp's application. We provide a summary here.
RAMGeo is an efficient and reliable PE algorithm for solving range-
Hilcorp relied on operational data from Northstar construction activities to estimate LDPI construction activity methods and durations. Greene
The scenarios with theoretical potential for PTS onset are slope shaping, vibratory driving, and impact pile driving and pipe driving during the open water season. Hilcorp did not model distances to PTS thresholds during ice-covered conditions because no cetaceans are present in the region during this time and noise levels are expected to attenuate very rapidly under ice conditions. Hilcorp did not request, nor does NMFS anticipate, take by Level A harassment (PTS) during island construction conducted under ice conditions. The following discussion on PTS potential is limited to the open-water season.
Table 5 summarizes Hilcorp's modeled distances to NMFS PTS thresholds using the maximum durations identified above (see also Tables 16 through 18 in Appendix A of Hilcorp's application for shorter durations). We note marine mammals would have to be extremely close to the island during slope shaping and pile driving for an extended period of time to potentially incur PTS. We find these durations at distance are highly unlikely and have concluded the potential for PTS from slope shaping and vibratory pile driving for any marine mammal hearing group does not exist. Table 6 summarizes distances and ensonified areas to NMFS Level B harassment thresholds during ice-covered and open water conditions.
Each fall and summer, NMFS and BOEM conduct an aerial survey in the Arctic, the Aerial Survey of Arctic Marine Mammals (ASAMM) surveys. The goal of these surveys is to document the distribution and relative abundance of bowhead, gray, right, fin and beluga whales and other marine mammals in areas of potential oil and natural gas exploration, development, and production activities in the Alaskan Beaufort and northeastern Chukchi Seas. Traditionally, only fall surveys were conducted but then, in the summer of 2012 (mid-July), the first dedicated summer survey effort began in the ASAMM Beaufort Sea study area. Hilcorp used these ASAMM surveys as the data source to estimate seasonal densities of cetaceans (bowhead, gray and beluga whales) in the project area. The ASAMM surveys are conducted within blocks that overlay the Beaufort and Chukchi Seas oil and gas lease sale areas offshore of Alaska (Figure 6-1 in Hilcorp's application), and provide sighting data for bowhead, gray, and beluga whales during summer and fall months. During the summer and fall, NMFS observed for marine mammals on effort for 7,990 km and 9,244 km, respectively, from 2011 through 2016. Data from those surveys are used for this analysis. We note the location of the proposed LDPI project is in ASAMM survey block 1; the inshore boundary of this block terminates at the McClure Island group. It was not until 2016 that on-effort surveys began inside the McClure Island group (
Summer and fall bowhead whale densities were calculated using the results from ASAMM surveys from 2011 through 2017. The surveys provided sightings and effort data by month and season (summer and fall), as well as each survey block (Clarke
The resulting densities are expected to be overestimates for the LDPI analysis because data is based on sighting effort outside the barrier islands, and bowhead and gray whales rarely occur within the barrier islands, while belugas also are found in higher abundance outside of Foggy Island Bay.
Gray whales are rare in the project area and ASAMM aerial survey block 1. From 2011 through 2017 only two gray whales have been observed during ASAMM block 1 surveys despite over 21,000 miles of trackline effort, for a resulting density of zero (Table 8). However, a group of baleen whales comprised of both bowhead and gray whales was observed during industry marine mammal surveys in Foggy Island Bay in 2008. Therefore, Hilcorp has requested, and NMFS proposes to authorize, take, by Level B harassment, of two gray whales annually during the effective period of the proposed regulations on the chance gray whales enter the ensonified zone during LDPI activities.
As with the large whales, beluga whale presence is anticipated to be higher outside the barrier islands. Sighting data collected during industry marine mammal surveys in Foggy Island Bay (as described in the
Limited data are available on ringed seal densities in the southern Beaufort Sea during the winter months; however, ringed seals winter ecology studies conducted in the 1980s (Kelly
Kelly
For spring ringed seal densities, aerial surveys flown in 1997 through 2002 over Foggy Island Bay and west of Prudhoe Bay during late May and early June (Frost
Because densities were consistently very low where water depth was less than 3 m (and these areas are generally frozen solid during the ice-covered season) densities have been calculated where water depth was greater than 3 m deep (Moulton
Industry monitoring surveys for the Northstar development during the spring seasons in 1999 (Moulton
For the open-water season (summer and fall), bearded seal density was calculated as a proportion of the ringed seal summer density based on the percentage of pinniped sightings during monitoring surveys in 1996 (Harris
Given their seasonal distribution and low numbers in the nearshore waters of the central Alaskan Beaufort Sea, no spotted seals are expected in the action area during late winter and spring, but a few individuals could be expected during the summer or fall. Using the same monitoring data described in the bearded seal section above, spotted seal density during the open water season (summer and fall) was calculated as 20 percent of the ringed seal summer density estimate (0.27 seals/km
A summary of marine mammal densities used to estimate exposures is provided, by season and species, in Table 10.
To quantitatively assess exposure of marine mammals to noise from the various activities associated with the Liberty Project, Hilcorp used the median range to which Level A harassment and Level B harassment thresholds were reached for ice road construction and maintenance, island construction, vibratory and impact sheet pile driving, impact conductor pipe driving, slope shaping, drilling, and production. Hilcorp considered the potential for take on any given day based on the largest Level B harassment zone for that day.
For each species, exposure estimates were calculated in a multi-step process. On any given day of the year, the expected take for that day per species was calculated as:
In some cases, however, the calculated densities alone do not reflect the full potential of exposure. For example, beluga whale densities are quite low; however, previous marine mammal surveys in Foggy Island Bay have identified the potential for them to be there in greater numbers than reflected based on NMFS survey data alone. In other cases, the potential for exposure is almost discountable (
Bowhead, gray, and beluga whales have the potential to be present and exposed to noise during the open-water season. Work during ice conditions (
There is a very low potential for large whale Level A harassment (PTS) from the specified activities given the rarity of bowhead and gray whales entering Foggy Island Bay. However, in an abundance of caution, Hilcorp has requested, and NMFS proposes to authorize, limited Level A harassment takes per year of each species potentially exposed to impact pile driving noise (Table 11). Group size was considered in Level B harassment take requests in cases where sighting data and group size indicate potential for a greater amount of take than calculated based on density (
For seals, a straight density estimate was used following the method described above. In assessing the calculated results; there was no need to adjust take numbers for Level B harassment.
The amount and manner of take Hilcorp requested, and NMFS proposes to authorize, for each species is summarized in Table 11 below. In addition to the takes listed below, Hilcorp requests, and NMFS is proposing to authorize, a total of two ringed seal mortalities over the life of the proposed regulations incidental to ice road construction, use, and maintenance.
In order to issue an IHA under Section 101(a)(5)(A) and (D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.
NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, as well as subsistence uses. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned) and;
(2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The mitigation measures presented here are a product of Hilcorp's application, recommendations from the Arctic peer review panel (available at
Hilcorp will aim to construct the island, including completing all pile driving, during the ice-covered season (as was done for Northstar). Should an ice seal be observed on or near the LDPI by any Hilcorp personnel, the sighting will be reported to Hilcorp's Environmental Specialist. No construction activity should occur within 10 m of an ice seal and any vehicles used should use precaution and not approach any ice seal within10 m.
During the open-water season, the following mitigation measures apply: Hilcorp will station two protected species observers (PSOs) on elevated platforms on the island during all pile driving in open-water conditions (see Proposed Monitoring and Reporting for more details). Marine mammal monitoring shall take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for 30 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may commence when observers have declared the shutdown zone (which equates to the Level A harassment zone in Table 5) is clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone (
If a marine mammal is approaching a Level A harassment zone and pile driving has not commenced, pile driving shall be delayed. Pile driving may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone; 15 minutes have passed without subsequent detections of small cetaceans and pinnipeds; or 30 minutes have passed without subsequent detections of large cetaceans. NMFS may adjust the shutdown zones pending review and approval of an acoustic monitoring report (see Monitoring and Reporting).
Hilcorp will use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer.
In the unlikely event a low frequency cetacean (bowhead or gray whale) approaches or enters the Level A harassment zone, pile driving would be shut down. If a mid-frequency cetacean (beluga) or pinniped (seal) enters the Level A harassment zone during pile driving, Hilcorp proposes to complete setting the pile (which takes ten to fifteen minutes from commencement) but not initiate additional pile driving of new piles until the marine mammal has left and is on a path away from the Level A harassment zone. Hilcorp would not commence pile driving if any species is observed approaching or within the Level A harassment zone during the pre-construction monitoring period.
If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the monitoring zone (which equates to the Level B harassment zone in Table 6),
Hilcorp shall install the pipeline during the ice-covered season, thereby minimizing noise impacts to marine mammals as noise does not propagate well in ice and cetaceans are not present in the action area during winter.
During ice road construction, Hilcorp would follow several BMPs recently developed through a collaborative effort with NMFS. These BMPs are informed by the best available information on how ice roads are constructed and maintained and ice seal lairing knowledge. They are designed to minimize disturbance and set forth a monitoring and reporting plan to improve knowledge. The complete BMP document is available on our website at
The ice road BMPs are applicable to construction and maintenance of Liberty sea ice roads and sea ice trails in areas where water depth is greater than 10 feet (ft) (the minimum depth required to establish ringed seal lairs) as well as any open leads in the sea ice requiring a temporary bridge during the ice road season. They are organized into the following categories: (1) Wildlife training; (2) general BMPs implemented throughout the ice road season; (3) BMPs to be implemented prior to March 1st; (4) BMPs to be implemented after March 1; and (4) reporting. We refer the reader to the complete BMP document on our website but provide a summary of provisions here.
After March 1, annually, blading and snow blowing of ice roads will be limited to the previously disturbed ice road/shoulder areas to the extent safe and practicable. However, when safety requires a new ice trail to be constructed after March 1st, construction activities such as drilling holes in the ice to determine ice quality and thickness, will be conducted only during daylight hours with good visibility. Ringed seal structures will be avoided by a minimum of 150 ft during ice testing and new trail construction.
Once the new ice trail is established, tracked vehicle operation will be limited to the disturbed area to the extent practicable and when safety of personnel is ensured. If an ice road or trail is being actively used under daylight conditions with good visibility, a dedicated observer (not the vehicle operator) will conduct a survey along the sea ice road/trail to observe if any ringed seals are within 500 ft of the roadway corridor.
Regulations at 50 CFR 216.104(a)(12) further require incidental take authorization (ITA) applicants conducting activities that take place in Arctic waters to provide a Plan of Cooperation (POC) or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes. A plan must include the following:
• A statement that the applicant has notified and provided the affected subsistence community with a draft plan of cooperation;
• A schedule for meeting with the affected subsistence communities to discuss proposed activities and to resolve potential conflicts regarding any aspects of either the operation or the plan of cooperation;
• A description of what measures the applicant has taken and/or will take to ensure that proposed activities will not interfere with subsistence whaling or sealing; and
• What plans the applicant has to continue to meet with the affected communities, both prior to and while conducting the activity, to resolve conflicts and to notify the communities of any changes in the operation.
Hilcorp submitted a POC to NMFS, dated April 18, 2018, which includes all the required elements included in the aforementioned regulations (available at
• Avoid impact pile driving during the Cross Island bowhead whale hunt which usually occurs from the last week of August through mid-September;
• Schedule all non-essential boat, hovercraft, barge, and air traffic to avoid conflicting with the timing of the Cross Island bowhead hunt; and
• Adhere to all communication and coordination measures described in the POC.
During the comment period on BOEM's EIS for this project and our NOR announcing receipt of Hilcorp's application, the AEWC submitted comments pertaining to potential effects on subsistence use. The AEWC indicated Hilcorp's continued participation in the Open Water Season CAA and the Good Neighbor Policy (GNP), along with its willingness to work with the Nuiqsut Whaling Captains to mitigate subsistence harvest concerns are central to the AEWC's support for the Liberty Project. Further, recommendations from the peer-review panel recommended the existing POC and CAA should be renewed and implemented annually to ensure that project activities are coordinated with the North Slope Borough and Alaska Native whaling captains. Therefore, in addition to the activity specific mitigation measures above, NMFS is requiring Hilcorp to abide by the POC, and remain committed to the GNP throughout the life of the regulations. In addition, Hilcorp has committed to following the CAA.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.
In order to issue an LOA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of the authorized taking. NMFS' MMPA implementing regulations further describe the information that an applicant should provide when requesting an authorization (50 CFR 216.104(a)(13)), including the means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and the level of taking or impacts on populations of marine mammals.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of significant interactions with marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Hilcorp shall employ NMFS approved PSOs and conduct marine mammal monitoring per the Marine Mammal Monitoring Plan, dated February 12, 2019. Two PSOs will be placed on either side of the island where pile/pipe-driving or slope shaping activities are occurring. For example, one PSO would be placed on the side where construction activities are taking place and the other placed on the opposite side to provide complete observer coverage around the island. PSO stations will be moved around the island as needed during construction activities to provide full coverage. PSOs will be switched out such that they will observe for no more than 4 hours at a time and no more than 12 hours in a 24-hour period.
A third island-based PSO will work closely with an aviation specialist to monitor the Level B harassment zone during all open-water pile and pipe driving using an unmanned aircraft system (UAS). This third PSO and the UAS pilot will be located on the island. UAS monitoring will also be used during slope shaping, which may occur in open water intermittently until August 31 the first year the proposed regulations are valid. Should foundation piles be installed the subsequent year, the requirement for UAS will be dependent upon the success of the program in the previous year and results of any preliminary acoustic analysis during year 1 construction (
During the open-water season, marine mammal monitoring will take place from 30 minutes prior to initiation of pile and pipe driving activity through 30 minutes post-completion of pile driving activity. Pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (
During the ice-covered season, in addition to ice road monitoring (see below), Hilcorp personnel will report any ice seal sightings on or near the LDPI to Hilcorp's Environmental Specialist.
Hilcorp will conduct acoustic monitoring of island construction activities during the open-water season in accordance with its Acoustic
Hilcorp has prepared a comprehensive ice seal monitoring and mitigation plan via development of a BMP document which is available at
Seal surveys will be conducted every other day during daylight hours. Observers for ice road activities need not be trained PSOs, but they must have received the species observation training and understand the applicable sections of Hilcorp's Wildlife Management Plan. In addition, they must be capable of detecting, observing and monitoring ringed seal presence and behaviors, and accurately and completely recording data. Observers will have no other primary duty than to watch for and report observations related to ringed seals during this survey. If weather conditions become unsafe, the observer may be removed from the monitoring activity.
Construction, maintenance or decommissioning activities associated with ice roads and trails will not occur within 150 ft of the observed ring seal, but may proceed as soon as the ringed seal, of its own accord, moves farther than 150 ft distance away from the activities or has not been observed within that area for at least 24 hours. Transport vehicles (
If a ringed seal structure (
The MMPA requires that monitoring plans be independently peer reviewed where the proposed activity may affect the availability of a species or stock for taking for subsistence uses (16 U.S.C. 1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing regulations state, upon receipt of a complete monitoring plan, and at its discretion, NMFS will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan (50 CFR 216.108(d)).
NMFS established an independent peer review panel (PRP) to review Hilcorp's 4MP for the proposed LDPI project in Foggy Island Bay. NMFS provided the PRP with Hilcorp's ITA application and monitoring plan and asked the panel to answer the following questions:
1. Will the applicant's stated objectives effectively further the understanding of the impacts of their activities on marine mammals and otherwise accomplish the goals stated above? If not, how should the objectives be modified to better accomplish the goals above?
2. Can the applicant achieve the stated objectives based on the methods described in the plan?
3. Are there technical modifications to the proposed monitoring techniques and methodologies proposed by the applicant that should be considered to better accomplish their stated objectives?
4. Are there techniques not proposed by the applicant (
5. What is the best way for an applicant to present their data and results (formatting, metrics, graphics, etc.) in the required reports that are to be submitted to NMFS (
The PRP met in May 2018 and subsequently provided a final report to NMFS containing recommendations that the panel members felt were applicable to Hilcorp's monitoring plans. The PRP concluded the objectives for both the visual and acoustic monitoring are appropriate, and agrees that the objective of real-time mitigation of potential disturbance of marine mammals would be met through visual monitoring. The PRP's primary recommendations and comments are summarized and addressed below. The PRP's full report is available on our website at
The PRP recommended Hilcorp consult with biologists at the NMFS Marine Mammal Laboratory and other scientists and users familiar with the use and limitations of UAS technology for studying marine mammals at sea regarding appropriate protocols and procedures for the proposed project. Hilcorp has worked, and will continue to work, with NMFS to develop a safe, effective UAS monitoring program.
The PRP noted marine mammal monitoring would not be conducted during the ice-covered season. Since the PRP met, Hilcorp has developed a marine mammal monitoring plan that would be enacted during ice-covered months along the ice roads and ice trails. These roads lead up to the LDPI; therefore, marine mammal monitoring would occur during the ice-covered season and occur at the LDPI. NMFS has also included a provision that should ice seals be observed on or near the LDPI, they shall be reported to Hilcorp's Environmental Specialist and no personnel shall approach or operate equipment within 10 m of the seal.
The PRP was concerned no acoustic monitoring would be conducted during the winter months and recommended Hilcorp deploy multiple acoustic recorders during ice-covered periods to obtain data on both presence of marine
The PRP also encouraged Hilcorp to consider deployment of additional acoustic recorders during the open-water season approximately 15 km northwest of the project area to facilitate a broader, multi-year approach to analyzing the effect of sound exposure on marine mammals by various LDPI and non-LDPI sources. The deployment of multiple recorders would provide a measure of redundancy and avoid the risk of losing all of the season's data if the recorders are lost or malfunction. Hilcorp is proposing to position multiple recorders simultaneously to record sound levels at multiple ranges from the project activities. Data recorded during times with no project activities, if such times exist, will be analyzed for ambient sound level statistics. The recorder arrangement will be configured each year based on the anticipated activities for that season.
The PRP recommended that the existing POC and CAA be renewed and implemented annually to ensure that project activities are coordinated with the North Slope Borough and Alaska Native whaling captains. Hilcorp is required to implement the POC and has agreed to implement a CAA with the AEWC.
General—A draft report would be submitted to NMFS within 90 days of the completion of monitoring for each year the regulations are valid. The report will include marine mammal observations pre-activity, during-activity, and post-activity during pile driving days, and will also provide descriptions of any behavioral responses to construction activities by marine mammals and a complete description of all mitigation shutdowns and the results of those actions and an extrapolated total take estimate based on the number of marine mammals observed during the course of construction. A final report must be submitted within 30 days following resolution of comments on the draft report. Hilcorp would also submit a comprehensive annual summary report covering all activities conducted under the incidental take regulations no more than 90 days after the regulations expire.
On an annual basis, Hilcorp will also submit a draft report to NMFS AKR and OPR compiling all ringed seal observations within 90 days of decommissioning the ice road and ice trails. The report will include information about activities occurring at time of sighting, ringed seal age class and behavior, and actions taken to mitigate disturbance. In addition the report will include an analysis of the effectiveness of the BMPs recently developed in coordination with NMFS and any proposed updates to the BMPs or Wildlife Management Plan as a result of the encounter. A final report shall be prepared and submitted within thirty days following resolution of comments on the draft report from NMFS.
NMFS is also proposing to require Hilcorp to submit more immediate reports should a marine mammal be unexpectantly killed or seriously injured by the specified activity or a dead or injured marine mammal is observed by a PSO or Hilcorp personnel. These are standard measures required by NMFS; details on reporting timelines and information can be found in the proposed regulations.
Each day of marine mammal monitoring, PSOs will complete field sheets containing information NMFS typically requires for pile driving and construction activities. The full list of data is provided in Hilcorp's Marine Mammal Monitoring and Mitigation Plan and in the proposed regulations below. Data include, but are not limited to, information on daily activities occurring, marine mammal sighting information (
Hilcorp will also submit to NMFS a draft final report on all marine mammal monitoring conducted under the proposed regulations no later than ninety calendar days of the completion of marine mammal and acoustic monitoring or sixty days prior to the issuance of any subsequent regulations, if necessary, for this project, whichever comes first. A final report shall be prepared and submitted within thirty days following resolution of comments on the draft report from NMFS.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
NMFS is proposing to authorize a very small number of serious injuries or mortalities that could occur incidental to ice road construction, use, and maintenance. We note here that the takes from ice road construction, use, and maintenance enumerated below could result in non-serious injury, but their worst potential outcome (mortality) is analyzed for the purposes of the negligible impact determination.
In addition, we discuss here the connection, and differences, between the legal mechanisms for authorizing incidental take under section 101(a)(5) for activities such as LDPI construction
PBR is defined in section 3 of the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (OSP) and, although not controlling, can be one measure considered among other factors when evaluating the effects of M/SI on a marine mammal species or stock during the section 101(a)(5)(A) process. OSP is defined in section 3 of the MMPA as the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. Through section 2, an overarching goal of the statute is to ensure that each species or stock of marine mammal is maintained at or returned to its OSP.
PBR values are calculated by NMFS as the level of annual removal from a stock that will allow that stock to equilibrate within OSP at least 95 percent of the time, and is the product of factors relating to the minimum population estimate of the stock (N
Congress called for PBR to be applied within the management framework for commercial fishing incidental take under section 118 of the MMPA. As a result, PBR cannot be applied appropriately outside of the section 118 regulatory framework without consideration of how it applies within the section 118 framework, as well as how the other statutory management frameworks in the MMPA differ from the framework in section 118. PBR was not designed and is not used as an absolute threshold limiting commercial fisheries. Rather, it serves as a means to evaluate the relative impacts of those activities on marine mammal stocks. Even where commercial fishing is causing M/SI at levels that exceed PBR, the fishery is not suspended. When M/SI exceeds PBR in the commercial fishing context under section 118, NMFS may develop a take reduction plan, usually with the assistance of a take reduction team. The take reduction plan will include measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below the stock's PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather utilizes the take reduction process to further mitigate the effects of fishery activities via additional bycatch reduction measures. In other words, under section 118 of the MMPA, PBR does not serve as a strict cap on the operation of commercial fisheries that may incidentally take marine mammals.
Similarly, to the extent PBR may be relevant when considering the impacts of incidental take from activities other than commercial fisheries, using it as the sole reason to deny (or issue) incidental take authorization for those activities would be inconsistent with Congress's intent under section 101(a)(5), NMFS' long-standing regulatory definition of “negligible impact,” and the use of PBR under section 118. The standard for authorizing incidental take for activities other than commercial fisheries under section 101(a)(5) continues to be, among other things that are not related to PBR, whether the total taking will have a negligible impact on the species or stock. Nowhere does section 101(a)(5)(A) reference use of PBR to make the negligible impact finding or authorize incidental take through multi-year regulations, nor does its companion provision at 101(a)(5)(D) for authorizing non-lethal incidental take under the same negligible-impact standard. NMFS' MMPA implementing regulations state that take has a negligible impact when it does not “adversely affect the species or stock through effects on annual rates of recruitment or survival”—likewise without reference to PBR. When Congress amended the MMPA in 1994 to add section 118 for commercial fishing, it did not alter the standards for authorizing non-commercial fishing incidental take under section 101(a)(5), implicitly acknowledging that the negligible impact standard under section 101(a)(5) is separate from the PBR metric under section 118. In fact, in 1994 Congress also amended section 101(a)(5)(E) (a separate provision governing commercial fishing incidental take for species listed under the ESA) to add compliance with the new section 118 but retained the standard of the negligible impact finding under section 101(a)(5)(A) (and section 101(a)(5)(D)), showing that Congress understood that the determination of negligible impact and application of PBR may share certain features but are, in fact, different.
Since the introduction of PBR in 1994, NMFS had used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries management-related provisions of the MMPA. Prior to the Court's ruling in
The MMPA requires that PBR be estimated in SARs and that it be used in applications related to the management of take incidental to commercial fisheries (
When considering PBR during evaluation of effects of M/SI under section 101(a)(5)(A), we first calculate a metric for each species or stock that incorporates information regarding ongoing anthropogenic M/SI from all sources into the PBR value (
When ongoing total anthropogenic mortality from the applicant's specified activities does not exceed PBR and residual PBR is a positive number, as a simplifying analytical tool we first consider whether the specified activities could cause incidental M/SI that is less than 10 percent of residual PBR (the “insignificance threshold,” see below). If so, we consider M/SI from the specified activities to represent an insignificant incremental increase in ongoing anthropogenic M/SI for the marine mammal stock in question that alone (
Where the anticipated M/SI is near, at, or above residual PBR, consideration of other factors (positive or negative), including those outlined above, as well as mitigation is especially important to assessing whether the M/SI will have a negligible impact on the species or stock. PBR is a conservative metric and not sufficiently precise to serve as an absolute predictor of population effects upon which mortality caps would appropriately be based. For example, in some cases stock abundance (which is one of three key inputs into the PBR calculation) is underestimated because marine mammal survey data within the U.S. EEZ are used to calculate the abundance even when the stock range extends well beyond the U.S. EEZ. An underestimate of abundance could result in an underestimate of PBR. Alternatively, we sometimes may not have complete M/SI data beyond the U.S. EEZ to compare to PBR, which could result in an overestimate of residual PBR. The accuracy and certainty around the data that feed any PBR calculation, such as the abundance estimates, must be carefully considered to evaluate whether the calculated PBR accurately reflects the circumstances of the particular stock. M/SI that exceeds PBR may still potentially be found to be negligible in light of other factors that offset concern, especially when robust mitigation and adaptive management provisions are included.
In
Specifically, PBR was designed as a tool for evaluating mortality and is defined as the number of animals that can be removed while “allowing that stock to reach or maintain its OSP.” OSP is defined as a population that falls within a range from the population level that is the largest supportable within the ecosystem to the population level that results in maximum net productivity, and thus is an aspirational management goal of the overall statute with no specific timeframe by which it should be met. PBR is designed to ensure minimal deviation from this overarching goal, with the formula for PBR typically ensuring that growth towards OSP is not reduced by more than 10 percent (or equilibrates to OSP 95 percent of the time). As PBR is applied by NMFS, it provides that growth toward OSP is not reduced by more than 10 percent, which certainly allows a stock to “reach or maintain its OSP” in a conservative and precautionary manner—and we can therefore clearly conclude that if PBR were not exceeded, there would not be adverse effects on the affected species or stocks. Nonetheless, it is equally clear that in some cases the time to reach this aspirational OSP level could be slowed by more than 10 percent
As noted above, PBR is helpful in informing the analysis of the effects of mortality on a species or stock because it is important from a biological perspective to be able to consider how the total mortality in a given year may affect the population. However, section 101(a)(5)(A) of the MMPA indicates that NMFS shall authorize the requested incidental take from a specified activity if we find that the total of such taking
NMFS guidance for commercial fisheries provides insight when evaluating the effects of an applicant's incidental take as compared to the incidental take caused by other entities. Parallel to section 101(a)(5)(A), section 101(a)(5)(E) of the MMPA provides that NMFS shall allow the incidental take of ESA-listed endangered or threatened marine mammals by commercial fisheries if, among other things, the incidental M/SI from the commercial fisheries will have a negligible impact on the species or stock. As discussed earlier, the authorization of incidental take resulting from commercial fisheries and authorization for activities other than commercial fisheries are under two separate regulatory frameworks. However when it amended the statute in 1994 to provide a separate incidental take authorization process for commercial fisheries, Congress kept the requirement of a negligible impact determination for this one category of species, thereby applying the standard to both programs. Therefore, while the structure and other standards of the two programs differ such that evaluation of negligible impact under one program may not be fully applicable to the other program (
Accordingly, we are using a similar criterion in our negligible impact analysis under section 101(a)(5)(A) to evaluate the relative role of an applicant's incidental take when other sources of take are causing PBR to be exceeded, but the take of the specified activity is comparatively small. Where this occurs, we may find that the impacts of the taking from the specified activity may (alone) be negligible even when total human-caused mortality from all activities exceeds PBR if (in the context of a particular species or stock): The authorized mortality or serious injury would be less than or equal to 10 percent of PBR and management measures are being taken to address serious injuries and mortalities from the other activities (
As discussed above, however, while PBR is useful in informing the evaluation of the effects of M/SI in section 101(a)(5)(A) determinations, it is just one consideration to be assessed in combination with other factors and is not determinative, including because, as explained above, the accuracy and certainty of the data used to calculate PBR for the species or stock must be
A stock-wide PBR is unknown since data is only available for the Bering Sea. However, PBR for ringed seals in the Bearing Sea alone, considering an N
Hilcorp requested, and NMFS proposes, to authorize take, by Level A harassment and Level B harassment, of six species of marine mammals. The amount of taking proposed to be authorized is low compared to marine mammal abundance. Potential impacts of LDPI activities include PTS, TTS, and behavioral changes due to exposure to construction and operation noise. The potential for Level A harassment occurs during impact pile driving. As discussed in the
Cetaceans are infrequent visitors to Foggy Island Bay with primary habitat use outside of the McClure Islands. Any taking within Foggy Island Bay is not expected to impact reproductive or survival activities as the bay is not known to contain critical areas such as rookeries, mating grounds, or other areas of similar significance. Some ringed seals do lair in Foggy Island Bay; however, the area impacted by the project is small compared to available habitat. Further, to offset impacts to reproductive behaviors by ringed seals (
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• Only two ringed seals are authorized to be taken by mortality over 5 years;
• Any PTS would be of a small degree;
• The amount of takes, by harassment, is low compared to population sizes;
• The area ensonified by Hilcorp's activities does not provide important areas and is a de minimis subset of habitat used by and available to marine mammals;
• Critical behaviors such as lairing and pupping by ringed seals would be avoided and minimized through implementation of ice road BMPs; and
• Hilcorp would avoid noise-generating activities during the bowhead whale hunt; thereby minimizing impact to critical behavior (
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(A) of the MMPA for specified activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The amount of total taking (
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks.
As described in the Marine Mammal section of the document, all species potentially taken by Hilcorp's specified activities are key subsistence species, in particular the bowhead whales and ice seals. Hilcorp has proposed and NMFS has included several mitigation measures to address potential impacts on the availability of marine mammals for subsistence use. The AEWC provided comments during the public comment period on the Notice of Receipt of Hilcorp's application and as a member of the peer review panel. NMFS incorporated appropriate mitigation to address AEWC's concerns, including requirements for Hilcorp to remain a signatory to a follow protocols contained with the POC. Hilcorp has also indicated they would abide by a CAA. In addition, mitigation measures designed to minimize impacts on marine mammals also minimize impacts to subsistence users (
The regulations governing the take of marine mammals incidental to Hilcorp's LPDI construction and operational activities would contain an adaptive management component.
The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from Hilcorp regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.
The bowhead whale, ringed seal, and bearded seal (Beringia DPS) are listed under the ESA (Table 2). On July 31, 2018, NMFS Alaska Region (AKR) issued a Biological Opinion to BOEM, Environmental Protection Agency (EPA), and U.S. Army Corps of Engineers (USACE) for the permitting of the LDPI Project in its entirety (mobilization to decommissioning). The Biological Opinion concluded construction, operation, and decommissioning of the LDPI would not jeopardize the continued existence of the aforementioned species or adversely modify critical habitat. OPR has requested consultation with NMFS Alaska Regional Office under section 7 of the ESA on the promulgation of five-year regulations and the subsequent issuance of LOAs to Hilcorp under section 101(a)(5)(A) of the MMPA. This consultation will be concluded prior to issuing any final rule.
NMFS requests interested persons to submit comments, information, and suggestions concerning Hilcorp's request and the proposed regulations (see
Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Hilcorp is the sole entity that would be subject to the requirements in these proposed regulations, and the Hilcorp is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid OMB control number. This proposed rule contains collection-of-information requirements subject to the provisions of the PRA. These requirements have been approved by OMB under control number 0648-0151
Marine mammals, Wildlife, Endangered and threatened species, Alaska, Oil and gas exploration, Indians, Reporting and recordkeeping requirements, Administrative practice and procedure.
For reasons set forth in the preamble, 50 CFR part 217 is proposed to be amended as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to Hilcorp LLC (Hilcorp) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to construction, maintenance, and operation of the Liberty Drilling and Production Island (LDPI) and associated infrastructure.
(b) The taking of marine mammals by Hilcorp may be authorized in a Letter of Authorization (LOA) only if it occurs within the Beaufort Sea, Alaska.
Regulations in this subpart are effective from December 1, 2020, through November 30, 2025.
Under LOAs issued pursuant to §§ 216.106 of this chapter and 217.36, the Holder of the LOA (hereinafter “Hilcorp”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.30(b) by mortality, serious injury, Level A harassment, or Level B harassment associated with the LDPI construction and operation activities, including associated infrastructure, provided the activities are in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Notwithstanding takings contemplated in § 217.32 and authorized by a LOA issued under §§ 216.106 of this chapter and 217.36, no person in connection with the activities described in § 217.30 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 217.36;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as specified;
(d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 217.30(a), the mitigation measures contained in any LOA issued under § 216.106 of this chapter must be implemented. These mitigation measures shall include but are not limited to:
(a)
(2) A copy of any issued LOA must be in the possession of Hilcorp, its designees, and work crew personnel operating under the authority of the issued LOA;
(3) Hilcorp must conduct briefings for construction and ice road supervisors and crews, and the marine mammal and acoustic monitoring teams prior to the start of annual ice road or LDPI construction, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures;
(4) Hilcorp must allow subsistence hunters to use the LDPI for safe harbor during severe storms, if requested by hunters;
(5) In the unanticipated event of an oil spill during LDPI operational years, Hilcorp must notify NMFS of the spill within 48 hours, regardless of size, and implement measures contained within the Liberty Oil Spill Response Plan; and
(6) Hilcorp must strive to complete pile driving and pipeline installation during the ice-covered season.
(b)
(2) [Reserved]
(c)
(2) For all pile driving activity, Hilcorp shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.36. If a marine mammal comes within or is about to enter the shutdown zone, such operations must cease immediately;
(3) Hilcorp must employ NMFS-approved protected species observers (PSOs) and designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 217.36. NMFS may adjust the shutdown zones pending review and approval of an acoustic monitoring report (see § 217.35 Requirements for Monitoring and Reporting);
(4) If a bowhead whale or other low frequency cetacean enters the Level A harassment zone, pile or pipe driving must be shut down immediately. If a beluga whale or pinniped enters the Level A harassment zone while pile driving is ongoing, work may continue until the pile is completed (estimated to require approximately 15-20 minutes), but additional pile driving must not be initiated until the animal has left the
(5) If a marine mammal is approaching a Level A harassment zone and pile driving has not commenced, pile driving shall be delayed. Pile driving may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone; 15 minutes have passed without subsequent detections of small cetaceans and pinnipeds; or 30 minutes have passed without subsequent detections of large cetaceans;
(6) If a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the monitoring zone (which equates to the Level B harassment zone), pile driving and removal activities must shut down immediately using delay and shut-down procedures. Activities must not resume until the animal has been confirmed to have left the area or the observation time period, as indicated in 217.34(c)(5), has elapsed;
(7) Hilcorp will use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes at reduced energy, followed by a thirty-second waiting period, then two subsequent reduced energy strike sets. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer;
(8) No impact driving must occur during the Nuiqsut Cross Island bowhead whale hunt. Hilcorp must coordinate annually with subsistence users on the dates of these hunts; and
(9) Should an ice seal be observed on or near the LDPI by any Hilcorp personnel, during construction or operation, the sighting must be reported to Hilcorp's Environmental Specialist. No construction activity should occur within 10 m of an ice seal and any vehicles used should use precaution and not approach any ice seal within 10 m.
(d)
(1) Reduce vessel speed to 5 knots (kn) if a whale is observed with 500 m (1641 feet (ft)) of the vessel and is on a potential collision course with vessel, or if a whale is within 275 m (902 ft) of whales, regardless of course relative to the vessel;
(2) Avoid multiple changes in vessel direction;
(3) Not approach within 800 m (2,624 ft) of a North Pacific right whale or within 5.6 km (3 nautical miles) of Steller sea lion rookeries or major haulouts; and
(4) Avoid North Pacific right whale critical habitat or, if critical habitat cannot be avoided, reduce vessel speed during transit.
(a) All marine mammal and acoustic monitoring must be conducted in accordance to Hilcorp's Marine Mammal Mitigation and Monitoring Plan (4MP). This plan may be modified throughout the life of the regulations upon NMFS review and approval.
(b) Monitoring must be conducted by NMFS-approved PSOs, who must have no other assigned tasks during monitoring periods. At minimum, two PSOs must be placed on elevated platforms on the island during the open-water season when island construction activities are occurring. These observers will monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.
(c) One PSO will be placed on the side where construction activities are taking place and the other placed on the opposite side of the LDPI; both observers will be on elevated platforms.
(d) PSOs will rotate duties such that they will observe for no more than 4 hours at a time and no more than 12 hours in a 24-hour period.
(e) An additional island-based PSO will work with an aviation specialist to use an unmanned aircraft system (UAS) to detect marine mammals in the monitoring zones during pile and pipe driving and slope shaping. Should UAS monitoring not be feasible or deemed ineffective, a boat-based PSO must monitor for marine mammals during pile and pipe driving.
(f) During the open-water season, marine mammal monitoring must take place from 30 minutes prior to initiation of pile and pipe driving activity through 30 minutes post-completion of pile driving activity. Pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (
(g) After island construction is complete but drilling activities are occurring, a PSO will be stationed on the LDPI for approximately 4 weeks during the month of August to monitor for the presence of marine mammals around the island in the monitoring zone.
(1) Marine mammal monitoring during pile driving and removal must be conducted by NMFS-approved PSOs in a manner consistent with the following:
(i) At least one observer must have prior experience working as an observer;
(ii) Other observers may substitute education (degree in biological science or related field) or training for experience;
(iii) Where a team of three or more observers are required, one observer must be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
(iv) Hilcorp must submit PSO CVs for approval by NMFS prior to the onset of pile driving;
(2) PSOs must have the following additional qualifications:
(i) Ability to conduct field observations and collect data according to assigned protocols;
(ii) Experience or training in the field identification of marine mammals, including the identification of behaviors;
(iii) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
(iv) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
(v) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
(h) Hilcorp must deploy autonomous sound recorders on the seabed to conduct underwater passive acoustic monitoring in the open water season the first four years of the project such that island construction activities, including pile driving, and drilling operations are recorded. Acoustic monitoring will be conducted for the purposes of sound source verification, to verify distances from noise sources at which underwater sound levels reach thresholds for potential marine mammal harassment.
(i) Hilcorp must submit incident and monitoring reports.
(1) Hilcorp must submit a draft annual marine mammal and acoustic summary
(i) Date and time that monitored activity begins or ends;
(ii) Description of construction activities occurring during each observation period;
(iii) Weather parameters (
(iv) Water conditions (
(v) Species, numbers, and, if possible, sex and age class of marine mammals;
(vi) Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from construction activity;
(vii) Distance from construction activities to marine mammals and distance from the marine mammals to the observation point;
(viii) Histograms of the perpendicular distance at which marine mammals were sighted by the PSOs;
(ix) Description of implementation of mitigation measures (
(x) Locations of all marine mammal observations;
(xi) An estimate of the effective strip width of the island-based PSOs and the UAS imagery; and
(xii) Sightings and locations of marine mammals associated with acoustic detections.
(2) Annually, Hilcorp must submit a report within 90 days of ice road decommissioning. The report must include the following:
(i) Date, time, location of observation;
(ii) Ringed seal characteristics (
(iii) Activities occurring during observation including equipment being used and its purpose, and approximate distance to ringed seal(s);
(iv) Actions taken to mitigate effects of interaction emphasizing: (A) Which BMPs were successful; (B) which BMPs may need to be improved to reduce interactions with ringed seals; (C) the effectiveness and practicality of implementing BMPs; (D) any issues or concerns regarding implementation of BMPs; and (E) potential effects of interactions based on observation data;
(v) Proposed updates (if any) to the NMFS-approved Wildlife Management Plan(s) or the ice-road BMPs;
(vi) Reports should be able to be queried for information;
(3) Hilcorp must submit a final 5-year comprehensive summary report to NMFS not later than 90 days following expiration of these regulations and LOA.
(4) Hilcorp must submit acoustic monitoring reports per the Acoustic Monitoring Plan.
(5) Hilcorp must report on observed injured or dead marine mammals.
(i) In the unanticipated event that the activity defined in § 217.30 clearly causes the take of a marine mammal in a prohibited manner, Hilcorp must immediately cease such activity and report the incident to the Office of Protected Resources (OPR), NMFS, and to the Alaska Regional Stranding Coordinator, NMFS. Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with Hilcorp to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Hilcorp may not resume their activities until notified by NMFS. The report must include the following information:
(A) Time, date, and location (latitude/longitude) of the incident;
(B) Description of the incident;
(C) Environmental conditions (
(D) Description of all marine mammal observations in the 24 hours preceding the incident;
(E) Species identification or description of the animal(s) involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of the animal(s). Photographs may be taken once the animal has been moved from the waterfront area.
(H) In the event that Hilcorp discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
(ii) In the event Hilcorp discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 217.30 (
(a) To incidentally take marine mammals pursuant to these regulations, Hilcorp must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, Hilcorp may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Hilcorp must apply for and obtain a modification of the LOA as described in § 217.37.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the
(a) An LOA issued under §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include
(c) An LOA issued under §§ 216.106 of this chapter and 217.36 for the activity identified in § 217.30(a) may be modified by NMFS under the following circumstances:
(1)
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Hilcorp's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the
(2)
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) The authority in this memorandum shall terminate upon a vacancy in the office of Attorney General, unless expressly extended by the President.
(d) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(e) The Attorney General is authorized and directed to publish this memorandum in the