Foreign-Trade Zones Board
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Coast Guard
Drug Enforcement Administration
Mine Safety and Health Administration
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Federal Railroad Administration
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Comptroller of the Currency
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Office of the Comptroller of the Currency, Treasury.
Final rule.
The Office of the Comptroller of the Currency (OCC) is adopting a final rule to revise its assessment rule to provide partial assessment refunds to national banks, Federal savings associations, and Federal branches and agencies of foreign banks (collectively, banks under the jurisdiction of the OCC) that exit the OCC's jurisdiction within the first half of each six-month period beginning the day after the date of the second or fourth quarterly Consolidated Report of Condition and Income (Call Report). The final rule will not change the current payment due dates for assessments nor will it change the way assessments are calculated for banks that remain under the OCC's jurisdiction. The final rule will also make technical changes to the assessments rules.
Effective September 20, 2019.
Deborah Thomas, AT Team Lead, Financial Management, (202) 649-5540; or Mitchell Plave, Special Counsel, Chief Counsel's Office, (202) 649-5490; or for persons who are deaf or hearing impaired, TTY, (202) 649-5597, 400 7th Street SW, Washington, DC 20219.
The National Bank Act
The OCC collects assessments from banks under its jurisdiction in accordance with 12 CFR part 8. Under part 8, the base assessment for banks is calculated using a table with eleven categories, or brackets, each of which comprises a range of asset-size values. The assessment for each bank is the sum of a base amount, which is the same for every bank in its asset-size bracket, plus a marginal amount, which is computed by applying a marginal assessment rate to the amount in excess of the lower boundary of the asset-size bracket.
The OCC's annual Notice of Office of the Comptroller of the Currency Fees and Assessments (Notice of Fees) sets forth the marginal assessment rates applicable to each asset-size bracket for each year, as well as other assessment components and fees. Under part 8, the OCC may adjust the marginal rates to account for inflation through the annual Notice of Fees.
Under 12 CFR 8.2, the OCC collects assessments on a semiannual basis, with fees due by March 31 and September 30 (payment due dates) of each year for the six-month period beginning on January 1 and July 1 before each payment due date.
Under current 12 CFR 8.2(a)(5) and (b)(3), each bank under the jurisdiction of the OCC on the date of the second or fourth quarterly Call Report is subject to the full assessment for the next six-month period. As noted in the Notice of Fees for 2018,
The OCC published a proposed rule in the
The proposed rule was intended to eliminate the requirement that banks pay prospectively for one half of each assessment period after they no longer are subject to the jurisdiction of the OCC by setting the refund equal to the prospective portion of the assessment. Under the current rule, the payment due date effectively divides each six-month period into two three-month periods, and a bank subject to the jurisdiction of the OCC on the date of the applicable Call Report (December 31 or June 30) must pay the full assessment on the payment due date of the semiannual assessment (March 31 and September 30) even if it has left OCC jurisdiction by that date. This structure can result in banks prospectively paying assessment fees for three-month periods during which they are not subject to the jurisdiction of the OCC at any time. Under the proposed rule, the payment due date continues to divide each six-month period into two three-month periods. However, a bank that leaves the OCC's jurisdiction after the fourth quarterly Call Report (December 31), but before the date of the first quarterly Call Report (March 31), would not be obligated to pay for the second half of that semiannual assessment period. Similarly, a bank that leaves the OCC's jurisdiction after the second quarterly Call Report (June 30), but before the date of the third quarterly Call Report (September 30) would also not be obligated to pay for the second half of that semiannual assessment period. In doing so, the proposed rule would assess a bank to cover only the relevant three-month period during which it was subject to the jurisdiction of the OCC.
The proposed rule also included technical and conforming amendments. These were intended to reduce ambiguity and make terminology consistent throughout 12 CFR part 8. The first proposed change would amend §§ 8.2(d) and 8.6(c)(1)(iii) concerning the condition surcharge to replace the phrase “at its most recent examination” with the phrase “prior to December 31 or June 30, as appropriate.” This change would clarify that the condition surcharge is calculated in tandem with the OCC's calculation of other assessment components based on Call Report information as of December 31 and June 30 of each year.
The second proposed technical change would make several revisions to 12 CFR 8.7 concerning interest on delinquent assessments and fees and refunds in the case of an error or miscalculation of assessments or fees. First, it would add the prefatory clause, “Within 30 calendar days of receipt of such notice, the OCC shall either—” at § 8.7(b)(1). This clause was originally included at § 8.7(b) as introductory text and was inadvertently deleted in connection with a prior rulemaking. Restoring it would clarify the OCC's obligations under § 8.7(b). This change would also redesignate the current § 8.7(b)(1) and (2) as § 8.7(b)(1)(i) and (ii), respectively. In addition, the proposed rule would redesignate the current § 8.7(b) concluding text as § 8.7(b)(2). Finally, the proposed rule would simplify the language used in § 8.7(a) and (b) and clarify that provisions dealing with special examination or investigation fees apply to any institution subject to a special examination or investigation. These amendments would not change the OCC's current policy of considering assessment payments delinquent if received after the time for payment specified in 12 CFR 8.2; considering special examination and investigation fees delinquent if not received within 30 calendar days of the invoice date; requiring interest on delinquent payments and fees; and providing either a refund or notice of its unwillingness to accept a refund request within 30 calendar days of receipt of a request.
The proposed rule would also conform all references to the “Office of the Comptroller of the Currency,” “Comptroller of the Currency,” or “Office” to “OCC,” except with respect to references to the Notice of Fees; conform all references to “Notice of Comptroller of the Currency Fees” or “Notice of Comptroller of the Currency of Fees” to “Notice of Office of the Comptroller of the Currency Fees and Assessments”; add hyphens to all compound modifiers where a hyphen is not currently used; remove references to “Thrift Financial Reports,” which are no longer used; remove a duplicate reference to “Uniform Financial Institutions Rating System” in 12 CFR 8.6(c)(1)(iii); remove a duplicate and unnecessary citation to authority in 12 CFR 8.6(a); replace an incorrect reference to “each national bank” with a reference to “each Federal branch and agency” in 12 CFR 8.2(b)(1); add the modifier “national” to references to banks and terms, such as “independent credit card banks,” as appropriate; add the term “independent trust” before references to banks and Federal savings associations in 12 CFR 8.6(c)(1)(iii) and add a reference to independent trust Federal savings associations where the provision currently only refers to banks; and add conforming references to Federal branches and agencies, as necessary.
The OCC received one comment on the proposed rule. The commenter, a trade association for banks, supported the proposed rule, stating that it would improve the fairness of the assessments process and appropriately refine the scope of fees and charges for banks under the jurisdiction of the OCC. In the commenter's opinion, the proposal would also improve the ability of banks to serve their customers and communities.
The final rule adopts the assessment refund process presented in the proposed rule without change. Under the final rule, banks that exit the jurisdiction of the OCC within the first half of each six-month period beginning the day after the date of the second or fourth quarterly Call Report will receive a refund equal to the prospective portion of the assessment. This change will prevent banks that exit the OCC's jurisdiction from paying assessment fees for the three-month periods during which they are not subject to the OCC's jurisdiction at any time. This change will not affect current payment due
The final rule adopts the technical and conforming amendments in the proposed rule without substantive change. These amendments will reduce ambiguity and make terminology consistent throughout part 8. The final rule also makes a technical correction to the text of the proposed rule. This correction revises proposed 12 CFR 8.2(a)(5) and (b)(3) by substituting “first” and “third” for “second” and “fourth,” as appropriate, to reflect the new proposed refund policy. This technical correction does not substantively change the partial refund process as proposed and is consistent with the description of the refund policy in the preamble to the proposed rule. The final rule also makes a technical correction to the proposed rule's prefatory clause at § 8.7(b)(1) by removing the word “notice” and replacing it with the word “request.” This is a nonsubstantive change that aligns the wording with the phraseology in § 8.7(b).
In accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
In general, the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
The OCC currently supervises approximately 886 small entities.
The OCC also considered whether the final rule will result in a significant economic impact on small entities. In general, the OCC classifies the economic impact of expected cost (or benefit) to comply with a rule on an individual bank as significant if the total estimated monetized costs (or benefits) in one year are greater than 5 percent of the bank's total annual salaries and benefits or 2.5 percent of the bank's total annual non-interest expense. Based on the above criteria, and the refund amounts for the years 2015 through 2018 outlined above, the OCC estimates that impact of the final rule, had it been in place for 2015-2018, would not have had a significant economic impact at any of the affected institutions.
Based on the data and experience of the OCC in recent years with departures from the charters, the OCC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
The OCC analyzed the final rule under the factors set forth in the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). Under this analysis, the OCC considered whether the final rule includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted for inflation). The OCC has determined that the final rule will not impose new mandates and, therefore, will not result in the expenditure of $100 million or more annually by state, local, and tribal governments, or by the private sector.
Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA) (12 U.S.C. 4802) requires that each Federal banking agency, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations.
Because the final rule does not impose additional reporting, disclosure, or other requirements on IDIs, section 302 of RCDRIA does not apply. Nevertheless, the requirements of section 302 RCDRIA, and the administrative burdens and benefits of the final rule, were considered as part of the overall rulemaking process.
Pursuant to the Congressional Review Act, the Office of Management and Budget's Office of Information and Regulatory Affairs designated this rule as not a “major rule”, as defined at 5 U.S.C. 804(2).
Assessments, Federal branches and agencies, National banks, Reporting and recordkeeping requirements, Savings associations.
For the reasons set forth in the preamble, chapter I of title 12 of the Code of Federal Regulations is amended as follows:
12 U.S.C. 16, 93a, 481, 482, 1467, 1831c, 1867, 3102, 3108, and 5412(b)(2)(B); and 15 U.S.C. 78c and 78
The revisions read as follows:
(a) * * *
(5) The specific marginal rates and complete assessment schedule will be published in the “Notice of Office of the Comptroller of the Currency Fees and Assessments,” provided for at § 8.8. Each semiannual assessment is based upon the total assets shown in the national bank's or Federal savings association's most recent “Consolidated Reports of Condition and Income” (Call Report) preceding the payment date. Each national bank or Federal savings association subject to the jurisdiction of the OCC on the date of the second or fourth quarterly Call Report as appropriate, required by the OCC under 12 U.S.C. 161 and 12 U.S.C. 1464(v), is subject to the full assessment for the next six-month period. National banks and Federal savings associations that are no longer subject to the jurisdiction of the OCC as of the date of the first or third quarterly Call Report, as appropriate, will receive a refund of assessments for the second three months of the semiannual assessment period.
(b) * * *
(3) Each semiannual assessment of each Federal branch and each agency is based upon the total assets shown in the Federal branch's or agency's Call Report most recently preceding the payment date. Each Federal branch or agency subject to the jurisdiction of the OCC on the date of the second and fourth Call Reports is subject to the full assessment for the next six-month period. Federal branches and agencies that are no longer subject to the jurisdiction of the OCC as of the date of the first or third quarterly Call Report, as appropriate, will receive a refund of assessments for the second three months of the semiannual assessment period.
(d)
(1) 1.5, in the case of any national bank or Federal savings association that receives a composite rating of 3 under the Uniform Financial Institutions Rating System (UFIRS) and any Federal branch or agency that receives a composite rating of 3 under the ROCA rating system (which rates risk management, operational controls,
(2) 2.0, in the case of any national bank or Federal savings association that receives a composite UFIRS rating of 4 or 5 and any Federal branch or agency that receives a composite rating of 4 or 5 under the ROCA rating system at its most recent examination prior to December 31 or June 30, as appropriate.
The revisions read as follows:
(a)
(1) Examining the fiduciary activities of national banks, Federal branches of foreign banks, and Federal savings associations and related entities;
(3) Conducting special examinations and investigations of an entity with respect to its performance of activities described in section 7(c) of the Bank Service Company Act (12 U.S.C. 1867(c)) if the OCC determines that assessment of the fee is warranted with regard to a particular national bank, Federal branch or agency of a foreign bank, or Federal savings association because of the high risk or unusual nature of the activities performed; the significance to the national bank's, Federal branch's or agency's, or Federal saving association's operations and income of the activities performed; or the extent to which the national bank, Federal branch or agency, or Federal savings association has sufficient systems, controls, and personnel to adequately monitor, measure, and control risks arising from such activities;
(c) * * *
(1) * * *
(iii)
(a) Each national bank, Federal savings association, Federal branch, and Federal agency shall pay to the OCC interest on its delinquent payments of semiannual assessments. In addition, each institution subject to a special examination or investigation fee shall pay to the OCC interest on its delinquent payments of special examination and investigation fees. Semiannual assessment payments will be considered delinquent if they are received after the time for payment specified in § 8.2. Special examination and investigation fees will be considered delinquent if not received by the OCC within 30 calendar days of the invoice date.
(b) In the event that an institution believes that the notice of assessments or special examination and investigation fees contains an error or miscalculation, the institution may provide the OCC with a written request for a revised notice and a refund of any overpayments. Any such request for a revised notice and refund must be made after timely payment of the semiannual assessment under the dates specified in § 8.2 or timely payment of the special examination and investigation fee within 30 calendar days of the invoice date.
(1) Within 30 calendar days of receipt of such request, the OCC shall either—
(i) Refund the amount of the overpayment; or
(ii) Provide notice of its unwillingness to accept the request for a revised notice of assessments. In the latter instance, the OCC and the entity claiming the overpayment shall thereafter attempt to reach agreement on the amount, if any, to be refunded; the OCC shall refund this amount within 30 calendar days of such agreement.
(2) The OCC shall be considered delinquent if it fails to return an overpayment in accordance with the time limitations specified in this paragraph (b). The OCC shall pay interest on any such delinquent payments.
(b)
Office of the Secretary (OST), U.S. Department of Transportation (DOT).
Final statement of enforcement priorities regarding service animals.
The U.S. Department of Transportation (DOT or the Department) is issuing a final statement of enforcement priorities to apprise the public of its enforcement focus with respect to the transportation of service animals in the cabin of aircraft. The Department regulates the transportation of service animals under the Air Carrier Access Act (ACAA) and its implementing regulations.
This final statement is effective August 21, 2019.
For access to the docket to read background documents or comments received, go to
Robert Gorman, Senior Trial Attorney, or Blane A. Workie, Assistant General Counsel, Office of Aviation Enforcement and Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-9342, 202-366-7152 (fax),
On May 23, 2018, the Department published two documents relating to transportation of service animals. The first document was an advance notice of proposed rulemaking (ANPRM) seeking comment on amending the Department's Air Carrier Access Act (ACAA) regulation, 14 CFR part 382 (Part 382), with respect to the transportation of service animals. The Department published the ANPRM in response to concerns expressed by individuals with disabilities, airlines, flight attendants, and other stakeholders about the need for a change in the Department's service animal requirements. The ANPRM solicited comments on ways to ensure and improve access to air transportation for individuals with disabilities, while also deterring the fraudulent use of animals not qualified as service animals and ensuring that animals that are not trained to behave properly in public are not accepted for transport. The ANPRM comment period closed on July 9, 2018, with the Department receiving approximately 4,500 comments (Docket DOT-OST-2018-0068). The Department intends to issue a Notice of Proposed Rulemaking (NPRM) on the transportation of service animals by air after reviewing and considering the comments to the ANPRM.
Recognizing that the rulemaking process can be lengthy, on May 23, 2018, the Department's Office of Aviation Enforcement and Proceedings (Enforcement Office) also issued an Interim Statement of Enforcement Priorities (Interim Statement) to apprise the public of its intended enforcement focus with respect to transportation of service animals in the cabin. The Interim Statement addressed various topics regarding the transportation of service animals under the existing disability regulation, including: (1) Types of species accepted for transport; (2) number of service animals that a single passenger may transport; (3) advance notice of travel with a service animal; (4) evidence that an animal is a service animal; (5) check-in for passengers traveling with service animals; (6) documentation for passengers traveling with a service animal; and (7) leashing or containing a service animal while in the aircraft cabin. It was important for the Department to address these issues given confusion regarding current regulatory requirements on the transportation of service animals in the cabin of aircraft, considering new service animal policies that airlines instituted, and in light of disability rights advocates' view that some of these polices are unlawful.
In the Interim Statement, we noted that our enforcement efforts would be focused “on clear violations of the current rule that have the potential to adversely impact the largest number of persons.” 83 FR 23805-23806. With respect to animal species, we indicated that we would focus our enforcement efforts on ensuring that the most commonly used service animals (dogs, cats, and miniature horses) are accepted for transport as service animals. With respect to the number of service animals that an airline must allow a passenger to carry onboard the aircraft, we stated that as a matter of enforcement discretion, we did not intend to take enforcement action if an airline limits a passenger to transporting one emotional support animal (ESA), and two non-ESA service animals, for a total of three service animals, as the Department's service animal regulation does not indicate whether airlines must allow passengers to travel with more than one service animal. With respect to advance notice, we stated that airlines may require passengers traveling with ESAs or psychiatric service animals (PSAs) to provide advance notice, but not passengers traveling with other types of service animals, as DOT's disability regulation prohibits advance notice prior to travel unless specifically permitted in the regulation, as is the case with passengers traveling with PSAs or ESAs. As for proof that an animal is a service animal, we stated that if a passenger's status as an individual with a disability is not clear, then an airline may ask about the passenger's need for a service animal and need not rely solely on paraphernalia such as an identification card, a harness, or a tag. With respect to check-in requirements, we stated that we intended to take enforcement action if airlines require passengers with service animals to check in at the lobby to process service animal documentation. We reasoned that DOT's disability regulation prohibits airlines from denying an individual with a disability the benefit of transportation or related services that are available to other persons, and airlines allow other passengers to check in electronically before arriving at the airport to avoid the inconvenience of checking in at the lobby. With respect to documentation, we stated that we generally did not intend to take enforcement action if airlines require ESA or PSA users to provide veterinary immunization records, health forms, and/or behavioral attestations since DOT's disability regulation permits airlines to ask for advance notice for passengers traveling with ESAs and PSAs, and allows airlines to deny boarding to an animal that poses a direct threat to the health or safety of others. Finally, with respect to containment, we indicated that we did not intend to take enforcement action if an airline imposed reasonable and appropriate measures to control the movement of ESAs in the cabin since DOT's disability regulation does not clearly specify whether or how airlines may restrict the movement of service animals in the cabin, and because we recognized the possibility that ESAs may pose greater in-cabin safety risks than other service animals.
The comment period on the Interim Statement closed on June 7, 2018; we received a total of 94 comments.
Advocates also expressed the view that abandoning enforcement of certain claims was arbitrary, capricious, and constitutes an abuse of discretion, which is subject to judicial review under the Administrative Procedure Act (APA). Again, we emphasize that the Enforcement Office is not refusing to enforce certain ACAA violations. We will continue to investigate all complaints alleging violations of the ACAA and Part 382 as it is currently written. We will also continue to determine, within the traditional parameters of agency discretion, how best to use the Enforcement Office's limited resources to pursue enforcement action. The factors affecting the exercise of that discretion include, among other things, the nature and extent of the violations, the number of individuals harmed by the violations, the extent of the harm, and whether the conduct at issue clearly violates the regulatory text.
A flight attendants' union (the Association of Flight Attendants-CWA) generally supported the Interim Statement but expressed concern about safety issues arising from increased use of ESAs. The Association of Flight Attendants-CWA reasoned that ESA issues should be addressed in the airport lobby, as far from the cabin of the aircraft as possible, to reduce the risk of injury to passengers and flight crew onboard the aircraft.
Individual airlines and Airlines for America (A4A) generally supported the Interim Statement. They expressed the view that the Interim Statement provided them the flexibility to address growing fraud and safety concerns with untrained service animals, particularly untrained ESAs. Airlines expressed considerable concern, however, with the Enforcement Office's expressed intention to use its resources to pursue action against airlines that require service animal users to check in at the lobby of the airport. We will discuss these comments, as well as the specific comments of stakeholders relating to other discrete issues, in greater detail below.
In the Interim Statement, we stated that “[t]he Enforcement Office intends to exercise its enforcement discretion by focusing its resources on ensuring that U.S. carriers continue to accept the most commonly used service animals (
Disability rights advocates generally expressed no specific objection to our position on species. Airlines have asked us to declare that a wide variety of species (
In this Final Statement, after reviewing the comments on this issue, we believe that it would be in the public interest and within our discretionary authority to prioritize ensuring that the most commonly recognized service animals (
The Department's service animal regulation is not clear as to whether airlines must allow passengers to travel with more than one service animal. Section 382.117(a) states that an airline “must permit
As noted in the Interim Statement, the Enforcement Office has stated in the past that it would not subject airlines to enforcement action if airlines limit a passenger to transporting three service animals. See 83 FR 23806. In the Interim Statement, we noted that certain passengers may need the assistance of more than one task-trained service animal, as well as an ESA. We indicated that as a matter of enforcement discretion, our focus would be on ensuring that an airline allows a passenger to transport one ESA, and a total of three service animals if needed.
Disability rights organizations generally did not comment on this position; the two brief comments that we did receive were favorable. Airlines urged the Enforcement Office to ensure that it would not take enforcement action if the airline restricts a passenger to carrying one ESA and one task-trained service animal. Airlines also urged the Enforcement Office to authorize additional restrictions, such as allowing airlines to limit the total number of ESAs on any individual flight.
After reviewing the comments on this topic, we have decided that our enforcement efforts should continue to focus on ensuring that airlines are not restricting passengers from traveling with one ESA and a total of three service animals if needed. We share the view of the commenters that a single ESA would ordinarily be sufficient to provide emotional support on a given flight. However, we disagree with airline comments suggesting that the Enforcement Office should not take action against airlines that limit the total number of ESAs on a flight. While Part 382 may not be clear on the number of service animals each passenger may bring in the cabin, our view is that Part 382 plainly does not allow airlines to deny transport to a service animal accompanying a passenger with a disability because of a limit on the total number of service animals that can be on any flight. Also, under the existing rule, an ESA is considered a service animal. As such, if ten qualified individuals with a disability each need to bring an ESA, then under Part 382 the airline must accept all ten ESAs, so long as the ESAs are sufficiently trained to behave in a public setting. Section 382.117(a) requires airlines to permit a service animal to accompany a passenger with a disability, with no stated limitation based on the number of other passengers with service animals. We also note that section 382.17 prohibits airlines from limiting the number of passengers with a disability on a flight. For enforcement purposes, we will continue to address each complaint that we receive alleging a violation of the Department's current service animal rules on a case-by-case basis, bearing in mind the specific circumstances of the matter, including the passenger's genuine need for multiple service animals, particularly those that are task-trained.
In the Interim Statement, we explained our view that the plain language of Part 382 prohibits carriers from requiring advance notice for passengers traveling with service animals other than ESAs or PSAs, unless the flight segment is 8 hours or more. Requiring advance notice of a passenger's intention to travel with a service animal outside of these specific circumstances violates the Department's regulation. 14 CFR 382.27(a). We received only three comments on this specific topic. All three comments addressed the wisdom of the rule itself, as opposed to our interpretation or enforcement of that rule.
In the Interim Statement, we addressed airlines' concerns that passengers may be attempting to pass off their pets as service animals by purchasing easily obtained paraphernalia such as harnesses, vests, and tags. We explained our view that under the existing rule, airlines may continue to seek credible verbal assurance that the passenger is an individual with a disability and that the animal is a service animal. Specifically, “[i]f a passenger's status as an individual with a disability is unclear (for example, if the disability is not clearly visible), then the airline personnel may ask questions about the passenger's need for a service animal. For example, airlines may ask, “how does your animal assist you with your disability?” A credible response to this question would establish both that the passenger is an individual with a disability and that the animal is a service animal.” 83 FR 23806. Stakeholders did not express disagreement with this position. In this Final Statement, we see no reason to deviate from the analysis of the Interim Statement because it represents a well-established interpretation of existing law.
In the Interim Statement, we noted that certain airlines now require passengers with service animals to appear in person at the lobby
Disability advocates generally supported this position for many of the reasons stated by the Department. Flight attendants (AFA-CWA) disagreed, however, stating that airlines should have the authority to process oversized and poorly behaved animals in the lobby, rather than in the gate area/sterile area. Flight attendants stressed that for the safety of passengers and its members, airlines should address these issues as soon as possible and as far from the aircraft as possible, because available options are reduced as the animal gets closer to boarding the aircraft.
Similarly, airlines expressed substantial concerns with our position. They contend that the Interim Statement represents a significant and unexpected new regulation, issued without the Department first engaging in the full notice and comment procedures required by the Administrative Procedure Act. They also argue that the Interim Statement is based on the incorrect premise that “lobby verification” discriminates on the basis of disability. In the airlines' view, lobby verification is nondiscriminatory because it is based on the presence of an animal, not the presence of a disability. They note, for example, that airlines also require passengers with pets to appear in the lobby for processing. A4A and the International Air Transport Association (IATA) filed a joint comment noting that many airlines require lobby check-in for passengers with and without disabilities who travel with an animal in the cabin and emphasized that only passengers with traditional service animals (such as guide dogs) are exempted. Airlines assert that lobby agents, rather than gate agents, are in the best position (both logistically and in terms of expertise) to process animals for transport in the cabin. Airlines also mentioned that certain carriers have already invested in training specialized lobby personnel to process passengers with animals, and that other carriers are experimenting with systems where agents do not appear at gates. Finally, they contend that to minimize the risk of injury to airline personnel and other passengers, it is critical to verify service animal documentation and other requirements (such as the presence of harnesses or leashes, and whether the animal will fit in the passenger's foot space) as far from the confines of the aircraft cabin itself as possible.
As noted above, the purpose of the Final Statement is to inform the public of the Enforcement Office's priorities, not to announce or make new rules or to declare that certain classes of violations will not be enforced. After carefully reviewing the comments submitted and taking a closer look at Part 382, we have arrived at the view that lobby verification is permitted under Part 382 for ESAs and PSAs, because an airline is permitted to exclude a person with a disability from a benefit that is available to other persons where specifically permitted by Part 382. Here, the benefit is the ability to check-in online and proceed directly to the gate, but airlines are permitted under Part 382 to require ESA and PSA users to check in one hour before the check-in time for the general public. For that reason, the Enforcement Office does not view it to be a violation of Part 382 if airlines require lobby check-in for passengers with ESAs or PSAs.
More specifically, section 382.11(a)(3) states that airlines may not exclude an individual with a disability from or deny the person the benefit of any air transportation or related services that are available to other persons, except where specifically permitted by Part 382. Section 382.43(c) requires airlines to have an accessible website which, among other things, would enable a passenger with a disability to check-in for a flight online, similar to other passengers, thereby skipping the lobby and proceeding directly to the gate if he/she does not have checked bags. However, section 382.27(c)(8) allows airlines to require a passenger with a disability to provide up to 48 hours' advance notice and check in one hour before the check-in time for the general public in order to transport an ESA or PSA in the cabin. In our view, at the time that this section was enacted in 2008, the phrase “check in” generally meant presenting oneself in person at the airline's ticket counter. As such, we believe that Part 382 as written does contemplate that airlines may require passengers travelling with ESAs or PSAs to present themselves in person in the lobby before proceeding into the secured area. In any event, we do not intend to exercise our enforcement discretion to take action against airlines that impose such a requirement on passengers travelling with ESAs or PSAs. In our view, however, the regulations do not permit airlines to require “check in one hour before the check-in time for the general public” for non-ESA/PSA service animals, or to require that passengers with traditional service animal users appear in the lobby for processing. The Enforcement Office intends to act should an airline require that a passenger with a traditional (non-ESA/PSA) service animal check-in at the lobby of an airport.
In the Interim Statement, we explained that airlines may refuse transportation to any service animal that poses a direct threat to the health or safety of others. We observed, however, that our service animal regulation does not explain how airlines may (or may not) make that assessment. We also noted that airlines may require 48 hours' advance notice of a passenger wishing to travel with an ESA or PSA in order to provide the carrier the necessary time to assess the passenger's documentation. We concluded that “the Enforcement Office does not intend to use its limited resources to pursue enforcement action against airlines for requiring proof of a service animal's vaccination, training, or behavior for passengers seeking to travel with an ESA or PSA.” 83 FR 23807. We also indicated that we would continue to monitor the types of information that airlines require from ESA or PSA users to ensure that travel with those animals is not made unduly burdensome or effectively impossible. Airlines strongly supported this position, on the basis that documentation helps personnel to determine whether an ESA or PSA is a direct threat. Airlines have expressed concern to the Department that passengers are increasingly bringing untrained animals onboard aircraft putting passengers and flight crew at risk.
Survey data of PSA and ESA users provided by the United Service Animal Users, Supporters, and Advocates (USAUSA) revealed that almost 90% of the 919 survey respondents indicated that they were concerned about untrained or stressed animals interfering with or harming their animal when they fly. However, Psychiatric Service Dog Partners (PSDP) emphasized that mandates for third-party documentation do not improve safety and serve only to increase burdens to passengers with disabilities. As evidence of the burden that documentation requirements impose on passengers with disabilities, PSDP points to the USAUSA survey, which provides estimates on the cost and time that it would take to obtain additional third-party documentation, and the degree to which such additional
Similarly, other disability rights organizations contended that additional documentation is unduly burdensome and represents a deterrent to travel without providing real benefits to airlines. Operation Freedom Paws expressed the view that obtaining a behavioral attestation from a veterinarian would be unduly burdensome, because such documentation is difficult to obtain within 48 hours of travel. The International Association of Canine Professionals and the American Veterinary Association expressed the view that any attestations about an animal's behavior should come from the passenger and not from the professional, because professionals are not able to make such attestations.
Some disability advocates, such as Bazelon/NAMI, also believe that the Department would be acting arbitrarily and capriciously if it allowed airlines to require additional service animal documentation beyond what is explicitly permitted in Part 382. Similarly, the National Council on Disability asserts that “the additional proof insisted upon by airlines is not legal under the ACAA regulation” because Part 382 does not clearly authorize that additional proof.
In this Final Statement, we continue to focus our enforcement efforts “on clear violations of the current rule that have the potential to adversely impact the largest number of persons.” 83 FR 23805-23806. In general, it is not clear whether airlines are violating Part 382 if they require additional documentation to determine whether a service animal poses a direct threat. Part 382 permits airlines to determine, in advance of flight, whether any service animal poses a direct threat. However, that section is not clear about how airlines would determine whether an animal poses a direct threat to the health or safety of others.
While section 382.117 clearly sets forth the type of medical documentation that airlines may request from ESA and PSA users to reduce likelihood of abuse by passengers wishing to travel with their pets, the regulation does not explicitly permit or prohibit the use of additional documentation related to a service animal's vaccination, training, or behavior. Accordingly, we do not intend to take action against an airline for asking service animal users to present documentation related to a service animal's vaccination, training, or behavior, so long as it is reasonable to believe that the documentation would assist the airline in determining whether an animal poses a direct threat to the health or safety of others.
As noted above, Part 382 clearly allows airlines to require 48 hours' advance notice to receive the requested accommodation of transporting ESAs and PSAs.
In the Interim Statement, we observed that Part 382 does not clearly specify whether or how airlines may restrict the movement of service animals in the cabin. We noted that ESAs may pose greater in-cabin safety risks because they may not have undergone the same level of training as other service animals (including PSAs). Accordingly, we stated that we would not take action against carriers that impose reasonable restrictions on the movement of ESAs in the cabin so long as the reason for the restriction is concern for the safety of other passengers and crew. We stated that such restrictions may include requiring, where appropriate for the animal's size, that the animal be placed in a pet carrier, the animal stay on the floor at the passenger's feet, or requiring the animal to be on a leash or tether. 83 FR 23807 (May 23, 2018).
Comments were mixed concerning this issue. Airlines contend that movement, harness, and leash restrictions are generally consistent with the Americans with Disabilities Act (ADA). A4A also asked the Department to clarify that they may refuse transportation to an animal in the cabin unless the passenger demonstrates that the animal does not exceed relevant weight limits and will safely fit in the passenger's lap or foot space. American Airlines contended that it is particularly important for cats to be held in a carrier because of allergy concerns and hygiene issues. A4A also asked the Department to make clear that flight attendants are not required to ask other passengers to trade seats or give up their foot space to accommodate large service animals.
Disability rights advocates took a range of positions. For example, Bazelon/NAMI contended that allowing airlines to require containment solely for passengers traveling with an ESA is “prohibited under the ACAA.” Comment of Bazelon/NAMI at 3. PSDP supported requirements that service animals be tethered, “if not contained in a pet carrier and with reasonable exceptions, such as those that are disability-based.” Comment of PSDP at 16. Many commenters, including PSDP and American Airlines, noted the challenging issues surrounding service animals that are required to be transported in the cabin, but are too large to be contained in a pet carrier.
In this Final Statement, we again observe that Part 382 contains no explicit requirements or prohibitions with respect to containment of ESAs (or other service animals) in the cabin. As with other issues discussed above, we decline to declare that the Enforcement Office will not take enforcement action with respect to containment of service animals in all cases. Rather, we will consider containment issues for all service animals on a case-by-case basis, with a focus on reasonableness. For example, in general, tethering and similar means of controlling an animal that are permitted in the ADA context would appear to be reasonable in the context of controlling service animals in the aircraft cabin. Other factors bearing on reasonableness include, but are not limited to, the size and species of the animal, the right of other passengers to enjoy their own foot space,
We will apply this enforcement approach to containment of all service animals, rather than only ESAs, because we have reconsidered our position from the Interim Statement that would have drawn a distinction between movement restrictions for ESAs and movement restrictions for other types of service animals. As Bazelon/NAMI noted in their comments, all service animals (including ESAs) are expected to behave in public. We also note that an animal's status as a task-trained service animal does not preclude the animal from misbehaving. Accordingly, we agree with Bazelon/NAMI about the inappropriateness of making a distinction between ESAs and non-ESA service animals with respect to the importance of the owner controlling and restricting the movement of the animal.
After the comment period closed, airlines continued to announce new restrictions on the transportation of service animals. Some of those policies were variations on prior policies, while others raised new issues such as restrictions concerning the breed, age, or weight of the animal. Our responses to these new policies are set forth below.
After the comment period for the Interim Statement closed, certain airlines instituted new policies banning “pit bull type dogs” as service animals on their flights. The Department's disability regulation allows airlines to deny transport to an animal if, among other things, it poses a direct threat to the health or safety of others. However, the Department is not aware of and has not been presented with evidence supporting the assertion that an animal poses a direct threat simply because of its breed. On June 22, 2018, the Enforcement Office issued a public statement indicating its view that “a limitation based exclusively on breed of the service animal is not allowed under the Air Carrier Access Act.”
After the comment period to the Interim Statement closed, certain airlines announced that they would not accept service animals of any type that are younger than four months old. Part 382 does not address the minimum age of a service animal. However, all service animals (including ESAs) are expected to be sufficiently trained to behave in public.
After the comment period to the Interim Statement closed, at least one airline announced that it would not accept ESAs or PSAs over 65 pounds.
After the comment period to the Interim Statement closed, at least one airline announced that it would not accept ESAs on flights lasting eight hours or more. In our view, Part 382 as written clearly prohibits such policies. Specifically, section 382.117(a)(2) provides that, as a condition of permitting any service animal to travel in the cabin on flights scheduled to take eight hours or more, airlines may require the passenger using the service animal to provide documentation that the animal will not need to relieve itself on the flight or that it can do so in a way that does not create a health or
After the comment period on the Interim Statement closed, several airlines announced that they would restrict the types of medical forms that they would accept from users of ESAs and PSAs. Specifically, these airlines indicated that they would not accept documentation on the letterhead of a licensed mental health professional treating the passenger's mental or emotional disability; instead, they would only accept the medical forms found on the airlines' own websites. In our view, Part 382 clearly prohibits this practice. Section 382.117(e) states that an airline is not required to accept an ESA or PSA for transportation in the cabin unless the passenger provides medical documentation that meets the specific criteria of section 382.117(e).
After the comment period on the Interim Statement closed, at least one airline indicated that it would ask, but not require, passengers with all types of service animals (including traditional service animals such as guide dogs) to carry veterinary forms, to be presented to airline personnel on request.
As we explained in the documentation section above, Part 382 permits airlines to determine, in advance of flight, whether any service animal poses a direct threat, but the rule does not clearly indicate how airlines must make that assessment. Accordingly, we do not intend to take action against an airline for asking users of any type of service animal to present documentation related to the service animal's vaccination, training, or behavior, so long as it is reasonable to believe that the documentation would assist the airline in making a determination as to whether an animal poses a direct threat to the health or safety of others.
However, Part 382 draws relevant distinctions between ESA/PSAs and other types of service animals relating to advance notice. Section 382.27(a) provides that, subject to certain exceptions (including travel with an ESA or PSA), airlines may not require passengers with disabilities to provide advance notice in order to obtain services or accommodations required by law. Therefore, if an airline requires a non-ESA/PSA service animal user to present documentation related to a service animal's vaccination, training, or behavior before the check-in time for the general public, such action in our view clearly violates the advance notice provisions of section 382.27 and we will take enforcement action appropriately.
The purpose of this Final Statement is to provide the public with greater transparency with respect to the Enforcement Office's interpretation of existing requirements and its exercise of enforcement discretion surrounding service animals. Our enforcement efforts will be focused on clear violations of the current rule that have the potential to impact adversely the largest number of persons. These determinations will be made on a case-by-case basis.
This guidance is not legally binding in its own right and will not be relied on by the Department as a separate basis for affirmative enforcement or other administrative penalty. Conformity with this guidance (as distinct from existing statutes and regulations at Part 382) is voluntary only, and nonconformity will not affect rights and obligations under existing statutes and regulations.
1. Species and Breed Restrictions. The Enforcement Office intends to use available resources to ensure that dogs, cats, and miniature horses are accepted for transport. Airline policies that categorically refuse transport to all service animals that are not dogs, cats, or miniature horses violate the current disability regulation. Categorical restrictions on dog breeds are inconsistent with Part 382 and the Department's enforcement priorities. Airlines will not be subject to enforcement action if they continue to deny transport to snakes, other reptiles, ferrets, rodents, and spiders; however, airlines will remain subject to potential enforcement action if they categorically refuse to transport other animals.
2. Number Restrictions. We will focus our enforcement efforts on ensuring that airlines are not restricting passengers from traveling with one ESA and a total of three service animals if needed. Airlines may not impose categorical restrictions on the total number of service animals to be transported in the aircraft cabin.
3. Weight Restrictions. Airlines may not impose a categorical restriction on service animals over a certain weight, without regard to specific factors that would preclude transport of that animal in the cabin.
4. Age Restrictions. We do not anticipate exercising our enforcement resources to ensure the transport of service animals that are clearly too young to be trained to behave in public.
5. Flight-Length Restrictions. Airlines may not categorically restrict service animals on flights scheduled to last 8 hours or more, and would be subject to potential enforcement action if they do so. On flights scheduled to last 8 hours or more, airlines may ask for 48 hours' advance notice, early check-in, and documentation that the animal will not need to relieve itself on the flight or that it can do so in a way that does not create a health or sanitation issue on the flight.
6. Proof that an Animal is a Service Animal. If a passenger's disability is not clear, airlines may ask limited questions to determine the passenger's need for the animal even if the animal has other indicia of a service animal such as a harness, vest, or tag.
7. Documentation Requirements. We do not anticipate taking enforcement action against an airline for asking users
8. Lobby Verification. We do not anticipate taking enforcement action against an airline if it requires passengers with ESAs or PSAs to present service animal documentation in the lobby/ticket counter area, rather than the gate/sterile area.
9. Advance Notice/Check-In. Airlines may require ESA/PSA users to provide up to 48 hours' advance notice of travel with an ESA/PSA, and may require ESA/PSA users to appear in the lobby for processing of service animal documentation up to one hour prior to the check-in time for the general public. However, airlines may not require non-ESA/PSA users to provide advance notice of travel with a service animal, or require non-ESA/PSA users to appear in the lobby for processing of service animal documentation.
10. Containment. We will exercise our discretion with respect to containment issues for all service animals on a case-by-case basis, with a focus on reasonableness. For example, in general, tethering and similar means of controlling an animal that are permitted in the ADA context would appear to be reasonable in the context of controlling service animals in the aircraft cabin. Other factors bearing on reasonableness include, but are not limited to, the size and species of the animal, the right of other passengers to enjoy their own foot space, and the continued ability of the animal to provide emotional support or perform its task while being restrained or kept in a pet carrier.
This Final Statement is effective upon publication. Airlines are expected to review their policies and revise them, if necessary, to comply with the Department's disability regulation. As a matter of enforcement discretion, we intend to refrain from taking enforcement action with respect to the issues set forth in this Final Statement for a period of up to 30 days from the date of publication so long as the airline demonstrates that it began the process of compliance as soon as this notice was published in the
Bureau of Industry and Security, Commerce.
Final rule.
On May 16, 2019, Huawei Technologies Co., Ltd. (Huawei) and sixty-eight of its non-U.S. affiliates were added to the Entity List. Their addition to the Entity List imposed a licensing requirement under the Export Administration Regulations (EAR) regarding the export, reexport, or transfer (in-country) of any item subject to the EAR to any of these 69 listed Huawei entities. The Entity List-based licensing requirement applied in addition to any other license requirement, if any, applicable under the EAR to the transaction in question. On May 22, 2019, the Bureau of Industry and Security (BIS) published a temporary general license, effective May 20, 2019, that modified the effect of the listing in order to temporarily authorize engagement in certain transactions, involving the export, reexport, or transfer (in-country) of items subject to the EAR to the 69 listed Huawei entities. The U.S. Government has decided to extend the temporary general license through November 18, 2019. In order to implement this decision, this final rule revises the temporary general license to remove the expiration date of August 19, 2019, and substitutes the date of November 18, 2019. This final rule also makes certain clarifying changes to the authorized transactions under the temporary general license to improve public understanding. Lastly, this final rule revises the temporary general license by changing which party to the transaction is required to create the certification statement by requiring that the exporter, reexporter, or transferor obtain a certification statement from the pertinent Huawei listed entity prior to using the temporary general license. Concurrently with the this final rule, BIS is also publishing elsewhere in this issue of the
This rule is effective August 19, 2019 through November 18, 2019, except for amendatory instructions 1 and 3, which are effective August 19, 2019. The expiration date of the final rule published on May 22, 2019 (84 FR 23468) is extended until November 18, 2019.
Director, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, Phone: (949) 660-0144 or (408) 998-8806 or email your inquiry to:
As published on May 22, 2019, the temporary general license authorizes certain activities, including those necessary for the continued operations of existing networks and to support existing mobile services, including cybersecurity research critical to maintaining the integrity and reliability of existing and fully operational networks and equipment. Exporters, reexporters, and transferors are required to maintain certifications and other records, to be made available when requested by BIS, regarding their use of the temporary general license.
As published on May 22, 2019, and as revised and clarified by this final rule, any exports, reexports, or in-country transfers of items subject to the EAR to any of the 69 listed Huawei entities continue to require a license based on their addition to the Entity List, with the exception of transactions explicitly authorized by the temporary general license and eligible for export, reexport,
No persons are relieved of other obligations under the EAR, including but not limited to licensing requirements to the People's Republic of China (PRC or China) or elsewhere and/or the requirements of part 744 of the EAR. The temporary general license also does not authorize any activities or transactions involving Country Group E countries (
At this time, the U.S. Government has decided to extend the temporary general license until November 18, 2019, as revised and clarified as described below. In order to implement this U.S. Government decision, this final rule revises the temporary general license to remove the date of August 19, 2019, and substitutes the date of November 18, 2019, in the introductory text and in paragraph (b)(1) of the temporary general license and in the introductory text of paragraph (c) of Supplement No. 7 to part 744.
Concurrently with the this final rule, BIS is also publishing elsewhere in this issue of the
This final rule, as a conforming change for the addition of these other non-U.S. affiliates of Huawei to the Entity List, revises paragraph (a) (Identification of non-U.S. affiliates) by removing paragraphs (a)(1) to (a)(68) that identifies the non-U.S. affiliates each by name and adds in its place paragraphs (a)(1) and (a)(2) as a simpler method for identifying the non-U.S. affiliates of Huawei that are within the scope of the temporary general license. Paragraph (a)(1) will identify the non-U.S. affiliates added to the Entity List in the rule published on May 21, 2019 (84 FR 22961), and effective May 16, 2019. Paragraph (a)(2) will identify the non-U.S. affiliates added to the Entity List with a reference to this final rule effective on August 19, 2019.
The temporary general license includes paragraph (c) (Authorized transactions) that allows during the validity period of the temporary general license certain exports, reexports, and transfers (in-country) that meet specified criteria. As described below, this final rule removes paragraph (c)(4) without implicating the Entity List-based license requirements for Huawei and its non-U.S. affiliates on the Entity List. Since the temporary general license became effective on May 20, 2019, BIS has received a number of questions regarding the temporary general license and many of these questions have requested clarification regarding the scope of paragraph (c)(1), (2), or (4). BIS intends to soon post on its website Frequently Asked Questions (FAQs) and other guidance to answer the questions received that have broad applicability to exporters, reexporters, and transferors. In addition, BIS has identified certain clarifying changes that should be made to paragraph (c) to improve public understanding of the intended scope of the temporary general license.
This final rule revises paragraph (c)(1) (Continued operation of existing networks and equipment) by adding a new paragraph (c)(1)(i) (Exclusions) to clarify that the scope of the paragraph (c)(1) authorization does not include certain exports, reexports, or transfers (in-country) for existing networks. This final rule adds an exclusion under paragraph (c)(1)(i)(A) to specify that end-devices such as general-purpose computing devices are not considered to be part of an existing and fully operational network. This exclusion also specifies that equipment that is not directly related to the support and maintenance of the network is excluded. An exclusion also is added under new paragraph (c)(1)(i)(B) to specify that transfers of equipment for general business purposes or for activities that are not in direct support of an existing and fully operational network are not included in the temporary general license. This final rule also adds a parenthetical phrase to provide an illustrative example of semiconductor production equipment as a type of equipment that would be excluded under paragraph (c)(1) of the temporary general license. Lastly, this final rule adds clarifying text to the introductory text of paragraph (c)(1) to specify that software for bug fixes, security vulnerability patches, and other updates to existing versions of the software necessary to maintain and support existing and currently `fully operational networks' and equipment are under paragraph (c)(1) of the temporary general license, provided the software does not enhance the functional capacities of the original software or equipment. The May 22 rule used the phrase `software updates and patches.' This final rule replaces that text with more specific text to improve public understanding for what software is eligible under paragraph (c)(2). This final rule makes this same type of software clarification to paragraph (c)(2) described below.
This final rule adds and reserves paragraph (c)(1)(ii) to conform to Federal Drafting Handbook requirements for the addition of paragraph (c)(1)(i).
To clarify the scope of paragraph (c)(1) to address questions received from the public, this final rule adds two new notes to paragraph (c)(1). New Note 1 to paragraph (c)(1) clarifies the intended meaning of the terms `third party' and `third parties' as used in the paragraph (c)(1) authorization. The note specifies that a `third party' is intended to be a party such as a telecommunication service provider, and does not include or refer to any of the Huawei listed entities or exporter, reexporter, or transferor.
New Note 2 to paragraph (c)(1) clarifies the intended meaning of the term `fully operational network,' as used in paragraphs (c)(1) and (3). The new Note 2 specifies that a `fully operational network' means a `third party' network that is providing services to that `third party's' customers. Paragraph (c)(2) of the temporary general license authorizes engagement in transactions necessary to support, including through software updates and patches, existing models of Huawei `personal consumer electronic devices,' which is being added in place of the undefined term `handsets' that appeared in the temporary general license as published on May 22, 2019. This final rule removes the term handsets from paragraph (c)(2) and replaces it with the defined term `personal consumer electronic devices,' which includes phones and other personally-owned equipment, such as tablets, smart watches, and mobile hotspots such as MiFi devices.
This final rule also clarifies, to address questions from the public, that transactions under paragraph (c)(2) include support for personal use of the telecommunications hardware known as customer premises equipment (CPE),
Lastly, this final rule adds clarifying text to paragraph (c)(2) to specify that software for bug fixes, security vulnerability patches, and other updates to existing versions of the software necessary to provide service and support to existing `personal consumer electronic devices' and CPE are under paragraph (c)(2) of the temporary general license, provided the software does not enhance the functional capacities of the original software or equipment. The May 22 rule used the phrase `software updates and patches.' This final rule replaces that text with more specific text to improve public understanding for what software is eligible under paragraph (c)(2). As noted above, this final rule makes this same type of software clarification to the introductory text of paragraph (c)(1).
This final rule removes paragraph (c)(4) (Engagement as necessary for development of 5G standards by a duly recognized standards body). BIS has determined that existing provisions of the EAR suffice for purposes of addressing the application of the Entity List-based license requirements to activities in connection with standards development bodies, including 5G standards bodies. BIS has posted a general advisory opinion in the FAQ section of the BIS website under “Published Technology and Software (§ 734.7),” at
BIS has also received questions on the following issues regarding the treatment of imports and services involving Huawei and its sixty-eight non-U.S. affiliates on the Entity List:
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This final rule revises paragraph (d) (Certification statement) of the temporary general license by changing which party to the transaction is required to create the certification statement. This final rule removes the requirement under paragraph (d) for the exporter, reexporter, or transferor to create a certification statement and adds in its place a requirement under paragraph (d) that the exporter, reexporter, or transferor obtain a certification statement and any additional support documentation needed to substantiate the certification statement from the listed Huawei entity that is to receive the items. The certification statement must be obtained from the pertinent Huawei entity prior to exporting, reexporting, or transferring (in-country) any item under the temporary general license. This final rule also makes other clarifying changes to paragraph (d) related to the obligations of the parties to the transaction as it relates to the certification statement.
This final rule makes changes to paragraph (d) by redesignating some of the text as introductory text to paragraph (d), deleting certain text that is no longer needed, and adding new paragraphs (d)(1) (Certification statement required from Huawei or one of its listed non-U.S. affiliates) and (d)(2) (Certification statements may be used for multiple exports, reexports, and transfers (in-country)), as described further below. Paragraph (d)(1) also adds a recordkeeping requirement to specify that the exporter, reexporter, or transferor and the pertinent Huawei entity are each responsible for retaining the certification statement and any additional support documentation needed to substantiate the certification statement for purposes of the EAR recordkeeping requirements under part 762.
New paragraph (d)(1) describes the general requirements for the certification statement,
This final rule adds paragraphs (d)(1)(i)-(v) to specify the information that must be included in the certification statement. Paragraph (d)(1)(i) requires identifying the Huawei entity receiving the items and making the certification statement, and paragraph (d)(1)(ii) requires identifying the items and quantity thereof (for tangible shipments of commodities and software) involved. The Huawei entity must also certify in a single certification statement that: Under paragraph (d)(1)(iii), the end-use of the items to be received will be for an end-use within the scope of a specified authorizing paragraph under paragraph (c) of the temporary general license; under paragraph (d)(1)(iv), the entity will comply with the recordkeeping requirements in part 762, including by providing copies of the certification statements and all other records required under the EAR to any authorized agent, official, or employee of BIS, the U.S. Customs Service, or any other agency of the U.S. Government as required in § 762.7; and under paragraph (d)(1)(v), the individual signing the certification statement has sufficient authority to legally bind the entity.
This final rule also adds a new paragraph (d)(2) (Certification statements may be used for multiple exports, reexports, and transfers (in-country)) to clarify that certification statements obtained under paragraph (d)(1) may be used for multiple exports, reexports, or transfers (in-country) of the same item(s) under the temporary general license provided the information included in the certification statement is still accurate for those additional exports, reexports, or transfers (in-country). New paragraph (d)(2) specifies that if multiple exports, reexports, or transfers (in-country) are made against the same certification statement obtained under paragraph (d)(1), the exporter, reexporter, or transferor relying on that certification statement must maintain a log or other similar record that identifies each item and the quantity thereof for each export reexport, or transfer (in-country) made against that specific certification statement. Lastly, paragraph (d)(2) requires the log or other similar record be retained in accordance with the part 762 recordkeeping requirements.
As a conforming change, in § 762.2 (Records to be retained), this final rule revises paragraph (b)(55) to reference the log or other similar record required by paragraph (d)(2) if multiple exports, reexports, or transfers (in-country) are made against the same paragraph (d)(1) certification statement and any additional support documentation needed to substantiate the certification statement.
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA). ECRA, as amended (50 U.S.C. 4801-4852), provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. As set forth in section 1768 of ECRA, all delegations, rules, regulations, orders, determinations, licenses, or other forms of administrative action that have been made, issued, conducted, or allowed to become effective under the Export Administration Act of 1979 (50 U.S.C. 4601
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
In addition to the one collection referenced above, the Commerce Department requested, and OMB authorized, emergency modification of a currently approved information collection 0694-0122,
The total estimated annual burden hours for this collection will increase from 96,618 hours to 97,405 hours (an increase of 787 hours) due to the changes included in this final rule.
This emergency collection is needed in order for today's rule to establish a requirement for exporters, reexporters, or transferors to obtain a certification statement from Huawei and its non-U.S. affiliates on the Entity List prior to making exports, reexports, or transfers (in-country) to these listed entities. This action is needed immediately to protect national security and foreign policy interests of the United States to help better ensure that exports, reexports, and transfers (in-country) being made under the temporary general license will be done in accordance with the requirements of the temporary general license.
If this emergency collection were delayed to allow for public comment before becoming effective, U.S. national security and foreign policy interests may be undermined if exports, reexports, or transfers (in-country) are made under the temporary general license that should not have been. The certification requirement included in this final rule is added to ensure appropriate written communication is occurring between Huawei and its non-U.S. affiliates on the Entity List with exporters, reexporters, and transfers prior to items being exported, reexported, or transferred (in-country) under the temporary general license. BIS intends to publish a notice in the
The Department has determined the following conditions have been met:
a. The collection of information is needed prior to the expiration of time established under the PRA for normal clearance procedures.
b. The collection of information between these parties to exports, reexports, and transfers (in-country) made under the temporary general license is essential to the mission of the Department, in particular to ensure the proper use of a temporary general license under the EAR.
c. The use of normal clearance procedures is reasonably likely to prevent or disrupt the collection of information. Compliance with normal clearance procedures would prevent the collection of information between the parties and may increase the likelihood of exports, reexporters, or transfers (in-country) that would otherwise fall
You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. Pursuant to section 1762 of ECRA, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.
5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
Exports, Reporting and recordkeeping requirements, Terrorism.
Administrative practice and procedure, Business and industry, Confidential business information, Exports, Reporting and recordkeeping requirements.
Accordingly, parts 744 and 762 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
Notwithstanding the requirements and other provisions of Supplement No. 4 to this part, which became effective on May 16, 2019, as to Huawei Technologies Co., Ltd. (Huawei), Shenzhen, Guangdong, China, and its non-U.S. affiliates (listed in this supplement and Supplement No. 4 to this part), the licensing and other requirements in the EAR as of May 15, 2019, are restored in part as of May 20, 2019, and through November 18, 2019, pertaining to exports, reexports, and transfers (in-country) of items subject to the EAR to any of the listed Huawei entities. The licensing and other policies of the EAR that were in effect as of May 15, 2019, are available to export, reexport, or transfer (in-country) such items to the listed Huawei entities if the transaction meets the conditions of paragraph (b) of this supplement, is limited in scope to one or more of the activities described in paragraphs (c)(1) through (3) of this supplement, and if the transaction parties satisfy the requirements of paragraph (d)(1) of this supplement and, if applicable, paragraph (d)(2) of this supplement. Thus, for example, the authority of NLR or a License Exception that was available as of May 15, 2019, may be used in connection with a transaction as per this temporary general license.
(a)
(1)
(2) Non-U.S. affiliates of Huawei added to the Entity List on August 19, 2019.
(b) * * *
(1) This temporary general license is effective from May 20, 2019, through November 18, 2019.
(c)
(1)
(i)
(B) The provision of the temporary general license under paragraph (c)(1) of this supplement does not authorize transfers of equipment for general business purposes or for activities that are not in direct support of an existing and `fully operational network' (
(ii) [Reserved]
The term `third parties' in paragraph (c)(1) of this supplement and the term `third party' in Notes 2 and 3 to paragraph (c)(1) refer to a party that is not Huawei, one of its listed non-U.S. affiliates, or the exporter, reexporter, or transferor, but rather an organization such as a telecommunications service provider.
The term `fully operational network' in paragraph (c)(1) of this supplement, as well as in paragraph (c)(3) of the supplement, refers to a `third party' network providing services to the `third party's' customers.
(2)
(3)
(d)
(1)
(i) Name of the entity; complete physical address, to include shipping, corporate, and end user addresses, if different (simply listing a post office box is insufficient); telephone number; email address; website (if available); and name and title of individual signing the certification statement;
(ii) A complete list of the item(s), including the applicable Export Control Classification Number(s) or designation (if EAR99) for the item(s) under the EAR, and (for tangible shipments of commodities and software) the quantity or quantities of the item(s) that will be exported, reexported, or transferred under the authority of the temporary general license (this inclusive list may cover multiple exports, reexports, or transfers (in-country) under the temporary general license of the same item(s);
(iii) The end-use of the item(s) to be received as an export, reexport, or transfer (in-country) falls within the scope of a specified authorizing paragraph under paragraph (c) of this supplement (a general statement or declaration that the item falls within the scope of paragraph (c) or the scope of the temporary general license will not be sufficient, as the specific authorizing paragraph under paragraph (c) must be identified);
(iv) The entity will comply with the recordkeeping requirements in part 762 of the EAR, including by providing copies of the certification statement and all other export, reexport, or transfer (in-country) records required to be retained in part 762 to any authorized agent, official, or employee of BIS, the U.S. Customs Service, or any other agency of the U.S. Government as required in § 762.7 of the EAR;
(v) The individual signing the certification statement, on behalf of the consignee identified in paragraph (a) of this supplement, has sufficient authority to legally bind the entity.
(2)
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(b) * * *
(55) Supplement No. 7 to part 744, Temporary General License Certification Statements and logs or other records required, including any additional support documentation needed to substantiate the certification statement, under paragraph (d) of Supplement 7 to part 744 of this chapter.
Bureau of Industry and Security, Commerce.
Final rule.
Huawei Technologies Co., Ltd. (Huawei) and sixty-eight of its non-U.S. affiliates were added to the Entity List effective May 16, 2019. Their addition to the Entity List imposed a licensing requirement under the Export Administration Regulations (EAR) regarding the export, reexport, or transfer (in-country) of any item subject to the EAR to any of these sixty-nine listed Huawei entities. The Bureau of Industry and Security (BIS) is now adding forty-six additional non-U.S. affiliates of Huawei to the Entity List because they also pose a significant risk of involvement in activities contrary to the national security or foreign policy interests of the United States. Nineteen of these forty-six affiliated entities are being added to the existing entry for Huawei; the other twenty-seven entities are being added under new, separate entries. This rule also modifies the existing entries for Huawei and three Huawei affiliates in China by moving the three affiliates under the entry for Huawei instead of continuing to list them under separate entries, and by adding one alias and four addresses to the Huawei entry, including the addresses for those three affiliates. The entries for five other existing entries for Huawei affiliates in China, Belgium, and Brazil are also being modified by this rule.
This rule is effective August 19, 2019.
Director, Office of Exporter Services, Bureau of Industry and Security, Department of Commerce, Phone: (949) 660-0144 or (408) 998-8806 or email your inquiry to:
The Entity List (Supplement No. 4 to part 744 of the Export Administration Regulations (EAR)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States. The EAR (15 CFR parts 730-774) impose additional license requirements on, and limit the availability of all or most license exceptions for, exports, reexports, and transfers (in-country) to listed entities. The license review policy for each listed entity is identified in the “License review policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant
The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.
Under § 744.11(b) (Criteria for revising the Entity List) of the EAR, an entity for which there is reasonable cause to believe, based on specific and articulable facts, that the entity has been involved, is involved, or poses a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States, and those acting on behalf of such entities, may be added to the Entity List. Paragraphs (b)(1) through (b)(5) of § 744.11 provide an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.
As stated in the rule published on May 21, 2019 (84 FR 22961), and effective May 16, 2019, that added Huawei, the ERC determined that there is reasonable cause to believe that Huawei has been involved in activities determined to be contrary to the national security or foreign policy interests of the United States. In addition, as stated in the May 21 rule, the ERC determined that there was reasonable cause to believe that the affiliates pose a significant risk of becoming involved in activities contrary to the national security or foreign policy interests of the United States due to their relationship with Huawei. To illustrate, as set forth in the Superseding Indictment filed in the Eastern District of New York (see the rule published on May 21, 2019), Huawei participated along with certain affiliates, including one or more non-U.S. affiliates, in alleged criminal violations of U.S. law. The Superseding Indictment also alleges that Huawei and affiliates acting on Huawei's behalf engaged in a series of deceptive and obstructive acts designed to evade U.S. law and to avoid detection by U.S. law enforcement.
This rule implements the decision of the ERC to add forty-six additional entities to the Entity List, with twenty-seven of the forty-six added under new, separate entries, and the other nineteen added under the existing entry for Huawei. The additions and modifications impact affiliates of Huawei in twenty-five different destinations: Argentina, Australia, Bahrain, Belarus, Belgium, Brazil, People's Republic of China (China), Costa Rica, Cuba, Denmark, France, India, Indonesia, Italy, Kazakhstan, Mexico, New Zealand, Panama, Portugal, Romania, Russia, South Africa, Sweden, Thailand, and the United Kingdom.
Pursuant to § 744.11(b), the ERC determined to add these forty-six non-U.S. affiliates of Huawei to the Entity List because they present a significant risk of acting on Huawei's behalf to engage in activities determined to be contrary to the national security or foreign policy interests of the United States. Without the imposition of a license requirement to these affiliated entities, there is reasonable cause to believe that Huawei would seek to use them to evade the restrictions imposed by its addition to the Entity List.
These additional forty-six non-U.S. affiliates of Huawei raise sufficient concern that prior review of exports, reexports, or transfers (in-country) of items subject to the EAR involving these entities, and the possible imposition of
As with the Huawei entities added to the Entity List effective May 16, 2019, BIS imposes for each of the entities added in this final rule a license requirement for all items subject to the EAR, unless the transaction is authorized by the
The acronym “a.k.a.” (also known as) is used in entries on the Entity List to identify aliases, thereby assisting exporters, reexporters, and transferors in identifying entities on the Entity List.
This final rule adds the following twenty-seven entities in new entries to the Entity List:
• Huawei Tech Investment Co., Ltd. Argentina.
• Huawei Technologies (Australia) Pty Ltd.
• Huawei Technologies Bahrain.
• Bel Huawei Technologies LLC, including one alias (BellHuawei Technologies LLC).
• Hui Tong Business Ltd.;
• Shanghai HiSilicon Technologies Co., Ltd.;
• Shenzhen HiSilicon Technologies Co., Electrical Research Center.
• Huawei Technologies Costa Rica SA, including one alias (Huawei Technologies Costa Rica Sociedad Anonima).
• Huawei Cuba.
• Huawei Denmark.
• Huawei France, including one alias (Huawei Technologies France SASU).
• Huawei Technologies India Private Limited, including one alias (Huawei Technologies India Pvt., Ltd.).
• Huawei Tech Investment, PT.
• Huawei Italia;
• Huawei Milan Research Institute.
• Huawei Technologies LLC Kazakhstan.
• Huawei Technologies De Mexico S.A.
• Huawei Technologies (New Zealand) Company Limited.
• Huawei Technologies Cr Panama S.A.
• Huawei Technology Portugal.
• Huawei Technologies Romania Co., Ltd.
• Huawei Russia.
• Huawei Technologies South Africa Pty Ltd.
• Huawei Sweden.
• Huawei Technologies (Thailand) Co.
• Centre for Integrated Photonics Ltd.;
• Huawei Technologies (UK) Co., Ltd., including one alias (Huawei Software Technologies Co., Ltd.).
This final rule implements the decision of the ERC to modify six existing entries that were first added to the Entity List in the rule published on May 21, 2019, effective May 16, 2019. The modifications are being made to assist exporters, reexporters, and transferors to more easily identify Huawei entities that are subject to Entity List license requirements.
This final rule modifies the existing entry for Huawei Technologies Co., Ltd. (Huawei), by adding one alias, Shenzhen Huawei Technologies, and nineteen new entities (identified below) to that entry, and by moving under that entry three non-U.S. affiliates of Huawei that were added as separate entities under China in the rule published on May 21, 2019: Huawei Digital Technologies (Suzhou) Co., Ltd.; Shanghai Huawei Technologies Co., Ltd.; and Zhejiang Huawei Communications Technology Co., Ltd. This final rule modifies the existing entries for these three entities by removing them as separate entries, and adding them as affiliates under the Huawei entry. This final rule also updates the addresses of these three entities as part of their consolidation under the Huawei entry. The nineteen additional affiliates being included under the Huawei entry are as follows:
• Beijing Huawei Longshine Information Technology Co., Ltd.;
• Hangzhou New Longshine Information Technology Co., Ltd.;
• Hangzhou Huawei Communication Technology Co., Ltd.;
• Hangzhou Huawei Enterprises;
• Huawei Marine Networks Co., Ltd.;
• Huawei Mobile Technology Ltd.;
• Huawei Tech. Investment Co.;
• Huawei Technology Co., Ltd. Chengdu Research Institute;
• Huawei Technology Co., Ltd. Hangzhou Research Institute;
• Huawei Technologies Co., Ltd. Beijing Research Institute;
• Huawei Technologies Co., Ltd. Material Characterization Lab;
• Huawei Technologies Co., Ltd. Xi'an Research Institute;
• Huawei Terminal (Shenzhen) Co., Ltd.;
• Nanchang Huawei Communication Technology;
• Ningbo Huawei Computer & Net Co., Ltd.;
• Shenzhen Huawei Anjiexin Electricity Co., Ltd.;
• Shenzhen Huawei New Technology Co., Ltd.;
• Shenzhen Huawei Technology Service;
• Shenzhen Huawei Technologies Software.
This final rule also implements the decision of the ERC to modify the existing entries for Huawei Technologies Research & Development Belgium NV and Huawei do Brasil Telecomunicacoes Ltda, which were added to the Entity List under the destinations of Belgium and Brazil, respectively, in the rule published on May 21, 2019. BIS is modifying these existing entries by updating addresses for the two entities.
Shipments of items removed from eligibility for a License Exception or for export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on August 19, 2019, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).
This savings clause does not apply to exports or reexports to Huawei Digital Technologies (Suzhou) Co., Ltd.; Huawei do Brasil Telecomunicacoes Ltda; Huawei Technologies Research & Development Belgium NV; Shanghai Huawei Technologies Co., Ltd.; or Zhejiang Huawei Communications Technology Co., Ltd., which were added to the Entity List in the rule published on May 21, 2019. Please see that rule for the savings clause applicable to these five entities.
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA). ECRA, as amended (50 U.S.C. 4801-4852), provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule. As set forth in sec. 1768 of ECRA, all delegations, rules, regulations, orders, determinations, licenses, or other forms of administrative action that have been made, issued, conducted, or allowed to become effective under the Export Administration Act of 1979 (50 U.S.C. 4601
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. Pursuant to Section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. 4801-4852), which was included in the John S. McCain National Defense Authorization Act for Fiscal Year 2019, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.
5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
The additions and revisions read as follows:
Coast Guard, DHS.
Notice of temporary deviation from drawbridge regulations; request for comments.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Florida East Coast Railway (FEC) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, Florida. This deviation is necessary to test a change to the drawbridge operation schedule to determine whether a permanent change to the schedule is needed. Under this deviation, the bridge shall not be closed more than 60 combined minutes in each consecutive 120-minute block of time, and at no time will this bridge be closed to navigation for more than 60 consecutive minutes of time. This deviation supports ongoing negotiations between the railroad and maritime stakeholders as the parties discuss a Final Rule that reasonably meets their interests.
This deviation is effective from 12:01 a.m. on August 20, 2019, to 11:59 p.m. on October 18, 2019.
Comments must reach the Coast Guard on or before September 19, 2019.
You may submit comments identified by docket number USCG-2019-0714 using Federal eRulemaking Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this test deviation, call or email LT Samuel Rodriguez-Gonzalez, U.S. Coast Guard, Sector Miami Waterways Management Division; telephone 305-535-4307, email
The Florida East Coast Railway (FEC) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, Florida is a single-leaf bascule railroad bridge with a 4 foot vertical clearance at mean high water in the closed position. The normal operating schedule for the bridge is found in 33 CFR 117.313(c). There has been an increase in rail traffic over the bridge in recent years due the start of passenger rail service. This test deviation provides a block schedule for the bridge to operate allowing for a more consistent operating schedule.
The draw shall operate as follows:
(1) The bridge shall be constantly tended.
(2) The bridge tender will utilize a VHF-FM radio to communicate on channels 9 and 16 and may be contacted by telephone at 305-889-5572.
(3) Signs will be posted displaying VHF radio contact information and
(4) A bridge log will be maintained including, at a minimum, bridge opening and closing times.
(5) When the draw is in the fully open position, green lights will be displayed to indicate that vessels may pass.
(6) When a train approaches, the lights go to flashing red then the draw lowers and locks.
(7) After the train has cleared the bridge, the draw opens and the lights return to green.
(8) The bridge shall not be closed more than 60 minutes combined in each consecutive 120-minute block of time beginning at 12:01 a.m. each day. At no time will the bridge be closed to navigation for more than 60 consecutive minutes of time.
(9) The bridge shall remain open to maritime traffic when trains are not crossing.
Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the waters of the Delaware River near Talen Energy Stadium in Chester, PA, from 9:30 p.m. to 10:30 p.m. on August 31, 2019, during the Philadelphia Union Post-Game Fireworks Display. The safety zone is necessary to ensure the safety of participant vessels, spectators, and the boating public during the event. This regulation prohibits persons and non-participant vessels from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port (COTP) Delaware Bay or a designated representative.
This rule is effective from 9:30 p.m. through 10:30 p.m. on August 31, 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 Petty Officer Thomas Welker, Sector Delaware Bay, Waterways Management Division, U.S. Coast Guard; telephone (215) 271-4814, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest to do so. There is insufficient time to allow for a reasonable comment period prior to the date of the event. The rule must be in force by August 31, 2019. We are taking immediate action to ensure the safety of spectators and the general public from hazards associated with the fireworks display. Hazards include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Delaware Bay (COTP) has determined that potential hazards associated with the fireworks to be used in this August 31, 2019 display will be a safety concern for anyone within a 300 yard radius of the barge. 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 event.
This rule establishes a temporary safety zone on the waters of the
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, 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.
The impact of this rule is not significant for the following reasons: (1) The enforcement period will last one hour when vessel traffic is usually low; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the COTP Delaware Bay or a designated representative, a portion of the channel will remain open so that persons and vessels will be able to operate in the surrounding area during the enforcement period; (3) persons and vessels will still be able to enter, transit through, anchor in, or remain within the regulated area if authorized by the COTP Delaware Bay or a designated representative; and (4) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene actual notice from designated representatives.
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 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 IV.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 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 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 a safety zone that will prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within a limited area on the navigable water in the Delaware River, during a fireworks display lasting approximately
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)
(b)
(c)
(2) To seek permission to enter or remain in the zone, contact the COTP or the COTP's representative via VHF-FM channel 16 or 215-271-4807. 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.
(3) No vessel may take on bunkers or conduct lightering operations within the safety zone during its enforcement period.
(4) This section applies to all vessels except those engaged in law enforcement, aids to navigation servicing, and emergency response operations.
(d)
(e)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing a determination that the New Jersey portion of the Northeast Pennsylvania-Upper Delaware Valley Interstate Air Quality Control Region (Warren County) Sulfur Dioxide (SO
This final rule is effective on September 20, 2019.
The EPA has established a docket for this action under Docket ID Number EPA-R02-OAR-2019-0164. All documents in the docket are listed on the
Kenneth Fradkin, (212) 637-3702, or by email at
The EPA designated all of Warren County, New Jersey as attainment for the 1971 SO
The 1971 SO
The EPA initially designated all of Warren County, which is part of the Northeast Pennsylvania-Upper Delaware Valley Interstate Air Quality Control Region (AQCR), as “better than national standards” (otherwise known as “attainment”) for the 1971 primary and
The December 31, 1987 nonattainment redesignation for Warren County included the entire Townships of Harmony, Oxford, White, and Belvidere, and portions of Liberty
New Jersey was required to submit an attainment SIP to the EPA by May 15, 1992,
On June 14, 2018, the Center for Biological Diversity, Center for Environmental Health, and Sierra Club (CBD) filed suit against the EPA in the U.S. District Court for the Northern District of California seeking to compel the EPA to, among other things, determine that New Jersey had failed to submit a required SIP for the New Jersey portion of the Northeast Pennsylvania-Upper Delaware Valley Interstate Air Quality Control Region (part) nonattainment area, and amended that complaint on December 17, 2018. See
The NJDEP submitted a request on August 17, 2018 for the EPA to make a determination that the Warren County SO
On July 23, 2019 NJDEP submitted a supplement to the Warren County SO
EPA's final determination that the area has attained the 3-hour, 24-hour, and annual 1971 SO
The public comment period on EPA's proposed determination opened May 20, 2019, the date of its publication in the
EPA also believes that the commenter understates the utility of annual
In any case, EPA has conducted a further examination of short-term emissions data from significant sources in the Warren County area. Modeling discussed in the notice of proposed rulemaking demonstrated that the pertinent SO
Although this action is focused on current actual air quality, EPA also considered potential (or allowable) SO
The air dispersion modeling conducted in June 1999 (the 1999 study) showed that attainment could be assured for the 3-hour, 24-hour, and annual 1971 SO
Both the Martins Creek and Portland facilities have shut down and/or dismantled several emissions units. At Martins Creek, coal-fired Units 1 and 2 have been shut down and dismantled since September 2007. Martins Creek Auxiliary boiler 4B has also shut down. Similarly, Portland has permanently shut down its Coal-fired Units 1 & 2 in compliance with a Consent Decree. Martins Creek currently limits its No. 6 Oil-fired Units 3 and 4 to burning only No. 6 oil at no more than 0.5 percent sulfur to comply with the revised 25 Pa. Code Chapter 123, section 123.22, even though these equipment's emissions were modeled at a sulfur content of 1 percent.
Further, both the Martins Creek and Portland facilities' operating permits contain more stringent operating conditions. Martins Creek Units 3 and 4's allowable emissions were reduced from 77,109 tons per year in 1999 to 38,544 tons per year in 2018, corresponding to hourly emission rates declining from 17,605 pounds per hour to 8,800 pounds per hour. Further, Martins Creek combustion turbines are currently permitted to use only natural gas. Portland's combustion turbines Units 3, 4 and 5 are limited to burning No. 2 oil at no more than 0.05 percent sulfur under 25 Pa. Code Chapter 123, section 123.22. Portland Unit 1 ceased burning coal in May 2014, and Unit 2 did so in June 2013.
Current allowable emission rates are substantially below the levels found in 1999 to provide for attainment. As noted earlier in this section, the allowable SO
The EPA disagrees with the commenter's suggestion that the EPA should reanalyze potential emissions from the Portland facility since it is subject to BAT limits (which is 2,287.2 lbs./day and 39.67 tons/year of SO
25 Pa Code Chapter 123, section123.22 is a SIP-approved regulation that includes maximum allowable sulfur content limits of 0.05 percent sulfur by weight for No. 2 and lighter distillate oil for combustion all units. The rule is federally enforceable, and the sulfur fuel limits currently apply to the Portland facility.
The EPA notes that Portland combustion turbines Units 3 and 4 were modeled in June 1999 at a much higher (and more conservative) emission rate than the BAT limit of 2,287 lbs./day cited by the commenter. Unit 3 was modeled at 16.51 grams per second (equivalent to 3,145 lbs./day), and Unit 4 was modeled at 22.36 grams per sec (equivalent to 4,259 lbs./day). See Table 2-1 Sulfur Dioxide Emissions for the Sources Modeled in the Martins Creek modeling report (ID: EPA-R02-OAR-2019-0164-0003) included in the docket of the rulemaking. Because the
The EPA is finalizing a determination that the Warren County Nonattainment Area has attained the 3-hour, 24-hour, and annual 1971 SO
Issuance of a CDD does not constitute a redesignation of the Warren County Nonattainment Area to attainment for the 3-hour, 24-hour, and annual 1971 SO
This action finalizes a determination of attainment for the 1971 SO
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because it is not a significant regulatory action under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 1985, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the attainment determination is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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 October 21, 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, Sulfur oxides, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Part 52 chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42.U.S.C. 7401
(e) EPA has determined, as of August 21, 2019, that the Warren County Nonattainment Area has attained the 3-hour, 24-hour, and annual 1971 sulfur dioxide national ambient air quality standard (NAAQS). This determination (informally known as a Clean Data
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) finds that the Columbus, Ohio area is attaining the 2015 ozone National Ambient Air Quality Standard (NAAQS or standard) and is acting in accordance with a request from the Ohio Environmental Protection Agency (Ohio EPA) to redesignate the area to attainment for the 2015 ozone NAAQS because the request meets the statutory requirements for redesignation under the Clean Air Act (CAA). The Columbus area includes Delaware, Fairfield, Franklin, and Licking Counties. Ohio EPA submitted this request on April 23, 2019. EPA is also approving, as a revision to the Ohio State Implementation Plan (SIP), the State's plan for maintaining the 2015 ozone NAAQS through 2030 in the Columbus area. Finally, EPA finds adequate and is approving Ohio's 2023 and 2030 volatile organic compound (VOC) and oxides of nitrogen (NO
This final rule is effective August 21, 2019.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2019-0239. All documents in the docket are listed in the
Kathleen D'Agostino, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
This rule takes action on the April 23, 2019, submission from Ohio EPA requesting redesignation of the Columbus area to attainment for the 2015 ozone standard. The background for this action is discussed in detail in EPA's proposal, dated July 3, 2019 (84 FR 31814). In that rulemaking, we noted that, under EPA regulations at 40 CFR part 50, the 2015 ozone NAAQS is attained in an area when the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentration is equal to or less than 0.070 parts per million, when truncated after the third decimal place, at all of the ozone monitoring sites in the area. (
As discussed in the proposed rule, quality-assured and certified monitoring data for 2016-2018 and preliminary data for 2019 show that the Columbus area has attained and continues to attain the 2015 ozone standard. In the maintenance plan submitted for the area, Ohio has demonstrated that the ozone standard will be maintained in the area through 2030. Finally, Ohio has adopted 2023 and 2030 VOC and NO
EPA provided a 30-day review and comment period for the July 3, 2019, proposed rule. The comment period ended on August 2, 2019. We received one comment in support of EPA's proposed action. We received no adverse comments on the proposed rule.
EPA is determining that the Columbus nonattainment area is attaining the 2015 ozone standard, based on quality-assured and certified monitoring data for 2016-2018 and that the area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus changing the legal designation of the Columbus area from nonattainment to attainment for the 2015 ozone standard. EPA is also approving, as a revision to the Ohio SIP, the State's maintenance plan for the area. The maintenance plan is designed to keep the Columbus area in attainment of the 2015 ozone NAAQS through 2030. Finally, EPA finds adequate and is approving the newly-established 2023 and 2030 MVEBs for the Columbus area.
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule relieves the State of planning requirements for this ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions.
Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 21, 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, Oxides of nitrogen, Ozone, Volatile organic compounds.
Environmental protection, Air pollution control, National parks, Wilderness areas.
Title 40 CFR parts 52 and 81 are amended as follows:
42 U.S.C. 7401
(e) * * *
42 U.S.C. 7401,
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes exemptions from the requirement of a tolerance for residues of pesticide inert ingredients within the C
This regulation is effective August 21, 2019. Objections and requests for hearings must be received on or before October 21, 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-2018-0201, is available at
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number:
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 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 objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2018-0201 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 21, 2019. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2018-0201, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for 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. . . .”
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), 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 C
EPA has evaluated the available toxicity data and considered their 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. Specific information on the studies received and the nature of the adverse effects caused by C
The seven compounds included in the cluster are C
The acute oral and dermal toxicities are low in rats and rabbits, respectively. C
New Zealand white rabbits exposed for 8 days via gavage to doses as high as 300 mg/kg/day of d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl- do not exhibit adverse effects. No adverse effects are observed up to 375 mg/kg/day in rats following 13 weeks of exposure via gavage to d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl-. Conversely, adverse effects are observed in the dog following 13 weeks of exposure via capsule to d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl-. Decreased mean body weight, body weight gain, food consumption, changes in clinical biochemistry, lower levels of red blood cells (RBCs), hemoglobin and hematocrit and decreased relative liver weights are observed in dogs at 700 mg/kg/day. The no-observed-adverse-effect level (NOAEL) is 100 mg/kg/day.
No fetal susceptibility is observed in the developmental toxicity studies in rats and rabbits. Developmental studies with d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl-in the rat and rabbit show no maternal or developmental adverse effects up to 375 and 300 mg/kg/day, respectively, the highest doses tested. No reproduction toxicity studies are available for review, however, no evidence of toxicity to reproductive organs is observed in the 13-week oral toxicity studies in the rat or dog up to 375 and 700 mg/kg/day, respectively.
The Ames test and chromosomal aberrations assay in human lymphocytes are negative. Therefore, d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl- is not considered mutagenic.
D-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl- is not expected to be carcinogenic based on a Derek Nexus structural alert analysis. No structural alerts for carcinogenicity or mutagenicity are indicated in the analysis.
Neurotoxicity and immunotoxicity studies are not available for review. However, no evidence of neurotoxicity and immunotoxicity is observed in the submitted studies.
Metabolism studies are not available for the C
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
The 13-week oral toxicity study in dogs is selected for the chronic dietary exposure scenario as well as intermediate-term incidental oral, dermal and inhalation exposure scenarios. The NOAEL is 100 mg/kg/day, and the LOAEL is 700 mg/kg/day based on decreased mean body weight, body weight gain and food consumption, changes in clinical biochemistry, lower levels of RBCs, hemoglobin and hematocrit and decreased relative liver weights. This represents the lowest NOAEL in the database in the most sensitive species. The developmental studies in rats and rabbits are selected for short-term exposure scenarios. These studies are considered co-critical, the NOAEL is 300 mg/kg/day, the highest dose tested.
1.
No adverse effects attributable to a single exposure of endpoint was identified for d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl-; therefore, an acute dietary exposure assessment was not conducted.
In conducting the chronic dietary exposure assessment using the Dietary Exposure Evaluation Model DEEM-FCIDTM, Version 3.16, EPA used food consumption information from the U.S. Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, no residue data were submitted for d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl-. In the absence of specific residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high use insecticides, herbicides, and fungicides. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at
In the dietary exposure assessment, the Agency assumed that the residue level of the inert ingredient would be no higher than the highest tolerance for a given commodity. Implicit in this assumption is that there would be similar rates of degradation (if any) between the active and inert ingredient and that the concentration of inert ingredient in the scenarios leading to these highest levels of tolerances would be no higher than the concentration of the active ingredient.
The Agency believes the assumptions used to estimate dietary exposures lead to an extremely conservative assessment of dietary risk due to a series of compounded conservatisms. First, assuming that the level of residue for an inert ingredient is equal to the level of residue for the active ingredient will overstate exposure. The concentrations of active ingredient in agricultural products are generally at least 50 percent of the product and often can be much higher. Further, pesticide products rarely have a single inert ingredient; rather there is generally a combination of different inert ingredients used which additionally reduces the concentration of any single inert ingredient in the pesticide product in relation to that of the active ingredient.
Second, the conservatism of this methodology is compounded by EPA's decision to assume that, for each commodity, the active ingredient which will serve as a guide to the potential level of inert ingredient residues is the active ingredient with the highest tolerance level. This assumption overstates residue values because it would be highly unlikely, given the high number of inert ingredients, that a single inert ingredient or class of ingredients would be present at the level of the active ingredient in the highest tolerance for every commodity. Finally, a third compounding conservatism is EPA's assumption that all foods contain residues of the inert ingredient at the highest tolerance level. In other words, EPA assumed 100 percent of all foods are treated with the inert ingredient at the rate and manner necessary to produce the highest residue legally possible for an active ingredient. In summary, EPA chose a very conservative method for estimating what level of inert residue could be on food, then used this methodology to choose the highest possible residue that could be found on food and assumed that all food contained this residue. No consideration was given to potential degradation between harvest and consumption even though monitoring data shows that tolerance level residues are typically one to two orders of magnitude higher than actual residues in food when distributed in commerce.
Accordingly, although sufficient information to quantify actual residue levels in food is not available, the compounding of these conservative assumptions will lead to a significant exaggeration of actual exposures. EPA does not believe that this approach underestimates exposure in the absence of residue data.
To assess dietary exposure due to its use in antimicrobial products, EPA calculated the daily dietary dose (DDD) and the estimated daily intake (EDI) as described in the Food Drug Administration (FDA) model. The assessment considered: Application rates, residual solution or quantity of solution remaining on the treated surface without rinsing with potable water, surface area of the treated surface which comes into contact with food, pesticide migration fraction, and body weight. These assumptions are based on FDA guidelines (2003). Dietary exposures due to antimicrobial uses are aggregated with the aforementioned dietary exposures.
2.
3.
The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (
The Agency does not have sufficient data to quantitatively assess exposures to d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl- that result from these non-pesticidal uses. However, the Agency believes the assessments of exposures due to pesticide uses are protective of these non-pesticidal uses. Based on the available data on the typical reported concentration ranges of d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl- topically applied pharmaceuticals as well as the specific use and limited exposures resulting from such uses, the Agency anticipates that exposures to d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl- that might result from anti-acne and anti-aging topically applied pharmaceutical products uses are likely to be markedly less than the conservatively-estimated exposures resulting from pesticide use. Therefore, the Agency believes that any contribution to the estimated pesticide exposure resulting from topically applied pharmaceuticals products is likely to be insignificant in comparison to the estimates for exposure from pesticide use and these exposures have not been aggregated with other non-residential exposures.
4.
EPA has not found C
1.
The Agency has concluded that there is reliable data to determine that infants and children will be safe if the FQPA SF of 10x is reduced to 1x for the chronic dietary assessment for the following reasons. The toxicity database for C1-C4 linear and branched chain alkyl d-glucitol dianhydro alkyl ethers cluster contains subchronic, developmental and mutagenicity studies. There is no indication of immunotoxicity or neurotoxicity in the available studies; therefore, there is no need to require an immunotoxicity or neurotoxicity study. Fetal susceptibility is not observed in developmental toxicity studies in the rat and rabbit. No maternal or developmental toxicity is observed in either study up to 300 mg/kg/day. A reproduction toxicity is not available; however, reproduction parameters were not affected in the submitted studies at doses as high as 375 and 700 mg/kg/day in the rat and dog, respectively. Based on the adequacy of the toxicity database, the conservative nature of the exposure assessment and the lack of concern for prenatal and postnatal sensitivity, the Agency has concluded that there is reliable data to determine that infants and children will be safe if the FQPA SF of 10x is reduced to 1x.
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.
1.
2.
3.
C
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 148 for adult males and females. Adult residential exposure combines high-end dermal and inhalation handler exposure from indoor hard surface, aerosol spray with a high-end post application dermal exposure from contact with treated lawns. The combined short-term
4.
C
Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 434 for adult males and females. Adult residential exposure includes high end post application dermal exposure from contact with treated lawns. The combined intermediate-term aggregated food, water, and residential exposures result in an aggregate MOE of 125 for children. Children's residential exposure includes total exposures associated with contact with treated surfaces (dermal and hand-to-mouth exposures). Because EPA's level of concern for C
5.
6.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
Therefore, exemptions from the requirement of a tolerance are established for residues of the following seven compounds within the C1-C4 linear and branched chain alkyl d-glucitol dianhydro alkyl ethers (AD-GDAE) cluster: (1) d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-methyl- (CAS Reg. No. 5306-85-4); (2) d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-ethyl- (CAS Reg. No. 30915-81-2); (3) d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-propyl) (CAS Reg. No.107644-13-3); (4) d-glucitol, 1,4:3,6-dianhydro-2,5-bis-O-(1-methylethyl)-,(iso-propyl diether) (CAS Reg. No. 103594-41-8); (5) d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-butyl- (CAS Reg. No. 103594-42-9); (6) d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-(1-methylpropyl)-, (CAS Reg. No. not assigned); and (7) d-glucitol, 1,4:3,6-dianhydro-2,5-di-O-(2-methylpropyl)-, (CAS Reg. No. not assigned) when used as an inert ingredient (solvent, co-solvent, viscosity modifier and adjuvant) in pesticide formulations applied to growing crops and raw agricultural commodities after harvest under 40 CFR 180.910; applied in or on animals under 40 CFR 180.930; when used in antimicrobial formulations applied to food-contact surfaces in public-eating places, dairy-processing equipment, and food-processing equipment and utensils under 40 CFR 180.940(a) limited to 500 ppm; and in antimicrobial formulations used for dairy-processing equipment, and food-processing equipment and utensils under 40 CFR 180.940(b) limited to 1,000 ppm.
This action establishes a tolerance exemption 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 it 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) * * *
(b) * * *
Environmental Protection Agency (EPA).
Final rule.
EPA is publishing this final rule to amend the formaldehyde standards for composite wood products regulation. EPA is publishing these amendments to address certain technical issues and to further align the final rule requirements with the California Air Resources Board (CARB) Airborne Toxic Control Measures (ATCM) Phase II program. Addressing these technical issues will add clarity for regulated entities. These revisions to the existing rule will also streamline compliance programs and help to ensure continued smooth transitions for supply chains to comply with the requirements associated with regulated composite wood products.
This final rule is effective on August 21, 2019. The incorporation by reference of certain material is approved by the Director of the Federal Register as of August 21, 2019. The incorporation by reference of other material was approved by the Director of the Federal Register as of February 10, 2017.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2018-0174, is available at
You may be affected by this final rule if you manufacture (including import), sell, supply, offer for sale, test, or work with certification firms that certify hardwood plywood, medium-density fiberboard, particleboard, and/or products containing these composite wood materials in the United States. 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:
• Veneer, plywood, and engineered wood product manufacturing (NAICS code 3212).
• Manufactured home (mobile home) manufacturing (NAICS code 321991).
• Prefabricated wood building manufacturing (NAICS code 321992).
• Furniture and related product manufacturing (NAICS code 337).
• Furniture merchant wholesalers (NAICS code 42321).
• Lumber, plywood, millwork, and wood panel merchant wholesalers (NAICS code 42331).
• Other construction material merchant wholesalers (NAICS code 423390),
• Furniture stores (NAICS code 4421).
• Building material and supplies dealers (NAICS code 4441).
• Manufactured (mobile) home dealers (NAICS code 45393).
• Motor home manufacturing (NAICS code 336213).
• Travel trailer and camper manufacturing (NAICS code 336214).
• Recreational vehicle (RV) dealers (NAICS code 441210).
• Recreational vehicle merchant wholesalers (NAICS code 423110).
• Engineering services (NAICS code 541330).
• Testing laboratories (NAICS code 541380).
• Administrative management and general management consulting services (NAICS code 541611).
• All other professional, scientific, and technical services (NAICS code 541990).
• All other support services (NAICS code 561990).
• Business associations (NAICS code 813910).
• Professional organizations (NAICS code 813920).
If you have any questions regarding the applicability of this action, please consult the technical person listed under
Then, on May 24, 2018, the Agency published a notice in the
EPA also proposed updating the correlation requirement at 40 CFR 770.20(d) to allow multiple similar model or size and construction mill quality control test method apparatuses located at any one physical mill quality control testing laboratory to demonstrate correlation to the TSCA Title VI TPC test apparatus as required under 40 CFR 770.20(d). Like the amendment to the equivalence testing requirement, EPA believes this amendment will not negatively impact the quality of the quality control testing data. EPA did not receive any public comment against updating this provision. As such, EPA is finalizing this provision as proposed.
The CARB-approved method for averaging test results in quarterly and non-complying lot testing accounts for formaldehyde emission variability across any one composite wood product panel while ensuring the products still meet the applicable emission standards. This method is outlined in CARB's method at 17 California Code of Regulations section 93120.9(a)(2)(A) and (B)(2) and Appendix 2 (g)(8) of its regulation, to allow nine subsamples from any one panel to be collected and tested in groups of three in three separate ASTM D6007-14 test apparatuses deemed equivalent to the ASTM E1333-14 apparatus (Ref. 1). This results in three data points, which are then averaged to obtain one final value that accounts for emission variability across that one panel (Ref. 1). Under these requirements, the nine subsamples should be evenly distributed and represent similar sizes to one another as they are collected from any one panel. EPA is finalizing a provision to allow nine subsamples from any one panel to be collected and tested in groups of three in three separate ASTM D6007-14 test apparatuses deemed equivalent to the ASTM E1333-14 apparatus at 40 CFR 770.20(c)(2)(iv). EPA will also continue to allow for testing of one sample, in one ASTM D6007-14 apparatus deemed equivalent to the ASTM E1333-14 apparatus, without the use of averaging if the TPC and mill choose to do so. EPA received comments in support of adding paragraph (iv) to 40 CFR 770.20(c)(2) and amending paragraph (i) at 40 CFR 770.22(c)(2). As such, EPA is finalizing these amendments. EPA is also finalizing a conforming amendment to paragraph (ii) at 40 CFR 770.22(c)(2) in order to account for the possibility of averaging.
One commenter noted that averaging of subsamples in the ASTM E1333-14 apparatus would not be permitted under the CARB program. EPA recognizes that only full-sized panels would be tested in the ASTM E1333-14 apparatus and updated the regulatory text at 40 CFR 770.20(c)(2)(iv) from the proposal to reflect this.
Another commenter noted that the method used for averaging is equally important in development of equivalence and correlation testing and noted that this option should be added in the final rule. As such, EPA is finalizing this rule to update regulatory text at 40 CFR 770.20(d) to allow for test sample averaging in the demonstration of equivalence or correlation when using the ASTM D6007-14 apparatus.
EPA is finalizing this rule as proposed to align with CARB's ATCM and its requirement for ten comparison tests, consisting of five comparison tests in two of the three specified ranges with a modification to the emission ranges and a modification to the requirement for demonstration across two ranges based on comments submitted by CARB staff (
The final rule will assign formaldehyde emissions ranges of less than or equal to 0.05 ppm for the low range, formaldehyde emissions greater than 0.05 ppm up to 0.15 ppm for the intermediate range, and formaldehyde emissions greater than 0.15 ppm for the upper range. The change to the low range deviates from the current guidance under the CARB ATCM Phase II program; however, CARB has informed the Agency that they intend to update their emission ranges to be the same as EPA's in the future. The amended low emission range corresponds to the TSCA Title VI emission standard for hardwood plywood.
EPA proposed to allow TSCA Title VI TPCs who will only certify in the low or intermediate ranges to demonstrate equivalence for those ranges, using at least five comparison tests to demonstrate equivalence in a given range. A CARB comment on this proposal (
EPA did not receive any public comments related to updating the references to these standards. As such, EPA is finalizing this update as proposed. Any future versions or updates to withdrawn/superseded standards will be announced by EPA through a separate
EPA notes that the regulatory intent behind the non-complying lot provisions at 40 CFR 770.22 is to manage those non-compliant composite wood products in their panel form to prevent them from entering the fabrication supply chain, but not to require action after those panels have been used in the fabrication of component parts or finished goods. One commenter (
These regulations are established under authority of Section 601 of TSCA, 15 U.S.C. 2697.
As discussed in the proposed rule as an option (
EPA is finalizing the use of the following voluntary consensus standards issued by International Organization for Standardization/International Electrotechnical Commission:
1. ISO/IEC 17011:2017(E) Conformity assessments—requirements for accreditation bodies accrediting conformity assessments bodies. This standard specifies general requirements for accreditation bodies assessing and accrediting conformity assessment bodies. For the purposes of this standard, conformity assessment bodies are organizations providing the following conformity assessment services: Testing, inspection, management system certification, personnel certification, product certification and, in the context of this standard, calibration.
2. ISO/IEC 17025:2017(E) General requirements for the competence of testing and calibration laboratories. This standard specifies the general requirements for the competence to carry out tests or calibrations, including sampling. It covers testing and calibration performed using standard methods, non-standard methods, and laboratory-developed methods.
ASTM D6007-14 and E13333-14 were previously approved for incorporation by reference on February 10, 2017.
Copies of the standards referenced in the final regulatory text at 40 CFR 770.3 and 770.7 have been placed in the docket for this final rule. You may also obtain copies of these standards from the International Organization for Standardization, 1, ch. de la Voie-Creuse, CP 56, CH-1211, Geneve 20, Switzerland, or by calling +41-22-749-01-11, or at
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose any new information collection burden under the PRA because it does not create any new reporting or recordkeeping obligations. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2070-0185.
The Agency certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule will not impose substantial direct compliance costs on Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it does not concern an environmental health risk or safety risk. This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. As addressed in Unit II.B., this action would not significantly alter the December 12, 2016 final rule as published and proposes technical amendments to further align the EPA's TSCA Title VI program with the CARB ATCM Phase II program.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.
This action involves technical standards. EPA is finalizing the use of the following voluntary consensus standards issued by International Organization for Standardization/International Electrotechnical Commission:
1. ISO/IEC 17011:2017(E) Conformity assessments—requirements for accreditation bodies accrediting conformity assessments bodies.
2. ISO/IEC 17025:2017(E) General requirements for the competence of testing and calibration laboratories.
Copies of the standards referenced in the final regulatory text at 40 CFR 770.3 and 770.7 have been placed in the docket for this final rule. See Unit IV. for information on how to obtain copies of these standards from other sources.
EPA has determined that this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The Agency presented the results of an environmental justice analysis in the December 12, 2016 TSCA Title VI final rule economic analysis (
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. As required by 5 U.S.C. 808(2), the determination to make this final rule effective immediately, upon publication in the
Environmental protection, Formaldehyde, Incorporation by reference, Reporting and recordkeeping requirements, Third-party certification, Toxic substances, Wood, Incorporation by Reference.
For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is amended as follows:
15 U.S.C. 2697(d).
(e) Beginning June 1, 2018, all manufacturers (including importers), fabricators, suppliers, distributors, and retailers of composite wood products, and component parts or finished goods containing these materials, must comply with this part, subject to the following:
(1) Beginning June 1, 2018, laminated product producers must comply with the requirements of this part that are applicable to fabricators.
(4) Composite wood products manufactured (including imported) before June 1, 2018 may be sold, supplied, offered for sale, or used to
The revision reads as follows:
(c) * * *
(4) * * *
(v) * * *
(C) Notification of a panel producer exceeding its established QCL for three consecutive quality control tests within 72 hours of the time that the TPC becomes aware of the third consecutive exceedance. The notice must include the product type, dates of the quality control tests that exceeded the QCL, quality control test results, ASTM E1333-14 (incorporated by reference, see § 770.99) or ASTM D6007-14 method (incorporated by reference, see § 770.99) correlative equivalent values in accordance with § 770.20(d), the established QCL value(s) and the quality control method used.
(a) Except as otherwise provided in this part, the emission standards in this section apply to composite wood products sold, supplied, offered for sale, or manufactured (including imported) on or after June 1, 2018 in the United States. These emission standards apply regardless of whether the composite wood product is in the form of a panel, a component part, or incorporated into a finished good.
(a) The sale of stockpiled inventory of composite wood products, whether in the form of panels or incorporated into component parts or finished goods, is prohibited after June 1, 2018.
(a) Beginning June 1, 2018, only certified composite wood products, whether in the form of panels or incorporated into component parts or finished goods, are permitted to be sold, supplied, offered for sale, or manufactured (including imported) in the United States, unless the product is specifically exempted by this part.
(c) * * *
(1) * * *
(vii) Correlation data and linear regression equation (or, under the threshold approach, the correlation data and the upper limit); and
(2) * * *
(v) Correlation data and linear regression equation (or, under the threshold approach, the correlation data and the upper limit); and
(a) * * *
(4) Three months of routine quality control tests under § 770.20, including a showing of correlation in accordance with § 770.20(d)(2), totaling not less than thirteen quality control tests.
(a) * * *
(4) Six months of routine quality control tests under § 770.20, including a showing of correlation in accordance with § 770.20(d)(2), totaling not less than twenty-six quality control tests.
The additions and revisions read as follows:
(c) * * *
(2) * * *
(iv) Test results may represent a single chamber value or, if using the ASTM D6007-14 apparatus, the average value of testing nine specimens representing evenly distributed portions of an entire panel. The nine specimens must be tested in groups of three specimens, resulting in three data points, which must be averaged to represent one test value for the panel those specimens represent.
(d)
(1)
(iv)
(A)
(B)
(C)
(2)
(i)
(A)
(B)
(c) * * *
(2) * * *
(i) At least one test panel must be randomly selected so that it is representative of the entire non-complying lot and is not the top or bottom panel of a bundle. Panel sampling shall be conducted according to the quarterly testing procedure at § 770.20(c)(2)(iv). The panel may be selected from properly stored samples set aside by the panel producer for retest in the event of a failure.
(ii) The average of the three samples or the single chamber value (as described in § 770.20(c)(2)(iv)) must test at or below the level that indicates that the product is in compliance with the applicable emission standards in § 770.10.
(f) * * *
(1) If a fabricator, importer, distributor, or retailer is notified that they have been supplied a non-complying lot after those composite wood products have been fabricated into component parts or finished goods, the notification requirement at paragraph (d)(1) of this section does not apply.
(2) [Reserved]
(b) Importers must demonstrate that they have taken reasonable precautions
(c) Fabricators, distributors, and retailers must demonstrate that they have taken reasonable precautions by obtaining bills of lading, invoices, or comparable documents that include a written statement from the supplier that the composite wood products, component parts, or finished goods are TSCA Title VI compliant or that the composite wood products were produced before June 1, 2018.
(a) Panels or bundles of panels that are imported, sold, supplied, or offered for sale in the United States must be labeled with the panel producer's name, the lot number, the number of the EPA TSCA Title VI TPC, and a statement that the products are TSCA Title VI certified. If a composite wood panel is not individually labeled, the panel producer, importer, distributor, fabricator, or retailer must have a method (
(f) All panels (or bundles of panels) and finished goods (or boxes or bundles containing finished goods) must be properly labeled pursuant to paragraphs (a), (b), and (c) of this section before being imported into the United States, except as provided in paragraph (e) of this setion.
(e) * * *
(1) ISO/IEC 17011:2017(E) Conformity assessments—requirements for accreditation bodies accrediting conformity assessments bodies (Second Edition), November 2017.
(3) ISO/IEC 17025:2017(E) General requirements for the competence of testing and calibration laboratories (Third Edition), November 2017.
Federal Communications Commission.
Final rule.
At the request of Xana HD Solutions, LLC., the Audio Division amends the FM Table of Allotments, by allotting Channel 283A at Kahlotus, Washington, as the first local service. A staff engineering analysis indicates that Channel 283A can be allotted to Kahlotus, Washington, consistent with the minimum distance separation requirements of the Commission's rules with a site restriction of 6.2 kilometers (3.88 miles) southeast of Kahlotus. The reference coordinates are 46-38-00 NL 118-38-10 WL. Channel 283A at Kahlotus, Washington is located within 320 kilometers (199 miles) of the U.S.-Canadian border. Canadian concurrence has been received.
Effective September 2, 2019.
Rolanda F. Smith, Media Bureau, (202) 418-2700.
This is a synopsis of the Commission's Report and Order, MB Docket No. 19-127, adopted July 18, 2019, and released July 19, 2019. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW, Washington, DC 20554. The full text is also available online at
Radio, Radio broadcasting.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
The additions read as follows:
(b) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correction.
This action corrects the
Effective August 30, 2019.
Electronic copies of Amendment 13 may be obtained from the Southeast Regional Office website at
Kelli O'Donnell, Southeast Regional Office, NMFS, telephone: 727-824-5305; email:
In a final rule NMFS published on July 31, 2019, beginning on page 37149, make the following correction in the
“On April 2, 2019, NMFS published a notice of availability (NOA) for Amendment 13 and requested public comment (84 FR 12573).”
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reduction of possession limit.
Beginning August 21, 2019, through December 31, 2019, Federal
Effective 0001 hr local time, August 21, 2019, through December 31, 2019.
Alyson Pitts, Fishery Management Specialist, (978) 281-9352.
Regulations for the
The Regional Administrator has determined, based on dealer reports and other available information, that the
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
NMFS finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the delayed effectiveness because it would be contrary to the public interest and impracticable. Data and other information indicating the
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific ocean perch in the Central Aleutian district (CAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access sector fishery. This action is necessary to prevent exceeding the 2019 total allowable catch (TAC) of Pacific ocean perch in the CAI allocated to vessels participating in the BSAI trawl limited access sector fishery.
Effective 1200 hrs, Alaska local time (A.l.t.), August 16, 2019, through 2400 hrs, A.l.t., December 31, 2019.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2019 TAC of Pacific ocean perch, in the CAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 743 metric tons by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019).
In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the CAI by vessels participating in the BSAI trawl limited access sector fishery. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the Pacific ocean perch directed fishery in the CAI for vessels participating in the BSAI trawl limited access sector fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 15, 2019.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of public meeting revision and extension of public comment period.
On July 23, 2019, the U.S. Department of Energy (“DOE”) published in the
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW, Washington, DC 20585.
The docket web page can be found at
Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-0371. Email:
Elizabeth Kohl, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-7796. Email:
For further information on how to submit a comment, review other public comments and the docket, or regarding a public meeting, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
On July 23, 2019, the U.S. Department of Energy (“DOE”) published in the
On July 29, 2019, DOE received a comment from the Natural Resources Defense Council, the Northwest Energy Efficiency Alliance, and Pacific Gas and Electric Company requesting that DOE hold an in-person public meeting regarding the proposed amendments to the clothes dryers test procedures.
On August 2, 2019 and August 5, 2019, DOE received subsequent comments from Association of Home Appliance Manufacturers (AHAM) requesting to move the webinar and public meeting into September 2019.
This notice announces that DOE will hold a public meeting to discuss the proposed amendments to the clothes dryers test procedures on September 17, 2019. The public meeting will also be available as a webinar. This notice also extends the public comment period for submitting comments and data on the NOPR by 14 days to October 7, 2019.
See section V, “Public Participation,” of the NOPR published on July 23, 2019, for additional information on participating in the webinar and submitting comments.
The time, date, and location of the public meeting are listed in the
Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE of this fact as soon as possible by
DOE requires visitors to have laptops and other devices, such as tablets, checked upon entry into the building. Any person wishing to bring these devices into the Forrestal Building will be required to obtain a property pass. Visitors should avoid bringing these devices, or allow an extra 45 minutes to check in. Please report to the visitor's desk to have devices checked before proceeding through security.
Due to the REAL ID Act implemented by the Department of Homeland Security (“DHS”), there have been recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. DHS maintains an updated website identifying the State and territory driver's licenses that currently are acceptable for entry into DOE facilities at
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will permit, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be included in the docket, which can be viewed as described in the Docket section at the beginning of this document. In addition, any person may buy a copy of the transcript from the transcribing reporter.
Drug Enforcement Administration, Department of Justice.
Notice of proposed rulemaking.
The Drug Enforcement Administration (DEA) proposes to remove (5α,6β)-17-(cyclopropylmethyl)-4,5-epoxymorphinan-3,6,14-triol (6β-naltrexol) and its salts from the schedules of the Controlled Substances Act (CSA). This scheduling action is pursuant to the CSA which requires that such actions be made on the record after opportunity for a hearing through formal rulemaking. 6β-Naltrexol is currently a schedule II controlled substance because it can be derived from opium alkaloids. This action would remove the regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances, including those specific to schedule II controlled substances, on persons who handle (manufacture, distribute, reverse distribute, dispense, conduct research, import, export, or conduct chemical analysis) or propose to handle 6β-naltrexol.
Interested persons may file written comments on this proposal in accordance with 21 CFR 1308.43(g). Electronic comments must be submitted, and written comments must be postmarked, on or before September 20, 2019. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period.
Interested persons, defined at 21 CFR 1300.01 as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811),” may file a request for hearing or waiver of participation pursuant to 21 CFR 1308.44 and in accordance with 21 CFR 1316.45, 1316.47, 1316.48, or 1316.49, as applicable. Requests for hearing, notices of appearance, and waivers of an opportunity for a hearing or to participate in a hearing must be received on or before September 20, 2019.
To ensure proper handling of comments, please reference “Docket No. DEA-492” on all correspondence, including any attachments.
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Scott A. Brinks, Regulatory Drafting and Policy Support Section, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-8106.
Please note that all comments received in response to this docket are considered part of the public record. They will, unless reasonable cause is given, be made available by the DEA for public inspection online at
If you want to submit confidential business information as part of your comment, but do not want it to be made publicly available, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment.
Comments containing personal identifying information and confidential business information identified as directed above will generally be made publicly available in redacted form. If a comment has so much confidential business information or personal identifying information that it cannot be effectively redacted, all or part of that comment may not be made publicly available. Comments posted to
An electronic copy of this document and supplemental information to this proposed rule are available at
Pursuant to 21 U.S.C. 811(a), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of the Administrative Procedure Act (APA) (5 U.S.C. 551-559). 21 CFR 1308.41-1308.45, and 21 CFR part 1316 subpart D. In accordance with 21 CFR 1308.44 (a) through (c), requests for hearing, notices of appearance, and waivers of an opportunity for a hearing or to participate in a hearing may be submitted only by interested persons, defined as those “adversely affected or aggrieved by any rule or proposed rule issuable pursuant to section 201 of the Act (21 U.S.C. 811).” 21 CFR 1300.01. Such requests or notices must conform to the requirements of 21 CFR 1308.44 (a) or (b), and 1316.47 or 1316.48, as applicable, and include a statement of the interest of the person in the proceeding and the objections or issues, if any, concerning which the person desires to be heard. Any waiver must conform to the requirements of 21 CFR 1308.44(c) and 1316.49, including a written statement regarding the interested person's position on the matters of fact and law involved in any hearing.
Please note that pursuant to 21 U.S.C. 811(a), the purpose and subject matter of a hearing is restricted to “(A) find[ing] that such drug or other substance has a potential for abuse, and (B) mak[ing] with respect to such drug or other substance the findings prescribed by subsection (b) of section 812 of this title for the schedule in which such drug is to be placed * * *.” All requests for hearing and waivers of participation must be sent to the DEA using the address information above, on or before the date specified above.
The CSA provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary of the Department of Health and Human Services (HHS),
6β-Naltrexol is the major metabolite of naltrexone. Naltrexone and 6β-naltrexol are reversible opioid receptor antagonists. Opioid receptor antagonists are commonly used in the treatment of
Pursuant to 21 U.S.C. 811(b), the DEA gathered the necessary data on 6β-naltrexol and forwarded the data, the sponsors' petitions, and a request for scheduling recommendation on 6β-naltrexol to the Department of Health and Human Services (HHS) on August 11, 2009. On July 21, 2017, the HHS provided to the DEA a scientific and medical evaluation entitled “Basis For The Recommendation To Remove (5α, 6β)-17-(cyclopropylmethyl)-4,5-epoxymorphinan-3,6,14-triol (6β-naltrexol) And Its Salts From All Schedules Of Control Under The Controlled Substances Act” and a scheduling recommendation. Following consideration of the eight factors and findings related to the substance's abuse potential, legitimate medical use, and dependence liability, the HHS recommended that 6β-naltrexol and its salts be decontrolled from all schedules of control of the CSA. The National Institute on Drug Abuse (NIDA) concurred with the recommendation.
The CSA requires the DEA to determine whether the HHS's scientific and medical evaluation, scheduling recommendation, and all other relevant data constitute substantial evidence that a substance should be scheduled. 21 U.S.C. 811(b). The DEA reviewed the scientific and medical evaluation and scheduling recommendation provided by the HHS, and all other relevant data, and completed its own eight-factor review document on 6β-naltrexol pursuant to 21 U.S.C. 811(c). Included below is a brief summary of each factor as analyzed by the HHS and DEA, and as considered by the DEA in this proposal to remove 6β-naltrexol from the schedules of the CSA. Please note that both the DEA and HHS analyses are available in their entirety under “Supporting and Related Material” of the public docket for this rule at
The first factor that must be considered is the actual or relative potential for abuse of 6β-naltrexol. The term “abuse” is not defined in the CSA. However, the legislative history of the CSA suggests the following points in determining whether a particular drug or substance has a potential for abuse:
According to HHS, there are no mentions of abuse of 6β-naltrexol in the National Survey on Drug Use and Health (NSDUH),
According to HHS, 6β-naltrexol is not currently marketed in any country. Availability is limited to research settings, and there is no evidence of diversion from legitimate drug channels. The National Forensic Laboratory Information System (NFLIS) is a DEA database that collects scientifically verified data on analyzed drug samples in State and local forensic laboratories.
According to HHS, 6β-naltrexol is only available in research laboratories and is not currently marketed in any country. The DEA notes that a review of scientific literature, STRIDE, STARLiMS, NFLIS, NSDUH, and MTF databases revealed no history of abuse of 6β-naltrexol. Thus, there is no evidence that individuals are taking 6β-naltrexol on their own initiative rather than on the basis of medical advice from a practitioner licensed by law to administer the same.
According to HHS, actions of 6β-naltrexol are not related to a substance already listed as having a potential for abuse. In humans, 6β-naltrexol is the major metabolite of naltrexone, which was removed from all schedules for control under the CSA on March 6, 1975 (40 FR 10455).
According to HHS, 6β-naltrexol is formed when the 6-keto group of naltrexone goes through a reduction process. It is the major metabolite of naltrexone in humans, monkeys, and guinea pigs, but not in rodents. It is a considerably weaker antagonist than naltrexone and does not affect basal signaling of µ- and δ-opioid receptors in opioid-naïve and opioid-dependent states which suggests that 6β-naltrexol has neutral antagonist properties. Binding affinities (Ki) of 6β-naltrexol were 2.12 nM, 212 nM, and 7.42 nM at µ-opioid receptor, δ-opioid receptor, and κ-opioid receptor, respectively. A study found that the affinity of 6β-naltrexol for the µ-opioid receptor and κ-opioid receptor was 2- to 5-fold higher than that of naloxone and 2-fold lower than naltrexone. 6β-Naltrexol also inhibited the inverse agonist effects of naloxone in pretreated membranes. The study thus concludes that 6β-naltrexol retained neutral antagonist activity. A previous study in animal models indicates that 6β-naltrexol appears to be 1/12th to 1/185th as potent as naltrexone. Though 6β-naltrexol is lower in potency than naltrexone, it contributes to the therapeutic and adverse effects of naltrexone because it accumulates to a greater extent than naltrexone especially in chronic dosing conditions. HHS concludes that this may be attributed to 6β-naltrexol's 10-fold higher systemic exposure as compared to naltrexone. 6β-naltrexol has a longer half-life (12 to 14 hours) than that of naltrexone (4 hours).
Although 6β-naltrexol has weaker opioid receptor antagonistic properties than naltrexone, it contributes significantly to the effects of naltrexone after oral administration. 6β-Naltrexol is metabolized primarily through glucuronidation and renal secretion. 6β-Naltrexol has a lower potency than naltrexone, and its longer duration of action and higher plasma concentrations indicate that 6β-naltrexol will contribute to the therapeutic and adverse effects of naltrexone. The physiochemical properties of 6β-naltrexol suggest that it may have a preferential blockade of peripheral over central opioid receptors following a systemic administration. This selectivity for peripheral opioid receptors may allow for co-formulation with an opioid, to attenuate the peripheral side effects, such as opioid-induced changes in bowel function, and immune functions.
In the
Another study that compared the activity of naltrexone and naloxone relative to 6β-naltrexol in blocking fentanyl-induced analgesia and lethality, and in precipitating withdrawal jumping in mice dependent on fentanyl reported that the potency ratio in antagonizing fentanyl-induced analgesia was 17:4:1 for naltrexone, naloxone, and 6β-naltrexol, respectively. The corresponding ratio to attenuate fentanyl-induced lethality was 13:2:1. In precipitating withdrawal, the corresponding ratio was 1107:415:1. Additionally, 6β-naltrexol pre-treatment resulted in decreased naloxone withdrawal. Thus, 6β-naltrexol produced a lower efficacy antagonist activity by blocking inverse agonist-mediated effects of naloxone. In a chronic mouse model of dependence, 6β-naltrexol was 30 and 100 times less potent than naloxone and naltrexone, respectively. 6β-Naltrexol at 1.0 mg/kg dose did not produce a withdrawal response (
In a study of developing neonatal abstinence syndrome (NAS) in pregnant mice with opioid dependence, the result found that 6β-naltrexol passed through the placenta and through the blood brain barrier (BBB) in fetal mice. A co-administration of 6β-naltrexol with morphine to postnatal mice (before day 14) inhibited withdrawal behavior at doses 20- to 500-fold lower than those used to inhibit anti-nociception in adult animals. Almost complete inhibition of withdrawal symptoms was observed at the highest dose (1 mg/kg), which correlated to 1/20th that of the morphine dose. These data support that as a neutral antagonist, 6β-naltrexol contributes through suppressing fetal withdrawal symptom.
Another study found that 6β-naltrexol was only 1/85th as potent as naltrexone in producing antagonism effects as oxymorphone-induced loss of righting reflex in rats. Another test in a spinal dog preparation showed that, 6β-naltrexol had only 1/12th to 1/15th the potency of naltrexone in producing withdrawal. 6β-Naltrexol was 1/56th as potent as naltrexone in preventing the loss of righting reflex in rats, and was 1/26th as potent as naltrexone in preventing morphine-induced Straub tail. As a weaker antagonist, 6β-naltrexol still retains moderate activity with a prolonged duration of activity in rats and mice suggesting that 6β-naltrexol may produce a longer narcotic blockade observed in humans after naltrexone administration. In another monkey study evaluating naltrexone and its metabolites of the inverse agonist activity treated with morphine (3.2 mg/day), data showed that naltrexone was 5- and 23-fold more potent than 6αnaltrexol and 6β-naltrexol without morphine pre-treatment, while in monkeys with a morphine injection, naltrexone was 8- and 71-fold more potent than 6αnaltrexol and 6β-naltrexol. The results indicate that naltrexone and 6αnaltrexol and 6β-naltrexol have qualitatively similar effects, and their potencies do not vary significantly with opioid treatment. Another study to compare the potency of naltrexone and 6β-naltrexol in monkeys revealed that naltrexone displayed 2-fold higher affinity and potency than 6β-naltrexol for the mu-opioid receptor (MOR) binding in monkey brain membranes and for MOR agonist-stimulated function, respectively. Naltrexone (0.0032-0.032 mg/kg) and 6β-naltrexol (0.32-3.2 mg/kg) retained the same potency difference in precipitating withdrawal to a similar degree. Furthermore, 6β-naltrexol failed to block naltrexone-precipitated withdrawal in morphine-dependent monkeys. These results indicate that
According to HHS, in a study involving 24 moderate-to-heavy drinkers with an oral dose of 50 mg of naltrexone, and following 3 hours of administration, the urinary levels of 6β-naltrexol were 10 times greater than those of naltrexone. A higher urine concentration of 6β-naltrexol correlated to the presence of subjective side effects, such as nausea, headache, and anxiety. The subjective side effects observed in this study are partially attributed to the effects of alcohol in combination with naltrexone. Another study found that 6β-naltrexol (ED
One clinical study of 6β-naltrexol in affecting abuse and constipation of opioids in four opioid dependent individuals on methadone maintenance therapy found that an intravenous treatment of 6β-naltrexol (0.05 mg-1.0 mg in ascending doses) through 15-minute infusions produced significantly greater Visual Analog Scale (VAS) scores of “Any Drug Effect” than placebo, and no significant effect was found in any other VAS measure. There was also a dose-dependent increase in gastrointestinal activity. Agonists of the µ-opioid receptor, such as methadone, are known to decrease gastrointestinal motor activity, leading to constipation. This study determined that 6β-naltrexol blocked the µ-opioid receptor agonist activity of methadone, causing an increase in locomotor activity in the gastrointestinal system. The lack of withdrawal symptoms indicated that, at these doses, 6β-naltrexol did not cross the BBB and had little effect in the CNS, thereby supporting that 6β-naltrexol is a peripherally acting µ-opioid receptor antagonist.
The molecular formula of 6β-naltrexol is C
According to HHS, naltrexone through the
According to HHS, naltrexone is converted to its active metabolite, 6β-naltrexol through a stereospecific reduction by dihydrodiol dehydrogenase enzymes (DD1, 2, and 4). Because of first-pass metabolism, concentrations of 6β-naltrexol are much higher than its parent molecule following oral dosing. However, when 6β-naltrexol is administered intramuscularly, hepatic biotransformation is avoided, and the arca under the curve (AUC) for 6β-naltrexol is only 2-fold higher than that of naltrexone. In contrast, following a single and multiple oral dosing of naltrexone (50 mg), 6β-naltrexol exposure was over 20-fold greater than that of the parent drug, naltrexone. In another cited study in patients with mild or moderate hepatic impairment, following a single dose of long acting naltrexone (190 mg), plasma concentrations of 6β-naltrexol were 2-fold greater than corresponding naltrexone concentrations. Thus mild or moderate hepatic impairment affect the patient's exposure to either 6β-naltrexol or naltrexone.
According to HHS, based on chemical and pharmacological similarities between 6β-naltrexol and naltrexone, a µ-opioid receptor antagonist that was removed from control under the CSA, it is unlikely that 6β-naltrexol would be abused. In addition, reports from Monitoring the Future, Treatment Episode Data Set, the National Survey on Drug Use and Health, poison control centers, the Drug Abuse Warning Network, NFLIS, STRIDE, and STARLiMS had no mentions of use or abuse of 6β-naltrexol.
As mentioned in Factor 4, a comprehensive review and research on available data performed by both HHS and DEA revealed no reports of abuse of 6β-naltrexol.
According to both HHS and DEA's data review and as stated in Factors 4 and 5, there is no sufficient data to report any abuse of 6βnaltrexol or show the scope, duration, and significance of abuse of 6β-naltrexol. None of the available sources including Monitoring the Future, Treatment Episode Data Set, the National Survey on Drug Use and Health, poison control centers, the Drug Abuse Warning Network, NFLIS, and STRIDE capture data that examine the use or abuse of 6β-naltrexol.
According to HHS, in a morphine dependent state, naloxone and naltrexone act as inverse agonists by suppressing basal µ-opioid receptor signaling thereby contributing to the presence of withdrawal in an opioid dependent state. 6β-Naltrexol exhibits neutral antagonist properties and results in a less severe withdrawal state. According to HHS, 6β-naltrexol and naloxone are equipotent in blocking acute morphine antinociception. In contrast, 6β-naltrexol was much less active than naloxone in eliciting withdrawal, both in acute and chronic morphine-dependence models. Yet, given at equipotent doses to naltrexone
The HHS review stated that 6β-naltrexol has been shown to produce minimal withdrawal jumping as compared to naltrexone. A dose of 0.2 mg/kg of naltrexone and 1.0 mg/kg 6β-naltrexol are equipotent in antagonizing anti-nociceptive effects of morphine 10 to 20 minutes after administration. The 1 mg/kg dose of 6β-naltrexol did not elicit withdrawal jumping in the 72-hour time period following morphine administration, whereas the 10 mg/kg dose of naltrexone caused a withdrawal effect after 8 hours of morphine pretreatment. Another study assessing the relative potency of two opioid receptor antagonists (naltrexone and naloxone) and a neutral antagonist (6β-naltrexol) in blocking fentanylinduced analgesia and toxicity, and in precipitating withdrawal revealed that the order of potency in antagonizing analgesia and in precipitating withdrawal jumping was: Naltrexone > naloxone > 6β-naltrexol. Pretreatment with 6β-naltrexol reduced naloxone-precipitated withdrawal and supports that 6β-naltrexol acts as an antagonist.
Another HHS-cited study found that both 6β-naltrexol (10 mg/kg) and naloxone (10 mg/kg) were equipotent and 4.5- and 10-fold less potent than naltrexone (l.0 mg/kg). 6β-Naltrexol, unlike naloxone and naltrexone, at high doses produced minimal withdrawal at in an acute dependence Institute of Cancer Research (ICR) mice model. In this assay, naloxone and naltrexone produced withdrawal jumping at doses that blocked the acute effects of morphine, whereas 6β-naltrexol at 10 mg/kg (the dose that blocks the acute of effects of morphine) did not precipitate withdrawal jumping. In the chronic dependence model, 6β-naltrexol was 77-fold and 30-fold less potent than naltrexone and naloxone in producing withdrawal.
The ability of 6β-naltrexol and naltrexone to produce withdrawal in morphine-dependent and morphine-naive mice was compared. This HHS-cited study showed that naltrexone had a 10-to 100-fold greater potency than that of 6β-naltrexol. Another study compared the effects of naltrexone and 6β-naltrexol on precipitated withdrawal in morphine-dependent mice and reported that the low doses of 6β-naltrexol antagonized naltrexone precipitated withdrawal, while high doses of 6β-naltrexol were additive. This reduction in withdrawal symptoms by low doses of 6β-naltrexol is believed to be due to its neutral antagonist properties which could attenuate inverse agonist effects of naltrexone. These studies mentioned above show that 6β-naltrexol produces significantly reduced incidence of precipitated withdrawal in opioid-dependent animals compared to its parent compound, naltrexone, as well as naloxone. It may be the result of limited abilities of 6β-naltrexol in crossing the blood-brain barrier. Furthermore, there are no published reports assessing the abuse liability of 6β-naltrexol.
6β-Naltrexol is not considered an immediate precursor of any controlled substance.
Based on the consideration of the scientific and medical evaluation and accompanying recommendation of the HHS, and based on the DEA's consideration of its own eight-factor analysis, the DEA finds that these facts and all relevant data demonstrate that 6β-naltrexol does not possess abuse or dependence potential. The data from
In accordance with 21 U.S.C. 811(a), this scheduling action is subject to formal rulemaking procedures done “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563.
This final rule is not an Executive Order 13771 regulatory action pursuant to Executive Order 12866 and OMB guidance.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.
This rulemaking does not have federalism implications warranting the application of Executive Order 13132. The rule does not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government.
This rule does not have tribal implications warranting the application of Executive Order 13175. This rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Acting Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), has reviewed this proposed rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. The purpose of this rule is to remove 6β-naltrexol from the list of schedules of the CSA. This action will remove regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances for handlers and proposed handlers of 6β-naltrexol. Accordingly, it has the potential for some economic impact in the form of cost savings.
If finalized, the proposed rule will affect all persons who would handle, or propose to handle, 6β-naltrexol. 6β-Naltrexol is the major metabolite of naltrexone and is not currently available or marketed in any country. Due to the wide variety of unidentifiable and unquantifiable variables that potentially could influence the distribution and dispensing rates, if any, of 6β-naltrexol, the DEA is unable to determine the number of entities and small entities which might handle 6β-naltrexol. In some instances where a controlled pharmaceutical drug is removed from the schedules of the CSA, the DEA is able to quantify the estimated number of affected entities and small entities because the handling of the drug is expected to be limited to DEA registrants even after removal from the schedules. In such instances, the DEA's knowledge of its registrant population forms the basis for estimating the number of affected entities and small entities. However, the DEA does not have a basis to estimate whether 6β-naltrexol is expected to be handled by persons who hold DEA registrations, by persons who are not currently registered with the DEA to handle controlled substances, or both. Therefore, the DEA is unable to estimate the number of entities and small entities who plan to handle 6β-naltrexol.
Although the DEA does not have a reliable basis to estimate the number of affected entities and quantify the economic impact of this final rule, a qualitative analysis indicates that this rule is likely to result in some cost savings. As noted above, the DEA is specifically soliciting comments on the economic impact of this proposed rule. The DEA will revise this section if warranted after consideration of any comments received. Any person planning to handle 6β-naltrexol will realize cost savings in the form of saved DEA registration fees, and the elimination of physical security, recordkeeping, and reporting requirements.
Because of these factors, DEA projects that this rule will not result in a significant economic impact on a substantial number of small entities.
On the basis of information contained in the “Regulatory Flexibility Act” section above, the DEA has determined and certifies pursuant to the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501
This action does not impose a new collection of information requirement under the Paperwork Reduction Act, 44 U.S.C. 3501-3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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.
Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.
For the reasons set out above, 21 CFR part 1308 is proposed to be amended to read as follows:
21 U.S.C. 811, 812, 871(b), 956(b), unless otherwise noted.
(b) * * *
(1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate excluding apomorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, naldemedine, nalmefene, naloxegol, naloxone, 6β-naltrexol and naltrexone, and their respective salts, but including the following:
Office of the Assistant Secretary for Housing; Office of the Assistant Secretary for Public and Indian Housing, U.S. Department of Housing and Urban Development.
Notice.
The shift to the National Standards for the Physical Inspection of Real Estate (NSPIRE) will further one of HUD's highest priority strategic outcomes—resident health and safety. HUD is looking at the implementation of NSPIRE as an opportunity to reduce regulatory burden through alignment and consolidation compared to either maintaining or increasing the number of standards and protocols to evaluate HUD-assisted housing across multiple programs. During this demonstration, HUD will solicit volunteers to test the NSPIRE standards and protocols as the means for assessing the physical conditions of HUD-assisted and -insured housing. The demonstration, which will include approximately 4,500 properties, will be implemented on a rolling, nationwide basis and will assess all aspects of the physical inspection line of business of the Real Estate Assessment Center—the collection, processing, and evaluation of physical inspection data and information, including a new scoring model. As the first step in the implementation of NSPIRE, HUD is soliciting comment on this proposed, voluntary demonstration. HUD will consider the comments and incorporate them into the demonstration. Subjecting the NSPIRE model to a multistage demonstration will serve as an opportunity to refine processes and ensure all mechanisms are in place to facilitate the transition to a nationwide implementation. This demonstration will also serve as the precursor to any required rulemaking.
HUD invites interested persons to submit comments to the Office of the General Counsel, Regulations Division, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Communications should refer to the above docket number and title and should contain the information specified in the “Request for Comments” section. There are two methods for submitting public comments.
Daniel R. Williams, Real Estate Assessment Center, Office of Public and Indian Housing, Department of Housing and Urban Development, 550 12th Street SW, Suite 100, Washington, DC 20410-4000, telephone number 202-475-8873 (this is not a toll-free number). Persons with hearing or speech impairments may contact the numbers above via TTY by calling the Federal Relay Service at 800-877-8339 (this is a toll-free number).
The following five sections discuss the background through the solicitation of comments. Section II provides background information on HUD inspections and their applicability to HUD's oversight responsibility related to ensuring safe, habitable conditions within HUD housing. For the purposes of this notice, “HUD housing” is defined as housing assisted under the HUD programs listed in 24 CFR 200.853(a); housing with mortgages insured or held by HUD, or housing that is receiving assistance from HUD, under the programs listed in 24 CFR 200.853(b); and Public Housing (housing receiving assistance under the U.S. Housing Act of 1937, other than under section 8 of the Act). This does not apply to units assisted under the Housing Choice Voucher (HCV) program, including the Project-Based Voucher Program under the purview of the Office of Public and Indian Housing.
HUD currently uses an inspection model established in 1998, relying on Uniform Physical Condition Standards (UPCS)
• “Rethink American Communities: . . . Protect the health of residents by addressing lead-based paint and other health and safety hazards in housing.”
• “Reimagine the Way HUD Works: . . . Rethink how we deliver services directly to our customers to increase consistency and accountability.”
To help achieve these goals, the NSPIRE model will:
• For the first time, incorporate comprehensive, annual self-inspections by property management staff, the methods and results of which will be integral parts of HUD's real estate inspection process. By making regular, comprehensive self-inspections a part of HUD's physical assessment regimen, property managers will be more engaged in the process and more vested in the outcomes.
• Enhance accuracy through:
○ Better identification of substandard properties.
○ Increased objectivity and defensibility of inspections.
○ Reduced complexity of inspections and increased time in units.
• Place greater weight on health and safety (H&S) deficiencies than on function and appearance.
• Implement inspections that better reflect the true physical conditions of properties.
• Ensure owners adopt sound, year-round maintenance practices.
To achieve these outcomes, NSPIRE will aspire to align all inspection standards, while adopting flexible protocols to accommodate the unique circumstances of each program and housing type.
Recognizing the impact of these changes, HUD began to analyze the way inspections are conducted and to better understand areas in which its standards and processes needed to evolve. This analysis showed that HUD's current process for inspecting and assessing housing assets has not fundamentally changed since it was developed in 1998. Aspects of the UPCS model, such as problems in units carrying a low scoring weight, having standards with intentionally broad language, relying on resource-intensive manual processes to determine the quality of the results, and assuming that the individual inspector would not be a determining factor in inspection outcomes, are misaligned with HUD's priorities and the state of the housing inspection industry. Detailed documentation about how inspections are performed today can be found on the REAC website at
More specifically, as HUD has developed the concept of NSPIRE, the review of the existing program has shown that standards for the assessment of existing housing need to be well-aligned to the livability and the residential use of the structures and that having too many indicators results in a highly complex task, which increases the chance for error. Similarly, processes that were designed for a different generation of technology capabilities can benefit from current advances in that field, such as machine learning, process automation, and automated data exchanges that bring consistency and transparency to processes and results. Additionally, a review of the items and deficiencies within the UPCS standards has shown that some rely too heavily on individual judgment, especially those oriented around the appearance of items that are otherwise functional.
From this analysis, HUD has started to develop, document, and propose standards and protocols for a new inspection model called NSPIRE. This demonstration seeks to target a diverse, representative group of stakeholders, including REAC, other HUD offices, public housing agencies (PHAs), and owners and agents (OAs), the last two of which are referred to, collectively, as POAs. After the public comment period has expired and HUD has considered the comments, HUD will subject the NSPIRE model to a multistage demonstration for the purpose of ensuring that all mechanisms are in place to support the transition to the NSPIRE model after all required rulemaking.
Demonstration participation is limited to volunteers; no POAs will be required to participate. This demonstration does not include properties under the HCV program as HUD has a separate demonstration program underway that covers that program. As NSPIRE is intended to be a single inspection standard for all of HUD, however, once the NSPIRE standards have been validated during the demonstration that is the subject of this notice, they will be migrated to the Uniform Physical Condition Standards for Vouchers (UPCS-V) demonstration for further testing with HCV properties. Feedback and lessons learned will be shared across the demonstrations to inform any subsequent rulemaking.
Start here In executing the authorities
• Establishing more objective, better-defined deficiency definitions which will be validated by a third-party contractor;
• Requiring properties to complete and submit their annual self-inspection results electronically;
• Incorporating less complex inspection protocols using indicators aligned to quality;
• Reducing the number of inspectable areas at properties to simplify the process and reduce administrative errors related to deficiency misclassification by regrouping the inspectable items into three categories from five
• Deliberately grouping deficiencies into one of three categories;
• Better identifying all H&S deficiencies; and
• Adopting a new scoring model that places the most emphasis on the areas considered the most important—the residents' homes.
The demonstration will use objective condition standards that include a list of H&S items which must be addressed, revised Information Technology (IT) processes, and new oversight approaches. The specific H&S deficiency criteria are still in development and will be released on HUD's website as they become available. Demonstration participants will be notified by email and Listserv in advance when HUD plans to change criteria and again by the same method of notification after any changes are posted to the website. Moreover, this demonstration is the first step in implementing an NSPIRE Model that seeks to better identify H&S hazards in housing, more accurately assess the physical condition of HUD housing, improve inspection service delivery, encourage more active engagement by POAs in the physical assessment process, and enhance HUD's overall oversight and risk management capabilities.
The NSPIRE demonstration will test, and refine as necessary, processes comprised of the standards, regulations, business processes, risk models, IT systems, and support services necessary to meet the goals and objectives described above. Specifically, the NSPIRE Model is designed to improve objectivity, defensibility, and accuracy in order to achieve a more reliable assessment of housing conditions for those living in HUD housing. The scope of the inspection, the procedural guidelines, and the individual deficiencies have been modified to remove subjectivity and ambiguity and to emphasize those areas that present the highest risk of harm to those living in HUD housing. The fact that NSPIRE has three inspectable areas does not
Under this voluntary demonstration, HUD will inspect, for up to two years, approximately 4,500 properties from a pool of volunteers who are willing to adopt the NSPIRE Model to assess the physical condition of HUD housing. To that end, HUD's NSPIRE Model has three major components: (1) Three Types of Inspections, (2) Three Categories of Deficiencies, and (3) Three Inspectable Areas. The Three Types of Inspections include POA self-inspections; those conducted by contractors and/or federal inspectors; and those conducted solely by federal inspectors. The Three Categories of Deficiencies are Health and Safety; Function and Operability; and Condition and Appearance, with each category ideally resulting in emergency work orders, routine work orders, and other maintenance respectively. The Three Inspectable Areas will be Inside, Outside, and Unit. “Inside” refers to all common areas and building systems (
As part of the NSPIRE implementation process, HUD intends to issue a proposed rule in late 2019 that will amend and align overarching policies related to the frequency of inspections, the method of appealing results, and the actors responsible for conducting the inspection. After having been validated through the demonstration and considering any public comments from the proposed rule, HUD will also publish separate notices in the
For the demonstration, the following phases apply:
• Phase I—HUD will begin an iterative approach to receiving and processing participating POA annual inspection results and other data (
○ A system (POA-owned or HUD-provided) that POAs can use successfully to:
Inspect their properties, record the results, create work orders, and submit results to HUD; and
Stream property profiles, certificates, and work orders directly to HUD.
○ A HUD system that can successfully:
Receive and store POA self-inspections and related information;
Process and provide analysis of data provided through self-inspections; and
Update inspection profiles based on POA provided data and information.
• Phase II—HUD will begin iteratively deploying functionality to reach Phase II objectives; this will be achieved when HUD can better and more accurately determine when an owner is not providing acceptable housing. For the purpose of this demonstration only, contract and federal inspectors will assess properties using the Critical to Quality (CTQ) standards (further explained below) and protocols developed as part of the NSPIRE Model during Phase II, which will be incrementally posted on the NSPIRE website as they are developed. Each deficiency will be posted online in a manner that allows for targeted stakeholder feedback for that specific deficiency instead of requiring a comprehensive review of all the standards.
Additionally, HUD will create a demonstration scoring model which will be used to assess demonstration results. Similar to the publication of the NSPIRE deficiencies, HUD will publish the proposed weighting factors as a supplement to the item and deficiency descriptions on the website. Among other considerations, weighting factors are based on the importance of the item to the built environment, its potential impact on a resident if defective, and the extent to which any damage reflects on the ability of management to maintain a property. Capabilities within Phase II will include:
○ A system of more objective standards and simpler protocols that will enable a trained inspector to better detect, identify, and record deficiencies and submit those results to HUD. These “objective standards” will be in the form of CTQs. CTQs will be a well-defined subset of the entire set of NSPIRE Standards that have a high correlation to overall quality and are calibrated to provide strong assurance that a property is not in compliance with HUD's minimum property standards. Simply put, when a deficiency is noted against a CTQ or a number of CTQs, there will be a high correlation to substandard conditions within a property. This direct correlation to quality allows for inspections built around CTQs to evaluate fewer standards but remain highly effective in determining substandard conditions. This capability should provide a higher level of confidence in evaluating property conditions than the POAs' self-inspections described in Phase I. For this phase of the demonstration, HUD may use contract inspectors, government employees, or both to inspect properties according to a revised set of deficiency definitions in lieu of those found in the current Dictionary of Deficiency Definitions (see 24 CFR 902.3).
○ A system of protocols and additional indicators, compared to those used by contract inspectors, that will enable trained federal employee inspectors to better detect, identify, and record evidence about the extent of substandard conditions and submit those results to HUD. These additional factors will be developed later in the demonstration based on the feedback federal inspectors have provided as they assist with the development of NSPIRE. Generally, these indicators are those that require more time, higher skills, or more equipment to identify such that they would not be practical for a contractor to perform on every inspection. This capability would provide the highest level of confidence in evaluating a property's condition compared to POA or contracted inspections with the results being used
○ A HUD analytic system capable of processing the inspection results, including the employment of a new scoring model, to provide a more accurate and defensible determination of those POAs who are not providing acceptable housing. For the purposes of the demonstration, a new scoring model will be used in lieu of the current Physical Condition Scoring Notice.
Prior to the demonstration, HUD will publish a minimum, standardized list of exigent health and safety (EH&S) items to be included in the CTQ inspection that POAs participating in the demonstration must correct, remedy, or act to abate within 24 hours of receipt of notification of such deficiencies from HUD to include submitting evidence of repair, correction, or abatement (
As part of the demonstration, HUD will inspect properties that have been selected through a voluntary application and selection process with the goal of ensuring the consistency, accuracy, and objectivity of the new indicators. In addition to general feedback, POAs will be provided the opportunity to participate in formal focus groups to review results and provide feedback on the indicators. HUD will inspect participating properties at least once during the demonstration using the NSPIRE standards. During the demonstration, HUD will explore multiple sampling formulas to determine the optimal sampling rates for both units and buildings. HUD will also explore the feasibility of implementing the new standards and protocols and identify refinements that are needed to fully implement the new model nationwide.
The demonstration will continue for at least two years and may be extended by subsequent
For participating POAs, this part of the demonstration will test the transition to automated systems/processes through which POAs will submit inspection results, work orders, certificates, and property profiles. POAs will be permitted to use their own software to perform their inspections; however, HUD will provide software to those POAs who request it. This software will be mobile-based so the POA will need an Android or iOS device. For POAs with their own IT systems, including POA-produced inspection software, HUD will work with participating agencies to establish the JavaScript Object Notation (JSON) or equivalent data standards for transferring physical inspection information between the POA and HUD systems. All IT configuration requirements will be made available for review on HUD's NSPIRE website. HUD will require POAs participating in this part to document and submit all inspections electronically to HUD. HUD anticipates that it will then review, analyze, and where appropriate, transform the inspection data into value-added information, such as relative risk reports, for electronic transmission back to the POAs for their use.
POAs participating in this part of the demonstration who choose to use their own software will be required to have and maintain the IT resources and support necessary to interface with HUD's systems using industry standard file transfer protocols such as Simple Object Access Protocol (SOAP) and Representational State Transfer (REST) standards and complying with all security requirements. Some data exchange may be via transfer of flat files (
In this part of the demonstration, HUD will explore whether and how POAs are consistently identifying maintenance needs; remedying such needs appropriately and in a timely manner; and accurately reporting unit-based inspection outcomes to HUD. As part of the demonstration, HUD will analyze POAs' abilities to effectively evaluate units as decent, safe, and sanitary. Further, HUD will test the capability of NSPIRE to identify PHAs and properties that are at risk of falling into non-compliance before the next regularly scheduled inspection.
HUD plans to select POAs from all regions from within a nationwide pool of applicants with properties in HUD's Region III receiving preference as the initial cohort. Properties within other regions will be added on a regional, rolling basis throughout the demonstration period. Solicitation and application information will be made available through HUD's “NSPIRE” website at:
HUD is seeking participation from 4,500 properties across all regions; however, HUD will seek to increase this number if more data and/or information are required. Further, HUD may request POAs participating in any part of the demonstration to participate in focus groups, conference calls, and training sessions on policies and procedures. If required, HUD may make training available to participating POA inspectors, administrators, and quality control staff on the new inspection protocol, including how to use the inspection software. POAs will be responsible for scheduling, assigning inspectors, and conducting their self-inspections. POAs may incrementally submit their annual inspection results or submit the results all at once;
Participating POAs will generally not be subject to both an NSPIRE and a Uniform Physical Condition Standards (UPCS) inspection. If during the NSPIRE demonstration, however, HUD believes substandard conditions exist, the Department, at its discretion, may order and execute a UPCS inspection to confirm substandard conditions and consequently apply any available remedies, sanctions, or other actions as determined by the results. The triggers for a UPCS inspection for a property accepted into the NSPIRE demonstration may include but are not limited to: The identification by HUD, through the NSPIRE inspection or other means, of significant, serious conditions at a property that call into question its prior UPCS scores or its current ability to provide safe, habitable housing to residents; a property not timely correcting healthy and safety issues; or other administrative information available to HUD that would give the Department reason to believe the property is unsafe or financially at risk.
Properties subject to an existing HUD Compliance, Disposition, and Enforcement or Corrective Action Plan will not be included in the demonstration. Any property with a current score of 70 or below but not currently under an enforcement action will be considered on a case-by-case basis but may be subject to both an NSPIRE and UPCS inspection.
During the demonstration, HUD will develop and test a new scoring model that prioritizes H&S defects over function and appearance to achieve HUD's objectives of better identification of substandard properties and protection of residents. The NSPIRE scoring model to be tested in the demonstration will vary from the current Public Housing Assessment System scoring model.
The demonstration will provide HUD with data on the NSPIRE Model, including its ability to improve HUD's oversight and risk management capabilities through a reliable, repeatable inspection process that better identifies health and safety risks to residents, before implementing such a program nationwide. The demonstration is anticipated to begin 60 days following the date of publication of this notice, with POAs being added on a rolling basis. Throughout the demonstration, HUD will assess its success and determine how to best implement the new model on a permanent basis throughout the country. In evaluating the demonstration, HUD will assess whether the use of the NSPIRE inspection protocol produces (1) more consistent and accurate results, (2) data standardization and a reliable and less-burdensome method for information exchange, and (3) better indications of substandard properties. Factors HUD may consider during its assessment include but are not limited to:
○ The new model provides a high probability (reasonable assurance) of detection of a property that is not meeting minimum condition standards.
○ Did interrater reliability among inspectors improve?
○ Were standards applied uniformly to the same inspectable item at multiple locations?
○ Did cited deficiencies align to the inspector's overall professional judgment of the property/unit? (For example, a quality scale of 1-5 with “1” being worst and “5” being best.)
○ How did the NSPIRE result compare to previous inspection results?
○ Did all citable deficiencies have a rationale and an authoritative reference to describe potential hazards?
○ Were the rationales valid and did they accurately describe potential harm?
○ From a linguistic standpoint, have the standards been written to remove as much subjective language as possible? Do they provide unequivocal ways to measure or prove the deficiency exists?
○ When presented to a focus group, is there a uniform understanding of the language among members?
○ In the field, has the need for an inspector to apply personal judgment, interpretation, or opinion been reduced or, if appropriate, even eliminated?
○ Do the standards focus on items that have the most impact on residents (H&S, function—less so for condition)?
○ Is there agreement on the rationales (potential harm) for most of the deficiencies?
○ Are the standards up-to-date? Do they align to expectations of housing quality and advances in building science and technology (
For the purpose of the demonstration only, HUD will invoke the following policy deviations:
• For the purposes of meeting various program requirements, HUD will extend the inspection periodicity for demonstration properties based on their most recent inspection score in HUD's Physical Assessment Subsystem (PASS) for two years rather than on the periodicity outlined in 24 CFR 200.855, 200.857 and 902.13. All other statutory and regulatory requirements still apply. In other words, HUD is generally waiving the regulatory requirement to undergo a UPCS inspection for the duration of the demonstration for participating properties. However, as noted elsewhere, the Department, at its discretion, may order and execute a UPCS inspection (or equivalent) to confirm substandard conditions and consequently apply any available remedies, sanctions, or other actions as determined by the results, particularly in the event of the demonstration extending beyond a two-year period.
• Inspectable Areas: HUD will use an inspection protocol with only 3 inspectable areas (unit, outside, inside) rather than the 5 areas contained in 24 CFR 902.3.
• EH&S and H&S Deficiencies Repair: POAs will close out all EH&S and H&S deficiencies electronically. Further, in addition to EH&S and H&S deficiencies outlined in the current Dictionary of Deficiency Definitions,
• For the purposes of meeting various program requirements, HUD will carry forward for demonstration properties the most recent inspection score in HUD's Physical Assessment Subsystem (PASS).
In accordance with section 470 of the Housing and Urban-Rural Recovery Act of 1983 (42 U.S.C. 3542), HUD is seeking comment on the demonstration. Section 470 provides that HUD may not begin a demonstration program not expressly authorized by statute until a description of the demonstration program is published in the
1. Are there specific H&S deficiencies that should be added to the current list of EH&S or H&S deficiencies?
2. Is the new model's focus on health, safety, and function while limiting the inspection of some condition and appearance deficiencies appropriate and acceptable?
3. Are there other property characteristics HUD should consider in its inspection and scoring protocols?
4. What inspection incentives should HUD consider providing to high-performing properties and what criteria should be included to determine that status?
5. Are there aspects of the new model that would be a higher administrative burden than the current model?
6. Are there are any low-value aspects of the UPCS model that HUD should not carry forward into NSPIRE?
HUD requests that POAs interested in participating in the demonstration follow the application guidance available on HUD's “NSPIRE” website:
Internal Revenue Service (IRS), Treasury.
Correction to a notice of proposed rulemaking.
This document contains a correction to a notice of proposed rulemaking (REG-121508-18) that was published in the
Written or electronic comments and requests for a public hearing are still being accepted and must be received by October 1, 2019.
Submit electronic submissions via the Federal eRulemaking Portal at
Concerning the proposed regulations, Pamela Kinard at (202) 317-6000 or Jamie Dvoretzky at (202) 317-4102; concerning submission of comments or to request a public hearing, email or call Regina Johnson at
The proposed regulations that are the subject of this correction are under section 413 of the Internal Revenue Code.
As published, the notice of proposed rulemaking (REG-121508-18) contains errors which may prove to be misleading and need to be clarified.
Accordingly, the notice of proposed rulemaking (REG-121508-18) that was the subject of FR Doc. 2019-14123, published at 84 FR 31777 (July 3, 2019), is corrected to read as follows:
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) proposes to establish the Rural Digital Opportunity Fund and seeks comment on its overall approach in doing so.
Comments are due on or before September 20, 2019 and reply comments are due on or before October 21, 2019. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this document, you should advise the contact listed in the following as soon as possible.
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
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Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.
Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments must also comply with section 1.49 and all other applicable sections of the Commission's rules. The Commission directs all interested parties to include the name of the filing party and the date of the filing on each page of their comments and reply comments. All parties are encouraged to use a table of contents, regardless of the length of their submission. The Commission also strongly encourages parties to track the organization set forth in the Notice of Proposed Rulemaking in order to facilitate its internal review process.
Alexander Minard, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in WC Docket Nos. 19-126, 10-90; FCC 19-77, adopted on August 1, 2019 and released on August 2, 2019. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554 or at the following internet address:
1. Broadband access is critical to economic opportunity, job creation, education and civic engagement. That is why closing the digital divide is the Commission's top priority. For communities throughout our nation to thrive and prosper, their residents must have the option to obtain high-speed internet access.
2. Last year, the Commission took a major step forward in expanding broadband access to many parts of rural America. As a result of the Commission's successful Connect America Fund (CAF) Phase II auction, the Commission has begun providing $1.488 billion in universal service support over ten years to build high-speed broadband service to over 700,000 households and small businesses in 45 states, with 99.75% of locations receiving at least 25/3 Mbps service and more than half receiving at least 100/20 Mbps service.
3. But more work remains to be done. For example, more than 10 million households and small businesses in price cap areas still lack access to critical broadband services that offer speeds of at least 25 megabits per second (Mbps) downstream and 3 Mbps upstream in unserved census blocks, including more than 7 million in rural areas. In this document, the Commission proposes to build on the success of the CAF Phase II auction by establishing the Rural Digital Opportunity Fund, which will commit at least $20.4 billion over the next decade to support high-speed broadband networks in rural America. Because the CAF Phase II auction secured higher quality services for consumers at a lower cost to the Universal Service Fund (Fund), the Commission proposes to conduct a multi-round, reverse, descending clock auction that favors faster services with lower latency and encourages intermodal competition. And in light of the need to bring service both to consumers in wholly unserved areas as well as those living in partially served areas, the Commission proposes to assign funding in two phases: Phase I will target those areas that current data confirm are wholly unserved, and Phase II will target those areas that are partially served as well as any areas not won in the first phase. By relying on a two-phase process, as the Commission did with the Connect America Fund, the Commission can move expeditiously to commence an auction in 2020 while
4. The framework the Commission proposes in this document represents its single biggest step yet to close the rural digital divide and will connect millions more rural homes and small businesses to high-speed broadband networks.
5. Closing the digital divide and bringing robust, affordable high-speed broadband to all Americans is the Commission's top priority. By improving access to modern communications services, the Commission can help provide individuals living in rural America with the same opportunities as their urban counterparts. The Rural Digital Opportunity Fund the Commission proposes is a critical next step in its high-cost program and ongoing effort to close the digital divide. By committing at least $20.4 billion over the next ten years, the Commission will bring broadband service at minimum speeds of 25/3 Mbps to millions of Americans living in the areas that need it most—including those living on Tribal lands. And the Commission's two-phase approach will ensure that completely unserved areas are prioritized, so that support can begin to flow quickly while it works to improve the data needed to most efficiently target support over the longer term. At the same time, by awarding support through a competitive bidding mechanism and targeting investment to areas where there is currently no private sector business case to deploy broadband without assistance, the Commission will ensure that its limited universal service support is awarded in an efficient and cost-effective manner, without overbuilding to areas that already have service. Finally, the proposals the Commission adopts in this document includes measures to require accountability, so the Commission can ensure that its public investments are used wisely to deliver intended results.
6. The Commission seeks comment on its overall approach in establishing a Rural Digital Opportunity Fund. The Commission proposes that its adoption of a Rural Digital Opportunity Fund framework will be guided by the following goals: (1) Ensuring that high-speed broadband is made available to all Americans quickly, and at an affordable price; (2) reducing waste and inefficiency in the high-cost program and promoting the use of incentive-based mechanisms to award support; (3) requiring accountability to ensure that public investments are used wisely to deliver intended results; and (4) minimizing the contribution burden. Does the framework the Commission proposes strike the right balance in helping to achieve those proposed objectives? Are there any other goals that should guide this process? How can the Commission measure progress against these proposed goals? In commenting on the detailed proposals that are in this document, parties are invited to discuss how the proposals (or any alternatives) can best be focused to achieve the Commission's proposed goals. Moreover, the Fund is a federal-state partnership. Are there ways the Rural Digital Opportunity Fund can facilitate that partnership?
7. The approach the Commission takes in this document leverage its experience with the CAF program, and the CAF Phase II auction in particular. But it also acknowledges that market realities have changed since the CAF framework was first established in 2011. Consumers' demand for faster speeds has grown dramatically—and the market has largely been able to deliver. Speeds of 25/3 Mbps are widely available, and 25/3 Mbps is the Commission's current benchmark for evaluating whether a fixed service is advanced-telecommunications capable. Thus, the item proposes a 25/3 Mbps service availability threshold as the basis for establishing eligible areas. Demand for greater speeds will continue to rise. The framework the Commission proposes in this document therefore takes a flexible approach that prioritizes faster, gigabit speeds. The Commission's proposals also acknowledge that, despite its expectation that broadband would be deployed to many areas without high-cost support, some of these areas remain unserved. The NPRM proposes including these areas in the Rural Digital Opportunity Fund auction. In light of these dynamic marketplace changes, the Commission believes that a new support mechanism is better able to meet its objectives than continuing with the existing CAF framework. The Commission seeks comment on this conclusion.
8. The Commission proposes adopting a term of support of 10 years for the Rural Digital Opportunity Fund. For the CAF Phase II auction, the Commission acknowledged that “some entities may be unwilling to make necessary long-term investments to build robust future-proof networks in areas that are uneconomic to serve absent continued support beyond a five-year term” and that “providing support for a period of ten years may stimulate greater interest” in the auction. The Commission believes that the 10-year term of support was partially responsible for the robust participation that occurred in the CAF Phase II auction and expect that the same principles regarding encouraging long-term investments and auction participation will also apply to the Rural Digital Opportunity Fund. Thus, the Commission proposes to adopt the same support term here. The Commission seeks comment on this proposal.
9. The Commission proposes a budget of at least $20.4 billion for the Rural Digital Opportunity Fund. The budget is premised on the CAM estimated cost of deploying a high-speed broadband network to all locations in wholly unserved price cap census blocks that exceed the existing high-cost threshold of $52.50 per-location per-month, and with that cost capped at $198.60. These census blocks are considered wholly unserved because no provider is offering both voice service as well as 25/3 Mbps terrestrial fixed broadband service. The Wireline Competition Bureau (Bureau) staff estimate that there are 3.9 million locations in these census blocks. The Commission seeks comment on this budget and this analysis.
10. Of this budget, the Commission proposes to make available at least $16 billion for Phase I of the Rural Digital Opportunity Fund, and to make the remaining $4.4 billion from the total budget, as well as any unawarded funds from Phase I, available for Phase II. Three considerations guide the Commission. First, $16 billion reflects the sum of the total amount of CAF Phase II model-based support currently received by price cap carriers ($1.5 billion per year) and the support amount the Commission once envisioned for the Remote Areas Fund (at least $100 million per year). Second, the budget balances the Commission's goals of ensuring greater broadband deployment in rural America and efficient use of the Fund. The Commission proposes a budget that will lead to more robust inter-area competition in the auction, which will lead to service being provided at a lower cost in the areas awarded support. In the CAF Phase II auction, much of the bidding was driven by the fact that the total budget ($2 billion) was significantly less than the aggregate reserve prices of all areas in the auction ($6 billion). The inter-area competition, as well as the intra-area competition, ultimately drove down the support required to provide service from a model-estimated $5 billion to only $1.488 billion. The Commission seeks to have a similarly efficient outcome for Phase I of the Rural Digital Opportunity Fund and hence proposes to have an aggregate reserve price that well exceeds
11. Finally, the Commission recognizes that achieving its universal service objectives is an ongoing process. As technologies and service levels evolve, fulfilling the Commission's objective of providing access in high-cost areas to services that are reasonably comparable to those available in urban areas means continually assessing the need to support services that compare to the ever-improving standard of advanced services in urban areas. Will the methodology the Commission proposes for the Rural Digital Opportunity Fund Phase I budget result in a budget that will cost-effectively achieve coverage to additional locations consistent with the public service obligations the Commission proposes for the Rural Digital Opportunity Fund? Should the Commission reassess the adequacy of the total budget after the Phase I auction?
12. Given the success of the CAF Phase II auction, the Commission proposes to use a substantially similar reverse auction mechanism to distribute support to providers that commit to offer voice and broadband services to fixed locations. Specifically, the Commission proposes to use a multi-round, descending clock auction to identify the providers that will be eligible to receive support and to establish the amount of support that each bidder will be eligible to receive using procedures substantially similar to those used in the CAF Phase II auction. The Commission reiterates its preference for a multi-round auction because multiple rounds enable bidders “to make adjustments in their bidding strategies to facilitate a viable aggregation of geographic areas in which to construct networks and enable competition to drive down support amounts.” The Commission proposes that the Rural Digital Opportunity Fund descending clock auction will consist of sequential bidding rounds according to an announced schedule providing the start time and closing time of each bidding round. And the Commission proposes to rely on its existing general rules regarding competitive bidding for universal service support, with specific procedures to be developed through its standard Public Notice process.
13. The Commission proposes that bids for different areas at specified performance tier and latency levels will be compared to each other based on area reserve prices, and performance tier and latency weights. Likewise, the Commission proposes to use weights to account for the different characteristics of service offerings that bidders propose to offer when ranking bids. The Commission proposes that bids for different service tiers will be considered simultaneously, so bidders that propose to meet one set of performance standards will be directly competing against bidders that propose to meet other performance standards. As the Commission did in the CAF Phase II auction, it proposes calculating the implied annual support amount at a bid percentage by adjusting an area-specific reserve price for the bid percentage and the weights for the performance tier and latency combination of the bid, with implied support not exceeding the reserve price.
14. The Commission proposes to include all Phase I eligible areas nationwide in one auction, so that bidders compete for support across all areas at the same time. And the Commission seeks comment on whether census block groups containing one or more eligible census blocks is an appropriate minimum geographic unit for bidding for the Rural Digital Opportunity Fund. Given that the Rural Digital Opportunity Fund auctions will be much larger than the CAF Phase II auction, would a larger minimum geographic unit, like census tracts or counties, be more manageable? Are there other or more efficient ways to group census blocks for purposes of the auction?
15. The Commission seeks comment on all these proposals. The Commission also seeks comment on whether there are any rule changes that it should consider for the Rural Digital Opportunity Fund auction that would lead to greater efficiency or better outcomes for the Fund and rural consumers.
16.
17. The Commission proposes not to include a Minimum performance tier, which required 10/1 Mbps broadband in the CAF Phase II auction. The Commission has since recognized that “access to 25/3 Mbps broadband service is not a luxury for urban areas, but important to [all] Americans where they live.” The Commission seeks comment on this proposal.
18. As in the CAF Phase II auction, the Commission proposes using weights to reflect its preference for higher speeds, higher usage allowances, and low latency. There the Commission
19. To ensure that Rural Digital Opportunity Fund support recipients meet the relevant speed, usage allowance, and latency requirements, the Commission proposes subjecting them to the same framework for measuring speed and latency performance and the accompanying compliance framework as are applicable to all other recipients of high-cost support required to serve fixed locations. The adopted framework generally provides high-cost support recipients flexibility in choosing solutions to conduct the required testing.
20. The Commission seeks comment on these proposals and on whether any alternative deployment obligations, performance requirements, weights, or testing methodologies should be adopted for recipients of Rural Digital Opportunity Fund support. Commenters proposing alternatives should explain how their proposal will balance the objectives of maximizing the Commission's limited budget and guarding against widening the digital divide by ensuring that rural Americans do not fall further behind those living in urban areas.
21.
22. The Commission also gave CAF Phase II auction support recipients some flexibility in their service obligations to address unforeseeable challenges to meeting those obligations. The Commission proposes to adopt the same flexibility with an accompanying reduction in support that it adopted for the CAF Phase II auction in recognition that facts on the ground may necessitate some flexibility regarding the final service milestone. Specifically, support recipients that have offered service to at least 95%, but less than 100%, of the number of funded locations at the end of the support term will be required to refund support based on the number of funded locations left unserved in that state. The Commission seeks comment on these proposals.
23. The Commission recognizes that there may be some disparity between the number of locations specified by the Connect America Cost Model (CAM) and the “facts on the ground.” For the offer of model-based support, the Commission directed the Bureau to address situations where a price cap carrier brings to the Bureau's attention any known disparity. The Commission notes that no price cap carrier receiving CAF Phase II model-based support has asked the Bureau to modify its number of required locations in a state. For the CAF Phase II auction, the Commission will permit support recipients to bring to its attention disparities between the number of locations estimated by the CAM and the number of locations actually on the ground in the eligible census blocks within their winning bid areas in a state. If a support recipient could sufficiently demonstrate that it is unable to identify enough actual locations on the ground across all of the census blocks for which it won support in a state, its deployment obligation and support will be reduced on a pro rata basis. The Commission proposes to follow this same course here and directs the Bureau to establish a process for such adjustments. As an alternative, should the Commission use a different source to address location disparities? Likewise, if the Digital Opportunity Data Collection is adopted, should different rules apply for Phase I and Phase II of the proposed auction?
24. The Commission also seeks comment on whether there are additional measures it could adopt that would help ensure that Rural Digital Opportunity Fund support recipients will meet their third-year service milestones, and further seeks comment on what steps the Commission should take if it appears support recipients will not be able to meet their service milestones.
25.
26. Additionally, Rural Digital Opportunity Fund support recipients would be subject to the annual section 54.314 certifications, the same record retention and audit requirements, and the same support reductions for untimely filings as all other high-cost ETCs. In addition, support recipients that are designated by the Commission would need to self-certify.
27. The Commission seeks comment on these proposals and whether it needs to make any adjustments to this reporting framework for Rural Digital Opportunity Fund support recipients. To the extent commenters propose that the Commission adopts different public interest obligations or service milestones or make other changes to relevant proposals, they should also address whether the Commission needs to make any adjustments to its reporting framework to account for the proposed changes.
28. To minimize the administrative burden on the Commission, the Universal Service Administrative Company (USAC), and Rural Digital Opportunity Fund support recipients, the Commission also seeks comment on how it can align service milestones, service milestone certifications, and location reporting deadlines for all Rural Digital Opportunity Fund support recipients, even though the long-form applicants may be authorized to receive support on different dates. For example, to minimize administrative burdens on the Commission and USAC and to simplify reporting for support recipients, should the Commission align the service milestones and reporting deadlines for the Rural Digital Opportunity Fund with those for other high-cost programs? Specifically, regardless of when a Rural Digital Opportunity Fund recipient is authorized to receive support, should each service milestone occur on a date certain, such as June 30 or December 31? Should support recipients be required to certify that they have met the applicable service milestone and to submit a list of locations where they offer service within two months of such a deadline? Are there any adjustments the Commission should make to better align the support reductions applicable to late filers with the filing deadlines?
29.
30. A support recipient would have the opportunity to move tiers as it comes into compliance and will receive any support that has been withheld if it moves from one of the higher tiers to Tier 1 status during the build-out period. If a support recipient misses the final service milestone, it would have 12 months from the date of the final service milestone deadline to come into full compliance. If it does not report that it has come into full compliance, USAC would recover an amount of support that is equal to 1.89 times the average amount of support per location received in the state for that ETC over the support term for the relevant number of locations, plus 10% of the support recipient's total relevant high-cost support over the support term for that state. The same support reduction would apply if USAC later determines in the course of a compliance review that a support recipient does not have sufficient evidence to demonstrate that it is offering service to all of the locations required by the final milestone.
31. As in the CAF Phase II auction, USAC would be authorized to draw on the letter of credit to recover all of the support that has been disbursed in the event that a support recipient does not meet the relevant service milestones, does not come into compliance during the cure period, and does not repay the Commission the support associated with the non-compliance gap within a certain amount of time. If a support recipient is in Tier 4 status during the build-out period or has missed the final service milestone, and USAC has initiated support recovery as described in this document, the support recipient would have six months to pay back the support that USAC seeks to recover. If the support recipient does not repay USAC by the deadline, the Bureau would issue a letter to that effect and USAC would draw on the letter of credit to recover all of the support that has been disbursed. If a support recipient has closed its letter of credit and it is later determined that the a support recipient does not have sufficient evidence to demonstrate that it is offering service to the total number of required locations, that support recipient would be subject to additional non-compliance measures if it does not repay the Commission after six months. And like other high-cost ETCs, support recipients would be subject to other sanctions for non-compliance with the terms and conditions of high-cost funding, including but not limited to the Commission's existing enforcement procedures and penalties, reductions in support amounts, potential revocation of ETC designations, and suspension or debarment.
32. The Commission seeks comment on these proposals. To the extent that commenters recommend any changes to the proposed service milestones or other rules, they should also comment on whether their proposals would require any changes to these non-compliance measures. Commenters should also explain how their proposals encourage support recipients to comply with the Commission's rules and accomplish the Commission's oversight responsibilities, including protecting the integrity of the Fund.
33.
34. The Commission seeks comment on a proposal to also adopt subscribership milestones for Rural Digital Opportunity Fund support recipients. For example, such a proposal could set milestones at 70% (the subscribership level assumed by the CAM) of the yearly deployment benchmarks. Hence the first subscribership benchmark could be 28% in year three, and increase 14% each year through year six, where it could remain at 70% through the end of
35. Under this proposal, the Commission would condition a portion of the recipient's support on meeting the subscribership milestones. Specifically, the Commission would withhold an amount of support equal to however many percentage points the recipient missed its subscribership milestone by. For example, if a recipient only had 27% subscribership in year three, only 1% (28%-27%) of support would be withheld. In contrast, if a recipient only had 17% subscribership in year six, then 53% (70%-27%) would be withheld. Notably, a recipient would receive its full annual support amount in monthly payments for the first two years of initial buildout. Such an approach could be structured by providing a monthly minimum guaranteed level of funding and an additional quarterly per-subscriber payment. The Commission seeks comment on this proposal.
36. Commenters proposing that the Commission adopt such performance targets or similar measures should describe specifically how their proposals could be implemented within the Rural Digital Opportunity Fund framework to minimize the potential administrative burdens on the Commission, USAC, and service providers. For example, what type of reporting obligations should the Commission impose and what types of information should it collect to verify that a consumer is subscribing to a service as claimed? How could the Commission minimize the amount of personally identifiable information that is collected by support recipients to demonstrate that a consumer is subscribing to a service? Moreover, what measures could the Commission and USAC take to verify quickly but sufficiently a recipient's claimed subscription rate so as not to delay the disbursement of the support that is dependent on subscription rates? When should the support that is dependent on a subscription target be disbursed during the ten-year support term if an applicant's subscription rate and its build-out compliance will not be reported and verified until after the relevant support year has ended? What non-compliance measures should be taken if it is determined that an applicant has overreported its subscription rate? How should the requirement for a letter of credit be structured to provide adequate protection for the support that is guaranteed to be disbursed and the support that is dependent on meeting the subscription rate? What other safeguards should the Commission put in place?
37. Alternatively, do other aspects of the Rural Digital Opportunity Fund framework that the Commission has proposed address these concerns? For example, would the requirement that a recipient be prepared to provide service meeting the relevant public interest obligations within 10 business days of request in order to count a location as served, as well as the requirement that an ETC advertise the availability of its services throughout its service area provide adequate incentives for Rural Digital Opportunity Fund support recipients to pursue customers? Would additional performance targets deter service provider participation in the auction? Would bidders that participate in the auction increase their bids to compensate for such uncertainty? Would the further complexity added to the auction by such an approach make it difficult for bidders, particularly small bidders with limited resources, to determine how much support to bid for? Are there particular challenges associated with marketing and encouraging broadband adoption in rural areas that the Commission should consider in evaluating a subscription benchmark? The Commission seeks comment on these issues and any other issues related to adopting additional performance targets or similar measures for Rural Digital Opportunity Fund support recipients and providing incentives for support recipients to meet their obligations and sign-up customers.
38. The Commission proposes to target Rural Digital Opportunity Fund support to areas that lack access to both fixed voice and 25/3 Mbps broadband services in two stages. For Phase I, the Commission proposes to target census blocks that are wholly unserved with broadband at speeds of 25/3 Mbps. For Phase II, the Commission proposes to target census blocks that it later determines are only partially served through the Digital Opportunity Data Collection, as well as census blocks unawarded in the Phase I auction. Because the Commission will have an additional opportunity to seek comment on how best to target Phase II support as it gathers more granular data on where broadband has been actually deployed, the Commission focuses here on the areas eligible for Phase I of the auction. The Commission seeks comment on this proposal.
39. The Commission proposes to make several areas initially eligible for Phase I of the Rural Digital Opportunity Fund auction.
40. Are there any other areas that the Commission should include in the initial list of eligible areas? For example, the Commission decided to assign support by auction to areas in legacy rate-of-return areas that are almost entirely overlapped by an unsubsidized competitor in the
41. For all census blocks on the initial list of eligible areas, the Commission proposes to exclude those census blocks where a terrestrial provider offers voice and 25/3 Mbps broadband service. The Commission proposes to use the most recent publicly available FCC Form 477 data to identify these areas. The Commission also proposes to exclude census blocks where a winning bidder in the CAF Phase II auction is obligated to deploy broadband service. The Commission proposes to conduct a challenge process for the Rural Digital Opportunity Fund Phase I auction consistent with the process Commission conducted for the CAF Phase II auction, in which the Bureau released a preliminary list and map of initially eligible census blocks based on the most recent publicly available FCC Form 477 data. Because there is an inevitable lag between the reported deployment as of a certain date and when the data are publicly released, parties would be given an opportunity to identify areas that have subsequently become served. For example, the most recent publicly available FCC Form 477 was released on June 2, 2019, and reports deployment as of December 31, 2017. Similar to the CAF Phase II auction, it is likely that more recent FCC Form 477 data will be available prior to the Rural Digital Opportunity Fund auction. The final list of eligible areas would be based on the most recent publicly available FCC Form 477 data, but this would give the Bureau an opportunity to compare the preliminary list of eligible areas with the final list to identify any obvious reporting errors. The Commission seeks comment on this proposal.
42. The Commission notes one caveat in its approach: The Commission proposes to treat price cap carriers differently from other providers in the areas where they have received model-based support because it already has more granular service availability data available from such carriers. Specifically, such carriers are required to report geocoded served locations to USAC through the HUBB portal. Although price cap carriers receiving model-based support were only required to offer broadband of at least 10/1 Mbps, some may have deployed higher speeds in their supported areas. The Commission proposes to include in the Rural Digital Opportunity Fund Phase I auction census blocks in which the price cap carrier receiving model-based support is the only terrestrial provider reporting the deployment of 25/3 Mbps broadband service in that block, but has not deployed such service to all locations in the block. Locations reported as served by 25/3 Mbps service in the HUBB portal would be considered served for purposes of the Rural Digital Opportunity Fund, and the reserve price and deployment obligations associated with the census block would be adjusted accordingly. The Commission proposes to establish a filing deadline for reporting 25/3 Mbps service in price cap areas that would be equivalent to what other providers report in their FCC Form 477 filings. The Commission seeks comment on this proposal. Specifically, the Commission seeks comment on whether the use of HUBB portal data here, coupled with its broader FCC Form 477 reporting, would better determine the areas and locations that are actually unserved.
43. As in the CAF Phase II auction, the Commission proposes to include both high-cost (
44. In turn, the Commission proposes to include at least some census blocks where the CAM suggests the costs of deployment are below the high-cost threshold but deployment has nonetheless not yet occurred. Broadband deployment data indicate that there are 6.3 million locations with costs below the $52.50 per month benchmark that still lack high-speed broadband (including 3.4 million locations that lack even 10/1 Mbps broadband), suggesting that potential end-user revenue alone has not incentivized deployment despite the model's predictions. The Commission proposes to include at least two subsets of such census blocks in rural areas in the Rural Digital Opportunity Fund.
45.
46.
47. For Phase I of the Rural Digital Opportunity Fund auction, the Commission proposes to use the CAM to determine the reserve prices and number of locations for each area eligible for support in the auction. The
48. Pursuant to the Commission's general competitive bidding rules and consistent with the CAF Phase II auction procedures, it has the discretion to establish reserve prices,
49. Consistent with the CAF Phase II auction, the Commission proposes using the CAM to establish the area-specific reserve prices based on the annual cost per location, less a benchmark to account for end-user revenue, for high-cost and extremely high-cost areas. Additionally, as the Commission proposes to include census blocks that are split between a price cap carrier and rate-of-return carrier in Phase I of the auction, it proposes to use the CAM to set the reserve price for the eligible price cap portion of the respective block. Similar to the CAF Phase II auction, the Commission proposes to set a per-location per-month cap for the reserve prices of census blocks with average costs that exceed the extremely high-cost threshold. Specifically, the Commission proposes to set a reserve price equal to the difference between the high-cost threshold of $52.50 ($39.98 in Tribal areas) and the CAM-estimated cost of deployment, up to a $200 cap ($212.52 in Tribal areas). This proposal differs from the Commission's setting of reserve prices in the CAF Phase II auction in two respects. First, it accounts for the lower likely end-user revenues in Tribal areas (in the CAF Phase II auction, all areas had the same high-cost funding threshold). Second, it raises the cap from $146.10 to $200 (in the CAF Phase II auction, all areas were capped at the difference between the high-cost funding threshold and the extremely high-cost threshold of $198.60). Both of these changes are consistent with the Commission's recent decision to adjust model-based support for its second A-CAM offering to rate-of-return carriers. The Commission seeks comment on these proposals.
50. To the extent the Commission includes rural census blocks with estimated costs below the $52.50 high-cost funding threshold, it seeks comment on a methodology for using the CAM to establish reserve prices. If the Commission decides to lower the high-cost threshold outside of Tribal lands, it would propose to set reserve prices based on the new, lower threshold, such as $40 or $45. This approach would allocate an amount of support to incentivize providers to include these unserved blocks in their bids, and ultimately deploy to these areas. Likewise, this approach would have the practical effect of making only census blocks that are above the new funding threshold eligible for the auction.
51. In the alternative, if the Commission includes such census blocks based on whether they qualify as rural under a population metric, it would propose to use a uniform reserve price—
52. The Commission seeks comment on its proposals for setting reserve prices and on alternatives. Commenters that propose an alternative methodology for determining the reserve price for each eligible area should explain how their methodology recognizes the variation in cost to serve different locations and how their methodology provides the Commission with the ability to establish reserve prices that reflect a maximum allowable amount of support for specific eligible areas nationwide while preserving its commitment to fiscal responsibility.
53. The Commission seeks comment on prioritizing support to certain eligible areas where broadband is significantly lacking. Specifically, the Commission seeks comment on prioritizing areas that entirely lack 10/1 Mbps or better fixed service, either at the census block or census block group level. As a way to prioritize support, the Commission seeks comment on setting a reserve price for such areas that is higher than that based strictly on the model. If the Commission were to do adopt such approach, it seeks comment on how much the reserve price should be increased. Would a 10% increase give bidders a sufficiently greater incentive to bid for support for those areas? How should the Commission consider the tradeoff between awarding more support to prioritized areas and awarding support to fewer areas overall? Should the Commission consider using targeted bidding credits instead? Should the Commission also prioritize areas entirely lacking 4G LTE mobile wireless broadband? The Commission seeks comment on other approaches that it could consider and request that parties discuss how each mechanism could best address its goal of spurring broadband deployment to areas that entirely lack broadband service, as well as the complexity of each option for bidders and how simple each would be to implement and administer as leverage the bidding system the Commission initially developed for the CAF Phase II auction.
54. The Commission expects to publish in conjunction with the final eligible areas list the reserve price for each eligible area. The Commission seeks comment on this proposal.
55. The Commission seeks comment on including a Tribal bidding credit to incentivize parties in the Rural Digital Opportunity Fund auction to bid on and serve Tribal census blocks. The Commission has previously used Tribal bidding credits in the context of spectrum auctions, as well as in the Rural Broadband Experiments. Is a Tribal bidding credit an appropriate approach for incentivizing parties to serve Tribal lands? The Commission's goal for the Rural Digital Opportunity Fund is to increase deployment to rural, low-density Tribal areas that disproportionally lack access to
56. In the event the Commission adopts a Tribal bidding credit for rural Tribal areas, it seeks comment on the appropriate credit to incentivize carriers to bid on and serve these areas. The Commission adopted a 25% bidding credit for the Rural Broadband Experiments and has implemented bidding credits ranging from 15% to 35% in the context of spectrum auctions. What would be an appropriate Tribal bidding credit for carriers committing to serve Tribal census blocks? How much of an increase would incentivize carriers to commit to serve rural Tribal areas? Would a 25% bidding credit for rural Tribal areas be appropriate or would a different amount be appropriate?
57. The Commission seeks comment on other proposals to ensure Tribal areas receive bids for support in the Rural Digital Opportunity Fund, especially those rural Tribal areas that are in the most need of increased deployment. The Commission encourages parties to be mindful of the Commission's competing goals of promoting deployment to Tribal lands and ensuring that scarce universal service funds are used efficiently and appropriately. The Commission asks commenters to fully consider and discuss the mechanics and implementation of any proposed approach, including how it would operate within the Commission's overall universal service budget and how, or if, it should leverage any of the Commission's existing programs or infrastructure. With this information, the Commission will be able to properly consider how to allocate most efficiently the universal service budget to bring high-speed broadband service to Indian country.
58. In this section, the Commission describes and seeks comment on the information it proposes to collect from each Rural Digital Opportunity Fund auction applicant in its short-form and long-form applications, considering lessons it learned from the CAF Phase II auction. The Commission proposes to adopt generally the same two-step application process that it adopted for the CAF Phase II auction, which the Commission found an appropriate but not burdensome screen to ensure participation by qualified applicants while protecting the Fund, the integrity of the auction, and rural consumers.
59. For the CAF Phase II auction, the Commission used a two-stage application process, consisting of a short-form and long-form process. The Commission required a pre-auction short-form application to establish eligibility to participate in the auction, relying primarily on disclosures as to identity and ownership, as well as on applicant certifications. The short-form application was reviewed as part of the Commission's initial screening process to determine the applicant's eligibility to bid for support. The short-form application helped promote an effective, efficient, and fair auction, facilitating Commission staff's evaluation of whether a potential bidder was qualified to participate in the CAF Phase II auction. Applicants whose short-form applications were deemed incomplete were given a limited opportunity to cure defects and to resubmit correct applications. Only minor modifications to an applicant's short-form application were permitted after the deadline.
60. The Commission then performed a more extensive, post-auction review of the winning bidders' qualifications based on the required long-form application, which was an in-depth presentation of the applicants' eligibility and qualifications to receive high-cost universal service support. For the CAF Phase II auction, all winning bidders were required to provide detailed information showing that they are legally, technically and financially qualified to receive support.
61. The Commission proposes that all applicants for the Rural Digital Opportunity Fund auction provide basic information in their short-form applications that will enable it to review and assess whether the applicant is eligible to participate in the auction, before an applicant commits time and resources to participating in the auction. The Commission also seeks more detailed comment in the following on whether to require less information at the short-form stage from existing providers that have been offering a voice and/or broadband service for a certain period of time as demonstrated by the applicants' FCC Form 477. The Commission also proposes to apply the same post-auction long-form application process adopted for the CAF Phase II auction. Accordingly, winning bidders applying for Rural Digital Opportunity Fund support would be required to provide the same showing in their long-form applications that they are legally, technically and financially qualified to receive support as required of applicants for CAF Phase II auction support.
62. The Commission proposes that its existing universal service competitive bidding rules should apply so that applicants will be required to provide information that will establish their identity, including disclosing parties with ownership interests and any agreements the applicants may have relating to the support to be sought through the Rural Digital Opportunity Fund auction competitive bidding process.
63.
64.
65.
66.
67.
68. As with the CAF Phase II auction, the Commission proposes that applicants that meet the foregoing requirements and that are audited in the ordinary course of business must also submit their (or their parent company's) financial statements from the prior fiscal year. These would include the balance sheets, income statements, and cash flow statements, that were audited by an independent certified public accountant, along with the audit opinion. If an applicant (or its parent company) is not audited in the ordinary course of business and the applicant does not submit its audited financial statements with the short-form application, the Commission proposes requiring the applicant to certify that it will submit audited financial statements during the long-form application process and requiring such applicants to submit unaudited financial statements from the prior fiscal year with their short-form application. The Commission also proposes that applicants that make such a certification and fail to submit the audited financial statements as required would be subject to the same base forfeiture of $50,000 that it adopted for the CAF Phase II auction. As with the CAF Phase II auction, the Commission expects that the additional cost of obtaining audited financial statements is outweighed by the importance of being able to assess the financial health of Rural Digital Opportunity Fund auction support recipients. The Commission notes the vast majority of CAF Phase II auction support recipients were able to obtain audited financial statements by the required deadlines.
69. If an applicant does not have at least two years of operational experience, consistent with the CAF Phase II auction, the Commission proposes requiring such applicants to submit with their short-form application their (or their parent company's) financial statements that were audited by an independent certified public accountant from the three prior fiscal years, including the balance sheets, income statement, and cash flow statements, along with a qualified opinion letter. Such applicants would also be required to submit a letter of interest from a bank meeting the Commission's eligibility requirements stating that the bank would provide a letter of credit to the applicant if the applicant becomes a winning bidder and is awarded support of a certain dollar magnitude.
70. As with the CAF Phase II auction, the Commission recognizes that if it were to adopt these two pathways, the Commission would potentially be precluding from participating in the auction interested bidders that have not been in operation long enough to meet these requirements or that are unable to meet these requirements for other reasons. However, these concerns are outweighed by the Commission's duties as the steward of universal service support. Commenters proposing alternative eligibility requirements should explain how their proposals would similarly further the Commission's responsibility to implement safeguards to ensure the public's funds are being provided to ETCs that have the requisite operational and financial qualifications and to protect consumers in rural and high-cost areas against being stranded without a service provider in the event a winning bidder or long-form applicant defaults.
71.
The applicant acknowledges that it has sole responsibility for investigating and evaluating all technical and marketplace factors that may have a bearing on the level of Rural Digital Opportunity Fund support it submits as a bid, and that if the applicant wins support, it will be able to build and operate facilities in accordance with the Rural Digital Opportunity Fund obligations and the Commission's rules generally.
72. This proposed certification will help ensure that each applicant acknowledges and accepts responsibility for its bids and any forfeitures imposed in the event of
73.
74. The Commission seeks to balance the burdens on applicants of completing a short-form application with the Commission's statutory obligation to protect the Fund, the integrity of the auction, and rural consumers. Commenters should consider what information the Commission can credibly rely on to evaluate an applicant's likeliness to perform without defaulting or to meet service milestones or service quality metrics. What presumptions can the Commission make from information that it already collects? To the extent commenters propose that the Commission adopt fewer obligations for certain applicants than it has proposed here, they should also address whether the Commission needs to make any adjustments to its application process in general to account for the proposed changes, and why the requirement is unnecessary for the Commission to determine whether an applicant is qualified to bid.
75. After the Rural Digital Opportunity Fund auction concludes, the Commission proposes that each winning bidder submit a long-form application, which Commission staff will review to determine whether the winning bidder meets the eligibility requirements for receiving Rural Digital Opportunity Fund support and has the financial and technical qualifications to meet the obligations associated with such support. Consistent with the CAF Phase II auction, in its long-form application, each Rural Digital Opportunity Fund winning bidder would be required to submit information about its qualifications, funding, and the network it intends to use to meet its obligations. In addition, prior to being authorized to receive Rural Digital Opportunity Fund support, each winning bidder would demonstrate that it has been designated as an ETC in the area(s) for which it is a winning bidder and obtain a letter of credit from a bank meeting the Commission's eligibility requirements. Similar to the CAF Phase II auction, the Commission proposes to adopt the rules in Appendix A that apply to the long-form application. The Commission seeks comment on these proposals and on whether any changes should be made to the long-form application process for the Rural Digital Opportunity Fund.
76. If a winning bidder is not authorized to receive Rural Digital Opportunity Fund support (
77. The Commission proposes to adopt here the same letter of credit rules it adopted for the CAF Phase II auction. For the CAF Phase II auction, the Commission adopted a requirement that all long-form applicants obtain a letter of credit, explaining that letters of credit “are an effective means for accomplishing [the Commission's] role as stewards of the public's funds” because they “permit the Commission to immediately reclaim support” from support recipients that are not meeting their CAF Phase II auction obligations. Before a CAF Phase II auction support recipient could receive its next year's support and each year's support thereafter, it had to modify, renew, or obtain a new letter of credit to ensure that it is valued at a minimum at the total amount of support that has already been disbursed plus the amount of support that is going to be provided in the next year, subject to certain reductions when the support recipient has substantially met its service milestones. If a CAF Phase II auction support recipient does not meet its service milestones or take advantage of the opportunities to cure or pay back the relevant support, the Commission will draw on the letter of credit. A CAF Phase II auction support recipient must only maintain an open letter of credit until the recipient has certified it has met the final service milestone and the certification has been verified.
78. The Commission proposes that a Rural Digital Opportunity Fund long-form applicant obtain an irrevocable stand-by letter of credit that must be issued in substantially the same form as set forth in the Commission's
79. The Commission proposes adopting the same phase-down schedule that was used in the CAF Phase II auction, allowing the value of the letter of credit to decrease over time as a support recipient satisfies its minimum coverage and service requirements. For the CAF Phase II auction, once the auction recipient has met its 60% service milestone, its letter of credit may be valued at 90% of the total support amount already disbursed plus the amount that will be disbursed in the coming year. Once the auction recipient has met its 80% service milestone, its letter of credit may be valued at 60% of the total support amount already disbursed plus the amount that will be disbursed in the coming year. The Commission also proposes that the letter of credit remain in place until USAC and the Commission verify that a Rural Digital Opportunity Fund recipient has met its minimum coverage and service requirements at the end of the six-year milestone. The Commission seeks comment on these proposals and on whether any adjustments should be made to the CAF Phase II auction letter of credit rules for the Rural Digital Opportunity Fund.
80. The Commission also seeks comment on whether it should make any changes to streamline the Commission and USAC's review and administration of letters of credit. For example, the CAF Phase II auction rules currently permit a long-form applicant to submit multiple letters of credit that cover all the bids in a state. Should Rural Digital Opportunity Fund support recipients be required to submit one letter of credit that covers all the bids in a state to reduce the number of letters of credit that USAC and the Commission must review and track throughout the build-out period? The Commission seeks comment on these issues and on whether any other adjustments are appropriate, including adjustments to timing or the process for submitting letters of credit to USAC for review.
81. The Commission seeks comment on adopting the same letter of credit waiver opportunity for Tribal Nations or Tribally-owned and -controlled winning bidders. Specifically, should the Commission permit any Tribal Nation or Tribally-owned and -controlled long-form applicant that is unable to obtain a letter of credit to file a petition for waiver of the letter of credit requirement using the same standard the Commission adopted for the CAF Phase II auction? What alternative could the Commission use to secure the federal funding going to these support recipients in the event of non-performance or default? The Commission notes that a number of Tribally-owned and -controlled winning bidders were able to obtain letters of credit for the CAF Phase II auction.
82. Finally, the CAF Phase II auction provides a basis for lessons learned that can inform the letter of credit requirements in the Rural Digital Opportunity Fund. The Commission observed in the CAF Phase II auction process that companies with existing lending relationships often use letters of credit in the normal course of operating their businesses and, generally, are able to maintain multiple forms of financing for varying purposes. On the other hand, the Commission also found that winning bidders complained of the high cost of obtaining and maintaining a letter of credit, such that it would “consume too much of the limited capital available to . . . [and] leave [in]sufficient funds for . . . [CAF Phase II auction] construction.” The Commission therefore seeks comment on whether it should decline to require a letter of credit for the Rural Digital Opportunity Fund. Are there viable, less costly alternatives that still minimize risk to public funds?
83. The Commission proposes to adopt the same ETC designation procedures for the Rural Digital Opportunity Fund that the Commission adopted for the CAF Phase II auction. Only ETCs designated pursuant to section 214(e) of the Communications Act of 1934, as amended (the Act) are eligible to receive support from the high-cost program. For the CAF Phase II auction, the Commission did not require that service providers become ETCs to apply to participate and then bid in the auction. However, all long-form applicants were required to obtain an ETC designation that covers all of the areas where they won support prior to being authorized to receive support. Similarly, the Commission proposes that service providers that want to apply to bid in the Rural Digital Opportunity Fund auction would not be required to be ETCs, but that long-form applicants would be required, within 180 days of the release of the public notice announcing winning bidders, to obtain an ETC designation from the relevant state commission, or this Commission if the state commission lacks jurisdiction, that covers the areas where they won support.
84. As in the CAF Phase II auction, the Commission expects that allowing service providers that are not ETCs (such as electric utilities) to apply to bid in the auction will encourage participation from service providers that may be hesitant to invest resources in applying for an ETC designation without knowing if they would be likely to win Rural Digital Opportunity Fund support. The Commission also proposes that the Bureau waive the deadline where long-form applicants demonstrate good faith efforts to obtain their ETC designations, but the proceeding is not complete by the deadline. Good faith would be presumed if the long-form applicant filed its ETC application with the relevant authority within 30 days of the release of the public notice announcing winning bidders.
85. The Commission also proposes to forbear from the statutory requirement that the ETC service area of a Rural Digital Opportunity Fund participant conform to the service area of the rural telephone company serving the same area. As in the CAF Phase II auction, the Commission will be maximizing the use of Rural Digital Opportunity Fund support by making it available for only one provider per geographic area. Moreover, the Commission expects that the incumbent rural telephone company's service area will no longer be relevant because the incumbent service provider may be replaced by another Rural Digital Opportunity Fund recipient in portions of its service area.
86. The Commission seeks comment on these proposals and on whether any changes should be made to the ETC designation procedures for the Rural Digital Opportunity Fund.
87. In this section, the Commission seeks comment on two transitions that may occur as a result of the Rural Digital Opportunity Fund. First, the Commission examines how to transition incumbent price cap carriers from legacy high-cost support in areas where Rural Digital Opportunity Fund support is awarded. Second, the Commission examines how to transition price cap carriers from CAF Phase II model-based support in areas where Rural Digital Opportunity Fund support is awarded.
88. To begin the process of transitioning legacy high-cost support to the CAF, the Commission implemented CAF Phase I by freezing support for price cap carriers under then-existing high-cost support mechanisms (legacy support) and decided that this frozen support would transition to CAF Phase II support upon completion of the CAF Phase II auction. To implement this transition, the Commission adopted a methodology for disaggregating the frozen support in states where price cap carriers declined model-based support and allocated a portion of each incumbent price cap carrier's existing frozen support to each CAF Phase II auction-eligible census block in the declined state based on the relative costs of providing service across all auction-eligible census blocks within the same state. Incumbent price cap carriers were given the option of declining this support on state-by-state basis.
89. In areas where an incumbent price cap carrier receiving disaggregated legacy support is the long-form applicant that is authorized to receive CAF Phase II auction support, the incumbent price cap carrier will cease receiving disaggregated legacy support the first day of the month after the price cap carrier is authorized to receive CAF Phase II auction support in that area. Similarly, in areas won in the CAF Phase II auction by a carrier other than the incumbent price cap carrier, the incumbent price cap carrier will cease receiving disaggregated legacy support the first day of the month after the long-form applicant is authorized to receive CAF Phase II auction support in that area. In areas where the incumbent price cap carrier receives disaggregated legacy support and there was no authorized long-form applicant, the incumbent price cap carrier will continue to receive such support until the Commission
90. The Commission proposes to adopt a similar transition period for the Rural Digital Opportunity Fund for incumbent price cap carriers that are receiving disaggregated legacy support. The Commission proposes that an incumbent price cap carrier currently receiving disaggregated legacy support will no longer receive such support in any census block that is deemed ineligible for the Rural Digital Opportunity Fund. This approach is consistent with the Commission's decision to stop providing legacy support in areas deemed ineligible for the CAF Phase II auction because by excluding those areas from the auction, the Commission had already determined not to offer ongoing high-cost support for those areas. For the Rural Digital Opportunity Fund, the Commission proposes ceasing such support in the first day of the month after the final Rural Digital Opportunity Fund eligible areas list is released. Although the Commission waited until the first CAF Phase II auction recipient was authorized to stop providing legacy support in areas deemed ineligible for the CAF Phase II auction, the Commission had not yet adopted a methodology for transitioning from legacy support to CAF Phase II auction support when the Bureau released the final CAF Phase II auction eligible areas list and there is no reason to continue paying a carrier through the Rural Digital Opportunity Fund auction if the Commission has already determined an area is ineligible for support.
91. In areas where an incumbent price cap carrier is receiving disaggregated legacy support and it becomes the authorized Rural Digital Opportunity Fund recipient, the Commission proposes that the incumbent price cap carrier will cease receiving disaggregated legacy support the first day of the month after the price cap carrier is authorized to receive Rural Digital Opportunity Fund support. Similarly, in areas where an incumbent price cap carrier is receiving disaggregated legacy support and another long-form applicant is authorized to receive Rural Digital Opportunity Fund support, the Commission proposes that the incumbent price cap carrier will cease receiving disaggregated legacy support the first day of the month after that long-form applicant is authorized to receive Rural Digital Opportunity Fund support. Finally, if no long-form applicant is authorized to receive Rural Digital Opportunity Fund support in an area, the Commission proposes that the incumbent price cap carrier receiving disaggregated support in that area would continue to receive such support until further Commission action.
92. The Commission seeks comment on these proposals and on whether any adjustments should be made for the transition from disaggregated legacy support to Rural Digital Opportunity Fund support.
93. In the
94. Given that a Rural Digital Opportunity Fund auction is unlikely to conclude before model-based support for price cap carriers is expected to end, the Commission seeks comment on whether to revisit the transition period from CAF Phase II model-based support to Rural Digital Opportunity Fund support. As a threshold matter, the Commission seeks comment on which price cap carriers should be eligible for the optional seventh year of support. The optional support year was only to be made available to price cap carriers that did not bid or did not win support in the subsequent auction. But by the end of 2020, the Commission may not know which price cap carriers fall in these categories. Should all price cap carriers have the option to elect an additional year of support or should the option only be available to a subset of price cap carriers? If the option should only be available to a subset of price cap carriers, what criteria should the Commission use to determine which price cap carriers should have the option of electing one more year of support?
95. The Commission emphasized the “limited scope and duration” of the CAF Phase II offer of model-based support. Price cap carriers had no expectation of receiving ongoing support beyond the additional optional year in these areas once the CAF Phase II support term had ended because the Commission expected that it would have conducted the subsequent auction before the support term had ended. Price cap carriers were provided the option of receiving six years of support, with an optional seventh year, in exchange for fulfilling specific service obligations which each price cap carrier had the opportunity to evaluate and accept or decline. Price cap carriers were also on notice that other service providers could win support to serve these areas in the subsequent auction so that ongoing support would not be made available once the optional year had ended. Because price cap carriers accepted CAF Phase II model-based support without an expectation of sustained ongoing support, the Commission does not believe it is necessary to provide any transitional support to price cap carriers beyond the optional seventh year of support. The Commission seeks comment on this view.
96. Given the potential time period between the end of the CAF Phase II model-based support term and the authorization of Rural Digital Opportunity Fund support recipients, how should the Commission adjust the offer of an optional seventh year of support? Should it be available to all price cap carriers until the completion of the Rural Digital Opportunity Fund Phase I auction? Should it be available only until a specific time (
97. The Commission also seeks comment on whether there are any other issues that it should address in the context of this proceeding that will facilitate the transition from CAF Phase II model-based support to Rural Digital Opportunity Fund support and will ensure that consumers retain access to voice and broadband services that are reasonably comparable to those offered in urban areas.
98. This document contains proposed new information collection requirements. The Commission as part of its continuing effort to reduce paperwork burdens, invites the general
99.
100. Broadband access is critical to economic opportunity, job creation, education and civic engagement. That is why closing the digital divide is the Commission's top priority. For communities throughout our nation to thrive and prosper, their residents must have the option to obtain high-speed internet access.
101. Last year, the Commission took a major step forward in expanding broadband access to many parts of rural America. As a result of the Commission's successful CAF Phase II auction, the Commission has begun providing $1.488 billion in universal service support over ten years to build high-speed broadband service to over 700,000 households and small businesses in 45 states, with 99.75% of locations receiving at least 25/3 Mbps service and more than half receiving at least 100/20 Mbps service.
102. But more work remains to be done. For example, more than 10 million households and small businesses in price cap areas still lack access to critical broadband services that offer speeds of at least 25 megabits per second (Mbps) downstream and 3 Mbps upstream in unserved census blocks, including more than 7 million in rural areas. In this document, the Commission proposes to build on the success of the CAF Phase II auction by establishing the Rural Digital Opportunity Fund, which will commit at least $20.4 billion over the next decade to support high-speed broadband networks in rural America. Because the CAF Phase II auction secured higher quality services for consumers at a lower cost to the Fund, the Commission proposes to conduct a multi-round, reverse, descending clock auction that favors faster services with lower latency and encourages intermodal competition. And in light of the need to bring service both to consumers in wholly unserved areas as well as those living in partially served areas, the Commission proposes to assign funding in two phases: Phase I will target those areas that current data confirms are wholly unserved, and Phase II will target those areas that are partially served as well as any areas not won in the first phase. By relying on a two-phase process, as the Commission did with the Connect America Fund, it can move expeditiously to commence an auction in 2020 while also ensuring that other areas are not left behind by holding a second auction.
103. The framework the Commission proposes in this document represents its single biggest step yet to close the rural digital divide and will connect millions more rural homes and small businesses to high-speed broadband networks.
104. The legal basis for any action that may be taken pursuant to the NPRM is contained in sections 4(i), 214, 254, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), and 403, and sections 1.1 and 1.412 of the Commission's rules, 47 CFR 1.1 and 1.412.
105. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rule revisions, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
106. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive small entity size standards that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.
107. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of August 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).
108. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicate that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37, 132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category show that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”
109. The small entities that may be affected are Wireline and Wireless Providers, Broadband internet Access Service Providers, Satellite Telecommunications, Electric Power Generators, Transmitters, and Distributors, and All Other Telecommunications.
110. In the NPRM the Commission begins the process of seeking comment on rules that will apply in the Rural Digital Opportunity Fund auction. The Commission proposes establishing three technology-neutral tiers of bids available for bidding with varying broadband speed and usage allowances, and for each tier propose differentiating
111. The Commission also proposes adopting a 10-year support term for Rural Digital Opportunity Fund support recipients along with interim service milestones by which support recipients must offer the required voice and broadband service to a required number of locations. The Commission seeks comment on whether it should adopt additional performance requirements to provide incentive for Rural Digital Opportunity Fund support recipients to pursue customers in eligible areas.
112. For entities that are interested in participating in the Rural Digital Opportunity Fund, the Commission proposes adopting a two-step application process and seek comment on whether any adjustments should be made or if the application process should be streamlined for certain entities. The Commission proposes requiring applicants to submit a pre-auction short-form application that includes information regarding their ownership, technical and financial qualifications, the technologies they intend to use and the types of bids they intend to place, their operational history, and an acknowledgement of their responsibility to conduct due diligence. Commission staff will review the applications to determine if applicants are qualified to bid in the auction.
113. The Commission also proposes requiring winning bidders to submit a long-form application in which they will submit information about their qualifications, funding, and the networks they intend to use to meet their obligations. During the long-form application period, the Commission also proposes requiring long-form applicants to obtain an ETC designation from the state or the Commission as relevant that covers the eligible areas in their winning bids. Prior to being authorized to receive support, the Commission proposes requiring long-form applicants to obtain an irrevocable stand-by letter of credit that meets its requirements from an eligible bank along with a bankruptcy opinion letter. The letter of credit would cover the support that has been disbursed and that will be disbursed in the coming year, subject to modest adjustments as support recipients substantially build out their networks, until the Commission and USAC verify that the applicant has met its service milestones. The Commission seeks comment on whether the Commission should use alternative measures to protect disbursed funds. Commission staff will review the applications and submitted documentation to determine whether long-form applicants are qualified to be authorized to receive support. The Commission proposes subjecting winning bidders or long-form applicants that default during the long-form application process to forfeiture.
114. To monitor the use of Rural Digital Opportunity Fund support to ensure that it is being used for its intended purposes, the Commission proposes to require support recipients to file location and technology data on an annual basis in the online HUBB portal and to make certifications when they have met their service milestones. The Commission also proposes requiring applicants to file certain information in their annual FCC Form 481 reports including information regarding the community anchor institutions they serve, the support they used for capital expenditures, and certifications regarding meeting the Commission's performance obligations and available funds. Support recipients would also be subject to the annual section 54.314 certifications, the same record retention and audit requirements, and the same support reductions for untimely filings as other high-cost ETCs. The Commission seeks comment on whether any adjustments should be made to this reporting framework.
115. For support recipients that do not meet their Rural Digital Opportunity Fund obligations, the Commission proposes subjecting such support recipients to the framework for support reductions that is applicable to all high-cost ETCs that are required to meet defined service milestones and to the process the Commission adopted for drawing on letters of credit for the Connect America Fund (CAF) Phase II auction. The Commission seeks comment on alternatives to this proposal.
116. The Commission also seeks comment on substantive proposals to address the impediments to broadband deployment that have resulted in a Tribal digital divide.
117. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. The Commission expects to consider all of these factors when it has received substantive comment from the public and potentially affected entities.
118. The Commission seeks comment on a number of issues to ensure that small entities have the opportunity to participate in the Rural Digital Opportunity Fund auction. For example, the Commission proposes to adopt different performance standards for bidders to maximize the types of entities that can participate in the Rural Digital Opportunity Fund auction.
119. Based on lessons learned from the CAF Phase II auction, the Commission also seeks comment on a two-step application process that will allow entities interested in bidding to submit a short-form application to be qualified in the auction that it found to be an appropriate but not burdensome screen to ensure participation by qualified providers, including small entities. Only if an applicant becomes a winning bidder would it be required to submit a long-form application which requires a more fulsome review of an applicant's qualifications to be authorized to receive support. Like the CAF Phase II auction, the Commission proposes providing two pathways for eligibility for the auction—both (1) for entities that have at least two years' experience providing a voice, broadband, and/or electric transmission or distribution service, and (2) for entities that have at least three years of audited financials and can obtain an acceptable letter of interest from an eligible bank. The Commission expects that by proposing to adopt two pathways for eligibility and to permit experienced entities that do not audit their financial statements in the ordinary course of business to wait to submit audited financials until after they are announced as winning bidders, more small entities will be able to participate in the auction. The
120. The Commission also proposes permitting all long-form applicants, including small entities, to obtain their ETC designations after becoming winning bidders so that they do not have to go through the ETC designation process prior to finding out if they won support through the auction. Recognizing that some CAF Phase II auction participants, including small entities, have expressed concerns about the costs of obtaining and maintaining a letter of credit, the Commission also seeks comment on whether there are viable, less costly alternatives that still minimize risk to public funds.
121. The Commission invites comment from all parties, including small entities and participants in the CAF Phase II auction, on adopting for the Rural Digital Opportunity Fund generally the same service milestones, reporting obligations, and non-compliance measures that it adopted for CAF Phase II. The Commission seeks to learn from the experience of small entities so that it can balance its responsibility to monitor the use of universal service funds with minimizing administrative burdens on Rural Digital Opportunity Fund participants.
122. Additionally, the Commission seeks comment on potential measures for incentivizing carriers, including small entities, to bid on and serve Tribal lands. These measures include implementing a Tribal Broadband Factor that accounts for the unique challenges of deploying broadband to rural Tribal communities and a Tribal bidding credit.
123. More generally, the Commission expects to consider the economic impact on small entities, as identified in comments filed in response to the NPRM and this IRFA, in reaching its final conclusions and taking action in this proceeding. The proposals and questions laid out in the NPRM were designed to ensure the Commission has a complete understanding of the benefits and potential burdens associated with the different actions and methods.
124.
125. In light of the Commission's trust relationship with Tribal Nations and its commitment to engage in government-to-government consultation with them, it finds the public interest requires a limited modification of the
126. Persons making oral
127. Accordingly,
128.
Communications common carriers, Health facilities, Infants and children, internet, Libraries, Reporting and recordkeeping requirements, Schools, Telecommunications, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 54 to read as follows:
47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 254, 303(r), 403, and 1302 unless otherwise noted.
(e) In addition to the information and certifications in paragraph (a) of this section, the following requirements
(2) Any recipient of Connect America Phase II or Rural Digital Opportunity Fund support awarded through a competitive bidding process shall provide:
(iii) Starting the first July 1st after meeting the final service milestone in § 54.310(c) or § 54.802(c) of this chapter until the July 1st after the Connect America Phase II recipient's or Rural Digital Opportunity Fund recipient's support term has ended, a certification that the Connect America Phase II-funded network that the Connect America Phase II auction recipient operated in the prior year meets the relevant performance requirements in § 54.309 of this chapter, or that the network that the Rural Digital Opportunity Fund recipient operated in the prior year meets the relevant performance requirements for the Rural Digital Opportunity Fund.
(a) * * *
(4) Recipients subject to the requirements of § 54.310(c) or § 54.802(c) shall report the number of locations for each state and locational information, including geocodes, where they are offering service at the requisite speeds. Recipients of Connect America Phase II auction support and Rural Digital Opportunity Fund support shall also report the technology they use to serve those locations.
(b) * * *
(5) Recipients of Rural Digital Opportunity Fund support shall provide: By the last business day of the second calendar month following each service milestone specified by the Commission, a certification that by the end of the prior support year, it was offering broadband meeting the requisite public interest obligations to the required percentage of its supported locations in each state.
The Commission will use competitive bidding, as provided in part 1, subpart AA of this chapter, to determine the recipients of Rural Digital Opportunity Fund support and the amount of support that they may receive for specific geographic areas, subject to applicable post-auction procedures.
(a)
(b)
(c)
(2) Recipients of Rural Digital Opportunity Fund support may elect to deploy to 95 percent of the number of supported locations in a given state with a corresponding reduction in support computed based on the average support per location in the state times 1.89.
(d) Disbursement of Rural Digital Opportunity Fund funding. An eligible telecommunications carrier will be advised by public notice when it is authorized to receive support. The public notice will detail how disbursements will be made.
(a) Any eligible telecommunications carrier is eligible to receive Rural Digital Opportunity Fund support in eligible areas.
(b) An entity may obtain eligible telecommunications carrier designation after public notice of winning bidders in the Rural Digital Opportunity Fund auction.
(c) To the extent any entity seeks eligible telecommunications carrier designation prior to public notice of winning bidders for Rural Digital Opportunity Fund support, its designation as an eligible telecommunications carrier may be conditioned subject to receipt of Rural Digital Opportunity Fund support.
(a) In addition to providing information specified in § 1.21001(b) of this chapter and any other information required by the Commission, any applicant to participate in competitive bidding for Rural Digital Opportunity Fund support shall:
(1) Provide ownership information as set forth in § 1.2112(a) of this chapter;
(2) Certify that the applicant is financially and technically qualified to meet the public interest obligations established for Rural Digital Opportunity Fund support;
(3) Disclose its status as an eligible telecommunications carrier to the extent applicable and certify that it acknowledges that it must be designated as an eligible telecommunications carrier for the area in which it will receive support prior to being authorized to receive support;
(4) Describe the technology or technologies that will be used to provide service for each bid;
(5) Submit any information required to establish eligibility for any bidding weights adopted by the Commission in an order or public notice;
(6) To the extent that an applicant plans to use spectrum to offer its voice and broadband services, demonstrate it has the proper authorizations, if applicable, and access to operate on the spectrum it intends to use, and that the spectrum resources will be sufficient to cover peak network usage and deliver the minimum performance requirements to serve all of the fixed locations in eligible areas, and certify that it will retain its access to the spectrum for the term of support;
(7) Submit operational and financial information.
(i) If applicable, the applicant should submit a certification that it has provided a voice, broadband, and/or electric transmission or distribution service for at least two years or that it is a wholly-owned subsidiary of such an entity, and specifying the number of years the applicant or its parent company has been operating, and submit the financial statements from the prior fiscal year that are audited by a certified public accountant. If the applicant is not audited in the ordinary course of business, in lieu of submitting audited financial statements it must submit unaudited financial statements from the prior fiscal year and certify that it will provide financial statements from the prior fiscal year that are audited by
(A) If the applicant has provided a voice and/or broadband service it must certify that it has filed FCC Form 477s as required during this time period.
(B) If the applicant has operated only an electric transmission or distribution service, it must submit qualified operating or financial reports that it has filed with the relevant financial institution for the relevant time period along with a certification that the submission is a true and accurate copy of the reports that were provided to the relevant financial institution.
(ii) If an applicant cannot meet the requirements in paragraph (a)(7)(i) of this section, in the alternative it must submit the audited financial statements from the three most recent fiscal years and a letter of interest from a bank meeting the qualifications set forth in paragraph (c)(2) of this section, that the bank would provide a letter of credit as described in paragraph (c) of this section to the bidder if the bidder were selected for bids of a certain dollar magnitude.
(8) Certify that the applicant has performed due diligence concerning its potential participation in the Rural Digital Opportunity Fund.
(b) Application by winning bidders for Rural Digital Opportunity Fund support—
(1)
(2)
(i) Identification of the party seeking the support, including ownership information as set forth in § 1.2112(a) of this chapter;
(ii) Certification that the applicant is financially and technically qualified to meet the public interest obligations for Rural Digital Opportunity Fund support in each area for which it seeks support;
(iii) Certification that the applicant will meet the relevant public interest obligations, including the requirement that it will offer service at rates that are equal or lower to the Commission's reasonable comparability benchmarks for fixed wireline services offered in urban areas;
(iv) A description of the technology and system design the applicant intends to use to deliver voice and broadband service, including a network diagram which must be certified by a professional engineer. The professional engineer must certify that the network is capable of delivering, to at least 95 percent of the required number of locations in each relevant state, voice and broadband service that meets the requisite performance requirements for Rural Digital Opportunity Fund support;
(v) Certification that the applicant will have available funds for all project costs that exceed the amount of support to be received from the Rural Digital Opportunity Fund for the first two years of its support term and that the applicant will comply with all program requirements, including service milestones;
(vi) A description of how the required construction will be funded, including financial projections that demonstrate the applicant can cover the necessary debt service payments over the life of the loan, if any;
(vii) Certification that the party submitting the application is authorized to do so on behalf of the applicant; and
(viii) Such additional information as the Commission may require.
(3) No later than the number of days provided by public notice, the long-form applicant shall submit a letter from a bank meeting the eligibility requirements outlined in paragraph (c) of this section committing to issue an irrevocable stand-by letter of credit, in the required form, to the long-form applicant. The letter shall at a minimum provide the dollar amount of the letter of credit and the issuing bank's agreement to follow the terms and conditions of the Commission's model letter of credit.
(4) No later than the number of days provided by public notice, if a long-form applicant or a related entity did not submit audited financial statements in the relevant short-form application as required, the long-form applicant must submit the financial statements from the prior fiscal year that are audited by a certified independent public accountant.
(5) No later than 180 days after the public notice identifying it as a winning bidder, the long-form applicant shall certify that it is an eligible telecommunications carrier in any area for which it seeks support and submit the relevant documentation supporting that certification.
(6)
(ii) Any application that, as of the submission deadline, either does not identify the applicant seeking support as specified in the public notice announcing application procedures or does not include required certifications shall be denied.
(iii) An applicant may be afforded an opportunity to make minor modifications to amend its application or correct defects noted by the applicant, the Commission, the Administrator, or other parties. Minor modifications include correcting typographical errors in the application and supplying non-material information that was inadvertently omitted or was not available at the time the application was submitted.
(iv) Applications to which major modifications are made after the deadline for submitting applications shall be denied. Major modifications include, but are not limited to, any changes in the ownership of the applicant that constitute an assignment or change of control, or the identity of the applicant, or the certifications required in the application.
(v) After receipt and review of the applications, a public notice shall identify each long-form applicant that may be authorized to receive Rural Digital Opportunity Fund support after the long-form applicant submits a letter of credit and an accompanying opinion letter as described in paragraph (c) of this section, in a form acceptable to the Commission. Each such long-form applicant shall submit a letter of credit and accompanying opinion letter as required by paragraph (c) of this section, in a form acceptable to the Commission no later than the number of business days provided by public notice.
(vi) After receipt of all necessary information, a public notice will identify each long-form applicant that is authorized to receive Rural Digital Opportunity Fund support.
(c)
(1)
(i) Once the recipient has met its 60 percent service milestone, it may obtain a new letter of credit or renew its existing letter of credit so that it is valued at a minimum at 90 percent of the total support amount already disbursed plus the amount that will be disbursed in the coming year.
(ii) Once the recipient has met its 80 percent service milestone, it may obtain a new letter of credit or renew its existing letter of credit so that it is valued at a minimum at 60 percent of the total support that has been disbursed plus the amount that will be disbursed in the coming year.
(2) The bank issuing the letter of credit shall be acceptable to the Commission. A bank that is acceptable to the Commission is:
(i) Any United States bank
(A) That is insured by the Federal Deposit Insurance Corporation, and
(B) That has a bank safety rating issued by Weiss of B− or better; or
(ii) CoBank, so long as it maintains assets that place it among the 100 largest United States Banks, determined on basis of total assets as of the calendar year immediately preceding the issuance of the letter of credit and it has a long-term unsecured credit rating issued by Standard & Poor's of BBB− or better (or an equivalent rating from another nationally recognized credit rating agency); or
(iii) The National Rural Utilities Cooperative Finance Corporation, so long as it maintains assets that place it among the 100 largest United States Banks, determined on basis of total assets as of the calendar year immediately preceding the issuance of the letter of credit and it has a long-term unsecured credit rating issued by Standard & Poor's of BBB− or better (or an equivalent rating from another nationally recognized credit rating agency); or
(iv) Any non-United States bank:
(A) That is among the 100 largest non-U.S. banks in the world, determined on the basis of total assets as of the end of the calendar year immediately preceding the issuance of the letter of credit (determined on a U.S. dollar equivalent basis as of such date);
(B) Has a branch office in the District of Columbia or such other branch office agreed to by the Commission;
(C) Has a long-term unsecured credit rating issued by a widely-recognized credit rating agency that is equivalent to a BBB− or better rating by Standard & Poor's; and
(D) Issues the letter of credit payable in United States dollars.
(3) A long-form applicant for Rural Digital Opportunity Fund support shall provide with its letter of credit an opinion letter from its legal counsel clearly stating, subject only to customary assumptions, limitations, and qualifications, that in a proceeding under Title 11 of the United States Code, 11 U.S.C. 101
(4) Authorization to receive Rural Digital Opportunity Fund support is conditioned upon full and timely performance of all of the requirements set forth in this section, and any additional terms and conditions upon which the support was granted.
(i) Failure by a Rural Digital Opportunity Fund support recipient to meet its service milestones as required by § 54.802 will trigger reporting obligations and the withholding of support as described in § 54.320(d). Failure to come into full compliance within 12 months will trigger a recovery action by the Universal Service Administrative Company. If the Rural Digital Opportunity Fund recipient does not repay the requisite amount of support within six months, the Universal Service Administrative Company will be entitled to draw the entire amount of the letter of credit and may disqualify the Rural Digital Opportunity Fund support recipient from the receipt of Rural Digital Opportunity Fund support or additional universal service support.
(ii) The default will be evidenced by a letter issued by the Chief of the Wireline Competition Bureau, or its respective designees, which letter, attached to a standby letter of credit draw certificate, shall be sufficient for a draw on the standby letter of credit for the entire amount of the standby letter of credit.
(a) Recipients of Rural Digital Opportunity Fund support are required to offer broadband service with latency suitable for real-time applications, including Voice over internet Protocol, and usage capacity that is reasonably comparable to comparable offerings in urban areas, at rates that are reasonably comparable to rates for comparable offerings in urban areas. For purposes of determining reasonable comparable usage capacity, recipients are presumed to meet this requirement if they meet or exceed the usage level announced by public notice issued by the Wireline Competition Bureau. For purposes of determining reasonable comparability of rates, recipients are presumed to meet this requirement if they offer rates at or below the applicable benchmark to be announced annually by public notice issued by the Wireline Competition Bureau, or no more than the non-promotional prices charged for a comparable fixed wireline service in urban areas in the state or U.S. Territory where the eligible telecommunications carrier receives support.
(b) Recipients of Rural Digital Opportunity Fund support are required to offer broadband service meeting the performance standards for the relevant performance tier.
(1) Winning bidders meeting the baseline performance tier standards are required to offer broadband service at actual speeds of at least 25 Mbps downstream and 3 Mbps upstream and offer a minimum usage allowance of 150 GB per month, or that reflects the average usage of a majority of fixed broadband customers, using Measuring Broadband America data or a similar data source, whichever is higher, and announced annually by public notice issued by the Wireline Competition Bureau over the 10-year term.
(2) Winning bidders meeting the above-baseline performance tier standards are required to offer broadband service at actual speeds of at least 100 Mbps downstream and 20 Mbps upstream and offer at least 2 terabytes of monthly usage.
(3) Winning bidders meeting the Gigabit performance tier standards are required to offer broadband service at actual speeds of at least 1 Gigabit per second downstream and 500 Mbps upstream and offer at least 2 terabytes of monthly usage.
(4) For each of the tiers in paragraphs (b)(1) through (3) of this section, bidders are required to meet one of two latency performance levels:
(i) Low latency bidders will be required to meet 95 percent or more of all peak period measurements of network round trip latency at or below 100 milliseconds; and
(ii) High latency bidders will be required to meet 95 percent or more of all peak period measurements of network round trip latency at or below 750 ms and, with respect to voice performance, demonstrate a score of four or higher using the Mean Opinion Score (MOS).
(c) Recipients of Rural Digital Opportunity Fund support are required to bid on category one
(a) Recipients of Rural Digital Opportunity Fund support shall be subject to the reporting obligations set forth in §§ 54.313, 54.314, and 54.316.
(b) Recipients of Rural Digital Opportunity Fund support shall be subject to the compliance measures, recordkeeping requirements, and audit requirements set forth in § 54.320.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation.
Notice of proposed rulemaking (NPRM).
This document proposes amendments to Federal Motor Vehicle Standard (FMVSS) No. 109 in response to a petition from the Tire and Rim Association to clarify the applicability of the FMVSSs to certain types of tires intended for use on trailers. Based on a review of prior amendments to FMVSS Nos. 109 and 119, NHTSA concludes that it inadvertently made these tires subject to both FMVSS Nos. 109 and 119, when it was the agency's intent to make them subject only to FMVSS No. 119. This document also proposes nonsubstantive technical corrections to tire and rim regulations.
Submit comments on or before September 20, 2019.
You may submit comments electronically to the docket identified in the heading of this document by visiting the following website:
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Alternatively, you can file comments using the following methods:
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•
•
Regardless of how you submit your comments, you should mention the docket number identified in the heading of this document.
David Jasinski, Office of the Chief Counsel, by telephone at (202) 366-2992, and by fax at (202) 366-3820. You may send mail to this official at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
On June 26, 2003, the agency published a final rule amending several Federal Motor Vehicle Safety Standards (FMVSSs) related to tires and rims.
The June 2003 final rule established a new FMVSS No. 139 to provide upgraded requirements for tires for passenger cars and light trucks. In addition, the final rule changed the applicability of FMVSS No. 109 and FMVSS No. 119. Previously, FMVSS No. 109 applied solely to tires for passenger cars and FMVSS No. 119 applied to tires for all other vehicles. The June 2003 final rule made FMVSS No. 109 applicable to bias-ply tires and tires for use on light vehicles (those with a GVWR of 10,000 lb. or lower) and made FMVSS No. 119 applicable to tires used on motorcycles and heavy vehicles (those with a GVWR of over 10,000 lb.) The requirements set forth in the June 2003 final rule were set to become effective on June 1, 2007.
NHTSA received petitions for reconsideration of the June 2003 final rule from eight petitioners addressing 18 different issues. In a January 6, 2006 final rule, NHTSA responded to these petitions.
In response to the petitions, NHTSA amended the application sections of FMVSS Nos. 109, 119, and 139 in order
NHTSA received a petition for reconsideration of the January 2006 final rule and issued a final rule on August 28, 2007 to respond to this petition.
In June 2013, TRA submitted a petition for rulemaking requesting that NHTSA clarify specialty tires are subject to the requirements of FMVSS No. 119 and not those in FMVSS No. 109.
1. Remove from the title and main test of FMVSS No. 109 all references to specialty tires.
2. Add to the title of FMVSS No. 119 a reference to “specialty tires.”
3. Add appropriate values to Table III of FMVSS No. 119 to account for specialty tires in load ranges A through E.
TRA reasoned that NHTSA had already agreed to the substance of this petition when it determined in the January 2006 final rule that it would clarify that specialty tires were subject to the requirements of FMVSS No. 119. However, TRA stated, in August 2007, NHTSA reinserted specialty tires into FMVSS No. 109 without explanation while still keeping them subject to FMVSS No. 119. TRA believes that this change was inadvertent.
TRA stated that the inclusion of specialty tires in FMVSS No. 109 sets up impossible test conditions. FMVSS No. 109 specifies tire strength requirements that are tested using a plunger test. The test conditions are based on the maximum inflation pressure of the tire. However, the inflation pressure values specified in FMVSS No. 109 do not cover all of the maximum inflation pressures for specialty tires that are subject to the standard. In contrast, FMVSS No. 119 previously specified test conditions according to load range designations. This covers all variations of specialty tires.
NHTSA is granting TRA's petition for rulemaking. NHTSA acknowledges that, in the January 2006 final rule, NHTSA stated its intent for specialty tires to be subject to FMVSS No. 119, but inadvertently made specialty tires subject to FMVSS No. 109 in addition to FMVSS No. 119 in August 2007. Further, NHTSA acknowledges that FMVSS No. 109 does not specify test conditions for specialty tires with maximum inflation pressures not specified in FMVSS No. 109. Without specified test pressures, NHTSA cannot test specialty tires for compliance with FMVSS No. 109. While this issue could be remedied by adding new test pressures to FMVSS No. 109, we believe that making these tires subject to FMVSS No. 119 is preferable because it specifies test conditions based on load range designations. This allows the tire industry flexibility to change maximum tire inflation pressures for specialty tires without first requesting regulatory changes from NHTSA.
As for the specific relief requested by TRA, NHTSA is proposing an amendment to FMVSS No. 109 to remove references to specialty tires from the title and the “Application” section. Second, NHTSA is proposing to add a reference to specialty tires to the title of FMVSS No. 119. In addition, though not suggested by TRA, NHTSA is proposing an amendment to the “Scope” section of FMVSS No. 119 to include a reference to specialty tires to provide added clarity regarding the applicability of FMVSS No. 119 to specialty tires. Specialty tires are already listed in the “Application” section of FMVSS No. 119.
As for the suggested amendments to Table III, the endurance test schedule, in FMVSS No. 119, in a September 29, 2010 Notice of Proposed Rulemaking (NPRM), NHTSA proposed amendments similar to those suggested by TRA.
In response to the September 2010 NPRM, NHTSA received no adverse comments to the inclusion of load range M and N tires in the tables for speed restricted service or load range M for all other tires. Consequently, NHTSA is including the technical corrections to Table III proposed in the September 2010 NPRM in this proposal, which are inclusive of the changes to Table III suggested by TRA.
NHTSA is also proposing a corresponding change to FMVSS No. 110. In a March 13, 2013 NPRM, NHTSA proposed an amendment to FMVSS No. 110 to clarify that specialty tires could be equipped on new light trailers (those with GVWR of 10,000 pounds or less). In the proposed regulatory text, NHTSA stated it would allow light trailers to be equipped with specialty tires meeting the requirements of FMVSS No. 109. TRA, though generally supportive of the proposal, submitted a comment suggesting that specialty tires on light trailers should be required to meet FMVSS No. 119 rather than FMVSS No. 109. The rationale for this comment mirrored TRA's rationale in its petition for rulemaking.
In a November 9, 2016 final rule, NHTSA clarified that new light trailers could be equipped with specialty tires.
Having proposed that specialty tires should be subject to the requirements of FMVSS No. 119 and not FMVSS No. 109, this proposal also removes the reference to FMVSS No. 109 as a standard under which specialty tires could be certified.
In addition to the inclusion of specialty tires in the “Application” section of FMVSS No. 109, we have noted another inadvertent error in that section. When adopting FMVSS No. 139, NHTSA made all tires for vehicle manufactured
This proposal includes several minor amendments to FMVSS No. 119 that were included in a January 10, 2013 Supplemental NRPM.
The breaking energy requirement for rayon cord tires is less than other materials to make the severity of the test comparable to tires made of other cord materials. The breaking energy requirement for rayon cord tires for light vehicles in FMVSS No. 109 remain less than the requirement for nylon or polyester cord tires. The agency can determine whether a tire is composed of rayon cord from information that is required by S6.5(f) of FMVSS No. 119 to be molded on the tire's sidewall.
However, only one footnote needs to be reinstated. The other footnote related to the procedure used for rounding metric conversions, and it is not necessary to include that information in the text of the standard.
NHTSA is also including three previously proposed non-substantive formatting changes to Table II in from the January 2013 SNPRM. First, some of the headings have been revised to more clearly explain the tire characteristics. Second, the heading row alignment has been modified. Third, the order of the columns in the right portion of the table for tires other than light truck, motorcycle, and 12 rim diameter code or smaller has been modified to group tube type and tubeless tires together. The agency believes that these formatting changes will make Table II easier to read.
NHTSA is also including a previously proposed correction to an error NHTSA discovered in the formula for computing the breaking energy of a tire in metric located in S7.3(f) of FMVSS No. 119. In S7.3(f)(1), the breaking energy (W) is reported in joules (J); however, the explanation incorrectly states the unit abbreviation for joules as kJ, which is the abbreviation for kilojoules. In S7.3(f)(2), unit abbreviations are not included in the explanation and the breaking energy equation formatting is inconsistent with S7.3(f)(1).
NHTSA has discovered an additional error in Table III of FMVSS No. 119. Table III specifies the schedule for the endurance test, including the test wheel speed, and the test load over the length of the 47-hour test (34 hours for tires subject to the high speed performance test). For reference, Table III lists the total number of revolutions of the test wheel. However, several of the values for the total number of revolutions are incorrect in the current Table III and were incorrect in prior version of Table III. NHTSA has recalculated the number of total test revolutions for each type of tire listed in the schedule. For example, the endurance test for non-speed-restricted truck and bus tires with load range H or above is 48 km/h or 150 rpm for 47 hours. This computes to 423,000 revolutions (150 × 60 × 47). However, Table III currently shows the test is 423,500 revolutions. This proposal corrects this and similar miscalculations in Table III. This change would not affect how the test is conducted because the test is conducted at the rpm rate listed in the schedule for the appropriate amount of time (47 or 34 hours) and not based on the total number of revolutions.
We have identified an issue similar to the one raised by TRA with respect to deep tread tires for light trucks. In the January 2006 final rule responding to petitions for reconsideration of the June 2003 final rule, NHTSA addressed a petition from Denman requesting that deep tread light truck tires (those with tread depths of
The “Application” section of FMVSS No. 139 also presently excludes specialty tires. However, in addressing tires for smaller rims, FMVSS No. 139 excludes from its application tires with rim diameters of 8 inches or below. Specialty tires, as referenced in all other NHTSA regulations, include tires with rim diameters of 12 inches or below. This is a typographical error in FMVSS No. 139. This proposal corrects this typographical error and changes FMVSS No. 139 to exclude tires with rim diameters of 12 inches or below.
There is a typographical error in the tables setting forth the test pressure for the high speed performance test, the tire endurance test, and the low inflation pressure performance test. Each of these tables provides test pressure for standard load and extra load passenger car tires and load range C, D, and E light truck tires. Light truck tires use different test pressures depending on whether the nominal cross section is greater than 295 millimeters. However, the test pressures for light truck tires with a nominal cross section of 295 millimeters or less is listed under the heading “Passenger car tires.” There should be a heading “Light truck tires with a nominal cross section ≤295 mm (11.5 inches)” between the extra load tires and load range C tires. This proposal adds this missing heading in each of the three tables.
In FMVSS No. 110 and FMVSS No. 139, manufacturers of rims and tires, respectively, may provide certain information to NHTSA by mail. However, the address for NHTSA's office in these standards is incorrect. This proposal corrects NHTSA's address in FMVSS No. 110 and FMVSS No. 139.
In FMVSS No. 110, the application section contains two minor typographical errors. First, the abbreviation for GVWR is missing one parenthesis. Second, the word “of” is used in place of the word “or”. This proposal corrects both of these typographical errors.
Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long (49 CFR 553.21). NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit your comments electronically to the docket following the steps outlined under
If you wish to be notified upon receipt of your mailed comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
If you wish to submit any information under a claim of confidentiality, you should submit the following to the NHTSA Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590: (1) A complete copy of the submission; (2) a redacted copy of the submission with the confidential information removed; and (3) either a second complete copy or those portions of the submission containing the material for which confidential treatment is claimed and any additional information that you deem important to the Chief Counsel's consideration of your confidentiality claim. A request for confidential treatment that complies with 49 CFR part 512 must accompany the complete submission provided to the Chief Counsel. For further information, submitters who plan to request confidential treatment for any portion of their submissions are advised to review 49 CFR part 512, particularly those sections relating to document submission requirements. Failure to adhere to the requirements of Part 512 may result in the release of confidential information to the public docket. In addition, you should submit two copies from which you have deleted the claimed confidential business information, to Docket Management at the address given at the beginning of this document under
NHTSA will consider all comments received before the close of business on the comment closing date indicated at the beginning of this notice under
You may read the comments received on the internet. To read the comments on the internet, go to
You may download the comments. The comments are imaged documents, in either TIFF or PDF format. Please note that even after the comment closing date, NHTSA will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, NHTSA recommends that you periodically search the Docket for new material.
You may also see the comments at the address and times given near the beginning of this document under
NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking is not considered significant and was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has also been determined not to be significant under the Department's regulatory policies and procedures. The agency has further determined that the impact of this proposal is so minimal as to not warrant the preparation of a full regulatory evaluation.
This proposal clarifies the applicability of the FMVSSs to tires intended for use on trailers and makes other technical amendments. It will not result in any costs nor will it have any impact on safety.
Executive Order 13771 titled “Reducing Regulation and Controlling Regulatory Costs,” directs that, unless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed. In addition, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs. Only those rules deemed significant under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” are subject to these requirements. As discussed above, this rule is not a significant rule under Executive Order 12866 and, accordingly, is not subject to the offset requirements of 13771.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
NHTSA has considered the effects of this proposal under the Regulatory Flexibility Act. I certify that this proposal will not have a significant economic impact on a substantial number of small entities. This proposal would directly impact manufacturers of trailers with a GVWR of 4,536 kg (10,000 lbs.) or less. Although we believe many manufacturers affected by this proposal are considered small businesses, we do not believe this proposal will have a significant economic impact on those manufacturers. This proposal would not impose any costs upon manufacturers and relieves any confusion that may have been generated by the inclusion of specialty tires within the applicability of FMVSS No. 109 in the August 2007 final rule.
NHTSA has examined this proposal pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal would not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
NHTSA rules can preempt in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.
The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of such State common law tort causes of action by virtue of NHTSA's rules, even if not expressly preempted. This second way that NHTSA rules can preempt is dependent upon there being an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer, notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See
Pursuant to Executive Order 13132 and 12988, NHTSA has considered whether this rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (
With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729; Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties file suit in court; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court.
Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health, or safety risk that the agency has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the agency.
This notice is part of a rulemaking that is not expected to have a disproportionate health or safety impact on children. Consequently, no further analysis is required under Executive Order 13045.
Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. There is not any information collection requirement associated with this proposal.
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law (
Examples of organizations generally regarded as voluntary consensus standards bodies include ASTM International, the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.
There are no voluntary consensus standards developed by voluntary consensus standards bodies pertaining to this proposal.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation of why that alternative was not adopted.
This proposal would not result in any expenditure by State, local, or tribal governments or the private sector of more than $100 million, adjusted for inflation.
NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
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
Imports, Motor vehicle safety, Reporting and recordkeeping requirements, Tires.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 571 as follows:
49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95.
S2.
The revisions read as follows:
S2.
S4.1
(b) * * *
(2) Trailers may be equipped with ST tires, FI tires, or tires with a rim diameter code of 12 or below that meet the requirements of § 571.119.
S4.4.2
(e) * * *
(1) Any manufacturer that elects to express the date of manufacture by means of a symbol shall notify NHTSA in writing of the full names and addresses of all manufacturers and brand name owners utilizing that symbol and the name and address of the trademark owner of that symbol, if any. The notification shall describe in narrative form and in detail how the month, day, and year or the month and
The revisions read as follows:
S1.
S7.3 * * *
(f) * * *
The revisions read as follows:
S2
S4.1.1 * * *
(a) Listed by manufacturer name or brand name in a document furnished to dealers of the manufacturer's tires, to any person upon request, and in duplicate to the Docket Section (No. NHTSA-2009-0117), National Highway Traffic Safety Administration, West Building, 1200 New Jersey Ave. SE, Washington, DC 20590; or
S6.2.1.1.1 Mount the tire on a test rim and inflate it to the pressure specified for the tire in the following table:
S6.3.1.1.1 Mount the tire on a test rim and inflate it to the pressure specified for the tire in the following table:
S6.4.1.1.1 This test is conducted following completion of the tire endurance test using the same tire and rim assembly tested in accordance with S6.3 with the tire deflated to the following appropriate pressure:
Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.5.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendment; request for comments.
The North Pacific Fishery Management Council (Council) submitted Amendment 118 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) (Amendment 118) to the Secretary of Commerce (Secretary) for review. If approved, Amendment 118 would prohibit the use of pot gear in the Pribilof Islands Habitat Conservation Zone (PIHCZ) and a regulatory amendment would authorize the retention of halibut in pot gear under the Individual Fishing Quota (IFQ) and Western Alaska Community Development Quota (CDQ) Programs in the Bering Sea and Aleutian Islands (BSAI). Amendment 118 is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the FMP, the Northern Pacific Halibut Act of 1982 (Halibut Act), and other applicable laws.
Comments must be received no later than October 21, 2019.
You may submit comments on this document, identified by NOAA-NMFS-2018-0134, by any of the following methods:
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Electronic copies of Amendment 118 to the FMP, the Environmental Assessment/Regulatory Impact Review prepared for this action (the Analysis), and the Finding of No Significant Impact prepared for this action may be obtained from
Stephanie Warpinski, 907-586-7228 or
The Council has submitted Amendment 118 to the FMP to the Secretary for review. If approved, Amendment 118 would prohibit the use of pot gear in the Pribilof Islands Habitat Conservation Zone (PIHCZ). The regulatory amendment associated with
The Magnuson-Stevens Act requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a document in the
The Council prepared, and the Secretary approved, the FMP under the authority of section 302(h)(1) and 303(b) of the Magnuson-Stevens Act, 16 U.S.C. 1801
Sablefish (
The IPHC and NMFS manage fishing for halibut through regulations at 50 CFR part 300, subpart E, established under authority of the Halibut Act, 16 U.S.C. 773-773k. The Halibut Act authorizes the Council to develop halibut fishery regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations (16 U.S.C. 773c(c)). The Council has exercised this authority in the development and advancement of the IFQ Program.
The CDQ Program was implemented in 1992, and in 1996, the Magnuson-Stevens Act was amended to include provisions specific to the CDQ Program. The purposes of the CDQ Program are (1) to provide eligible western Alaska villages with the opportunity to participate and invest in fisheries in the BSAI management area; (2) to support economic development in western Alaska; (3) to alleviate poverty and provide economic and social benefits for residents of western Alaska; and (4) to achieve sustainable and diversified local economies in western Alaska (16 U.S.C. 1855(i)(1)(A)).
If approved, Amendment 118 to the FMP would prohibit the use of pot gear in the PIHCZ. The regulatory amendment would authorize the use of pot gear to target BSAI IFQ or CDQ halibut and would authorize retention of halibut in longline and pot-and-line pot gear used in the new BSAI IFQ or CDQ halibut and existing IFQ or CDQ sablefish fisheries. Currently, hook-and-line gear is the only authorized gear type in the IFQ and CDQ halibut fishery. Amendment 118 would authorize IFQ and CDQ fishermen to elect to use pot gear in the IFQ or CDQ halibut or IFQ or CDQ sablefish fisheries in the BSAI. In addition, if a permit holder on board the fishing vessel holds an IFQ or CDQ halibut permit with sufficient unused IFQ or CDQ halibut, the permit holder would be required to retain legal-size halibut.
In recommending Amendment 118 and the proposed rule to implement the Amendment, the Council determined, and NMFS agrees, that prohibiting the use of pot gear in the PIHCZ and authorizing halibut retention in pot gear in the BSAI is appropriate to improve efficiency in the fleet because fishermen would have more flexibility to use their quota opportunistically and minimize variable costs. In addition, the length of the IFQ season makes it much less likely that hook-and-line gear and longline pot gear conflicts would occur or that fishing grounds would be preempted for extended periods. The Council and NMFS therefore expect that gear conflicts and grounds preemption would occur in the same manner as previously analyzed by the Council and NMFS. Although hook-and-line and longline pot gear may catch slightly different sizes of halibut, the best available information indicates that the use of pot gear would not have a significant impact on the halibut resource (see Section 3.4 and 4.7.4 of the Analysis).
Due to concern over additional pot fishing activity in the PIHCZ and in the Pribilof Islands Blue King Crab (PIBKC) stock boundary area, the proposed regulatory amendment to implement Amendment 118 would require all vessels deploying pot gear for retaining IFQ or CDQ halibut or sablefish in pot gear to use logbooks and VMS to ensure consistency in monitoring fishery behavior.
Pribilof Islands Blue King Crab (PIBKC) (
Bycatch of PIBKC in pot gear is a concern in the BSAI, particularly in
To help minimize the risk of overfishing PIBKC, regulations at § 679.25 provide NMFS with inseason management authority to make precise closures to BSAI fisheries that use bottom contact gear if a stock, in this case PIBKC, approaches its acceptable biological catch limit and is approaching the overfishing level (OFL) in the stock boundary area.
The IFQ and CDQ Programs already include requirements for participants to report specific information to NMFS and other management agencies for management, monitoring, and enforcement purposes. In general, vessels that fish IFQ and CDQ halibut and sablefish must adhere to many of the same requirements, although there are some differences. There is overlap in vessels that fish for IFQ halibut and sablefish and vessels that fish CDQ halibut and sablefish, particularly among the larger vessels. A vessel can retain both CDQ and IFQ species on the same trip.
The purpose of authorizing pot gear to target and retain halibut in the BSAI is to maximize the ability of permit holders to harvest their IFQ or CDQ by increasing catch per unit and reducing fishing costs. Some fishermen would like to use pot gear because it is less prone to whale depredation and seabird interactions than hook-and-line gear. Whales can remove fish from hook-and-line gear and damage the gear. This reduces catch rates, increases costs for IFQ and CDQ fishermen, and impacts fishing efficiency. Use of pot gear would minimize whale depredation and seabird interactions with fishing gear and would minimize adverse impacts on the IFQ fleet.
Killer whale (
Participants in the BSAI IFQ fisheries indicated to the Council and NMFS that authorizing the use of pot gear for IFQ halibut fishing would reduce the adverse impacts of depredation for those vessel operators who choose to switch from hook-and-line to pot gear. The Council and NMFS agree that interactions with whales throughout the BSAI could affect the ability of IFQ permit holders to harvest sablefish and halibut by reducing catch per unit of effort and decreasing fishing costs.
If some portion of the IFQ or CDQ halibut fleet switches from hook-and-line gear to pot gear, interactions between killer whales and the halibut fishery would be expected to decrease, and unaccounted halibut mortality due to depredation would be expected to decline. Because the amount of depredation is not known with certainty, the potential effects of reduced depredation from this proposed rule cannot be quantified.
Section 1.2 of the Analysis provides additional information on the Council's development and recommendation of Amendment 118 and the proposed rule.
The Council and NMFS considered all the National Standards in section 301 of the Magnuson-Stevens Act (16 U.S.C. 1851), but five national standards figured prominently in their consideration of Amendment 118: National Standard 2, National Standard 5, National Standard 8, National Standard 9, and National Standard 10. Section 5 of the Analysis provides more background on the National Standards.
Amendment 118 would require that all IFQ halibut caught in pot gear used by a vessel to fish IFQ or CDQ halibut or IFQ or CDQ sablefish in the BSAI be retained when a permit holder on board the vessel also holds an IFQ or CDQ halibut permit with sufficient IFQ or CDQ to cover the halibut harvest. Regulations that implement the IFQ Program in conjunction with FMP-managed species are consistent with the Halibut Act and the Magnuson Stevens Act, respectively. Amendment 118 also notes that requirements for retaining, handling, and reporting halibut harvest are established in regulation and unchanged by this action.
The FMP recognizes that discarding incidental catches of fish is wasteful and should be minimized. The FMP also recognizes that halibut are not managed as a target species, but as a prohibited species, under the FMP. Therefore, to remove the incentive to covertly target halibut, the FMP prohibits retention of halibut caught in target groundfish fisheries, except for when authorized. In the evaluation of retention of IFQ or CDQ halibut in a pot gear fishery for IFQ or CDQ halibut or IFQ or CDQ sablefish in the BSAI, the Council balanced the tenets of minimizing halibut discard with the IFQ Program, and the Council recommended retention of halibut in pot gear used to fish IFQ or CDQ halibut or IFQ or CDQ sablefish. Retention of halibut caught with pot gear used to fish IFQ or CDQ halibut or IFQ or CDQ sablefish is consistent with general provisions of the FMP.
The Council's recommendation to require retention of halibut in pot gear was conditioned on the IPHC adopting complementary regulations that would allow NMFS to promulgate regulations implementing the requirements specified by the Council. The IPHC approved the annual Pacific Halibut Fishery Regulations in January 2019. The 2019 annual regulations recommended by the IPHC and approved by the U.S. include approval of harvest of halibut in pot gear as legal gear for the commercial halibut fishery in Alaska when NMFS regulations permit the use of this gear to retain halibut (84 FR 9243, March 14, 2019).
Amendment 118 to the FMP would amend Table ES-2 and section 3.5.2.1.1 in the FMP to prohibit all pot gear in the Pribilof Islands Habitat Conservation Zone. NMFS is soliciting public comments on proposed Amendment 118 through the end of the comment period (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Availability of proposed fishery management plan amendment; request for comments.
The New England Fishery Management Council developed Amendment 8 to the Atlantic Herring Fishery Management Plan to specify a long-term acceptable biological catch control rule for herring and address localized depletion and user group conflict. This amendment would establish an acceptable biological catch control rule that accounts for herring's role in the ecosystem and prohibit midwater trawling in inshore Federal waters from the U.S./Canada border to the Rhode Island/Connecticut border. Amendment 8 is intended to support sustainable management of the herring resource and help ensure that herring is available to minimize possible detrimental biological impacts on predators of herring and associated socioeconomic impacts on other user groups.
Public comments must be received on or before October 21, 2019.
You may submit comments on this document, identified by NOAA-NMFS-2019-0078, by any of the following methods:
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Copies of Amendment 8, including the Environmental Impact Statement, the Regulatory Impact Review, and the Initial Regulatory Flexibility Analysis (EIS/RIR/IRFA) prepared in support of this action are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the internet at:
Carrie Nordeen, Fishery Policy Analyst, phone: (978) 281-9272 or email:
The goal of the Atlantic Herring Fishery Management Plan (FMP) is to manage the herring fishery at long-term sustainable levels and objectives of the FMP include providing for full utilization of the optimum yield (OY) and, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. The Herring FMP describes OY as the amount of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, taking into account the protection of marine ecosystems, including maintenance of a biomass that supports the ocean ecosystem, predator consumption of herring, and biologically sustainable human harvest. This includes recognition of the importance of herring as one of many forage species of fish, marine mammals, and birds in the Greater Atlantic Region. Consistent with these aims, the goals for Amendment 8 are to: (1) Account for the role of herring within the ecosystem,
On February 26, 2015 (80 FR 10458), the New England Fishery Management Council (Council) published a notice of intent (NOI) to prepare an EIS for Amendment 8 to consider long-term harvest strategies for herring, including an ABC control rule that addresses the biological and ecological requirements of the herring resource. The importance of herring as a forage species was underscored by the Council's specified intent to consider a wide range of ABC control rule alternatives, including those that explicitly account for herring's role in the ecosystem. The Council held scoping meetings during March and April of 2015 to solicit comments on ABC control rule alternatives.
The Council developed alternatives for a herring ABC control rule using a Management Strategy Evaluation (MSE). MSE is a decision-making tool that uses computer modeling to compare the performance of alternatives (management strategies) under various management scenarios to achieve multiple, competing objectives. The Council held two public workshops to generate stakeholder input to help identify objectives for the MSE analysis. Results of the MSE informed the range of ABC control rule alternatives and impact analysis of those alternatives in Amendment 8.
On August 21, 2015 (80 FR 50825), the Council published a supplemental NOI announcing it was expanding the scope of Amendment 8 to consider localized depletion in inshore waters. The supplemental NOI defined localize depletion as harvesting more fish from an area than can be replaced within a given time period. It also explained the Council was seeking input from the interested public as to how to define; measure; evaluate impacts; and minimize inshore, localized depletion in the herring fishery as part of Amendment 8. Public comment during the supplemental scoping made it clear that localized depletion concerns voiced by many stakeholders were not just related to the biological impacts of herring removals on the herring stock and on predators of herring. Public comment also indicated that impacts of localized depletion should be measured and evaluated relative to competing uses for the herring resource and potentially negative economic impacts on businesses that rely on predators of herring. In response, the Council's consideration of localized depletion included a consideration of competing interests for how herring should be utilized, and it identified this consideration of the localized depletion issue as user group conflict. Minimizing user group conflict became an important Council consideration in Amendment 8 and, in part, the basis for its recommended measures in the amendment.
On May 11, 2018 (83 FR 22060), the Environmental Protection Agency announced the public comment period for the Amendment 8 draft environmental impact statement (DEIS). The 45-day public comment period extended until June 25, 2018. During that time, the Council held public hearings on the DEIS in Rockland and Portland, Maine; Gloucester and Chatham, Massachusetts; Narragansett, Rhode Island; Philadelphia, Pennsylvania; and via webinar. The Council adopted Amendment 8 on September 25, 2018, and submitted the amendment to us for review in 2019.
Amendment 8 would establish a long-term ABC control rule for herring. Under the proposed control rule, when biomass is at or above 50 percent of the biomass associated with maximum sustainable yield (B
The proposed control rule is intended to explicitly account for herring as forage in the ecosystem by limiting F to 80 percent of F
Shortly before the Council took final action on Amendment 8, an updated stock assessment concluded that herring biomass is low, and the probability of overfishing and the stock becoming overfished is high. While not directly applicable to a long-term harvest policy, the Council noted that under herring's current condition of low biomass, setting catch more conservatively than status quo may increase the likelihood of stock growth. In turn, this would have positive impacts on the herring fishery, predators, and predator fisheries.
Amendment 8 would also prohibit the use of midwater trawl gear inshore of 12 nautical miles (22 km) from the U.S./Canada border to the Rhode Island/Connecticut border and inshore of 20 nautical miles (37 km) off the east coast of Cape Cod. Specifically, federally permitted vessels would be prohibited from using, deploying, or fishing with midwater trawl gear within the inshore midwater trawl restricted area located shoreward of the 12-nautical mile (22-km) territorial sea boundary from Canada to Connecticut and within thirty-minute squares 114 and 99 off Cape Cod (Figure 1). Midwater trawl vessels would be able to transit the inshore midwater trawl restricted gear area provided gear was stowed and not available for immediate use. The proposed measure would be in addition to the existing prohibition on midwater trawling for herring in Area 1A during June 1 through September 30.
The Council recommended the proposed inshore midwater trawl restricted area to minimize local depletion and user group conflict when midwater trawl vessels harvesting herring overlap with other user groups (
The Herring FMP specifies that herring research set-aside (RSA) can equal up to three percent of the sub-annual catch limit for a herring management area. RSA compensation fishing using midwater trawl gear would be permitted within the inshore midwater trawl restricted area. The Council recommended permitting RSA compensation fishing within the inshore midwater trawl restricted area to help ensure the RSA would be harvested and those funds would be available to support the projects awarded RSA. Vessels engaged in herring RSA compensation fishing typically operate as authorized by an exempted fishing permit (EFP) so they can request exemptions from certain regulations that would otherwise restrict herring harvest. While vessels would be permitted to use midwater trawl gear within the inshore midwater trawl restricted area while RSA compensation fishing, it does not mean that compensations trips would be without restrictions. Terms and conditions of the EFP must be consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), other applicable law, and Herring FMP. Additionally, we would consider whether additional terms and conditions would be required for EFPs to ensure RSA compensation trips do not exacerbate the overlap between
Amendment 8 would allow the inshore midwater trawl restricted area or new closures to address localized depletion and/or user group conflict to be modified or implemented via framework adjustment. The list of framework provisions at § 648.206 already includes closed areas; this amendment would add the inshore midwater trawl restricted area to that list.
The Council's recommendation to prohibit midwater trawling in inshore areas is an allocation decision intended to balance the needs of user groups and provide conservation benefits. Consistent with objectives in the Herring FMP, the proposed measure is intended to facilitate an efficient, fair, and equitable accommodation of social, economic, and ecological factors associated with achieving OY, in part by providing, to the extent practicable, controlled opportunities for participants in other New England and Mid-Atlantic fisheries. Because midwater trawl vessels historically harvested a larger percentage of herring than other gear types and are able to fish offshore, the Council recommended prohibiting them from inshore waters to help ensure herring was available inshore for other user groups and predators of herring. The proposed inshore midwater trawl restricted area is designed to be reasonably large enough to address the overlap between midwater trawl vessels and other user groups and, ultimately, user group conflict in inshore waters. This proposed measure is likely to negatively impact the midwater trawl fleet, with potentially increased trip costs and lower annual catches, but the Council believes that, on balance, the benefits to other user groups, such as potentially reduced trips costs, higher annual catches, and improved safety, outweigh the costs to midwater trawl vessels. The proposed measure may also have biological benefits if moving midwater trawl vessels offshore minimizes catch of river herring and shad, reduces fishing pressure on the inshore component of the herring stock, and helps ensure herring are available to predators. Herring is currently assessed as one stock, but it likely has stock components. Reducing fishing pressure inshore would benefit an inshore stock component. Analyses in Amendment 8 estimate that in recent years approximately 30 percent of the midwater trawl fleet's annualized revenue came from within the proposed inshore midwater trawl restricted area. Negative economic impacts on the midwater trawl fleet may be mitigated if the fleet is able to offset lost revenue from inshore areas with increased revenue from offshore areas. Herring catch limits are currently low, so the fishery has the capacity to harvest the OY. Recent midwater trawl landings (2007-2015) offshore of the proposed midwater trawl restricted area (36,903 mt) are much higher than the Council-recommended OY for 2020 and 2021 (11,621 mt). In the longer-term, the fishery will likely adapt to be able harvest an increased OY, provided vessels are able to locate herring.
The Magnuson-Stevens Act allows us to approve, partially approve, or disapprove measures recommended by the Council in an amendment based on whether the measures are consistent with the fishery management plan, plan amendment, the Magnuson-Stevens Act and its National Standards, and other applicable law. The Council develops policy for its fisheries and we defer to the Council on policy decisions unless those policies are inconsistent with the Magnuson-Steven Act or other applicable law. As such, we are seeking comment on whether measures in Amendment 8 are consistent with the Herring FMP, the Magnuson-Stevens Act and its National Standards, and other applicable law. Public comments on Amendment 8 and its incorporated documents may be submitted through the end of the comment period stated in this notice of availability. A proposed rule to implement the amendment, including draft regulatory text, will be published in the
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendment; request for comments.
The North Pacific Fishery Management Council submitted Amendment 120 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands (BSAI) Management Area (BSAI FMP) and Amendment 108 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA) (GOA FMP; collectively Amendments 120/108) to the Secretary of Commerce for review. If approved, Amendment 120 would limit the number of catcher/processors (C/Ps) acting as motherships receiving and processing Pacific cod from catcher vessels (CVs) directed fishing for Pacific cod in the BSAI non-Community Development Quota (CDQ) Program trawl fishery. If approved, Amendments 120/108 would prohibit replaced Amendment 80 C/Ps from receiving and processing Pacific cod harvested and delivered by CVs directed fishing for Pacific cod in the BSAI and GOA.
Comments must be received no later than October 21, 2019.
You may submit comments on this document, identified by NOAA-NMFS-2019-0060, by any of the following methods:
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Electronic copies of Amendment 120 to the BSAI FMP, Amendment 108 to the GOA FMP, the Regulatory Impact Review (RIR; referred to as the “Analysis”) and the draft National Environmental Policy Act (NEPA) Categorical Exclusion evaluation document may be obtained from
Bridget Mansfield, (907) 586-7228.
The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the
NMFS manages the groundfish fisheries in the exclusive economic zone under the BSAI and GOA FMPs. The North Pacific Fishery Management Council (Council) prepared the BSAI and GOA FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801
Amendments 120/108 would (1) establish eligibility criteria, based on historical participation, for an endorsement to groundfish License Limitation Program (LLP) licenses for a C/P to operate as a mothership in the BSAI non-CDQ Pacific cod trawl CV directed fishery; (2) issue an endorsement to those groundfish LLP licenses that meet the eligibility criteria; (3) authorize receipt and processing of Pacific cod deliveries from directed fishing in the BSAI non-CDQ Pacific cod trawl CV fishery by only those C/Ps designated on a groundfish LLP license with a BSAI Pacific cod trawl mothership endorsement; and (4) prohibit Amendment 80 sector C/Ps not designated on an Amendment 80 Quota Share (QS) permit and an Amendment 80 LLP license or not designated on an Amendment 80 LLP/QS license from receiving and processing Pacific cod harvested from directed fishing in the Pacific cod fisheries in the BSAI and GOA.
Amendments 120/108 are necessary to prevent increased participation by C/Ps operating as motherships from reducing the benefits the fishery provides to C/Ps and shoreside processors with long term, sustained participation in the BSAI non-CDQ trawl fishery in which CVs are directed fishing for Pacific cod, help to stabilize the fishing season duration in that fishery, and prevent replaced Amendment 80 C/Ps from operating as motherships.
Amendment 120 to the BSAI FMP would amend the species and gear endorsements on groundfish LLP licenses. The LLP was implemented under Amendments 39 and 41 to the FMP, and NMFS published the final rule to implement these amendments on October 1, 1998 (63 FR 52642). The LLP limits access to the groundfish, crab, and scallop fisheries in the BSAI and the GOA, by requiring that persons hold and assign a license to each vessel that is used to fish in federally managed fisheries, with some limited exemptions. The LLP is intended to prevent unlimited entry into federally managed fisheries and to limit the ability of a person to assign an LLP license derived from the historic landing activity of a vessel in one area, using a specific fishing gear or operational type, to be used in other areas, with other gears, or for other operational types in a manner that could expand fishing capacity. Licenses issued under the LLP authorize, through individual endorsements, fishing activities in specific fishing areas, gear types, and vessel operations as CVs or C/Ps. Once issued, the components of the LLP license cannot be transferred independently.
Amendment 120 would implement a new groundfish LLP license endorsement to authorize a C/P to operate as a mothership, as defined at § 679.2, to receive and process Pacific cod from CVs directed fishing in the BSAI non-CDQ Pacific cod trawl CV fishery. C/Ps without this endorsement would not be authorized to receive and process Pacific cod from CVs directed fishing in the BSAI non-CDQ Pacific cod trawl CV fishery. For purposes of this notice, that fishery will be referred to as the BSAI non-CDQ Pacific cod trawl CV directed fishery. The Council determined, and NMFS agrees, that this action is an appropriate response to a sharp increase in C/P participation operating as motherships in the BSAI non-CDQ Pacific cod trawl CV directed fishery beginning in 2016. This increase shifted historical patterns of harvest processing from shoreside plants to offshore C/Ps, which has caused concern over the reduced benefits to C/Ps and shoreside processors with long term, sustained participation in the fishery. This shift has also resulted in a shorter fishing season from 2016 through 2019, causing vessel crowding on the fishing grounds and raising concerns for vessel safety and increased PSC rates.
In April 2019, the Council adopted Amendment 120 to the BSAI FMP, which would limit the number of C/Ps operating as motherships receiving and processing Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery. If approved, Amendment 120 would amend the BSAI FMP to require a C/P be designated on a groundfish LLP license with a BSAI Pacific cod trawl mothership endorsement to receive and process Pacific cod delivered by CVs in the BSAI non-CDQ Pacific cod trawl CV directed fishery. A groundfish LLP license would receive the endorsement if a vessel designated on it is credited with receiving and processing at least one legal mothership trip target of Pacific cod in the BSAI non-CDQ Pacific cod trawl CV directed fishery each year from 2015 through 2017. Under BSAI Amendment 120, “mothership trip target” would mean, in the aggregate, the groundfish species that is delivered by a CV to a given C/P operating as a mothership in an amount greater than the retained amount of any other groundfish species delivered by the same CV to the same C/P for a given week.
In April 2019, the Council also adopted GOA Amendment 108. Amendments 120/108 would prohibit Amendment 80 sector C/Ps from receiving and processing Pacific cod harvested by vessels directed fishing for Pacific cod in the BSAI and GOA, if the C/P was not designated on an Amendment 80 QS permit and an Amendment 80 LLP license or not designated on an Amendment 80 LLP/QS license.
Amendment 120 would amend four sections of the BSAI FMP. First, in Table ES-2 in the Executive Summary, row “License and Permits” would have a sentence added to read, “Catcher/
Second, BSAI FMP Section “3.3.1.3 Species and Gear Endorsements for Vessels Using Trawl Gear” would have a sentence added to read that “A catcher/processor vessel receiving and processing Pacific cod harvested by catcher vessels directed fishing using trawl gear in the BSAI non-Community Development Quota Program Pacific cod fishery must hold an area endorsement and general license with a BSAI Pacific cod trawl mothership endorsement.” A second sentence would be added to read, “
Third, a new BSAI FMP Section “3.7.5.8.4 Limitations on Replaced Amendment 80 Vessels” would have a sentence added to read, “All Amendment 80 vessels not designated on an Amendment 80 QS permit and an Amendment 80 LLP license or on an Amendment 80 LLP/QS license is prohibited from receiving and processing Pacific cod harvested by a vessel directed fishing for Pacific cod in the BSAI.”
Finally, a section would be added to Appendix A of the BSAI FMP that summarizes the main provisions of Amendment 120, and the Table of Contents would be revised accordingly.
Amendment 108 to the GOA FMP would amend two sections of the GOA FMP. First, in Table ES-2 in the Executive Summary, row “Participation Restrictions” would have a sentence added to read, “All Amendment 80 vessels not designated on an Amendment 80 QS permit and an Amendment 80 LLP license or on an Amendment 80 LLP/QS license are prohibited from receiving and processing Pacific cod harvested by a vessel directed fishing for Pacific cod in the GOA.”
Second, GOA FMP Section 3.3.3, “Access Limitations” would add a new sentence that reads, “All Amendment 80 vessels not designated on an Amendment 80 QS permit and an Amendment 80 LLP license or on an Amendment 80 LLP/QS license are prohibited from receiving and processing Pacific cod harvested by a vessel directed fishing for Pacific cod in the GOA.”
Finally, a section would be added to Appendix A of the GOA FMP that summarizes the main provisions of Amendment 108, and the Table of Contents would be revised.
The proposed rule to implement proposed Amendments 120/108 provides the details of the eligibility criteria for a BSAI Pacific cod trawl mothership endorsement to a groundfish LLP license, the process to establish eligibility of individual groundfish LLP licenses based on historical participation in the fishery, and issuance of the endorsements. The specific groundfish LLP licenses eligible for such an endorsement will be named in the proposed rule and in the regulations implementing the rule. The proposed rule also provides details on the prohibition of replaced Amendment 80 C/Ps operating as a mothership in the BSAI and GOA Pacific cod fisheries.
Before adopting its preferred alternatives for Amendment 120, the Council considered a range of historical participation levels to qualify for an endorsement authorizing a C/P to operate as a mothership in the fishery, as well as a range of limits on the amount of Pacific cod that could be received and processed by C/Ps operating as a mothership in the fishery. The Council determined, and NMFS agrees, that the eligibility requirements for a BSAI Pacific cod trawl mothership endorsement under Amendment 120 would balance the need to limit entry of additional C/Ps operating as motherships in the BSAI directed, non-CDQ Pacific cod trawl CV fishery with the need to continue to provide processing opportunities for C/Ps with long term, sustained participation operating as motherships and shoreside processors in the fishery consistent with historical patterns of Pacific cod deliveries. The Council also determined, and NMFS agrees, a prohibition on allowing replaced Amendment 80 C/Ps to operate as a mothership in the BSAI and GOA Pacific cod fisheries is necessary to implement the Council's intent to prevent replaced Amendment 80 C/Ps from operating as motherships once they leave the Amendment 80 Program.
NMFS is soliciting public comments on proposed Amendments 120/108 through the end of the comment period (see
Respondents do not need to submit the same comments on Amendments 120/108 and the proposed rule. All relevant written comments received by the end of the applicable comment period, whether specifically directed at the FMP amendments or the proposed rule will be considered by NMFS in the approval/disapproval decision for Amendments 120/108 and addressed in the response to comments in the final decision. Comments received after the end of the applicable comment period will not be considered in the approval/disapproval decision on Amendments 120/108. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the last day of the comment period (see
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (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; 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 September 20, 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), New Executive Office Building, 725—17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
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.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the Puerto Rico Industrial Development Company, grantee of FTZ 7, requesting subzone status for the facility of Motorambar, Inc., located in Cataño, Puerto Rico. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on August 15, 2019.
The proposed subzone (8.17 acres) is located at Road 869, Km. 2.8, Palmas Ward, Cataño, Puerto Rico. No authorization for production activity has been requested at this time. The proposed subzone would be subject to the existing activation limit of FTZ 7.
In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Camille Evans at
The Materials Technical Advisory Committee will meet on September 5, 2019, 10:00 a.m., Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues NW, Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to materials and related technology.
1. Opening Remarks and Introduction.
2. Remarks from BIS senior management.
3. Report on regime-based activities.
4. Public Comments and New Business.
5. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting.
Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on April 19, 2019, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 10(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and the U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
The Transportation and Related Equipment Technical Advisory Committee will meet on September 4, 2019, 9:30 a.m., in the Herbert C. Hoover Building, Room 3884, 14th Street between Constitution & Pennsylvania Avenues NW, Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to transportation and related equipment or technology.
1. Welcome and Introductions.
2. Status reports by working group chairs.
3. Public comments and Proposals.
4. Discussion of matters determined to be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3).
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available during the public session of the meeting. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on April 19, 2019, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 (10)(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482-2813.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable August 21, 2019.
Davina Friedmann or Daniel Deku, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0698 or (202) 482-5075, respectively.
On April 17, 2019, the Department of Commerce (Commerce) initiated a less-than-fair-value (LTFV) investigation of imports of sodium sulfate anhydrous from Canada.
Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an LTFV investigation within 140 days after the date on which
On July 24, 2019, the petitioners
For the reasons stated above, and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1) of the Act and 19 CFR 351.205(e), is postponing the deadline for the preliminary determination by 50 days (
Pursuant to section 735(a)(l) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determination will continue to be 75 days after the date of the preliminary determination, unless postponed at a later date.
This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on available information, the Department of Commerce (Commerce) is self-initiating a country-wide anti-circumvention inquiry to determine whether imports of corrosion-resistant steel products (CORE), completed in Malaysia using hot-rolled steel (HRS) and cold-rolled steel (CRS) flat products manufactured in Taiwan, are circumventing the antidumping duty (AD) order on CORE from Taiwan.
Applicable August 21, 2019.
Brendan Quinn at (202) 482-5848, AD/CVD Operations, Office III or Barb Rawdon at (202) 482-0474, Office of Policy, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On June 3, 2015, AK Steel Corporation, ArcelorMittal USA LLC, California Steel Industries, Inc., Nucor Corporation, Steel Dynamics, Inc., and United States Steel Corporation filed petitions seeking imposition of antidumping and countervailing duties on imports of CORE from China, India, Italy, the Republic of Korea, and Taiwan.
The products covered by the
On August 2, 2018, pursuant to section 781(b) of the Act and 19 CFR 351.225(h), Commerce initiated an anti-circumvention inquiry on the
This anti-circumvention inquiry covers CORE completed in Malaysia using HRS or CRS manufactured in Taiwan and subsequently exported from Malaysia to the United States.
Section 781(b)(1) of the Tariff Act of 1930, as amended (the Act) provides
In determining whether or not the process of assembly or completion in a third country is minor or insignificant under section 781(b)(1)(C) of the Act, section 781(b)(2) of the Act directs Commerce to consider: (A) The level of investment in the foreign country, (B) the level of research and development in the foreign country, (C) the nature of the production process in the foreign country, (D) the extent of production facilities in the foreign country, and (E) whether or not the value of processing performed in the foreign country represents a small proportion of the value of the merchandise imported into the United States. However, no single factor, by itself, controls Commerce's determination of whether the process of assembly or completion in a third country is minor or insignificant.
Furthermore, section 781(b)(3) of the Act sets forth additional factors to consider in determining whether to include merchandise assembled or completed in a third country within the scope of an antidumping and/or countervailing duty order. Specifically, Commerce shall take into account such factors as: (A) The pattern of trade, including sourcing patterns; (B) whether the manufacturer or exporter of the merchandise is affiliated with the person who, in the third country, uses the merchandise to complete or assemble the merchandise which is subsequently imported into the United States; and (C) whether imports of the merchandise into the third country have increased after the initiation of the investigation that resulted in the issuance of such order or finding.
We have analyzed the criteria above and from available information we determine, pursuant to section 781(b) of the Act and 19 CFR 351.225(b) and (h), that initiation of an anti-circumvention inquiry is warranted to determine whether certain imports of CORE, completed in Malaysia using HRS and CRS flat products manufactured in Taiwan, are circumventing the
Consistent with the approach in the prior anti-circumvention inquiry that was initiated on a country-wide basis, Commerce intends to issue questionnaires to solicit information from producers and exporters in Malaysia concerning their shipments of CORE to the United States and the origin of any imported HRS and CRS being processed into CORE. A company's failure to respond completely to Commerce's requests for information may result in the application of partial or total facts available, pursuant to section 776(a) of the Act, which may include adverse inferences, pursuant to section 776(b) of the Act.
In accordance with 19 CFR 351.225(b), Commerce determines that available information warrants initiating an anti-circumvention inquiry to determine whether certain imports of CORE, completed in Malaysia using HRS and CRS flat products manufactured in Taiwan, are circumventing the
In accordance with 19 CFR 351.225(l)(2), if Commerce issues preliminary affirmative determinations, we will then instruct U.S. Customs and Border Protection to suspend liquidation and require a cash deposit of the estimated antidumping duty, at the applicable rate, for each unliquidated entry of the merchandise at issue, entered or withdrawn from warehouse for consumption on or after the date of initiation of this inquiry. Commerce intends to issue its final determination within 300 days of the date of publication of this initiation, in accordance with section 781(f) of the Act and 19 CFR 351.225(f)(5).
This notice is published in accordance with section 781(b) of the Act and 19 CFR 351.225(f).
The products covered by this
(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of this
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels and high strength low alloy (HSLA) steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with microalloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum.
Furthermore, this scope also includes Advanced High Strength Steels (AHSS) and Ultra High Strength Steels (UHSS), both of which are considered high tensile strength and high elongation steels. Subject merchandise also includes corrosion-resistant steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching and/or slitting or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope corrosion resistant steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of this
• Flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (terne plate), or both chromium and chromium oxides (tin free steel), whether or not painted, varnished or coated with plastics or other non-metallic substances in addition to the metallic coating;
• Clad products in straight lengths of 4.7625 mm or more in composite thickness and of a width which exceeds 150 mm and measures at least twice the thickness; and
• Certain clad stainless flat-rolled products, which are three-layered corrosion-resistant flat-rolled steel products less than 4.75 mm in composite thickness that consist of a flat-rolled steel product clad on both sides with stainless steel in a 20%-60%-20% ratio.
The products subject to the
The products subject to the
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that Ozdemir Boru Profil San. Ve Tic. Ltd. Sti. (Ozdemir) received countervailable subsidies for the production and export of heavy walled rectangular welded carbon steel pipes and tubes (HWR pipes and tubes) from the Republic of Turkey (Turkey) during the period of review January 1, 2017 through December 31, 2017. Interested parties are invited to comment on these preliminary results.
Applicable August 21, 2019.
Janae Martin or Jaron Moore, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0238 or (202) 482-3640, respectively.
On November 15, 2018, Commerce published a notice of initiation of an administrative review of the countervailing duty (CVD) order on HWR pipes and tubes from Turkey.
For a complete description of the events that followed the initiation of this review,
The merchandise covered by the order is HWR pipes and tubes. The subject merchandise is currently provided for in item 7306.61.1000 of the Harmonized Tariff Schedule of the United States (HTSUS). Subject merchandise may also enter under HTSUS 7306.61.3000. While the HTSUS subheadings and ASTM specification are provided for convenience and customs purposes, the written description of the scope of this order is dispositive. For a complete description of the scope of the order,
Commerce is conducting this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found countervailable, we preliminarily find that there is a subsidy,
We preliminarily find that the following subsidy rate exists for Ozdemir, the sole respondent in this administrative review, for the period January 1, 2017 through December 31, 2017:
Consistent with section 751(a)(1) of the Act and 19 CFR 351.212(b)(2), upon issuance of the final results, Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, countervailing duties on all appropriate entries covered by this review. We intend to issue instructions to CBP 15 days after publication of the final results of this review.
Pursuant to section 751(a)(2)(C) of the Act, Commerce intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount indicated for Ozdemir with regard to shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed firms, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company, as appropriate. These cash deposit instructions, when imposed, shall remain in effect until further notice.
We will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results, or if there is no public announcement, within five days of the date of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs) within five days after the time limit for filing case briefs.
Interested parties who wish to request a hearing must do so within 30 days of publication of these preliminary results by submitting a written request to the Assistant Secretary for Enforcement and Compliance using Enforcement and Compliance's ACCESS system.
Parties are reminded that all briefs and hearing requests must be filed electronically using ACCESS and received successfully in their entirety by 5 p.m. Eastern Time on the due date.
Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, Commerce intends to issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after publication of these preliminary results.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty order on carbon and alloy steel cut-to-length plate from Japan for the period May 1, 2018, through April 30, 2019, based on the timely withdrawal of the request for review.
Applicable August 21, 2019.
Hannah Falvey, 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) 482-4889.
On May 1, 2019, Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication date of the notice of initiation of the requested review. Hitachi Metals withdrew its request for review within the 90-day deadline. Because Commerce received no other requests for review of Hitachi Metals, and no other requests were made for a review of the AD order on CTL plate from Japan with respect to other companies, we are rescinding the administrative review covering the period May 1, 2018, through April 30, 2019, in full, in accordance with 19 CFR 351.213(d)(1).
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess AD duties on all appropriate entries of CTL plate from Japan during the period of review. For the company for which this review is rescinded, AD duties shall be assessed at rates equal to the cash deposit rate of estimated AD 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 publication of this notice in the
This notice serves as the only reminder to importers whose entries will be liquidated as a result of this rescission notice, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of AD duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of the AD duties occurred and the subsequent assessment of double AD duties.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751 and 777(i)(l) of the Act and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on available information, the Department of Commerce (Commerce) is self-initiating country-wide anti-circumvention inquiries to determine whether imports of corrosion-resistant steel products (CORE) completed in Costa Rica, Guatemala, Malaysia, South Africa, and the United Arab Emirates (UAE) (collectively, third countries) using hot-rolled steel (HRS) and cold-rolled steel (CRS) flat products manufactured in the People's Republic of China (China) are circumventing the antidumping duty (AD) and countervailing duty (CVD) orders on CORE from China.
Applicable August 21, 2019.
Brendan Quinn at (202) 482-5848, AD/CVD Operations, Office III or Justin Enck at (202) 482-1614, Office of Policy, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
On June 3, 2015, AK Steel Corporation, ArcelorMittal USA LLC, California Steel Industries, Inc., Nucor Corporation, Steel Dynamics, Inc., and
The products covered by the
On November 14, 2016, pursuant to section 781(b) of the Act and 19 CFR 351.225(h), Commerce initiated anti-circumvention inquiries on the
These anti-circumvention inquiries cover CORE completed in the third countries using HRS or CRS manufactured in China and subsequently exported from the third countries to the United States.
Section 781(b)(1) of the Tariff Act of 1930, as amended (the Act), provides that Commerce may find circumvention of an AD or CVD order when merchandise of the same class or kind subject to the order is completed or assembled in a foreign country other than the country to which the order applies. In conducting anti-circumvention inquiries, under section 781(b)(1) of the Act, Commerce relies on the following criteria: (A) Merchandise imported into the United States is of the same class or kind as any merchandise produced in a foreign country that is the subject of an antidumping or countervailing duty order or finding, (B) before importation into the United States, such imported merchandise is completed or assembled in another foreign country from merchandise which is subject to the order or merchandise which is produced in the foreign country that is subject to the order, (C) the process of assembly or completion in the foreign country referred to in section (B) is minor or insignificant, (D) the value of the merchandise produced in the foreign country to which the AD or CVD order applies is a significant portion of the total value of the merchandise exported to the United States, and (E) the administering authority determines that action is appropriate to prevent evasion of such order or finding.
In determining whether or not the process of assembly or completion in a third country is minor or insignificant under section 781(b)(1)(C) of the Act, section 781(b)(2) of the Act directs Commerce to consider: (A) The level of investment in the foreign country, (B) the level of research and development in the foreign country, (C) the nature of the production process in the foreign country, (D) the extent of production facilities in the foreign country, and (E) whether or not the value of processing performed in the foreign country represents a small proportion of the value of the merchandise imported into the United States. However, no single factor, by itself, controls Commerce's determination of whether the process of assembly or completion in a third country is minor or insignificant.
Furthermore, section 781(b)(3) of the Act sets forth additional factors to consider in determining whether to include merchandise assembled or completed in a third country within the scope of an antidumping and/or countervailing duty order. Specifically, Commerce shall take into account such factors as: (A) The pattern of trade, including sourcing patterns; (B) whether the manufacturer or exporter of the merchandise is affiliated with the person who, in the third country, uses the merchandise to complete or assemble the merchandise which is subsequently imported into the United States; and (C) whether imports of the merchandise into the third country have increased after the initiation of the investigation that resulted in the issuance of such order or finding.
We have analyzed the criteria above and from available information we determine, pursuant to section 781(b) of the Act and 19 CFR 351.225(b) and (h), that initiation of anti-circumvention inquiries is warranted to determine whether certain imports of CORE, completed in Costa Rica, Guatemala, Malaysia, South Africa, and the UAE using HRS and CRS flat products manufactured in China, are circumventing the
Consistent with the approach in the prior anti-circumvention inquiry that was initiated on a country-wide basis, Commerce intends to issue questionnaires to solicit information from producers and exporters in each of the third countries concerning their shipments of CORE to the United States and the origin of any imported HRS and CRS being processed into CORE. A company's failure to respond completely to Commerce's requests for information may result in the application of partial or total facts available, pursuant to section 776(a) of the Act, which may include adverse inferences, pursuant to section 776(b) of the Act.
In accordance with 19 CFR 351.225(b), Commerce determines that available information warrants initiating these anti-circumvention inquiries to determine whether certain imports of CORE, completed in Costa Rica, Guatemala, Malaysia, South Africa, and the UAE using HRS and CRS flat products manufactured in China, are circumventing the
In accordance with 19 CFR 351.225(l)(2), if Commerce issues preliminary affirmative determinations, we will then instruct U.S. Customs and Border Protection to suspend liquidation and require a cash deposit of estimated antidumping and countervailing duties, at the applicable rate, for each unliquidated entry of the merchandise at issue, entered or withdrawn from warehouse for consumption on or after the date of initiation of the inquiries. Commerce intends to issue its final determinations within 300 days of the date of publication of this initiation, in accordance with section 781(f) of the Act and 19 CFR 351.225(f)(5).
This notice is published in accordance with section 781(b) of the Act and 19 CFR 351.225(f).
The products covered by these
(1) where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and
(2) where the width and thickness vary for a specific product (
Steel products included in the scope of these
• 2.50 percent of manganese, or
• 3.30 percent of silicon, or
• 1.50 percent of copper, or
• 1.50 percent of aluminum, or
• 1.25 percent of chromium, or
• 0.30 percent of cobalt, or
• 0.40 percent of lead, or
• 2.00 percent of nickel, or
• 0.30 percent of tungsten (also called wolfram), or
• 0.80 percent of molybdenum, or
• 0.10 percent of niobium (also called columbium), or
• 0.30 percent of vanadium, or
• 0.30 percent of zirconium
Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.
For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels and high strength low alloy (HSLA) steels. IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with microalloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum.
Furthermore, this scope also includes Advanced High Strength Steels (AHSS) and Ultra High Strength Steels (UHSS), both of which are considered high tensile strength and high elongation steels. Subject merchandise also includes corrosion-resistant steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching and/or slitting or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope corrosion resistant steel.
All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of these
• Flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (terne plate), or both chromium and chromium oxides (tin free steel), whether or not painted, varnished
• Clad products in straight lengths of 4.7625 mm or more in composite thickness and of a width which exceeds 150 mm and measures at least twice the thickness; and
• Certain clad stainless flat-rolled products, which are three-layered corrosion-resistant flat-rolled steel products less than 4.75 mm in composite thickness that consist of a flat-rolled steel product clad on both sides with stainless steel in a 20%-60%-20% ratio.
The products subject to the
The products subject to the
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the
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 reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
The National Telecommunications and Information Administration's (NTIA) BroadbandUSA Program will host a Broadband Workshop in Reno, Nevada on September 27, 2019. The purpose of the Workshop is to engage the public and stakeholders with information to accelerate broadband connectivity, improve digital inclusion, and support local priorities. The Workshop will provide information on topics including local broadband planning, funding, and engagement with service providers. Speakers and attendees from Nevada, federal agencies, and across the country will come together to explore ways to facilitate the expansion of broadband capacity, access, and utilization.
The Broadband Workshop will be held on September 27, 2019, from 8:30 a.m. until 3:30 p.m. Pacific Time.
The Broadband Workshop will be held in Reno, Nevada at Lawlor Events Center at the University of Nevada, Reno, 1664 North Virginia Street, Reno, NV 89557.
Janice Wilkins, National Telecommunications and Information Administration, U.S. Department of Commerce, Room 4678, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5791; email:
The NTIA's BroadbandUSA program promotes innovation and economic growth by supporting efforts to expand broadband access and meaningful use across America.
The Broadband Workshop is open to the public. Pre-registration is requested because space may be limited. NTIA asks registrants to provide their first and last name, title, organization/company, and email address for registration purposes, name tags to be provided at the workshop, and to receive any updates on the workshop. Information about the workshop is subject to change. Registration information, meeting
The public meeting is physically accessible to people with disabilities. Individuals requiring accommodations, such as language interpretation or other ancillary aids, should notify Janice Wilkins at the contact information listed above at least ten (10) business days before the meeting so that accommodations can be made.
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is announcing an opportunity for public comment on the proposed revision and renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before October 21, 2019.
You may submit comments, and “OMB Control No. 3038-0111” by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method.
Lauren Bennett, Special Counsel, Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, (202) 418-5290 or
Under the PRA, 44 U.S.C. 3501
With regard to the cross-border application of the Commission's margin rules, section 2(i)
On May 31, 2016, the Commission published a final rule addressing the cross-border application of its margin requirements for uncleared swaps applicable to CSEs.
Under section 23.160(c)(1) of the Final Rule, a CSE that is eligible for substituted compliance or a foreign regulatory agency that has direct supervisory authority over one or more CSEs and that is responsible for administering the relevant foreign jurisdiction's margin requirements may request, individually or collectively, that the Commission make a determination that a CSE that complies with margin requirements in the relevant foreign jurisdiction would be deemed to be in compliance with the Commission's corresponding margin rule promulgated by the Commission (a “comparability determination”). Once a comparability determination is made for a jurisdiction, it applies for all entities or transactions in that jurisdiction to the extent provided in the comparability determination, as approved by the Commission and subject to any conditions specified by the Commission. All CSEs, regardless of whether they rely on a comparability determination, remain subject to the Commission's examination and enforcement authority.
Section 23.160(c)(2) of the Final Rule requires that applicants for a comparability determination provide copies of the relevant foreign jurisdiction's margin requirements and descriptions of their objectives, how they differ from the BCBS/IOSCO international framework, and how they address the elements of the Commission's margin requirements. The applicant must identify the specific legal and regulatory provisions of the foreign jurisdiction's margin requirements that correspond to each element and, if necessary, whether the relevant foreign jurisdiction's margin requirements do not address a particular element.
Section 23.160(d) of the Final Rule includes a special provision for non-netting jurisdictions. This provision allows CSEs that cannot conclude after sufficient legal review with a well-founded basis that the netting agreement with a counterparty in a foreign jurisdiction meets the definition of an “eligible master netting agreement” set forth in the Final Rule to nevertheless net uncleared swaps in determining the amount of margin that they post, provided that certain conditions are met. In order to avail itself of this special provision, a CSE must treat the uncleared swaps covered by the agreement on a gross basis in determining the amount of initial and variation margin that it must collect, but may net those uncleared swaps in determining the amount of initial and variation margin it must post to the counterparty, in accordance with the netting provisions of the Final Rule. A CSE that enters into uncleared swaps in “non-netting” jurisdictions in reliance on this provision must have policies and procedures ensuring that it is in compliance with the special provision's requirements, and maintain books and records properly documenting that all of the requirements of this exception are satisfied.
Section 23.160(e) of the Final Rule includes a special provision for non-segregation jurisdictions that allows non-U.S. CSEs that are Foreign Consolidated Subsidiaries (as defined in the Final Rule) and foreign branches of U.S. CSEs to engage in swaps in foreign jurisdictions where inherent limitations in the legal or operational infrastructure make it impracticable for the CSE and its counterparty to post collateral in compliance with the custodial arrangement requirements of the Commission's margin rules, subject to certain conditions. In order to rely on this special provision, a Foreign Consolidated Subsidiary (“FCS”) or foreign branch of a U.S. CSE is required to satisfy all of the conditions of the rule, including that (1) inherent limitations in the legal or operational infrastructure of the foreign jurisdiction make it impracticable for the CSE and its counterparty to post any form of eligible initial margin collateral for the uncleared swap pursuant to custodial arrangements that comply with the Commission's margin rules; (2) foreign regulatory restrictions require the CSE to transact in uncleared swaps with the counterparty through an establishment within the foreign jurisdiction and do not permit the posting of collateral for the swap in compliance with the custodial arrangements of section 23.157 of the Final Rule in the United States or a jurisdiction for which the Commission has issued a comparability determination under the Final Rule with respect to section 23.157; (3) the CSE's counterparty is not a U.S. person and is not a CSE, and the counterparty's obligations under the uncleared swap are not guaranteed by a U.S. person; (4) the CSE collects initial margin in cash on a gross basis, in cash, and posts and collects variation margin in cash, for the uncleared swap in accordance with the Final Rule; (5) for each broad risk category, as set out in § 23.154(b)(2)(v) of the Final Rule, the total outstanding notional value of all uncleared swaps in that broad risk category, as to which the CSE is relying on § 23.160 (e), may not exceed 5 percent of the CSE's total outstanding notional value for all uncleared swaps in the same broad risk category; (6) the CSE has policies and procedures ensuring that it is in compliance with the requirements of this provision; and (7) the CSE maintains books and records properly documenting that all of the requirements of this provision are satisfied.
With respect to the collection of information, the CFTC invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of 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;
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
There are no capital costs or operating and maintenance costs associated with this collection.
There are no capital costs or operating and maintenance costs associated with this collection.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations and amendments to terminate uses, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Table 1, Table 1A, Table 1B, Table 1C, Table 1D, Table 1E and Table 2, pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This cancellation order follows a May 31, 2019
The cancellations and amendments are effective August 21, 2019.
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.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2018-0014, is available at
This notice announces the cancellations and amendments to terminate uses, as requested by registrants, of products registered under FIFRA section 3 (7 U.S.C. 136a). These registrations are listed in sequence by registration number in Tables 1, 1A, 1B, 1C, 1D, 1E and 2 of this unit.
The registrants of the registrations in Table 1A, request the cancellations to be
effective on August 12, 2019.
The registrant of the registration in Table 1B, requests the cancellation to be effective on October 01, 2020.
The registrant of the registrations in Table 1C, requests the cancellations to be effective on October 01, 2019.
The registrant of the registrations in Table 1D, requests the cancellations to be effective on December 31, 2018.
The registrant of the registration in Table 1E, requests the cancellation to be effective on October 12, 2018.
Table 3 of this unit includes the names and addresses of record for all registrants of the products in Tables 1, 1A, 1B, 1C, 1D, 1E and 2 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 above.
The Agency received one anonymous public comment on the notice. For this reason, the Agency does not believe that the comment submitted during the comment period merits further review or a denial of the requests for voluntary cancellation and use termination. Further, two registrants did withdraw their requests. The Agency received a withdrawal request from the registrant, Koopers Performance Chemicals, to withdraw the cancellation request for product registration 3008-91 and AEF Global, Inc., to withdraw the cancellation requests for product registrations 89046-11, 89046-12 and 89046-14.
Therefore, the Agency has removed these requests from this cancellation order and the registrations will remain active.
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)(1)), EPA hereby approves the requested cancellations and amendments to terminate uses of the registrations identified in Tables 1, 1A, 1B, 1C, 1D, 1E and 2 of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Tables 1, 1A, 1B, 1C, 1D, 1E and 2 of Unit II are canceled and amended to terminate the affected uses. The effective date of the cancellations that are subject of this notice August 21, 2019. Any distribution, sale, or use of existing stocks of the products identified in Tables 1, 1A, 1B, 1C, 1D, 1E and 2 of Unit II in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI will be a violation of FIFRA.
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
Existing stocks are those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the action. The existing stocks provision for the products subject to this order is as follows.
The registrant has requested the cancellation effective date to be August 12, 2019, therefore, the registrant may continue to sell and distribute existing stocks of products listed in Table 1A until August 12, 2020, which is 1 year after the effective cancellation date. Thereafter, the registrant is prohibited from selling or distributing products listed in Table 1A of Unit II, except for export in accordance with FIFRA
The registrant has requested the cancellation effective date to be October 1, 2020, therefore, the registrant may continue to sell and distribute existing stocks of products listed in Table 1B until October 1, 2021, which is 1 year after the effective cancellation date. Thereafter, the registrant is prohibited from selling or distributing products listed in Table 1B of Unit II, except for export in accordance with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal.
The registrant has requested the cancellation effective date to be October 1, 2019. The registrant also requested to the Agency via letter to sell existing stocks for an 18-month period, therefore, the registrant may continue to sell and distribute existing stocks of products listed in Table 1C until April 1, 2021, which is 18 months after the effective cancellation date. Thereafter, the registrants are prohibited from selling or distributing products listed in Table 1C of Unit II, except for export in accordance with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal.
The registrants have requested to the Agency via letter to sell existing stocks for an 18-month period, for products 40810-19, 40810-23, 40810-25, 40810-26, 40810-27 and 55852-4. The registrants may continue to sell and distribute existing stocks of products 40810-19, 40810-23, 40810-25, 40810-26, 40810-27 and 55852-4 until February 22, 2021, which is 18 months after publication of this cancellation order in the
The registrants have requested the cancellation effective date to be December 31, 2018, therefore, the registrants may continue to sell and distribute existing stocks of products listed in Table 1D until December 31, 2019 which is 1 year after the effective cancellation date. Thereafter, the registrants are prohibited from selling or distributing products listed in Table 1D of Unit II, except for export in accordance with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal.
The registrant has requested the cancellation effective date to be October 12, 2018, therefore, the registrants may continue to sell and distribute existing stocks of the product listed in Table 1E until October 12, 2019 which is 1 year after the effective cancellation date. Thereafter, the registrant is prohibited from selling or distributing the product listed in Table 1E of Unit II, except for export in accordance with FIFRA section 17 (7 U.S.C. 136o) or for proper disposal.
For all other voluntary cancellations, listed in Table 1 of Unit II the registrants may continue to sell and distribute existing stocks of products listed in Table 1 until August 21, 2020, which is 1-year after publication of this cancellation order in the
Now that EPA has approved product labels reflecting the requested amendments to terminate uses, registrants are permitted to sell or distribute products listed in Table 2 of Unit II under the previously approved labeling until February 22, 2021, a period of 18 months after publication of the cancellation order in this
Persons other than the registrant may sell, distribute, or use existing stocks of canceled products and products whose labels include the terminated uses 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 and terminated uses.
7 U.S.C. 136
Established by Congress, the Sub-Saharan Africa Advisory Committee provides guidance and advice regarding EXIM Bank policies and programs designed to support the expansion of financing support for U.S. manufactured goods and services in Sub-Saharan Africa.
Federal Accounting Standards Advisory Board.
Notice.
Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act (Pub. L. 92-463), as amended, and the FASAB Rules Of Procedure, as amended in October 2010, notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has issued Interpretation of Federal Financial Accounting Standards 9,
The Interpretation is available on the FASAB website at
Ms. Monica R. Valentine, Executive Director, 441 G Street NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act, Pub. L. 92-463.
84 FR 42916.
Thursday, August 22, 2019 at 10:00 a.m., 1050 First Street NE, Washington, DC (12th floor).
The following matters will also be considered:
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Government in the Sunshine Act, 5 U.S.C. 552b.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary by email at
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 19, 2019.
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than September 5, 2019.
1.
1.
1.
Federal Retirement Thrift Investment Board (FRTIB).
Notice of a new system of records.
Pursuant to the Privacy Act of 1974, the Federal Retirement Thrift Investment Board (FRTIB) proposes to establish a new system of records. Records contained in this system will be used to implement Identity, Credential, and Access Management (ICAM) capabilities at the Agency. ICAM manages digital identities, credentials, and access controls for FRTIB applications and systems.
This system will become effective upon its publication in today's
You may submit written comments to FRTIB by any one of the following methods:
•
•
•
Marla Greenberg, Chief Privacy Officer, Federal Retirement Thrift Investment Board, Office of General Counsel, 77 K Street NE, Suite 1000, Washington, DC 20002, (202) 942-1600. For access to any of the FRTIB's systems of records, contact Amanda Haas, FOIA Officer, Office of General Counsel, at the above address and phone number.
FRTIB proposes to establish a new system of records entitled, “FRTIB-21, Identity, Credential and Access Management (ICAM).” ICAM manages digital identities, credentials, and access controls for FRTIB applications and systems. ICAM is necessary to vet potential users; link employees and contractors to digital identity accounts; provision and de-provision accounts and access; and to monitor identity credentials, access to systems and data, and related risks. The proposed system of records implements ICAM capabilities across all FRTIB IT systems.
ICAM supports the following seven key functions of the ICAM Framework as defined by the Federal Chief Information Officer (CIO) Council: digital identity, credentialing, authentication, cryptography, auditing and reporting, authorization and access, and privilege management. FRTIB's ICAM's capabilities are also aligned with the Federal CIO Council's Federal Identity, Credential, and Access Management (FICAM) procedures, available at,
FRTIB proposes to apply thirteen routine uses to FRTIB-21.
FRTIB-21, Identity, Credential and Access Management (ICAM).
Unclassified.
Records are located at the Federal Retirement Thrift Investment Board, 77 K Street NE, Suite 1000, Washington, DC 20002. Records may also be maintained at additional locations for Business Continuity purposes.
Director, Office of Technology Services, Federal Retirement Thrift Investment Board, 77 K Street NE, Suite 1000, Washington, DC 20002, 202-942-1600.
5 U.S.C. 8474; and 44 U.S.C. Chapter 35.
ICAM employs a comprehensive management approach for digital identities and associated attributes, credentials (including PKI, PIV, other authentication tokens), and access controls. It centralizes a consistent, integrated method for managing the identities of individuals and devices requiring logical access and for enforcing logical access privileges to FRTIB resources for all FRTIB employees and contractors.
ICAM protects FRTIB information and systems by ensuring that only the appropriate users have access to information systems, personally identifiable information (PII), and other sensitive data based on the principles of least privilege and need-to-know. ICAM manages the identities of individuals that access FRTIB logical resources, authorizes users' permissions, enforces access controls for IT systems and information, and audits access to and the use of sensitive information and functions.
FRTIB employees and contractors.
Records in this system include: First name, middle name, last name, personal phone number, personal email address, social security number, date of birth, place of birth, current address, business address, business email address, business phone number, employment information (
FRTIB obtains records within this system from FRTIB employees and contractors and from OPM through access to e-QIP.
Information about covered individuals may be disclosed without consent as permitted by the Privacy Act of 1974, as amended, 5 U.S.C. 552a(b); and:
1. Audit: A record from this system of records may be disclosed to an agency, organization, or individual for the purpose of performing an audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to FRTIB officers and employees.
2. Breach Mitigation and Notification: Response to Breach of FRTIB Records: A record from this system of records may be disclosed to appropriate agencies, entities, and persons when (1) FRTIB suspects or has confirmed that there has been a breach of the system of records; (2) FRTIB has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, FRTIB (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with FRTIB's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
3. Response to Breach of Other Records: A record from this system of records may be disclosed to another Federal agency or Federal entity, when FRTIB determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
4. Congressional Inquiries: A record from this system of records may be disclosed to a Congressional office from the record of an individual in response to an inquiry from that Congressional office made at the request of the individual to whom the record pertains.
5. Contractors, et al.: A record from this system of records may be disclosed to contractors, grantees, experts, consultants, the agents thereof, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for FRTIB, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to FRTIB officers and employees.
6. Investigations, Third Parties: A record from this system of records may be disclosed to third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate to the proper performance of the official duties of the third party officer making the disclosure.
7. Investigations, Other Agencies: A record from this system of records may be disclosed to appropriate Federal, state, local, tribal, or foreign government agencies or multilateral governmental organizations for the purpose of investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, license, or treaty where FRTIB determines that the information would assist in the enforcement of civil or criminal laws.
8. Law Enforcement Intelligence: A record from this system of records may be disclosed to a Federal, state, tribal, local, or foreign government agency or organization, or international organization, lawfully engaged in collecting law enforcement intelligence information, whether civil or criminal, or charged with investigating, prosecuting, enforcing or implementing civil or criminal laws, related rules, regulations or orders, to enable these entities to carry out their law enforcement responsibilities, including the collection of law enforcement intelligence.
9. Law Enforcement Referrals: A record from this system of records may be disclosed to an appropriate Federal, state, tribal, local, international, or foreign agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
10. Litigation, DOJ or Outside Counsel: A record from this system of records may be disclosed to the Department of Justice, FRTIB's outside counsel, other Federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when: (1) FRTIB, or (2) any employee of FRTIB in his or her official capacity, or (3) any employee of FRTIB in his or her individual capacity where DOJ or FRTIB has agreed to represent the employee, or (4) the United States or any agency thereof, is a party to the litigation or has an interest in such litigation, and FRTIB determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which FRTIB collected the records.
11. Litigation, Opposing Counsel: A record from this system of records may be disclosed to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal law proceedings or in response to a subpoena.
12. NARA/Records Management: A record from this system of records may be disclosed to the National Archives and Records Administration (NARA) or other Federal Government agencies pursuant to the Federal Records Act.
13. Security Threat: A record from this system of records may be disclosed to Federal and foreign government intelligence or counterterrorism agencies when FRTIB reasonably believes there to be a threat or potential threat to national or international security for which the information may be useful in countering the threat or potential threat, when FRTIB reasonably believes such use is to assist in anti-terrorism efforts, and disclosure is appropriate to the proper performance of the official duties of the person making the disclosure.
Records are maintained in paper and electronic form, including on computer databases and cloud-based services, all of which are securely stored.
Records are retrieved by employee/contractor name or user ID.
These records are maintained in accordance with General Records Schedule 3.2 (Information Systems Security Records), Items 030 and 031, issued by the National Archives and Records Administration (NARA).
FRTIB has adopted appropriate administrative, technical, and physical controls in accordance with FRTIB's security program to protect the security, confidentiality, availability, and integrity of the information and to ensure that records are not disclosed to or accessed by unauthorized individuals.
Individuals seeking to access records within this system must submit a request pursuant to 5 CFR part 1630. Attorneys or other persons acting on behalf of an individual must provide written authorization from that individual, such as a Power of Attorney, in order for the representative to act on their behalf.
See Record Access Procedures above.
See Record Access Procedures above.
None.
None.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
General notice.
The Centers for Disease Control and Prevention (CDC), located within the Department of Health and Human Services (HHS) announces fees for vessel sanitation inspections for Fiscal Year (FY) 2020. These inspections are conducted by HHS/CDC's Vessel Sanitation Program (VSP). VSP helps the cruise line industry fulfill its responsibility for developing and implementing comprehensive sanitation programs to minimize the risk for acute gastroenteritis. Every vessel that has a foreign itinerary and carries 13 or more passengers is subject to twice-yearly unannounced operations inspections and, when necessary, re-inspection.
These fees apply to inspections conducted from October 1, 2019, through September 30, 2020.
CDR Aimee Treffiletti, Chief, Vessel Sanitation Program, National Center for Environmental Health, Centers for Disease Control and Prevention, 4770 Buford Highway NE, MS F-59, Atlanta, Georgia 30341-3717; phone: 800-323-2132; email:
HHS/CDC established the Vessel Sanitation Program (VSP) in the 1970s as a cooperative activity with the cruise ship industry. VSP helps the cruise ship industry prevent and control the introduction, transmission, and spread of gastrointestinal illnesses on cruise ships. VSP operates under the authority of the Public Health Service Act (Section 361 of the Public Health Service Act; 42 U.S.C. Section 264, “Control of Communicable Diseases”). Regulations found at 42 CFR 71.41 (Foreign Quarantine—Requirements Upon Arrival at U.S. Ports: Sanitary Inspection; General Provisions) state that carriers arriving at U.S. ports from foreign areas are subject to sanitary inspections to determine whether there exists rodent, insect, or other vermin infestations; contaminated food or water; or other sanitary conditions requiring measures for the prevention of the introduction, transmission, or spread of communicable diseases.
The fee schedule for sanitation inspections of passenger cruise ships by VSP was first published in the
The following formula will be used to determine the fees:
Total cost of VSP = Total cost of operating the program, such as administration, travel, staffing, sanitation inspections, and outbreak response. Weighted number of annual inspections = Total number of ships and inspections per year accounting for vessel size, number of inspectors needed for vessel size, travel logistics to conduct inspections, and vessel location and arrivals in U.S. jurisdiction per year.
The fee schedule was most recently published in the
The fee schedule (Appendix A) applies to inspections conducted from October 1, 2019, through September 30, 2020. The FY 2020 fee schedule adds a new category and fee for the largest ships (Super Mega) and a schedule table for construction and renovation inspections.
The fees will apply to all passenger cruise vessels for which inspections are conducted as part of HHS/CDC's VSP.
Operations inspections and re-inspections involve the same procedures and require the same amount of time, so they are charged at the same rates.
Construction/renovations inspections require at least twice the amount of time as operations inspections, so they are charged double the rates.
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Pediatric Advisory Committee and the Drug Safety and Risk Management Advisory Committee. The general function of the committees is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on September 26, 2019, from 9 a.m. to 4:40 p.m.
The meeting will be held at FDA White Oak Campus, 10903 New Hampshire Ave., Building 31, Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2019-N-3617. The docket will close on September 24, 2019. Submit either electronic or written comments on this public meeting by September 24, 2019. Please note that late, untimely filed comments will not be considered. The
Comments received on or before September 12, 2019, will be provided to the committees. Comments received after that date will be taken into consideration by FDA. In the event that the meeting is cancelled, FDA will continue to evaluate any relevant applications or information, and consider any comments submitted to the docket, as appropriate. You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Marieann Brill, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5154, Silver Spring, MD 20993, 240-402-3838,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Marieann Brill (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Pediatric Advisory Committee and the Drug Safety and Risk Management Advisory Committee. The general function of the committees is to provide advice and recommendations to FDA on regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on September 27, 2019, from 8:30 a.m. to 1:30 p.m.
The meeting will be held at FDA White Oak Campus, 10903 New Hampshire Ave., Building 31, Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2019-N-3611. The docket will close on September 25, 2019. Submit either electronic or written comments on this public meeting by September 25, 2019. Please note that late, untimely filed comments will not be considered. The
Comments received on or before September 13, 2019, will be provided to the committees. Comments received after that date will be taken into consideration by FDA. In the event that the meeting is cancelled, FDA will continue to evaluate any relevant applications of information, and consider any comments submitted to the docket, as appropriate.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” FDA will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Marieann Brill, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5154, Silver Spring, MD 20993, 240-402-3838,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its website prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's website after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that FDA is not responsible for providing access to electrical outlets.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Marieann Brill (see
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our website at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by October 21, 2019.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before October 21, 2019. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
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,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports Agency regulations. FDA's patent extension activities are conducted under the authority of the Drug Price Competition and Patent Term Restoration Act of 1984 (21 U.S.C. 355(j)) and the Generic Animal Drug and Patent Term Restoration Act of 1988 (35 U.S.C. 156). New human drug, animal drug, human biological, medical device, food additive, or color additive products regulated by the FDA must undergo FDA safety, or safety and effectiveness review before marketing is permitted. If the product is covered by a patent, part of the patent's term may be consumed during this review, which diminishes the value of the patent. In enacting the Drug Price Competition and Patent Term Restoration Act of 1984 and the Generic Animal Drug and Patent Term Restoration Act of 1988, Congress sought to encourage development of new, safer, and more effective medical and food additive products. It did so by authorizing the U.S. Patent and Trademark Office (USPTO) to extend the patent term by a portion of the time during which FDA's safety and effectiveness review prevented marketing of the product. The length of the patent term extension is generally limited to a maximum of 5 years and is calculated by USPTO based on a statutory formula. When a patent holder submits an application for patent term extension to USPTO, USPTO requests information from FDA, including the length of the regulatory review period for the patented product. If USPTO concludes that the product is eligible for patent term extension, FDA publishes a notice that describes the length of the regulatory review period and the dates used to calculate that period. Interested parties may request, under § 60.24 (21 CFR 60.24), revision of the length of the regulatory review period, or may petition under § 60.30 (21 CFR 60.30) to reduce the regulatory review period by any time where marketing approval was not pursued with “due diligence.”
The statute defines due diligence as “that degree of attention, continuous directed effort, and timeliness” as may reasonably be expected from, and are ordinarily exercised by, a person during a regulatory review period. As provided in § 60.30(c), a due diligence petition “shall set forth sufficient facts, including dates if possible, to merit an investigation by FDA of whether the applicant acted with due diligence.” Upon receipt of a due diligence petition, FDA reviews the petition and evaluates whether any change in the regulatory review period is necessary. If so, the corrected regulatory review period is published in the
During the calendar years 2016 through 2018, 16 requests for revision of the regulatory review period were submitted under § 60.24(a). In addition, a total of three due diligence petitions were submitted under § 60.30. There have been no requests for hearings under § 60.40; however, for purposes of this information collection approval, we estimate that we may receive one submission annually.
We estimate the burden of this collection of information as follows:
Our estimated burden for the information collection reflects a small increase (+7 responses) associated with submissions received under § 60.24 in previous years.
Food and Drug Administration, HHS.
Notice.
The meeting of the Psychopharmacologic Drugs Advisory Committee scheduled for July 31, 2019, has been canceled. This meeting was announced in the
Jay Fajiculay, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, Fax: 301-847-8533, email:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) 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 (PRA).
Fax written comments on the collection of information by September 20, 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 regulations require the distribution of patient labeling, called Medication Guides, for certain prescription human drug and biological products used primarily on an outpatient basis that pose a serious and significant public health concern. Medication Guides provide patients the most important information about drug products, including the drugs' approved uses, contraindications, adverse drug reactions, and cautions for specific populations. These regulations are intended to improve the public health by providing information necessary for patients to use certain medications safely and effectively.
The regulations contain the following reporting requirements that are subject to the PRA:
• § 208.20 (21 CFR 208.20)—Applicants must submit draft Medication Guides for FDA approval according to the prescribed content and format.
• §§ 314.70(b)(3)(ii) and 601.12(f) (21 CFR 314.70(b)(3)(ii) and 21 CFR 601.12(f))—Application holders must submit changes to Medication Guides as supplements to their applications to FDA for approval.
• § 208.24(c) (21 CFR 208.24(c))—Each distributor or packer who receives Medication Guides, or the means to produce Medication Guides, from a manufacturer under paragraph (b) of this section shall provide those Medication Guides to each authorized dispenser to whom it ships a drug product.
• § 208.24(e) (21 CFR 208.24(e))—Each authorized dispenser of a prescription drug product for which a Medication Guide is required must provide a Medication Guide directly to each patient when dispensing the product to the patient or to the patient's agent, unless an exemption applies under § 208.26 (21 CFR 208.26).
• § 208.26(a)—Requests may be submitted for an exemption or a deferral from particular Medication Guide content or format requirements.
In the
We estimate the burden of this collection of information as follows:
Our estimated annual reporting burden for the information collection reflects an overall increase of 4,664 total hours. We attribute this adjustment to an increase in the number of submissions we received over the last few years. Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our annual third-party disclosure burden estimate.
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before October 21, 2019.
Submit your comments to
When submitting comments or requesting information, please include the document identifier 0990-New-60D, and project title for reference, to Sherrette Funn, the Reports Clearance Officer,
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
This weighted average hour burden accounts for differences in reporting burden by type of grantee agency grantee (
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.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the presiding administrative law judge's (“ALJ's”) summary determination (“SD”) (Order No. 47) concerning importation and sale after importation and to review in part a final initial determination (“ID” or “final ID”) finding a violation of section 337 of the Tariff Act of 1930, as amended, with respect to U.S. Patent No. 7,779,011 (“the '011 patent”). The Commission requests briefing from the parties on certain issues under review, as set forth in this notice. The Commission also requests briefing from the parties, interested persons, and government agencies on the issues of remedy, the public interest, and bonding.
Sidney A. Rosenzweig, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-2532. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
On March 16, 2018, the Commission instituted this investigation based on a supplemented complaint filed on behalf of Rovi Corporation of San Jose, California; Rovi Guides, Inc. of San Jose, California; and Veveo, Inc. of Andover, Massachusetts (collectively, “Rovi”); as well as Rovi Technologies Corporation of San Jose, CA. The supplemented complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“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 and related hardware and software components by reason of infringement of one or more claims of the '011 patent; and one or more claims of U.S. Patent Nos. 7,937,394 (“the '394 patent”); 7,827,585 (“the '585 patent”); 9,294,799 (“the '799 patent”); 9,396,741 (“the '741 patent”); 9,578,363 (“the '363 patent”); 9,621,956 (“the '956 patent”); and 9,668,014 (“the '014 patent”). 83 FR 11792 (Mar. 16, 2018). The Commission's notice of investigation named as respondents Comcast Corporation of Philadelphia, Pennsylvania; Comcast Cable Communications, LLC of Philadelphia, Pennsylvania; Comcast Cable Communications Management, LLC of Philadelphia, Pennsylvania; Comcast Business Communications, LLC of Philadelphia, Pennsylvania; Comcast Holdings Corporation of Philadelphia, Pennsylvania; and Comcast Shared Services, LLC of Chicago, Illinois (collectively, “Comcast”).
The Commission previously terminated the investigation as to complainant Rovi Technologies Corporation; as to the '956, '394, '014, '799, and '363 patents in their entirety; and as to certain claims of the '011, '585, and '741 patents. Order No. 12,
On June 3, 2019, the presiding ALJ issued Order No. 47, the subject SD, which,
On June 4, 2019, the ALJ issued the final ID. On June 17, 2019, Comcast and Rovi each filed a petition for review of the final ID. On June 25, 2019, Comcast and Rovi responded to each other's petition, and the IA responded to both.
In addition, the Commission has received comments from Rovi on the public interest pursuant to Commission Rule 210.50(a)(4). The Commission also received comments from the following organizations in response to the Commission notice soliciting public interest comments, 84 FR 27804 (June 14, 2019): Tea Party Patriots Action; Americans for Limited Government; Frontiers of Freedom Institute; Market Institute; and Conservatives for Property Rights (joined by 60 Plus Association, and Americans for Limited Government).
On June 26, 2019, the Commission extended the deadline for whether to review the SD to be commensurate with the deadline for the final ID. On July 24, 2019, the Commission extended the deadline for whether to review the SD and the final ID from August 5, 2019 to August 15, 2019.
With respect to the subject SD, having reviewed the record of this investigation, including the SD and the parties' submissions to the ALJ and to the Commission, the Commission has determined to review in part the SD. In particular, the Commission has determined to review and take no position on whether Comcast's alleged reimportations satisfy the importation requirement of section 337; the SD made no findings on the issue. The Commission has determined not to review the remainder of the SD.
With respect to the subject final ID, having reviewed the record of the investigation, including the final ID and the parties' submissions to the ALJ and to the Commission, the Commission has determined to review in part the final ID as follows:
For the '011 patent, the Commission has determined to review the final ID's findings on direct and indirect infringement of claims 1 and 9 of the '011 patent by Comcast's non-redesigned system. The Commission has determined not to review the remainder of the final ID's findings as to the '011 patent, including the final ID's findings that Comcast's two redesigns do not infringe claims 1 and 9 of the '011 patent.
For the '585 patent, the Commission has determined to review and take no position as to the final ID's findings on the contingent noninfringement issues raised in Comcast's petition for review of the final ID, particularly whether the final ID erred in finding no disavowal by Rovi of settings that do not control how programs are to be digitally stored; whether the accused “auto pad recordings” functionality infringes claims 1 and 15; and whether the accused “start,” “stop,” and “HD Preferred” functionality infringes claims 8, 11, and 22. The Commission has determined not to review the remainder of the final ID's findings as to the '585 patent, including the finding that the asserted claims are invalid in view of the ReplayTV prior art.
For the '741 patent, the Commission has determined to review and take no position as to the final ID's findings on the contingent invalidity issues raised in Comcast's petition for review of the final ID, particularly whether U.S. Patent Application Publication US 2002/0095510 to Sie (RX-69) anticipates claims 1, 8, and 14 of the '741 patent and whether, under Rovi's claim construction, U.S. Patent No. 7,073,189 to McElhatten (RX-71) anticipates Claims 1, 8, and 14 of the '741 patent. The Commission has determined not to review the remainder of the findings as to the '741 patent, including the ALJ's construction of “specified time” in the
Comcast's petition for review of the final ID questioned the final ID's findings as to whether the accused products are “articles that—infringe” the asserted patents, 19 U.S.C. 1337(a)(1)(B) & (a)(1)(B)(i), and the scope of the Commission's authority to find an unfair trade act based upon Comcast's direct infringement. Such issues fall within the scope of the Commission's review of infringement as to the '011 patent, and the Commission will address Comcast's arguments based upon the Commission's infringement findings as to the '011 patent.
In connection with its review, the Commission requests responses to the following questions based in part on Comcast's assertion in its petition for review of the final ID that the final ID “is not entirely clear as to whether it found a violation of Section 337 on the basis of direct infringement of claim 9 of the '011 Patent by way of Comcast's use of the claimed system.” Comcast Pet. 20. The parties are requested to brief their positions with reference to the applicable law and the existing evidentiary record.
1. Please explain, with attention to the statutory language of 35 U.S.C. 271(a) and any differences in claim language between claims 1 and 9 of the '011 patent, the circumstances in which each act of direct infringement by Comcast occurs for each claim. (For example, is there direct infringement by Comcast's testing or other use of its system, by a Comcast user's own searching, or both.)
2. Please explain, with attention to the statutory language of 35 U.S.C. 271(a) and any differences in claim language between claims 1 and 9 of the '011 patent, the circumstances in which Comcast's users directly infringe either claim. In connection with your response to this question please explain whether and how Comcast's users can directly infringe claim 9 but not claim 1, or vice versa.
3. Based on your answers to questions 1 and 2, please explain for claims 1 and 9 of the '011 patent whether and how the “single entity” test of
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue a cease and desist order that could result in the respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist order would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
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.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping and countervailing duty investigation Nos. 701-TA-623 and 731-TA-1449 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of vertical metal file cabinets from China, provided for in subheading 9403.10.0020 of the Harmonized Tariff Schedule of the United States, preliminarily determined by the Department of Commerce (“Commerce”) to be subsidized and sold at less-than-fair-value.
July 24, 2019.
Lawrence Jones ((202) 205-3358), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
The subject vertical metal file cabinets have bodies made of carbon and/or alloy steel and or other metals, regardless of whether painted, powder coated, or galvanized or otherwise coated for corrosion protection or aesthetic appearance. The subject vertical metal file cabinets must have two or more extendable elements for file storage (
An “extendable element” is defined as a movable load-bearing storage component including, but not limited to, drawers and filing frames. Extendable elements typically have suspension systems, consisting of glide blocks or ball bearing glides, to facilitate opening and closing.
The subject vertical metal file cabinets typically come in models with two, three, four, or five-file drawers. The inclusion of one or more additional non-file-sized extendable storage elements, not sized for storage files (
“Freestanding” means the unit has a solid top and does not have an open top or a top with holes punched in it that would permit the unit to be attached to, hung from, or otherwise used to support
The addition of mobility elements such as casters, wheels, or a dolly does not remove the product from the scope. Packaging a subject vertical metal file cabinet with other accessories, including, but not limited to, locks, leveling glides, caster kits, drawer accessories (
Excluded from the scope are lateral metal file cabinets. Lateral metal file cabinets have a width that is greater than the body depth, and have a body with an actual width that is more than 25 inches wide.
Also excluded from the scope are pedestal file cabinets. Pedestal file cabinets are metal file cabinets with body depths that are greater than or equal to their width, are under 31 inches in actual height, and have the following characteristics: (1) An open top or other the means for the cabinet to be attached to or hung from a desktop or other work surface such as holes punched in the top (
“Percentage drawer extension” is defined as the drawer travel distance divided by the inside depth dimension of the drawer. Inside depth of drawer is measured from the inside of the drawer face to the inside face of the drawer back. Drawer extension is the distance the drawer travels from the closed position to the maximum travel position which is limited by the out stops. In situations where drawers do not include an outstop, the drawer is extended until the drawer back is 3
Also excluded from the scope are fire proof or fire-resistant file cabinets that meet Underwriters Laboratories (UL) fire protection standard 72, class 350, which covers the test procedures applicable to fire-resistant equipment intended to protect paper records.
The merchandise subject to the investigation is classified under Harmonized Tariff Schedule of the United States (HTSUS) statistical reporting number 9403.10.0020. The subject merchandise may also enter under HTSUS statistical reporting numbers 9403.10.0040, 9403.20.0080, and 9403.20.0090. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.”
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
On the basis of the record
The Commission, pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)), instituted this review on February 1, 2019 (84 FR 2245, February 6, 2019) and determined on May 7, 2019 that it would conduct an expedited review (84 FR 32217, July 5, 2019).
The Commission made this determination pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determination in this review on August 16, 2019. The views of the Commission are contained in USITC Publication 4945 (August 2019), entitled
By order of the Commission.
On the basis of the record
The Commission, pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)), instituted this review on February 1, 2019 (84 FR 2252, February 6, 2019) and determined on May 7, 2019 that it would conduct an expedited review (84 FR 32217, July 5, 2019).
The Commission made this determination pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determination in this review on August 15, 2019. The views of the Commission are contained in USITC Publication 4946 (August 2019), entitled
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it will proceed with a full review pursuant to the Tariff Act of 1930 to determine whether revocation of the antidumping duty order on small diameter graphite electrodes from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the review will be established and announced at a later date.
August 5, 2019.
Nitin Joshi (202-708-1669), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting
For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
On August 5, 2019, the Commission determined that it should proceed to a full review in the subject five-year review pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)). The Commission found that the domestic interested party's response to its notice of institution (84 FR 18580, May 1, 2019) was adequate. The Commission found that the respondent interested party's response to its notice of institution were inadequate. The Commission also found that other circumstances warranted conducting a full review.
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on July 22, 2019, under section 337 of the Tariff Act of 1930, as amended, on behalf of Reynolds Presto Products Inc. of Lake Forest, Illinois. Supplements to the complaint were filed on August 8, 2019, and August 9, 2019. The complaint 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 child resistant closures with slider devices having a user actuated insertable torpedo for selectively opening the closures and slider devices therefor by reason of infringement of certain claims of U.S. Patent No. 9,505,531 (“the '531 patent”); U.S. Patent No. 9,554,628 (“the '628 patent”); and U.S. Patent no. 10,273,058 (“the '058 patent”). The complaint further alleges that an industry in the United States exists as required by the applicable Federal Statute.
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 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 United States, the sale for importation, or the sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 1, 3, and 5-10 of the '531 patent; claims 1, 4, 6-8, 11, 12, 15, and 19 of the '628 patent; and claims 1, 3, and 5-8 of the '058 patent; and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(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 “recloseable zippers and slider devices for packages, including bags and pouches, that are resistant to opening by young children;”
(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: Reynolds Presto Products Inc., 1900 West Field Court, Lake Forest, IL 60045.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the 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 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 complaint and the notice of investigation. Extensions of time for submitting responses to the 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 complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the 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 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 Velodyne Lidar, Inc. on August 15, 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 rotating 3-D LiDar devices and products containing the same (including autonomous vehicles, unmanned aerial vehicles, industrial machines, and robotics), and components thereof. The complaint names as respondents: Hesai Photonics Technology Co., Ltd. of China; and Suteng Innovation Technology Co., Ltd. (a.k.a. RoboSense) of China. 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 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 party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(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. 3403”) 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.
United States International Trade Commission.
Notice.
On August 5, 2019, the Department of Commerce published notice in the
August 5, 2019.
Celia Feldpausch 202-205-2387, Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. 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
This investigation is being terminated under authority of title VII of the Tariff Act of 1930 and pursuant to section 207.40(a) of the Commission's Rules of Practice and Procedure (19 CFR 207.40(a)). This notice is published pursuant to section 201.10 of the Commission's rules (19 CFR 201.10).
By order of the Commission.
On the basis of the record
The Commission, pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)), instituted these reviews on February 1, 2019 (84 FR 2249, February 6, 2019) and determined on May 7, 2019, that it would conduct expedited reviews (84 FR 32221, July 5, 2019).
The Commission made these determinations pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determinations in these reviews on August 15, 2019. The views of the Commission are contained in USITC Publication 4944 (August 2019), entitled
By order of the Commission.
On August 9, 2019, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Massachusetts in the lawsuit entitled
The Complaint in this Clean Water Act case was filed against the
Under the proposed Consent Decree, the defendants will pay a total of $511,000 as civil penalties and perform corrective and compliance assurance measures. The defendants will be required, among other things, to repair the vessel to reduce the generation of oily bilge water, operate within the vessel's capacity to retain oily bilge for the full length of planned voyages, provide crew and management training on the proper handling of oily wastes, document all oil and oily waste transfers on and off of the vessel, including documenting proper disposal of engine room bilge water at a shore reception facility, and submit compliance reports.
The penalties paid in this case will be deposited in the federal Oil Spill Liability Trust Fund managed by the National Pollution Funds Center. The Oil Spill Liability Trust Fund is used to pay for federal response activities and to compensate for damages when there is a discharge or substantial threat of discharge of oil or hazardous substances to waters of the United States or adjoining shorelines.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $11.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Office of Labor-Management Standards (OLMS) sponsored information collection request (ICR) titled, “Notification of Employee Rights Under Federal Labor Laws Complaint Process” 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 September 20, 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-OLMS 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 by email at
This ICR seeks to extend PRA authority for the Notification of Employee Rights Under Federal Labor Laws Complaint Process information collection. Regulations 29 CFR 471.11 provides for DOL to accept a written complaint alleging that a contractor doing business with the Federal government has failed to post the notice required by Executive Order (E.O.) 13496, Notification of Employee Rights Under Federal Labor Laws.
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
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 August 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).
Mine Safety and Health Administration, Labor.
Request for public comments.
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 collections of information in accordance with the Paperwork Reduction Act of 1995. 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. Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments on the information collection for Certificate of Electrical Training.
All comments must be received on or before October 21, 2019.
Comments concerning the information collection requirements of this notice may be sent by any of the methods listed below.
•
•
•
Sheila McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at
Section 103(h)of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 813(h), authorizes MSHA to collect information necessary to carry out its duty in protecting the safety and health of miners. Further, section 101(a) of the Mine Act, 30 U.S.C. 811, authorizes the Secretary of Labor to develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal and metal and nonmetal mines.
Under section 305(g) of the Mine Act, all electric equipment shall be frequently examined, tested, and properly maintained by a qualified person to assure safe operating conditions.
Title 30 CFR 75.153 and 77.103 define a person as qualified to perform electrical work if he has been qualified as a coal mine electrician by a State that has a coal mine electrical qualification program approved by MSHA; or if he has at least one year of experience performing electrical work underground in a coal mine, in a surface coal mine, in a noncoal mine, in the mine equipment manufacturing industry, or in any other industry using or manufacturing similar equipment, and has satisfactorily completed a coal mine electrical training program approved by MSHA or has attained a satisfactory grade on a series of five written tests approved by MSHA.
MSHA Form 5000-1 provides the coal mining industry with a standardized reporting format that expedites the certification process while ensuring compliance with the regulations. The information provided on the form enables MSHA to determine if the applicants satisfy the requirements to obtain the certification or qualification.
MSHA is soliciting comments concerning the proposed information collection related to Certificate of
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to 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,
The information collection request will be available on
The public may also examine publicly available documents at USDOL-Mine Safety and Health Administration, 201 12th South, Suite 4E401, Arlington, VA 22202-5452. Sign in at the receptionist's desk on the 4th floor via the East elevator.
Questions about the information collection requirements may be directed to the person listed in the
This request for collection of information contains provisions for Certificate of Electrical Training. MSHA has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Mine Safety and Health Administration, Labor.
Request for public comments.
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 collections of information in accordance with the Paperwork Reduction Act of 1995. 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. Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments on the information collection for Operations Mining Under a Body of Water.
All comments must be received on or before October 21, 2019.
Comments concerning the information collection requirements of this notice may be sent by any of the methods listed below.
•
•
•
Sheila McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at
Section 103(h) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 813(h), authorizes MSHA to collect information necessary to carry out its duty in protecting the safety and health of miners. Further, section 101(a) of the Mine Act, 30 U.S.C. 811, authorizes the Secretary of Labor (Secretary) to develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal and metal and nonmetal mines.
Title 30 CFR Sections 75.1716, 75.1716-1 and 75.1716-3 require operators of underground coal mines to provide MSHA notification before mining under bodies of water and to obtain a permit to mine under a body of water if, in the judgment of the Secretary, it is sufficiently large to constitute a hazard to miners. The regulation is necessary to prevent the inundation of underground coal mines with water that has the potential of drowning miners.
The coal mine operator submits an application for the permit to the District Manager in whose district the mine is located. Applications contain the name and address of the mine; projected mining and ground support plans; a mine map showing the location of the river, stream, lake or other body of water and its relation to the location of all working places; and a profile map showing the type of strata and the distance in elevation between the coal bed and the water involved. MSHA has provided an exemption from notification and permit application for mine operators where the projected mining is under any water reservoir constructed by a Federal agency as of December 30, 1969, and where the operator is required by such agency to operate in a manner that adequately protects the safety of miners. The exemption for such mining is addressed by 30 CFR Sections 75.1716 and 75.1717.
MSHA also encourages a mine operator to provide more information in an application. When the operator files an application for a permit, in addition
If the body of water is contained within an overlying mine, then MSHA recommends a map of the overlying mine showing bottom of coal elevations (minimum 10-ft contour intervals), when available, corehole locations, the limits of the body of water with the estimated quantity of water in the pool, and interburden to active mine below be provided. Operators are also encouraged to submit the methods that were used to estimate the quantity of water in the pool, borehole logs, including geotechnical information (RQD, fracture logs, etc.) if available; rock mechanics data on the overburden, interburden, mine roof, and mine floor, if available; mining height of the seam being mined, pillar and floor stability analyses for the active mine, whether second mining is planned, whether mining will be conducted down-dip or up-dip, where water will flow to in the active mine if encountered, pumping capabilities for dewatering, a comprehensive evacuation plan for the miners, and a statement of what in-mine conditions would trigger the implementation of the evacuation plan, and training that will be provided to the miners regarding the potential hazards.
MSHA is soliciting comments concerning the proposed information collection related to Operations Mining Under a Body of Water. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to 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,
The information collection request will be available on
The public may also examine publicly available documents at USDOL-Mine Safety and Health Administration, 201 12th South, Suite 4E401, Arlington, VA 22202-5452. Sign in at the receptionist's desk on the 4th floor via the East elevator.
Questions about the information collection requirements may be directed to the person listed in the
This request for collection of information contains provisions for Operations Mining Under a Body of Water. MSHA has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Millennium Challenge Corporation.
Notice.
In accordance with the requirements of the Federal Advisory Committee Act, the Millennium Challenge Corporation (MCC) is hereby soliciting representative nominations for the MCC Economic Advisory Council (“the EAC”).
Nominations for EAC members must be received on or before 5 p.m. EDT on September 13, 2019. Further information about the nomination process is included below. MCC plans to host the next EAC meeting in late 2019. The EAC will meet at least one time per year in Washington, DC or via video/teleconferencing.
All nomination materials or requests for additional information should be emailed to MCC's Economic Advisory Council Designated Federal Officer, Brian Epley at
Brian Epley, 202.772.6515,
The EAC serves MCC in a solely advisory capacity and provides advice and guidance to economists, evaluators, leadership of the Department of Policy and Evaluation (DPE), and senior MCC leadership regarding relevant trends in development economics, applied economic and evaluation methods, poverty analytics, as well as modeling, measuring, and evaluating development interventions, including without limitation social and gender inclusion. In doing so, an overarching purpose of the EAC is to sharpen MCC's analytical methods and capacity in support of continuing development effectiveness. It also serves as a sounding board and reference group for assessing and advising on strategic policy innovations and methodological directions at MCC.
The EAC focuses on issues related to the analytical products and strategy used as inputs to compact and threshold program development and decision making, on learning from MCC
The EAC is seeking members from a range of academic organizations, independent think tanks, and international development agencies to add to its current membership. Members will be chosen to represent a diversity of expertise, background and geographic experience.
Additional information about MCC and its portfolio can be found at
The EAC shall consist of not more than 20 individuals who are recognized experts in their field, academics, innovators and thought leaders representing (without limitation) academic organizations, independent think tanks, international development agencies, multilateral and regional development financial institutions, and foundations. Efforts will be made to include expertise from developing countries, within the resource constraints of MCC to support logistic costs.
Qualified individuals may self-nominate or be nominated by any individual or organization. To be considered for the EAC, nominators should submit the following information:
• Name, title, organization and relevant contact information (including phone and email address) of the individual under consideration;
• A letter containing a brief biography for the nominee and description why the nominee should be considered for membership; and
• CV including professional and academic credentials.
Please do not send company, or organization brochures or any other information. Materials submitted should total two pages or less, excluding CV. Should more information be needed, MCC staff will contact the nominee, obtain information from the nominee's past affiliations, or obtain information from publicly available sources.
The EAC provides advice to MCC on issues related to growth and development in low and middle income countries including:
All members of the EAC will be independent of MCC, representing the views and interests of their respective industry or areas of expertise, and not as Special Government Employees. All members shall serve without compensation. The duties of the EAC are solely advisory and any determinations to be made or actions to be taken on the basis of EAC advice shall be made or taken by appropriate officers of MCC.
Nominees selected for appointment to the EAC will be notified by return email and receive a letter of appointment. A selection team will review the nomination packages. Members will be determined by the Vice President for Policy and Evaluation based on criteria including: (1) Professional experience and knowledge; (2) academic field and expertise; (3) experience within regions in which MCC works; (4) contribution of diverse regional or technical professional perspectives, and (5) availability and willingness to serve.
In the selection of members for the EAC, MCC will seek to ensure a balanced representation and consider a cross-section of those directly affected, interested, and qualified, as appropriate to the nature and functions of the EAC.
Nominations are open to all individuals without regard to race, color, religion, sex, national origin, age, mental or physical disability, marital status, or sexual orientation.
Postal Regulatory Commission.
Notice.
The Commission is acknowledging a recent Postal Service filing of its intention to change prices not of general applicability to be effective January 1, 2020. This document 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 August 14, 2019, the Postal Service filed notice announcing its intention to change prices not of general applicability for a certain portion of its Inbound Parcel Post (at Universal Postal Union (UPU) Rates) product effective January 1, 2020.
In its Notice, the Postal Service proposes new prices for the UPU e-commerce delivery option (ECOMPRO). Notice at 2. ECOMPRO allows designated postal operators of UPU member countries, including the Postal Service, to mutually consent to certain delivery options, pursuant to UPU regulations for air parcel exchanges.
Additionally, the Postal Service filed an unredacted copy of Governors' Decision 19-1, the unredacted new prices, and related financial information under seal.
The Commission establishes Docket No. CP2019-210 for consideration of matters raised by the Notice and appoints Natalie R. Ward to serve as Public Representative in this docket.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, and 39 CFR part 3015. Comments are due no later than August 22, 2019. The public portions of the filing can be accessed via the Commission's website (
1. The Commission establishes Docket No. CP2019-210 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Natalie R. Ward is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than August 22, 2019.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recently filed Postal Service proposal to conduct a market test of an experimental product called Plus One. 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.
In accordance with 39 U.S.C. 3641 and 39 CFR part 3035, the Postal Service filed notice of its intent to conduct a market test of an experimental product called Plus One.
On August 13, 2019, the Postal Service filed the Notice proposing the Plus One market test. The Postal Service asserts that it is critical to continue innovating to position mail as an attractive advertising channel because small- and medium-sized businesses with limited marketing budgets may choose from an array of advertising channels to reach potential customers.
The Postal Service states that it will test four different price points ranging from 8.5 cents to 10.0 cents.
The Postal Service asserts that the proposed market test meets the requirements in 39 U.S.C. 3641 and 39 CFR part 3035. First, the Postal Service explains that Plus One is “significantly different from all products offered by the Postal Service” within the last 2 years as required by 39 U.S.C. 3641(b)(1). Notice at 3. It acknowledges that the inspiration for Plus One arose in part from the Detached Marketing Labels (DML) option developed for flat-shaped USPS Marketing Mail Saturation mailpieces.
Second, the Postal Service asserts that Plus One “will not create an unfair or otherwise inappropriate competitive advantage for the Postal Service or any mailer” as required by 39 U.S.C. 3641(b)(2).
Third, the Postal Service states that Plus One is properly categorized as market dominant as required by 39 U.S.C. 3641(b)(3).
To better understand the results of the market test, the Postal Service asserts that it will collect the following data on a quarterly basis: Volumes by location,
The Commission establishes Docket No. MT2019-1 to consider matters raised by the Notice. The Commission invites comments on whether the Postal Service's filing is consistent with the requirements of 39 U.S.C. 3641 and 39 CFR part 3035. Comments are due no later than September 5, 2019. The filing can be accessed via the Commission's website (
The Commission appoints Gregory Stanton to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
1. The Commission establishes Docket No. MT2019-1 to consider the matters raised by the Notice.
2. Pursuant to 39 U.S.C. 505, Gregory Stanton is appointed to serve as an officer of the Commission to represent the interests of the general public in these proceedings (Public Representative).
3. Comments are due no later than September 5, 2019.
4. 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.
This Notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is acknowledging a recent Postal Service filing of its intention to change prices not of general applicability to be effective January 1, 2020. This document 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 August 14, 2019, the Postal Service filed notice pursuant to 39 CFR 3015.5, announcing its intention to change rates not of general applicability
To support its proposed Inbound EMS 2 prices, the Postal Service filed a redacted version of the proposed prices, a copy of the certification required under 39 CFR 3015.5(c)(2), a redacted copy of Governors' Decision No. 19-1, a redacted copy of the annual EMS Pay-for-Performance (PfP) Plan for 2019, and redacted copies of the EMS Cooperative Report Cards for Calendar Year 2018. Notice at 2-3;
Additionally, the Postal Service filed unredacted copies of Governors' Decision No. 19-1, its proposed prices, service performance data and plan, and related financial information under seal. Notice at 2. The Postal Service also filed an application for non-public treatment of materials filed under seal.
The Commission establishes Docket No. CP2019-209 for consideration of matters raised by the Notice and appoints Katalin K. Clendenin to serve as Public Representative in this docket.
The Commission invites comments on whether the Postal Service's filing is consistent with 39 U.S.C. 3632, 3633, and 39 CFR part 3015. Comments are due no later than August 22, 2019. The public portions of the filing can be accessed via the Commission's website (
1. The Commission establishes Docket No. CP2019-209 for consideration of the matters raised by the Postal Service's Notice.
2. Pursuant to 39 U.S.C. 505, Katalin K. Clendenin is appointed to serve as an officer of the Commission to represent the interests of the general public in this proceeding (Public Representative).
3. Comments are due no later than August 22, 2019.
4. 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.
This Notice will be published in the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BYX Exchange, Inc. (the “Exchange” or “BYX Equities”) proposes to amend its fee schedule assessed on Members to establish a monthly Trading Rights Fee. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish a monthly Trading Rights Fee under the “Membership Fees” section of the fee schedule. The Trading Rights Fee will be assessed on Members that trade more than a specified volume in U.S. equities, and will assist in covering the cost of a well-regulated and maintained Exchange. Self-regulation, with oversight by the Commission, is a basic premise of the Exchange Act.
The proposed Trading Rights Fee represents a modest charge to firms that have chosen to become members of the Exchange, and that therefore both consume more regulatory resources, and benefit from the Exchange's regulatory efforts by having access to a well-regulated market. Specifically, the Exchange proposes to charge Member firms a monthly Trading Rights Fee of $250 per month for the ability to trade on the Exchange. So as to continue to encourage active participation on the Exchange by smaller Members, the Trading Rights Fee would not be charged to Members with a monthly ADV
As stated, the Exchange will apply a $250 Trading Rights charge to Members per month. The Exchange believes the proposed Trading Rights Fee assessed aligns with the benefit provided by allowing Members to trade on an efficient and well-regulated market. The proposed Trading Rights Fee will fund a portion of the costs incurred by the Exchange in regulating and maintaining its equities market. These costs incurred by the Exchange are necessary to maintain an efficient equities exchange, as a well-regulated exchange is inherent in the nature of all self-regulatory organizations (“SROs”). Due to the importance of effective regulation of the securities markets, an efficient regulatory division must be appropriately funded at all times. In particular, in order to successfully carry out the purposes of the Act and maintain fair, orderly, and efficient markets, and the protection of investors, SROs must invest in robust programs, policies, and procedures to enforce member compliance with both the rules of the exchange and federal securities laws.
The Exchange operates in a highly-competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. The Exchange represents a small percentage of the overall market, and broker-dealers routinely choose among a number of different venues to execute their equity order flow. These venues include thirteen registered equities exchanges, as well as a number of alternative trading systems and other off-exchange venues that do not have similar self-regulatory responsibilities under the Exchange Act. Broker-dealers are not compelled to be Members of the Exchange, and a significant proportion of broker-dealers that trade U.S. equity securities have, in fact, chosen not to apply for membership on the Exchange. The Exchange currently has 124 registered members. By contrast, the Nasdaq Stock Market LLC (“Nasdaq”) has approximately 337 current members,
The cost of membership on the Exchange, including the proposed Trading Rights Fees, is significantly lower than the cost of membership in a number of other SROs.
As stated above, the proposed fee would not apply to new Members for their first three months of Exchange Membership. The Exchange recognizes that new Members provide new and important sources of liquidity. As such, the Exchange proposes that new Exchange Members will not be charged the proposed Trading Rights Fee for their first three months of Membership. The Exchange believes that the proposed waiver will allow new firms the flexibility in resources needed to initially adjust to the Exchange's market-model and functionality. The Exchange notes that for any month in which a firm is approved for Membership with the Exchange, the monthly Trading Rights Fee will be pro-rated in accordance with the date on which Membership is approved. For example, if a firm's Membership is approved on August 15, 2019, then, as proposed, it would not be charged for its first three months of Membership. The month of November would then be pro-rated and the Trading Rights Fee would be assessed from November 15, 2019 through the end of the month. During any month in which a firm terminates Membership with the Exchange, the monthly Trading Rights Fee will not be pro-rated.
As stated above, the Exchange would also waive the monthly Trading Rights fee for Members with a monthly ADV
Similar to that of the ADV threshold waiver, the Exchange would waive the monthly Trading Rights fee for Members if at least 90% of their order volume on the Exchange per month is Retail Order volume. The Exchange believes that this will serve to support individual investor order flow on the Exchange by ensuring that retail broker Members can continue to submit orders for individual investors at a lower cost, thereby continuing to encourage retail investor participation on the Exchange. Like the small Member waiver, the Exchange believes this will contribute to a more diverse and competitive market for equity securities traded on the Exchange. Furthermore, the Exchange notes that continued liquidity in retail orders may incentivize other Members to send order flow to the Exchange to trade with such retail orders. Also, retail participation is more likely to reflect long-term investment intentions, and may therefore positively impact market quality. Retail order flow is highly competitive across trading venues, particularly as it relates to exchange versus off-exchange venues as many retail brokers route the majority of their retail orders to off-exchange venues. Accordingly, competitive forces compel the Exchange to use incentives to compete for retail order flow. The Exchange believes that the proposed 90% retail order volume threshold will capture broker-dealers that are primarily in the business of handling orders on behalf of retail investors rather than larger broker-dealers that may route retail orders on behalf of other broker-dealers but are also engaged in significant other activity that is not related to servicing retail investors. As such, the Exchange believes that the 90% retail order volume threshold will function to best capture those firms whose overall business and trading model focuses on the handling and execution of orders for retail clients.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that the proposed Trading Rights Fee is reasonable because the fee will assist in funding the overall regulation and maintenance of the Exchange. Effective regulation is central to the proper functioning of the securities markets. Recognizing the importance of such efforts, Congress decided to require national securities exchanges to register with the Commission as self-regulatory organizations to carry out the purposes of the Exchange Act. The Exchange therefore believes that it is critical to ensure that regulation is appropriately funded. While the proposed Trading Rights Fees are set at a modest level, and will fund only a relatively small portion of the Exchange's total regulatory costs, the Exchange believes that such fees will contribute appropriately to ensuring that adequate resources are devoted to regulation, as contemplated by Congress.
The proposed Trading Rights Fee is reasonable because it represents a modest charge to firms that have chosen to become members of the Exchange, and that therefore both consume more regulatory resources, and benefit from the Exchange's regulatory efforts by having access to a well-regulated market. As stated, the Exchange will apply a $250 Trading Rights charge to Members per month. Allocating the proposed Trading Rights Fee to fund a portion of the cost incurred by the Exchange in regulating and maintaining its equities market is reasonable because the costs incurred are necessary to maintain an efficient and well-regulated equities exchange. In order to successfully carry out the purposes of the Act and maintain fair, orderly, and efficient markets, and the protection of investors, the Exchange, like all SROs, continuously invests in robust programs, policies, and procedures to enforce member compliance with both the rules of the exchange and federal securities laws.
Additionally, the Exchange believes the fee is reasonable because the cost of this membership fee is generally less than the analogous membership fees of other markets. As indicated above, the Exchange's proposed Trading Rights Fee at $250 a month is substantially lower than Nasdaq's analogous fee, which assesses a monthly Trading Rights Fee of $1,250 per member. Trading Rights Fees, like those proposed here, are not new in the equities markets. A number of national securities exchanges currently charge such fees to assist in funding their regulatory efforts. The Exchange believes that it is appropriate to institute a similar fee to fund its increasing regulatory costs.
The Exchange believes that not charging its new Members the proposed Trading Rights Fee for their first three months of Membership is reasonable because it provides an incentive for firms and other participants that are not currently Members of the Exchange to apply for Membership and bring additional liquidity to the market, thus greater trading opportunities, to the benefit of all market participants. The proposed waiver is also reasonable because it will allow new firms the flexibility in resources needed to initially adjust to the Exchange's market-model and functionality. The Exchange believes that not charging a Trading Rights Fee for new Members will incentivize firms to become Members of the Exchange. Furthermore, creating incentives for new Exchange Members protects investors and the public interest by increasing the competition and liquidity across the Exchange.
Similarly, the Exchange believes that not charging a Trading Rights Fee for Members that trade less than a monthly ADV of 100,000 shares is reasonable because it ensures that smaller Members who do not trade significant volume on the Exchange can continue to trade on the Exchange at a lower cost. Because smaller Members with lower volumes executed on the Exchange consume fewer regulatory resources the Exchange believes it is reasonable to apply a waiver to Members on the lower side of the ADV scale for all firms. Moreover, the Exchange believes that the proposed threshold is reasonable because the median ADV per firm per month on the Exchange is 276,309, therefore, an ADV threshold of 100,000 will serve as an appropriate threshold to capture firms which are true, smaller volume firm outliers as compared to the overall ADV across all firms.
The Exchange also believes that not charging a Trading Rights Fee for Members whose retail order volume comprises 90% or more of their order volume per month is reasonable because it ensures retail broker Members can continue to submit orders for individual investors at a lower cost, thereby continuing to encourage retail investor participation on the Exchange. Furthermore, encouraging continued retail broker Members to trade on the Exchange without incurring a Trading Rights Fee may encourage additional participation from such Members and thereby contribute to a more diverse and competitive market for equity securities traded on the Exchange. Furthermore, the Exchange notes that continued liquidity in retail orders would incentivize other Members to send order flow to the Exchange to trade with such retail orders; such increased liquidity provides more trading opportunities to
The Exchange believes that the proposed Trading Rights Fee is equitable and is not unfairly discriminatory because it will apply equally to all Members with an ADV of 100,000 shares or more traded per month, all Members in which less than 90% of their order volume is comprised of retail order volume per month,
Specifically, the Exchange believes that not charging the Trading Rights Fee for Members that do not meet the ADV threshold in a month is equitable and not unfairly discriminatory because it will apply equally to all such firms that meet this criteria and it considers the fact that smaller firms with significantly lower volume than most firms consume less regulatory resources, therefore, it ensures that disparate treatment does not exist for firms that are much smaller than the average firm on the Exchange. The Exchange believes that not charging the Trading Rights Fee for Members that do not meet the 90% retail order volume threshold is equitable and not unfairly discriminatory because it will apply equally to all such firms that meet this criteria. The waiver is equitable as it will encourage continued retail participation and liquidity on the Exchange which is more likely to reflect long-term investment intentions, and may therefore positively impact market quality, as well as incentivize other Members to send order flow to the Exchange to trade with such retail orders, which benefits all market participants by providing more trading opportunities. Finally, the Exchange believes that not charging a Trading Rights Fee for a new Member for the first three months of Membership is equitable and not unfairly discriminatory because the proposed waiver will be offered to all market participants that wish to become Members of the Exchange and is equitable because it will allow new firms the flexibility in resources needed to initially adjust to the Exchange's market-model and functionality. In addition to this, the proposed waiver intends to incentivize new Membership which will bring increased liquidity and competition to the benefit of all market participants.
The Exchange also notes that the proposed fee is equitable and not unfairly discriminatory because it will contribute to a portion of the costs incurred by the Exchange in providing its Members with an efficient and well-regulated market, which benefits all Members. As stated, as an SRO, it is necessary for the Exchange to continuously invest in robust programs, policies, and procedures to ensure its markets are well-regulated in order to successfully carry out the purposes of the Act and maintain fair, orderly, and efficient markets, and the protection of investors.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary in furtherance of the purposes of the Act because the proposed rule change will apply equally to all Members that reach an ADV of 100,000 shares traded or greater, those in which less than 90% of their order volume is retail order volume per month, and those that are not within their first three months of new Membership on the Exchange. Although smaller Members would be excluded from the proposed fee, the Exchange believes that this may increase competition by encouraging additional order flow from such smaller Members thereby contributing to a more diverse, vibrant, and competitive market. In addition to this, though true retail firms would be excluded from the proposed fee, the Exchange believes that encouraging retail order flow to the Exchange will benefit all market participants by providing more trading opportunities and encouraging other Members to send orders which will contribute to more robust levels of liquidity. While the proposed tier is only available for Retail Orders, the Exchange notes it is attempting to increase retail participation and that, as noted above, retail participation is more likely to reflect long-term investment intentions, and may therefore positively impact market quality. Finally, while the proposed three month waiver of the Trading Rights Fee only applies to new Members, this incentivizes new Members which can be an important source of liquidity and facilitate competition within the market.
Next, the Exchange believes the proposed rule change does not impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act. As previously discussed, the Exchange operates in a highly competitive market, including competition for exchange memberships. Members have numerous alternative venues that they may participate on, including 12 other equities exchanges, as well as off-exchange venues, including over 50 alternative trading systems.
Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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 broader forms that are most important to investors and listed companies.” The fact that this market is competitive has also long been recognized by the courts. In
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes a non-substantive amendment to the NYSE American Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the rule change effective August 8, 2019. The proposed 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 purpose of this filing is to modify the Fee Schedule to make a non-substantive, technical change to the Fee Schedule to re-locate the text regarding the Floor Broker Volume Rebate Program (“FB Volume Rebate”) for Floor Broker organizations (each a “Floor Broker”). The Exchange proposes to implement the fee change effective August 8, 2019.
Earlier this year, the Exchange introduced the FB Rebate Program, which offers Floor Brokers the opportunity to qualify for a $5,000 rebate each month that the Floor Broker increases its Average Daily Volume (“ADV”) by a certain percentage over one of two benchmarks.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposal to re-locate the positioning of the text describing the FB Rebate Program would remove impediments to and perfect the mechanism of a free and open market and a national market system because the proposed rule change is non-substantive in nature and would simply move rule text relating to the FB Rebate Program to be separate from the FB Prepay Program, without any substantive differences to either program. Because the proposed rule change is technical and non-substantive, the Exchange further believes that it is reasonable, equitable and not unfairly discriminatory because it would provide clarity, transparency and internal consistency to the Fee Schedule Exchange [sic]—particularly to Section III.E—and would protect investors and the investing public by making the Exchange rules easier to navigate and comprehend.
In accordance with Section 6(b)(8) of the Act, the Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues, but rather, is a non-substantive, technical amendment to move existing rule text to a different part of the Fee Schedule. The Exchange believes the proposal provides clarity, transparency and internal consistency to the Fee Schedule Exchange [sic]—particularly to Section III.E—and would to [sic] protect investors and the investing public by making the Exchange rules easier to navigate and comprehend.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX Equities”) proposes to amend its fee schedule assessed on Members to establish a monthly Trading Rights Fee. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to establish a monthly Trading Rights Fee under the “Membership Fees” section of the fee schedule. The Trading Rights Fee will be assessed on Members that trade more than a specified volume in U.S. equities, and will assist in covering the cost of a well-regulated and maintained Exchange. Self-regulation, with oversight by the Commission, is a basic premise of the Exchange Act.
The proposed Trading Rights Fee represents a modest charge to firms that have chosen to become members of the Exchange, and that therefore both consume more regulatory resources, and benefit from the Exchange's regulatory efforts by having access to a well-regulated market. Specifically, the Exchange proposes to charge Member firms a monthly Trading Rights Fee of $500 per month for the ability to trade on the Exchange. So as to continue to encourage active participation on the Exchange by smaller Members, the Trading Rights Fee would not be charged to Members with a monthly ADV
As stated, the Exchange will apply a $500 Trading Rights charge to Members per month. The Exchange believes the proposed Trading Rights Fee assessed aligns with the benefit provided by allowing Members to trade on an efficient and well-regulated market. The proposed Trading Rights Fee will fund a portion of the costs incurred by the Exchange in regulating and maintaining its equities market. These costs incurred by the Exchange are necessary to maintain an efficient equities exchange, as a well-regulated exchange is inherent in the nature of all self-regulatory organizations (“SROs”). Due to the importance of effective regulation of the securities markets, an efficient regulatory division must be appropriately funded at all times. In particular, in order to successfully carry out the purposes of the Act and maintain fair, orderly, and efficient markets, and the protection of investors, SROs must invest in robust programs,
The Exchange operates in a highly-competitive market in which market participants can readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or incentives to be insufficient. The Exchange represents a small percentage of the overall market, and broker-dealers routinely choose among a number of different venues to execute their equity order flow. These venues include thirteen registered equities exchanges, as well as a number of alternative trading systems and other off-exchange venues that do not have similar self-regulatory responsibilities under the Exchange Act. Broker-dealers are not compelled to be Members of the Exchange, and a significant proportion of broker-dealers that trade U.S. equity securities have, in fact, chosen not to apply for membership on the Exchange. The Exchange currently has 158 registered members. By contrast, the Nasdaq Stock Market LLC (“Nasdaq”) has approximately 337 current members,
The cost of membership on the Exchange, including the proposed Trading Rights Fees, is significantly lower than the cost of membership in a number of other SROs.
As stated above, the proposed fee would not apply to new Members for their first three months of Exchange Membership. The Exchange recognizes that new Members provide new and important sources of liquidity. As such, the Exchange proposes that new Exchange Members will not be charged the proposed Trading Rights Fee for their first three months of Membership. The Exchange believes that the proposed waiver will allow new firms the flexibility in resources needed to initially adjust to the Exchange's market-model and functionality. The Exchange notes that for any month in which a firm is approved for Membership with the Exchange, the monthly Trading Rights Fee will be pro-rated in accordance with the date on which Membership is approved. For example, if a firm's Membership is approved on August 15, 2019, then, as proposed, it would not be charged for its first three months of Membership. The month of November would then be pro-rated and the Trading Rights Fee would be assessed from November 15, 2019 through the end of the month. During any month in which a firm terminates Membership with the Exchange, the monthly Trading Rights Fee will not be pro-rated.
As stated above, the Exchange would also waive the monthly Trading Rights fee for Members with a monthly ADV
Similar to that of the ADV threshold waiver, the Exchange would waive the monthly Trading Rights fee for Members if at least 90% of their order volume on the Exchange per month is Retail Order volume. The Exchange believes that this will serve to support individual investor order flow on the Exchange by ensuring that retail broker Members can continue to submit orders for individual investors
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that the proposed Trading Rights Fee is reasonable because the fee will assist in funding the overall regulation and maintenance of the Exchange. Effective regulation is central to the proper functioning of the securities markets. Recognizing the importance of such efforts, Congress decided to require national securities exchanges to register with the Commission as self-regulatory organizations to carry out the purposes of the Exchange Act. The Exchange therefore believes that it is critical to ensure that regulation is appropriately funded. While the proposed Trading Rights Fees are set at a modest level, and will fund only a relatively small portion of the Exchange's total regulatory costs, the Exchange believes that such fees will contribute appropriately to ensuring that adequate resources are devoted to regulation, as contemplated by Congress.
The proposed Trading Rights Fee is reasonable because it represents a modest charge to firms that have chosen to become members of the Exchange, and that therefore both consume more regulatory resources, and benefit from the Exchange's regulatory efforts by having access to a well-regulated market. As stated, the Exchange will apply a $500 Trading Rights charge to Members per month. Allocating the proposed Trading Rights Fee to fund a portion of the cost incurred by the Exchange in regulating and maintaining its equities market is reasonable because the costs incurred are necessary to maintain an efficient and well-regulated equities exchange. In order to successfully carry out the purposes of the Act and maintain fair, orderly, and efficient markets, and the protection of investors, the Exchange, like all SROs, continuously invests in robust programs, policies, and procedures to enforce member compliance with both the rules of the exchange and federal securities laws.
Additionally, the Exchange believes the fee is reasonable because the cost of this membership fee is generally less than the analogous membership fees of other markets. As indicated above, the Exchange's proposed Trading Rights Fee at $500 a month is substantially lower than Nasdaq's analogous fee, which assesses a monthly Trading Rights Fee of $1,250 per member. Trading Rights Fees, like those proposed here, are not new in the equities markets. A number of national securities exchanges currently charge such fees to assist in funding their regulatory efforts. The Exchange believes that it is appropriate to institute a similar fee to fund its increasing regulatory costs.
The Exchange believes that not charging its new Members the proposed Trading Rights Fee for their first three months of Membership is reasonable because it provides an incentive for firms and other participants that are not currently Members of the Exchange to apply for Membership and bring additional liquidity to the market, thus greater trading opportunities, to the benefit of all market participants. The proposed waiver is also reasonable because it will allow new firms the flexibility in resources needed to initially adjust to the Exchange's market-model and functionality. The Exchange believes that not charging a Trading Rights Fee for new Members will incentivize firms to become Members of the Exchange. Furthermore, creating incentives for new Exchange Members protects investors and the public interest by increasing the competition and liquidity across the Exchange.A21AU3.
Similarly, the Exchange believes that not charging a Trading Rights Fee for Members that trade less than a monthly ADV of 100,000 shares is reasonable because it ensures that smaller Members who do not trade significant volume on the Exchange can continue to trade on the Exchange at a lower cost. Because
The Exchange also believes that not charging a Trading Rights Fee for Members whose retail order volume comprises 90% or more of their order volume per month is reasonable because it ensures retail broker Members can continue to submit orders for individual investors at a lower cost, thereby continuing to encourage retail investor participation on the Exchange. Furthermore, encouraging continued retail broker Members to trade on the Exchange without incurring a Trading Rights Fee may encourage additional participation from such Members and thereby contribute to a more diverse and competitive market for equity securities traded on the Exchange. Furthermore, the Exchange notes that continued liquidity in retail orders would incentivize other Members to send order flow to the Exchange to trade with such retail orders; such increased liquidity provides more trading opportunities to the benefit of all market participants. In addition to this, retail participation is more likely to reflect long-term investment intentions, and may therefore positively impact market quality, also to the benefit of all market participants. In addition to this, the Exchange believes that the 90% or more retail order volume threshold is reasonable because it will serve to capture broker-dealers that are primarily in the business of handling orders on behalf of retail investors rather than larger broker-dealers that may route retail orders on behalf of other broker-dealers but are also engaged in significant other activity that is not related to servicing retail investors. Therefore, the 90% retail order volume threshold reasonably ensures that those firms whose overall business and trading model focuses on the handling and execution of orders for retail clients, are identified for the waiver to appropriately apply.
The Exchange believes that the proposed Trading Rights Fee is equitable and is not unfairly discriminatory because it will apply equally to all Members with an ADV of 100,000 shares or more traded per month, all Members in which less than 90% of their order volume is comprised of retail order volume per month,
Specifically, the Exchange believes that not charging the Trading Rights Fee for Members that do not meet the ADV threshold in a month is equitable and not unfairly discriminatory because it will apply equally to all such firms that meet this criteria and it considers the fact that smaller firms with significantly lower volume than most firms consume less regulatory resources, therefore, it ensures that disparate treatment does not exist for firms that are much smaller than the average firm on the Exchange. The Exchange believes that not charging the Trading Rights Fee for Members that do not meet the 90% retail order volume threshold is equitable and not unfairly discriminatory because it will apply equally to all such firms that meet this criteria. The waiver is equitable as it will encourage continued retail participation and liquidity on the Exchange which is more likely to reflect long-term investment intentions, and may therefore positively impact market quality, as well as incentivize other Members to send order flow to the Exchange to trade with such retail orders, which benefits all market participants by providing more trading opportunities. Finally, the Exchange believes that not charging a Trading Rights Fee for a new Member for the first three months of Membership is equitable and not unfairly discriminatory because the proposed waiver will be offered to all market participants that wish to become Members of the Exchange and is equitable because it will allow new firms the flexibility in resources needed to initially adjust to the Exchange's market-model and functionality. In addition to this, the proposed waiver intends to incentivize new Membership which will bring increased liquidity and competition to the benefit of all market participants.
The Exchange also notes that the proposed fee is equitable and not unfairly discriminatory because it will contribute to a portion of the costs incurred by the Exchange in providing its Members with an efficient and well-regulated market, which benefits all Members. As stated, as an SRO, it is necessary for the Exchange to continuously invest in robust programs, policies, and procedures to ensure its markets are well-regulated in order to successfully carry out the purposes of the Act and maintain fair, orderly, and efficient markets, and the protection of investors.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary in furtherance of the purposes of the Act because the proposed rule change will apply equally to all Members that reach an ADV of 100,000 shares traded or greater, those in which less than 90% of their order volume is retail order volume per month, and those that are not within their first three months of new Membership on the Exchange. Although smaller Members would be excluded from the proposed fee, the Exchange believes that this may increase competition by encouraging additional order flow from such smaller Members thereby contributing to a more diverse, vibrant, and competitive market. In addition to this, though true retail firms would be excluded from the proposed fee, the Exchange believes that encouraging retail order flow to the Exchange will benefit all market participants by providing more trading opportunities and encouraging other Members to send orders which will contribute to more robust levels of liquidity. While the proposed tier is only available for Retail Orders, the Exchange notes it is attempting to increase retail participation and that, as noted above, retail participation is more likely to reflect long-term investment intentions, and may therefore positively impact market quality. Finally, while the proposed three month waiver of the Trading Rights Fee only applies to new Members, this incentivizes new Members which can be an important source of liquidity and facilitate competition within the market.
Next, the Exchange believes the proposed rule change does not impose any burden on intermarket competition
Moreover, the Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, 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 broader forms that are most important to investors and listed companies.” The fact that this market is competitive has also long been recognized by the courts. In
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Supplementary Material .01(b)(5) to NYSE Rule 8.600 relating to generic listing standards for Managed Fund Shares applicable to holdings in fixed income securities. 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.
Supplementary Material .01 to NYSE Rule 8.600 sets forth generic listing standards for Managed Fund Shares.
Supplementary Material .01(b) to NYSE Rule 8.600 sets forth generic listing standards applicable to fixed income securities included in the portfolio of a series of Managed Fund Shares.
The Exchange believes this amendment is appropriate because a fund's investment in non-agency, non-GSE and privately-issued mortgage-related and other ABS may provide a fund with benefits associated with increased diversification, as such investments may be less correlated to interest rates than many other fixed income securities. The Exchange notes that application of the 20% limitation only to the fixed income portion of a fund's portfolio may impose a much more restrictive percentage limit on permitted holdings of non-agency ABS for funds that have a more diversified investment portfolio than for funds that hold principally or exclusively fixed income securities. For example, a fund holding 100% of its assets in fixed income securities can hold 20% of its entire portfolio's weight in non-agency ABS. In contrast, a fund holding 25% of its assets in fixed income securities, 25% in U.S. Component Stocks, and 50% in cash and cash equivalents is limited to a 5% (25% * 20% = 5%) allocation to non-agency ABS. The Exchange, therefore, believes application of the 20% limitation to a fund's entire portfolio would be more equitable for Managed Fund Shares issuers with different investment objectives and holdings.
The Commission has previously approved a proposed rule change by NYSE Arca, Inc. that is substantively identical to the amendment to NYSE Rule 8.600, Supplementary Material .01(b)(5) proposed herein.
The Exchange believes the proposed amendments would provide issuers of Managed Fund Shares with additional investment choices for fund portfolios for issues permitted to list and trade on
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange has in place surveillance procedures that are adequate to properly monitor trading in series of Managed Fund Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange notes that the Exchange or Financial Industry Regulatory Authority (“FINRA”), on behalf of the Exchange, or both, would communicate as needed regarding trading in Managed Fund Shares with other markets and other entities that are members of the Intermarket Surveillance Group, and the Exchange or FINRA, on behalf of the Exchange, or both, could obtain trading information regarding trading in Managed Fund Shares from such markets and other entities. In addition, the Exchange could obtain information regarding trading in Managed Fund Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
With respect to the proposed amendment to Supplementary Material .01(b)(5), the Exchange believes this amendment is appropriate because a fund's investment in non-agency, non-GSE and privately-issued mortgage-related and other ABS may provide a fund with benefits associated with increased diversification, as such investments may be less correlated to interest rates than many other fixed income securities. As noted above, application of the 20% limitation to only the fixed income portion of a fund's portfolio may impose a much lower percentage limit on permitted holdings of non-agency ABS for funds that have a more diversified investment portfolio than for funds that hold principally or exclusively fixed income securities. The Exchange, therefore, believes application of the 20% limitation to a fund's entire portfolio would be more equitable for Managed Fund Shares issuers with different investment objectives and holdings.
The Exchange notes that the Commission has previously approved a proposed rule change by NYSE Arca, Inc. that is substantively identical to the amendment to NYSE Rule 8.600, Supplementary Material .01(b)(5) proposed herein.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of Managed Fund Shares that will enhance competition among market participants, to the benefit of investors and the marketplace.
In accordance with Section 6(b)(8) of the 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 prior to 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
A proposed rule change filed under Rule 19b-4(f)(6)
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
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Supplementary Material .01(b)(5) to NYSE American Rule 8.600E relating to generic listing standards for Managed Fund Shares applicable to holdings in fixed income securities. 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.
Supplementary Material .01 to NYSE American Rule 8.600E sets forth generic listing standards for Managed Fund Shares on the Exchange.
Supplementary Material .01(b) to NYSE American Rule 8.600E sets forth generic listing standards applicable to fixed income securities included in the portfolio of a series of Managed Fund Shares.
The Exchange believes this amendment is appropriate because a fund's investment in non-agency, non-GSE and privately-issued mortgage-related and other ABS may provide a fund with benefits associated with increased diversification, as such investments may be less correlated to interest rates than many other fixed income securities. The Exchange notes that application of the 20% limitation only to the fixed income portion of a fund's portfolio may impose a much more restrictive percentage limit on permitted holdings of non-agency ABS for funds that have a more diversified investment portfolio than for funds that hold principally or exclusively fixed income securities. For example, a fund holding 100% of its assets in fixed income securities can hold 20% of its entire portfolio's weight in non-agency ABS. In contrast, a fund holding 25% of its assets in fixed income securities, 25% in U.S Component Stocks, and 50% in cash and cash equivalents is limited to a 5% (25%*20% = 5%) allocation to non-agency ABS. The Exchange, therefore, believes application of the 20% limitation to a fund's entire portfolio would be more equitable for Managed Fund Shares issuers with different investment objectives and holdings.
The Commission has previously approved a proposed rule change by NYSE Arca, Inc. that is substantively identical to the amendment to NYSE American Rule 8.600E, Supplementary Material .01(b)(5) proposed herein.
The Exchange believes the proposed amendments would provide issuers of Managed Fund Shares with additional investment choices for fund portfolios for issues permitted to list and trade on the Exchange pursuant to Rule 19b-4(e), which would enhance competition among market participants, to the benefit of investors and the marketplace.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange has in place surveillance procedures that are adequate to properly monitor trading in series of Managed Fund Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange notes that the Exchange or Financial Industry Regulatory Authority (“FINRA”), on behalf of the Exchange, or both, would communicate as needed regarding trading in Managed Fund Shares with other markets and other entities that are members of the Intermarket Surveillance Group, and the Exchange or FINRA, on behalf of the Exchange, or both, could obtain trading information regarding trading in Managed Fund Shares from such markets and other entities. In addition, the Exchange could obtain information regarding trading in Managed Fund Shares from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
With respect to the proposed amendment to Supplementary Material .01(b)(5), the Exchange believes this amendment is appropriate because a fund's investment in non-agency, non-GSE and privately-issued mortgage-related and other ABS may provide a fund with benefits associated with increased diversification, as such investments may be less correlated to interest rates than many other fixed income securities. As noted above, application of the 20% limitation to only the fixed income portion of a fund's portfolio may impose a much lower percentage limit on permitted holdings of non-agency ABS for funds that have a more diversified investment portfolio than for funds that hold principally or exclusively fixed income securities. The Exchange, therefore, believes application of the 20% limitation to a fund's entire portfolio would be more equitable for Managed Fund Shares issuers with different investment objectives and holdings.
The Exchange notes that the Commission has previously approved a proposed rule change by NYSE Arca, Inc. that is substantively identical to the amendment to NYSE American Rule 8.600E, Supplementary Material .01(b)(5) proposed herein.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of Managed Fund Shares that will enhance competition among market participants, to the benefit of investors and the marketplace.
In accordance with Section 6(b)(8) of the 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 prior to 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. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
Notice of receipt of request from Morocco for cultural property protection.
Catherine Foster, Cultural Heritage Center, Bureau of Educational and Cultural Affairs: 202-632-6301;
The Government of the Kingdom of Morocco has made a request to the Government of the United States under Article 9 of the 1970 UNESCO
Leavenworth, Lawrence and Galveston Railroad d/b/a Baldwin City & Southern Railroad Company (Leavenworth), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to operate approximately
According to Leavenworth, Midland and Leavenworth have executed an agreement granting Leavenworth freight operating rights on the Line. Leavenworth states that it plans to provide service under the trade name Baldwin City & Southern Railroad Company.
Leavenworth certifies that, as a result of the proposed transaction, its projected revenue will not exceed $5 million annually and will not result in its becoming a Class I or Class II carrier. Leavenworth states that the operating agreement does not contain interchange commitments.
The proposed transaction may be consummated on or after September 4, 2019, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than August 28, 2019 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36300, must be filed with the Surface Transportation Board either via e-filing or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Leavenworth's representative, A.J. Stevens, Baldwin City & Southern Railroad, 719 High Street, P.O. Box 5, Baldwin City, KS 66006.
According to Leavenworth, this action is exempt from environmental review under 49 CFR 1105.6(c) and from historic reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Allison C. Davis, Director, Office of Proceedings.
Cedar River Railroad Company (CEDR) has filed a verified notice of exemption under 49 CFR part 1152 subpart F—
CEDR has certified that: (1) No local has moved over the Line for at least two years; (2) overhead traffic (to the extent there is any) can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line is pending either with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the two-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
Any employee of CEDR adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA)
A copy of any petition filed with Board should be sent to CEDR's representative, Bradon J. Smith, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606.
If the verified notice contains false or misleading information, the exemption is void ab initio.
Board decisions and notices are available at
By the Board, Allison C. Davis, Director, Office of Proceedings.
Tennessee Valley Authority.
60-Day notice of submission of information collection approval and request for comments.
The proposed information collection described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act of 1995. The Tennessee Valley Authority is soliciting public comments on this proposed collection.
Comments should be sent to the Senior Privacy Program Manager no later than October 21, 2019.
Requests for information, including copies of the information collection proposed and supporting
Tennessee Valley Authority.
60-Day notice of submission of information collection approval and request for comments.
Pursuant to the Paperwork Reduction Act of 1995, the Tennessee Valley Authority (TVA) will be requesting from the Office of Management and Budget (OMB) reinstatement, without change, of TVA's Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery. This generic clearance will fast-track the process for TVA to seek feedback from the public, through surveys and similar feedback instruments, regarding TVA services and programs.
Comments should be sent to the Senior Privacy Program Manager no later than October 21, 2019.
Comments should be directed to the Senior Privacy Program Manager: Christopher A. Marsalis, Tennessee Valley Authority, 400 W Summit Hill Dr. (WT 5D), Knoxville, Tennessee 37902-1401; telephone (865) 632-2467 (this is not a toll-free number), or by email at
TVA will solicit feedback in areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. TVA will use the responses to plan and inform its efforts to improve or maintain the quality of service and programs offered to the public. If this information is not collected, TVA will not have access to vital feedback from customers and stakeholders about the agency's services and programs.
TVA will only submit an information collection for approval under this generic clearance if it meets the following conditions:
• The collections are voluntary;
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
• The collections are non-controversial and do not raise issues of concern to other Federal agencies;
• Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or who may have experience with the program in the near future;
• Personally identifiable information (PII) is collected only to the extent necessary, and is not retained;
• Information gathered is intended to be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency (if released, TVA will indicate the qualitative nature of the information);
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information, and the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.
Feedback collected under this generic clearance provides useful information, but will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance.
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
TVA will make comments submitted in response to this notice, including names and addresses where provided, a matter of public record. TVA will summarize the comments and include them in the request for OMB approval. We are requesting comments on all aspects of this generic clearance request, including: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection involves requesting that small on-demand operators voluntarily provide the number of revenue passengers that boarded their aircraft at each airport annually. This information is used in determining an airport's category and eligibility for federal funding on an annual basis. It is not available through any other federal data source.
Written comments should be submitted by October 21, 2019.
Please send written comments:
Luis Loarte by email at:
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, FRA seeks approval of the Information Collection Requests (ICRs) abstracted below. Before submitting these ICRs to the Office of Management and Budget (OMB) for approval, FRA is soliciting public
Interested persons are invited to submit comments on or before October 21, 2019.
Submit written comments on the ICRs activities by mail to either: Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Analysis Division, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590; or Ms. Kim Toone, Information Collection Clearance Officer, Office of Information Technology, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Commenters requesting FRA to acknowledge receipt of their respective comments must include a self-addressed stamped postcard stating, “Comments on OMB Control Number 2130-XXXX,” (the relevant OMB control number for each ICR is listed below) and should also include the title of the ICR. Alternatively, comments may be faxed to 202-493-6216 or 202-493-6497, or emailed to Ms. Wells at
Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Analysis Division, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: (202) 493-0440) or Ms. Kim Toone, Information Collection Clearance Officer, Office of Information Technology, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: (202) 493-6132).
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to provide 60-days' notice to the public to allow comment on information collection activities before seeking OMB approval of the activities.
FRA believes that soliciting public comment may reduce the administrative and paperwork burdens associated with the collection of information that Federal regulations mandate. In summary, FRA reasons that comments received will advance three objectives: (1) Reduce reporting burdens; (2) organize information collection requirements in a “user-friendly” format to improve the use of such information; and (3) accurately assess the resources expended to retrieve and produce information requested.
The summaries below describe the ICRs that FRA will submit for OMB clearance as the PRA requires:
Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of information collection; request for comment.
Under the Paperwork Reduction Act of 1995 (PRA) and its implementing regulations, this notice announces that FRA is forwarding the Information Collection Requests (ICRs) abstracted below to the Office of Management and Budget (OMB) for review and comment. The ICRs describe the information collections and their expected burden. On June 14, 2019, FRA published a notice providing a 60-day period for public comment on the ICRs.
Interested persons are invited to submit comments on or before September 20, 2019.
Submit written comments on the ICRs to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to OMB at the following address:
Mr. Robert Brogan, Information Collection Clearance Officer, Office of Railroad Safety, Regulatory Analysis Division, Federal Railroad Administration, 1200 New Jersey Avenue SE, Room W33-497, Washington, DC 20590 (telephone: (202) 493-6292); or Ms. Kim Toone, Information Collection Clearance Officer, Office of Information Technology, Federal Railroad Administration, 1200 New Jersey Avenue SE, Room W34-212, Washington, DC 20590 (telephone: (202) 493-6132).
The PRA, 44 U.S.C. 3501-3520, and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages.
On August 7, 2019, Ms. Sarah Yurasko, of the Association of American Railroads (AAR) sent a comment on behalf of its member railroads regarding FRA's Crossing Inventory renewal information collection (Part 234; OMB No. 2130-0017). Ms. Yurasko noted that AAR and its member railroads “have worked diligently with FRA since the 2015 publication of the Highway-Rail Crossing Inventory Final Rule to ensure that the information reported via the U.S. Crossing Inventory forms is accurate.” She noted that “both railroads and State entities access the site to report information under their respective purviews, and unfortunately, there have been several instances in which a state has over-written railroad-provided information in one of the railroad fields.” She observed that such errors lead to confusion, administrative burden to remediate, and “potential FRA enforcement activity.” AAR and its member railroads are urging FRA to amend its system to lock-off designated sections of the U.S. DOT Crossing Inventory Form to the railroad, and other designated sections to the state entity. Ms. Yurasko advocated that there are several sections of the Inventory Form which both the railroad and the state entity should be able to modify and that, in these instances, “the form should allow all parties to see who made the most recent update to the information in the form.” Ms. Yurasko included a color-coded copy of the Inventory Form (FRA F 6180.71) to illustrate the categorization of fields that railroads and the state entity would each complete.
The accuracy and reliability of the data that railroads and state entities provide on the FRA Inventory Form is vital to FRA and to its mission of promoting and enhancing national rail safety, particularly at grade crossings. Before FRA issued the Crossing Inventory final rule in 2015, FRA solicited comment and feedback on sections of the Inventory Form that the railroads and state entities would complete. Accordingly, in its March 29, 2013, comments on the proposed Crossing Inventory rule, AAR recommended FRA limit access to certain specified data fields to either the railroad or state entity to prevent submission of erroneous information by the other entity. The Crossing Inventory system is designed to allow users to view previously submitted Inventory Forms, which can then be used to determine when revised Inventory Forms were submitted and whether the railroad or state entity submitted them. However, FRA will consider Ms. Yurasko's recommendations on behalf of the AAR and its member railroads to lock certain sections of the Inventory Form to prevent over-writing by another entity.
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d);
The summaries below describe the ICRs that FRA will submit for OMB clearance as the PRA requires:
FRA's currently approved information collection accounts for the burden that will be incurred by States and political subdivisions of States requesting a public version of a bridge inspection report generated by a railroad for a bridge located within their respective jurisdiction. FRA developed a Form titled “Bridge Inspection Report Public Version Request Form” to facilitate such requests by States and their political subdivisions. FRA accounts for the burden that will be incurred by railroads to provide the public version of a bridge inspection report upon agency request to FRA.
As background, FRA's final rule on bridge safety standards, 49 CFR part 237, normalized and established federal requirements for railroad bridges.
Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA informs all interested parties that it may not conduct or sponsor, and a respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
44 U.S.C. 3501-3520.
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0135 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 COPPELIA is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0135 at
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
Submit comments on or before September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0133 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 LAS BRISAS is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0133 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0131 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 RESPITE is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0131 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0134 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 WHISKEY BUSINESS is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0134 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0128 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 YVONNE LOUISE is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0128 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0127 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 CHRISTY BLUE is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0127 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0129 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 MANDALA is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0129 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0132 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 WARFISH is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0132 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-2019-0130 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 KEANUENUE is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0130 at
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 September 20, 2019.
You may submit comments identified by DOT Docket Number MARAD-2019-0136 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 MEANT TO BE is:
The complete application is available for review identified in the DOT docket as MARAD-2019-0136 at
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 (DOT).
Receipt of petition.
Volkswagen Group of America, Inc., (Volkswagen) has determined that certain model year (MY) 2019 Audi A6 and Audi A7 motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 135,
Send comments on or before September 20, 2019.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Volkswagen has determined that certain MY 2019 Audi A6 and Audi A7 motor vehicles do not fully comply with the requirements of paragraph S5.4.3 of FMVSS No. 135,
This notice of receipt of Volkswagen's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Approximately 3,908 MY 2019 Audi A6 and Audi A7 vehicles manufactured between July 27, 2018, and November 6, 2018, are potentially involved.
Volkswagen explains that the noncompliance is that a small number of the affected vehicles may have a European-specification brake fluid reservoir cap instead of the one required for the North American/United States market as required by paragraph S5.4.3 of FMVSS No. 135. Specifically, the subject brake fluid reservoir caps may not include the required warning label.
Paragraph S5.4.3 of FMVSS 135, includes the requirements relevant to this petition. Each vehicle equipped with hydraulic brakes shall have a brake fluid warning statement that reads as follows, in letters at least 3.2 mm (
Volkswagen described the subject noncompliance and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, Volkswagen submitted the following reasoning:
1. The brake fluid cap shows clearly the specification of brake fluid required.
2. The brake fluid cap conforms to the requirements of ISO9128:2006, which is a requirement of UN-ECE Regulations 13 and 13h.
3. Volkswagen asserts that NHTSA has previously granted the following petitions to accept ISO symbols in the absence of FMVSS labelling.
(a) Jaguar Land Rover petition regarding light vehicle brake systems, re: Brake fluid cap (84 FR 13095,13098);
(b) Ford petition regarding controls and displays including brake system-related telltales (78 FR 69931, 69932); and
(c) Hyundai petition regarding lower anchorage identification (73 FR 38290, 38291).
4. Volkswagen states that the brake fluid cap provides clear symbols including one for caution and one for referring to owner manual instructions. The manual indicates the proper brake fluid specification for use in the vehicle.
5. Service to the brake system involving an exchange of the brake fluid is not a standard maintenance activity for an owner/user. Repairs to the brake system, which includes evacuating and refilling the brake fluid, requires basic technical knowledge regarding the brake system and should be performed by a trained technician.
6. Volkswagen has not received any field or customer complaints related to this condition.
7. Volkswagen has not received notification of any accidents or injuries resulting from this issue.
Volkswagen's complete petition and all supporting documents are available by logging onto the Federal Docket Management System (FDMS) website at
Volkswagen concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that Volkswagen no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Volkswagen notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: Delegations of authority at 49 CFR 1.95 and 501.8).
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Kia Motors America, Inc., and Kia Motors Corporation (collectively “Kia”), has determined that certain Model year (MY) 2020 Kia Telluride motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 110,
Send comments on or before September 20, 2019.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Kia has determined that certain MY 2020 Kia Telluride motor vehicles do not fully comply with paragraphs S4.3.3 of FMVSS No. 110,
This notice of receipt of Kia's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
Approximately 8,773 MY 2020 Kia Telluride motor vehicles manufactured between January 10, 2019, and March 27, 2019, are potentially involved.
Kia explains that the noncompliance is that the subject vehicles are equipped with Part 567 certification labels that are missing the value for the rim size as required by paragraph S4.3.3 of FMVSS No. 110. Specifically, the subject vehicles are equipped with 7.5Jx20 or 7.5Jx18 rims, however, the part 567 certification labels are missing the “20” or “18” inches after the “7.5Jx.” The certification labels also contain a typo. The “i” in “psi” is missing in the section of the label, which identifies the corresponding tire inflation pressure.
Paragraphs S4.3.3 of FMVSS No. 110 provide the requirements relevant to this petition. Each vehicle must show the size designation and, if applicable, the type designation of rims (not necessarily those on the vehicle) appropriate for the tire and appropriate for use on that vehicle, including the tire installed as original equipment on the vehicle by the vehicle manufacturer, after each GAWR listed on the certification label required by § 567.4 or § 567.5 of this chapter. This information should be in English, letters block capitals and numerals not less than 2.4 millimeters high and in the following format (
Kia described the subject noncompliance and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, Kia contends that the information missing from the label is a minor omissions without adverse safety implications because the information is readily available from other sources.
1. Kia states that FMVSS No. 110 paragraph S4.3(d) requires that the tire and loading information placard state the tire size designations for the tires installed on the vehicle at the time of first purchase. On the affected vehicles, the FMVSS No. 110 tire and loading label (which is located directly adjacent to the certification label on the “B” pillar), contains the correct tire size dimensions, recommended cold tire inflation pressure, and vehicle capacity weight.
2. Kia also noted that FMVSS No. 110, paragraph S4.3(f), also requires the tire and loading placard to state “See Owner's Manual for Additional Information.” The Owner's Manual for the 2020 Telluride provides the wheel rim and tire information, which the owner can easily refer to confirm the correct tire pressure.
3. The consumer can also check the tire rims installed on the vehicle to determine the correct wheel rim size needed. Kia noted that FMVSS No. 110, paragraph S.4.4.2(b), requires each rim to be marked to identify the rim size. The affected vehicles meet the requirements of this section.
4. Kia is not aware of any accidents or injuries related to the omitted tire rim size information or typographical errors on the certification label, nor has it received contact from vehicle owners regarding this issue.
5. Kia says NHTSA has previously granted similar petitions for inconsequential noncompliance with FMVSS No. 110, paragraph S4.3.3, with respect to missing or incorrect information on the certification label.
Kia concludes that the subject noncompliance is inconsequential as it
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that Kia no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Kia notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8).
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petitions.
Mack Trucks Inc., (Mack) and Volvo Trucks North America (Volvo) have determined that certain model year (MY) 2014-2019 Mack Trucks and certain MY 2014-2019 Volvo Trucks do not comply with Federal Motor Vehicle Safety Standard (FMVSS) 101,
Send comments on or before September 20, 2019.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Mack and Volvo have determined that certain MY 2014-2019 Mack Trucks and MY 2014-2019 Volvo Trucks do not comply with Table 2 of FMVSS 101,
This notice of receipt of Mack's and Volvo's petitions is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of their petitions.
Approximately 95,000 MY 2014-2019 Mack Anthem, Granite, LR, Pinnacle, TerraPro, and Titan Trucks, manufactured between September 1, 2013, and August 13, 2018, are potentially involved.
Approximately 130,000 MY 2014-2019 Volvo VAH, VHD, VNL, VNM, VNR, VNX, and VT Trucks, manufactured between September 1, 2013, and August 13, 2018, are potentially involved.
Mack and Volvo explained that the noncompliance is that the Low Brake Air Pressure telltale for air brake
Paragraphs S5 and S5.2.1 of FMVSS No. 101 includes the requirements relevant to this petition. Each passenger car, multipurpose passenger vehicle, truck and bus that is fitted with a control, a telltale, or an indicator listed in Table 1 or Table 2 must meet the requirements of FMVSS No. 101 for the location, identification, color, and illumination of that control, telltale or indicator.
Each control, telltale and indicator that is listed in column 1 of Table 1 or Table 2 must be identified by the symbol specified for it in column 2 or the word or abbreviation specified for it in column 3 of Table 1 or Table 2.
Mack and Volvo both described the subject noncompliance and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of their petitions, Mack and Volvo submitted the following reasoning:
1. Both Mack and Volvo provide a visual and audible alarm along with an air pressure gauges and feel that their vehicles, even though non-compliant, meet the intent of the regulation to provide a clear and visible warning to the driver when the air pressure in the service reservoir system is below 60 psi.
2. For Mack Granite, Pinnacle, and Titan model vehicles that are 2018 and earlier, the display includes two gauges and a red low air pressure indicator lamp for each gauge. When a low air pressure situation occurs, the driver is warned through the gauge, a red indicator lamp in each gauge, and an audible warning.
3. For Mack LR model vehicles, two pressure gauges, a low air telltale, a popup in the display, and an audible alarm are provided.
4. For Mack TerraPro model vehicles, pressure gauges, a low air telltale, and an audible alarm are provided.
5. On 2019 and later Anthem, Pinnacle, and Granite model vehicles, pressure gauges, a low air pressure pop-up (System Air Pressure is Low), and an audible alarm are provided.
6. For Volvo, 2014-2019 models, the display includes two gauges and a red low air pressure indicator lamp for each gauge. When a low air pressure situation occurs, the driver is warned through the gauge, a red indicator lamp in each gauge, and an audible warning. On all models and model years, a pop-up (Low System Air Pressure) is provided in addition to the gauges, a low-pressure indicator, and an audible alarm.
Both Mack and Volvo concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that their petitions to be exempt from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
Any manufacturer that determines a noncompliance to exist and intends to petition the agency, pursuant to 49 CFR part 556.4(c), must submit their petition no later than 30 days after such determination. Both Mack and Volvo submitted their petitions 25 days past the 30-day requirement. However, due to the nature of the noncompliance and considering that the agency has previously granted similar untimely inconsequential noncompliance petitions, the agency has decided to accept both Mack and Volvo's petitions. Nonetheless, NHTSA cautions these petitioners, and all petitioners, that our discretionary acceptance of these petitions should not be viewed as precedential and that untimely petitions may be rejected in the future.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that Mack and Volvo no longer controlled at the time they determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of noncompliant vehicles under their control after Mack and Volvo notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8).
United States Mint, Department of the Treasury.
Notice.
The United States Mint is announcing pricing for the 2019 American Legion 100th Anniversary Commemorative Coins and The American Legion Centennial Emblem Prints as follows:
Products containing gold coins will be priced according to the Pricing of Numismatic and Commemorative Gold and Platinum Products Grid posted at
Rosa Matos, Program Manager for Numismatic and Bullion; United States Mint; 801 9th Street NW, Washington, DC 20220; or call 202-354-7500.
Public Law 115-65.
United States Mint, Department of the Treasury.
Notice.
The United States Mint is establishing a
Kara Murphy, Marketing Specialist, Sales and Marketing Directorate; United States Mint; 801 9th Street NW, Washington, DC 20220; or call 202-354-7871.
31 U.S.C. 5111, 5112, 5132, & 9701.