Forest Service
Economic Development Administration
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Air Force Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
Surface Mining Reclamation and Enforcement Office
Alcohol, Tobacco, Firearms, and Explosives Bureau
Drug Enforcement Administration
Information Security Oversight Office
Federal Aviation Administration
Federal Railroad Administration
Maritime Administration
Alcohol and Tobacco Tax and Trade Bureau
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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National Credit Union Administration (NCUA).
Final rule.
The NCUA Board (Board) is amending its regulations governing the responsibilities of a federally insured credit union (FICU) to obtain an annual supervisory committee audit of the credit union. The final rule implements recommendations outlined in the agency's Regulatory Reform Task Force's Regulatory Reform Agenda (Agenda) and will provide additional flexibility to FICUs. Specifically, the Board is: Replacing the Supervisory Committee Guide with a simplified appendix to the part; eliminating two audit types that FICUs seldom use; and eliminating a specific deadline for outside, compensated persons to deliver written audit reports to FICUs.
The final rule takes effect January 6, 2020.
In August 2017, the Board published and sought comment on the Regulatory Reform Agenda.
The Agenda addresses the NCUA's regulations on Supervisory Committee Audits. As discussed more fully below, the Agenda recommends removing from § 715.7 of the NCUA's regulations the reference to the “NCUA's Supervisory Committee Guide” and amending the requirement related to the timing for delivery of written audit reports issued by outside, compensated persons in § 715.9 of the NCUA's regulations.
Sections 115 and 202(a)(6) of the Federal Credit Union Act (FCU Act) set forth provisions addressing auditing and accounting requirements.
Section 202(a)(6)(A) of the FCU Act is a general grant of authority to the Board to prescribe audit standards that require an outside, independent audit by a certified public accountant for any fiscal year for which a FICU has not conducted an annual supervisory committee audit, has not received a complete and satisfactory supervisory committee audit, or during which the FICU has experienced persistent or serious record keeping deficiencies.
Section 202(a)(6)(C) of the FCU Act generally requires FICUs having assets of $10 million or more to use accounting principles consistent with generally accepted accounting principles (GAAP) in all reports or statements required to be filed with the Board.
Section 202(a)(6)(D) of the FCU Act imposes audit requirements for larger FICUs. Specifically, a FICU having assets of $500 million or more is required to obtain an annual independent audit of its financial statements performed in accordance with generally accepted auditing standards, hereafter referred to as a “financial statement audit.” That audit must be performed by an independent certified public accountant or public accountant licensed to do so by an appropriate state or jurisdiction.
Additionally, if an FCU having total assets of less than $500 million but more than $10 million elects to obtain a financial statement audit, the audit must be performed consistent with the accountancy laws of the appropriate state or jurisdiction.
Currently, §§ 715.5 and 715.6 of the NCUA's regulations specify: (1) The minimum type of annual audit a FICU is required to obtain according to its charter type and asset size; (2) the licensing requirements of persons performing certain audits; and (3) the auditing principles that apply to certain audits.
In February 2019 (84 FR 5957), the Board issued a notice of proposed rulemaking (proposal) amending part 715 to: (1) Eliminate the Report on Examination of Internal Controls over Call Reporting option in § 715.7(b); (2) remove reference to the NCUA's Supervisory Committee Guide in § 715.7(c) and replace it with minimum requirements set forth in a new appendix A to part 715; (3) eliminate the Balance Sheet Audit option in § 715.7(a); and (4) amend § 715.9(c)(6) applicable to engagement letters with outside auditors to eliminate a specific 120-day timing requirement.
The proposal also sought comments on whether to include additional topics in the new proposed appendix A. Specifically, under the proposed appendix A, the supervisory committee, internal auditor, or other qualified person would be required to perform and document the following areas of review:
• Test and confirm material asset and liability accounts, including, at a minimum, loans, cash, investments, shares and borrowings;
• test material equity, income and expense accounts;
• review key internal controls, including, at a minimum, bank reconciliation procedures, cash controls, dormant account controls, wire and ACH transfer controls, loan approval and disbursement procedures, and controls over insider
• test the mathematical accuracy of the allowance for loan and lease loss accounts and ensure the methodology is properly applied; and
• test loan delinquency and charge-offs.
As reflected in the text of the proposed appendix A, the supervisory committee or other person conducting the audit would be expected to determine whether to supplement the minimum procedures in light of a particular FICU's circumstances.
In the proposal, the Board noted that in selecting these areas of review for inclusion in appendix A, NCUA staff borrowed substantially from the Supervisory Committee Guide, reviewed and adopted procedures established by the American Institute of Certified Public Accountants, and consulted with accounting professionals. The goal of the proposal was to make the requirements more understandable to FICUs, rather than change the areas of review the Board considers important. Nevertheless, the Board requested comment on whether other areas of review should be included in appendix A, and listed the following examples: Loans to insiders, pay and benefits to employees and board members, regulatory compliance, and compliance with the Bank Secrecy Act.
In the proposal, the Board noted its plan to decommission the outdated Supervisory Committee Guide, stating that the NCUA would issue reference materials on how to conduct procedures that would meet the minimum requirements of appendix A. This reference material could be used by supervisory committees and the third parties hired to develop agreed upon procedures. Alternatively, supervisory committees and hired third parties could elect to incorporate other agreed upon procedures, so long as the testing meets the minimum requirements.
The Board received 22 comments from credit unions, credit union trade associations, credit union leagues, an association of state regulators, and accountants and accounting firms. Commenters generally supported the proposed rule and the Board's objectives. The consensus was that the proposal would provide FICUs with assets less than $500 million with additional flexibility, reduce compliance burdens, and simplify the Supervisory Committee Audit, while still providing useful information about the financial health and stability of FICUs. Nevertheless, some commenters objected to specific provisions or proposals, while others provided additional suggestions that they believed would improve the proposal and avoid adversely affecting small FICUs. Specifically, a few commenters cautioned that some provisions might increase cost and burden for smaller FICUs and thus run counter to the intent of the proposal. Substantive comments supporting or opposing each specific proposal and advocating alternatives or modifications are discussed below. As discussed in detail below, the Board is adopting the proposal with a few minor modifications.
As detailed below, in this final rule, the Board is amending part 715,
The Board proposed eliminating the option for FICUs with assets less than $500 million to obtain a Report on Examination of Internal Controls Over Call Reporting as one of the alternatives to a financial statement audit. The proposal noted that less than one percent of FICUs use this option to fulfill their audit requirement.
Commenters generally agreed with the proposal because of this option's limited use and lack of review of a FICU's income statement. One commenter favored retaining this option to maintain flexibility for smaller FICUs. As proposed, the Board is eliminating this option because it advances the purpose of eliminating outdated and ineffective regulations. This audit option is seldom used and provides limited insight into a FICU's financial condition.
The Board proposed removing reference to the NCUA's Supervisory Committee Guide in § 715.7(c) and replacing it with a new appendix covering minimum supervisory committee audit requirements. The Board described the 350-page Supervisory Committee Guide as
Comments on this part of the proposal addressed two areas: (1) Replacing the Supervisory Committee Guide with the appendix generally; and (2) the specific areas of review set forth in the appendix. The Board discusses these areas separately, below.
Although a few commenters supported retaining the Supervisory Committee Guide, most supported replacing it with the appendix. The commenters supporting the change stated that it would clarify and simplify audits for FICUs with assets less than $500 million, increase flexibility, save time and resources, and replace the outdated Supervisory Committee Guide, among other advantages. These commenters also stated that the appendix would increase flexibility and allow FICUs to focus on major risk areas.
The few commenters that opposed adopting the appendix opined that it would create additional costs and unintended consequences, such as increased audit work and associated fees for FICUs that hire outside auditors. These commenters stated that costs would increase significantly, but they did not attempt to quantify the claimed increase in costs. One commenter made several suggested edits to the appendix to alleviate the negative economic impact that the commenter asserted the appendix would cause.
After reviewing and analyzing the comments, the Board has determined that it is appropriate to remove the Supervisory Committee Guide alternative to a financial statement audit in § 715.7 and replace it with an appendix. As stated in the proposal, the Board finds the Supervisory Committee Guide outdated and that the minimum areas of review should be incorporated into the regulation. The NCUA will replace the Supervisory Committee Guide with reference materials on audit procedures to aid in performing the areas of review in the appendix. Replacing the Supervisory Committee Guide with new reference materials on audit procedures will provide an up-to-date resource and greater flexibility for FICUs. The Board finds that the appendix will provide specific areas of review while covering an appropriate range of financial matters. Adding prescriptive provisions to the appendix would run counter to the Board's intention to simplify the requirements and afford flexibility to FICUs. In recognition of the concerns that a few commenters raised, the agency will monitor the implementation of the appendix and may issue informal guidance to address questions that arise. In addition, as the Board stated in the proposal, the agency will consult with representatives of the accounting profession and publish reference materials on audit procedures to aid FICUs and others in conducting audits under the appendix. The Board believes that these measures will effectively address any initial questions or concerns that may arise during the transition from the Supervisory Committee Guide to the appendix.
Separately, despite supporting adoption of the appendix, a few commenters stated that it would be worthwhile to retain the Supervisory Committee Guide as a guidance document on the NCUA website for smaller FICUs. These commenters suggested adding a disclaimer to the document to note that its procedures would no longer satisfy part 715.
The Board has determined that it is appropriate to retain the Supervisory Committee Guide for historical reference on the NCUA website, with the appropriate disclaimers. However, because the Supervisory Committee Guide is outdated, FICUs should not rely on the Guide as a means to comply with part 715.
The appendix sets forth specific areas of review, as discussed above. The appendix also provides that parties conducting audits may need to perform additional procedures based on the circumstances of a particular FICU, and that the supervisory committee must apply its judgment in determining the procedures necessary to meet audit requirements.
The Board requested comments on whether the proposed minimum procedures and topics in the appendix are appropriate, and whether there are any additional topics that should be included. To this end, the Board listed several specific topics that it was considering adding to the appendix.
One commenter expressed concern that the objectives of the supervisory audit would not be met by the proposed appendix. This commenter suggested incorporating several procedures into the appendix that the commenter believed would result in assurance that the balance sheet accounts are fairly stated, including reconciliations, verifications, and a review of board minutes.
The Board has determined that the minimum areas of review set forth in the proposed appendix are appropriate. These areas of review are intended to reflect common industry practices for auditing accounts and controls over financial institution financial statements. Incorporating extensive additional detail into the appendix would run counter to the Board's goal of clarifying and simplifying audit procedures for FICUs with assets less than $500 million. The Board further notes that NCUA is considering recommendations received on the audit procedures for incorporation into the reference materials that the agency will make available after this final rule goes into effect, as the Board stated in the proposal.
As noted above, the Board also requested comments on whether the topics in the appendix are appropriate and whether there are any additional topics that should be included. The Board specifically requested comment on including the following additional topics in the appendix: loans to insiders; pay and benefits to employees and board members; regulatory compliance; and compliance with the Bank Secrecy Act.
Most commenters agreed with the list of topics expressly set forth in the appendix, stating that the proposed areas of review in the appendix sufficiently ensure that a proper audit would be conducted. However, several commenters recommended not including the additional topics on which the Board sought comments. As detailed below, the Board has decided to adopt the text of the appendix as proposed, with the addition of reviewing board minutes and testing for unrecorded liabilities. The Board has decided to not add any other topics.
Several commenters objected to including employee and board compensation as an audit topic in the appendix. They stated generally that this topic does not fit the intent of a supervisory committee audit and instead is within the purview of the board of directors. Some commenters also objected because they perceived no clear safety and soundness basis to include this topic. The Board notes that while it is not an express provision in the appendix, the supervisory committee audit must test employee and board compensation when it is a significant component of a FICU's expenses—as the regulation requires the audit to include a test of “material equity, income, and expense accounts.” However, the Board emphasizes that the purpose of the supervisory committee audit is to reconcile the mathematical
Several commenters stated that the appendix should not require testing for Bank Secrecy Act and Anti-Money Laundering as part of the audit engagement, noting that it would be redundant of part 748, which requires annual testing in this area.
Also, several commenters stated that the topics should not include “regulatory compliance.” They noted that regulatory compliance issues are beyond the scope of a supervisory committee audit, which focuses on financial and accounting issues. The Board agrees with commenters that it would likely be duplicative of other legal and regulatory requirements to incorporate regulatory compliance in the appendix. Accordingly, the Board has decided not to add this topic to the appendix.
In addition, a few commenters recommended adding to the list of topics. The suggested areas included testing for unrecorded and/or unstated liabilities that would not otherwise be subject to testing based on the materiality definition described in the proposal. Another commenter recommended that the appendix include these topics: disaster recovery and business continuity plans, information security, and vendor management.
The Board agrees that the areas of review should include testing for unrecorded liabilities. However, the Board declines to add the other recommended topics because they are not customarily part of a supervisory committee audit and would be covered by separate engagements. Specifically, the Board has determined not to add disaster recovery and business continuity plans, information security, and vendor management.
In sum, the Board is adopting the appendix as proposed, with the addition of reviewing board minutes and testing for unrecorded liabilities.
The proposal sought comments on whether to eliminate the Balance Sheet Audit option for FICUs with assets less than $500 million. This audit does not cover a FICU's income statement.
Several commenters stated that this option provides no benefit because the balance sheet does not reflect the current value of assets. Commenters also noted that the other audit alternatives provide better indicators of a FICU's financial health.
A few commenters favored retaining this option, despite acknowledging its limitations. For example, some commenters suggested that this option may be effective in the limited circumstance when a credit union is transitioning from a supervisory committee audit to a financial statement audit. Another commenter stated that this option provides reasonable assurance that the balance sheet complies with GAAP and is a viable, lower-cost option than a financial statement audit.
The Board has determined that the balance sheet audit does not provide sufficient information to allow a FICU's board of directors to assess the FICU's financial health. Because a supervisory committee audit provides greater insight at reasonable costs, the Board has decided to eliminate the Balance Sheet Audit as a means to comply with part 715.
The Board also proposed amending § 715.9(c)(6) to eliminate a prescriptive timing requirement for completion of audits by an outside, compensated person. This section, among other things, addresses engagement letters a FICU may use to hire a compensated auditor. The current regulation requires that an engagement letter specify a target date of delivery of written audit reports “not to exceed 120 days from the date of calendar or fiscal year-end under audit (period covered).”
Most commenters agreed with this proposed amendment because it provides FICUs with additional flexibility. Further, these commenters believed the amendment enhances a FICU's ability to better negotiate the target date for delivery of written reports. Commenters further stated that the proposal eliminates burden associated with seeking waivers of the deadline from the NCUA. One commenter opposed the proposal, stating the 120-day requirement may ensure uniformity throughout the industry.
The Board has determined that it is appropriate to adopt this change as proposed. The Board believes that this amendment will provide enhanced flexibility and potential cost savings, without any adverse impact to the auditing process. Although audit due dates may now vary across the industry, the regulation will continue to require annual audits, which provides substantial uniformity.
A few commenters addressed how part 715 should apply to FICUs, both in terms of asset size and chartering authority. Because the Board did not propose any changes in these areas, it declines to adopt the commenters' recommendations, as discussed below.
The Board received two comments suggesting a lower asset-size threshold for a financial statement audit. Because the FCU Act establishes this threshold, as discussed above, and this matter is beyond the scope of the proposal, the Board will not adopt this change.
One commenter stated that the NCUA should clarify part 715's applicability to federally insured, state chartered credit unions (FISCUs), observing that not all FISCUs have supervisory committees. The commenter suggested re-organizing part 715 or amending Part 741 to more clearly identify which requirements apply to FISCUs generally, and in particular to those without supervisory committees. Because the Board proposed no changes on this subject, it will not amend part 715 or 741 in this manner in this final rule. However, the Board notes that the definition of “supervisory committee” in § 715.2(l) expressly addresses this issue as follows: “Supervisory committee refers to a supervisory committee as defined by section 111(b) of the Federal Credit Union Act, 12 U.S.C. 1761(b). For some FISCUs, the `audit committee' designated by state statute or regulation is the equivalent of a supervisory committee.”
As proposed, the Board is amending § 715.9(c)(3), (d), and (e) to replace references to the Supervisory Committee Guide with references to the appendix.
The Regulatory Flexibility Act requires NCUA to prepare an analysis of any significant economic impact a regulation may have on a substantial number of small entities (those with less than $100 million in assets).
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
The information collection burden previously associated with the internal controls and balance sheet audit options are now collected as a single information collection associated with amended § 715.7. This change will be reflected in an upcoming renewal.
The information collection requirements under the current rule are covered under OMB #3133-0059. This final rule does not contain any additional information collection requirements under the Paperwork Reduction Act.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. The final rule does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has, therefore, determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.
NCUA has determined that this rule will not affect family well-being within the meaning of § 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) generally provides for congressional review of agency rules.
Credit unions, Reporting and recordkeeping requirements.
For the reasons discussed above, the National Credit Union Administration Board amends 12 CFR part 715 as follows:
12 U.S.C. 1761(b), 1761d, and 1782(a)(6).
(b)
A credit union which is not required to obtain a financial statement audit may fulfill its supervisory committee responsibility by obtaining an
(c) * * *
(3) If an Other Supervisory Committee Audit, include an appendix setting forth the procedures to be performed;
(6) Specify a target date of delivery of the written reports, so that such target date will enable the credit union to meet its annual audit requirements in this part;
(d)
(e)
(1) Identify the excluded items;
(2) State that, because of the exclusion(s), the resulting audit will not, by itself, fulfill the scope of a supervisory committee audit; and
(3) Caution that the supervisory committee will remain responsible for fulfilling the scope of a supervisory committee audit with respect to the excluded items.
This appendix presents minimum procedures which a supervisory committee, its internal auditor, or other qualified person must complete when a credit union chooses the Other Supervisory Committee Audit option for completing its annual audit requirements under § 715.7.
This option may not be adequate for all credit unions as it is designed for smaller, less complex credit unions. The supervisory committee, internal auditor, or other qualified person may also need to perform additional procedures to supplement these minimum procedures if the specific circumstances of a particular credit union so dictate. The supervisory committee must apply its judgment in determining the procedures necessary to meet audit requirements in this part. The supervisory committee remains responsible to ensure that a complete set of test procedures is performed. All test procedures will be done using balances and samples for the applicable audit period under review.
Any time the test or confirmation procedures include making a sample or selection, the supervisory committee's report, its internal auditor's report, or other qualified person's report on minimum procedures should describe the method of selection and the number of selected items.
For purposes of this appendix, the following definitions will apply:
• Confirm or confirmation refers to a written verification with a third-party (person or organization) pertaining to an account balance or condition. Examples of confirmation letters are bank/corporate credit union account confirmation, investment account confirmation, borrowing or line of credit confirmation, attorney letter confirmation, and member share/loan account confirmation.
• Materiality refers to a statement, fact or item, which, giving full consideration to the surrounding circumstances as they exist at the time, it is of such a nature that its disclosure, or the method of treating it, would be likely to influence or to make a difference in the judgment and conduct of a reasonable person. Materiality should take into account ending balances as well as the volume of transactions in an account. Typically, balances or transaction volume greater than 5 percent of the credit union's net worth should be considered material for purposes of this appendix.
• Review refers to the examination of Board minutes, policies and procedures, and a review of a
• Test refers to procedures applied to the individual items that compose an account balance or class of transactions. The tests involve confirmation, inspection, or observation procedures to provide evidence about the recorded amount.
The supervisory committee, internal auditor, or other qualified person must perform and document the following minimum procedures:
○ Loans
○ Cash on deposit
○ Investments
○ Shares
○ Borrowings
○ Bank reconciliation procedures
○ Cash controls
○ Dormant account controls
○ Wire and ACH transfer controls
○ Loan approval and disbursement procedures
○ Controls over accounts of employees and officials
○ Other real estate owned
○ Foreclosed and repossessed assets
Food and Drug Administration, HHS.
Final rule; technical amendments.
The Food and Drug Administration (FDA or we) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during April, May, and June 2019. FDA is informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable. The animal drug regulations are also being amended to make technical amendments to improve the accuracy of the regulations.
This rule is effective October 7, 2019.
George K. Haibel, Center for Veterinary Medicine (CVM) (HFV-6), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-5689,
FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during April, May, and June 2019, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the office of the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the internet may obtain these documents at the CVM FOIA Electronic Reading Room:
Medicis Dermatologics, Inc., 8125 North Hayden Rd., Scottsdale, AZ 85258 has informed FDA that it has changed its name and address to Bausch Health US, LLC, 400 Somerset Corporate Blvd., Bridgewater, NJ 08807. Accordingly, we are amending § 510.600(c) to reflect these changes.
A section describing tolerances of hetacillin residues (21 CFR 556.316) has been added to subpart B of part 556. This section cross-references the sole hetacillin product approved for use in food-producing animals, an intramammary infusion for use in lactating dairy cows (21 CFR 526.1130). This new section codifies FDA's finding at the time of product approval that, because hetacillin is rapidly hydrolyzed to ampicillin, existing ampicillin tolerances provide appropriate tolerances for hetacillin in edible tissues of cattle (38 FR 31172, November 12, 1973). This amendment is being made to make the regulations more comprehensive.
FDA is also revising the regulations to reflect the approved conditions of use of sulfaquinoxaline soluble powder as a veterinary prescription product for oral administration to cattle as a drench. Finally, we are also revising the regulations for use of monensin in medicated goat feed to reflect the approved incorporation level. These actions are being taken to improve the accuracy of the regulations.
This final rule is issued under section 512(i) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360b(i)), which requires
Although denominated a rule pursuant to the FD&C Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866, which defines a rule as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
Animal drugs, Foods.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 510, 520, 522, 526, 529, 556, and 558 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
The addition and revision read as follows:
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
(d) * * *
(3)
21 U.S.C. 360b.
(a) * * *
(2) Ceftiofur hydrochloride equivalent to 50 mg ceftiofur equivalents in the inactive vehicles polyoxyethylene sorbitan monooleate (polysorbate 80) in a caprylic/capric triglyceride suspension; or
(e) * * *
(1) * * *
(iii)
(b) * * *
(1) Nos. 000859, 026637, and 055529 for use of product described in paragraph (a)(1) as in paragraph (e)(1); and
(2) Nos. 000859, 055529, and 061133 for use of product described in paragraph (a)(2) as in paragraphs (e)(2) and (3) of this section.
21 U.S.C. 360b.
The revision and addition read as follows:
(c)
21 U.S.C. 360b.
(b)
(1) No. 050378 for use as in paragraph (d) of this section.
(2) Nos. 049968 and 067188 for use as in paragraphs (d)(1)(i), (ii), and (iii), (d)(2)(i), (ii), and (iii), and (d)(3) of this section.
(d) * * *
(1) * * *
(iv)
(2) * * *
(iv) For the control of mortality in freshwater-reared finfish due to saprolegniasis associated with fungi in the family Saprolegniaceae: In tanks and raceways, administer 150 μL/L (ppm) for 60 minutes per day on alternate days for three treatments.
21 U.S.C. 342, 360b, 371.
(a) [Reserved]
(b)
(1)
(2) [Reserved]
(c)
21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.
(d) * * *
(d)
(2) Lubabegron may also be used in combination with:
(i) Tylosin as in § 558.625.
(ii) [Reserved]
The addition reads as follows:
(f) * * *
(7) * * *
(iv) Lubabegron as in § 558.330.
The additions read as follows:
(e) * * *
(2) * * *
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation (SLR) for certain waters of the Gulf of Mexico adjacent to Fort Myers Beach, FL. This action is necessary to provide for the safety of race participants, participant vessels, spectators, and the general public on these navigable waters near Fort Myers Beach during the Roar Offshore boat race. This SLR establishes an enforcement area where all persons and vessels, except those persons and vessels participating in the high speed boat race, are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area without obtaining permission from the Captain of the Port St. Petersburg or a designated representative.
This rule is effective daily from 9:30 a.m. until 5:30 p.m., on October 10, 2019 through October 12, 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 Marine Science Technician First Class Michael Shackleford, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
The Coast Guard is establishing this special local regulation 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. There is insufficient time to publish an NPRM and receive public comment as the Roar Offshore event will occur before the rulemaking process can be reasonably completed. Because of the dangers associated with high speed boat races, this regulation is necessary to provide for the safety of event participants, spectators, and vessels transiting the event area. For those reasons, it would be impracticable to publish an NPRM.
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. 70041 (previously 33 U.S.C. 1231). The purpose of the rule is to provide for the safety of life on navigable waters of the United States during the Roar Offshore High Speed Boat Race.
This rule establishes a special local regulation daily from 9:30 a.m. until 5:30 p.m., on October 10, 2019 through October 12, 2019. The special local regulation would establish an enforcement area where designated representatives may control vessel traffic as determined by the prevailing conditions. The enforcement area would cover all navigable waters in the Gulf of Mexico west of Fort Myers Beach inside a rectangle commencing at latitude 26°26′27″ N, 081°55′55″ W, thence to position 26°25′33″ N, 081°56′34″ W, thence to position 26°26′38″ N, 081°58′40″ W, thence to position 26°27′25″ N, 081°58′8″ W, thence to the original position at 26°26′27″ N, 081°55′55″ W. These coordinates are based on North American Datum 83 (NAD 83).
Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the COTP St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the COTP St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP St. Petersburg or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners, Broadcast Notice to Mariners, and/or on-scene designated representatives.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the following reasons: (1) The special local regulation would be enforced in a small designated area off of Fort Myers Beach for only eight hours on three consecutive days; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the regulated area without authorization from the COTP St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the regulated area or anchor in the spectator area, during the enforcement period if authorized by the COTP St. Petersburg or a designated representative; and, (4) the Coast Guard will provide advance
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 would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of federal employees who enforce, or otherwise determine compliance with, federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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 would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management 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 made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation issued in conjunction with a regatta or marine parade. It is categorically excluded from further review under paragraph L61 in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(b)
(1)
(2)
(3)
(c)
(2) Designated representatives may control vessel traffic throughout the enforcement area as determined by the prevailing conditions.
(3) Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated areas by contacting the COTP St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the COTP St. Petersburg or a designated representative.
(4) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners and/or Broadcast Notice to Mariners.
(d)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of cyromazine in or on multiple commodities which are identified and discussed later in this document. The Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective October 7, 2019. Objections and requests for hearings must be received on or before December 6, 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-2018-0286, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an 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-2018-0286 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 December 6, 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-2018-0286, by one of the following methods:
•
•
•
In the
Upon establishing those tolerances, the petition also proposed to remove existing tolerances for residues of cyromazine (
Based upon review of the data supporting the petition, EPA has corrected the terminology for several commodities and is establishing tolerances at levels other than petitioned for on some of the commodities. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of, and to make a determination on, aggregate exposure for cyromazine including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with cyromazine follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
No specific toxicity was associated with cyromazine, with lowest observed adverse effects levels (LOAELs) occurring at relatively high doses. Decreases in body weight and food consumption are the common features of cyromazine toxicity following subchronic or chronic oral exposures as seen in dogs, rats, mice, and rabbits. Other effects reported were organ weight (relative) changes and changes to some hematological parameters that were biologically insignificant and non-adverse. No dermal or systemic toxicity was seen at the highest dose tested (greater than 2,000 mg/kg/day) in two 21-day dermal toxicity studies in rabbits. In a 28-day inhalation study in rats, cyromazine produced clinical signs of toxicity (hunched posture, piloerection, and reduced spontaneous activity) consistent with dyspnea at all concentrations tested. An acute neurotoxicity study demonstrated reduced motor activity as the main effect with no treatment-related effects on mortality, brain weight, or gross and histologic pathology or neuropathology up to the limit dose tested.
There is no evidence of developmental toxicity following
Cyromazine was not carcinogenic in mice or rats following long-term dietary administration and was classified “Group E—Evidence of Noncarcinogenicity for Humans.” The available mutagenicity data suggest that cyromazine does not have genotoxic activity. Cyromazine is categorized as Toxicity Category III for acute oral, dermal and inhalation toxicity. Cyromazine is neither an eye irritant nor a dermal sensitizer; however, it is mild skin irritant.
Specific information on the studies received and the nature of the adverse effects caused by cyromazine as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for cyromazine used for human risk assessment is shown in Table 1 of this unit.
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ii.
iii.
iv.
2.
Based on the First Index Reservoir Screening Tool (FIRST) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of cyromazine for acute exposures are estimated to be 47.1 parts per billion (ppb) for surface water and 111 ppb for ground water. For chronic exposures for non-cancer assessments, EDWCs are estimated to be 15.8 ppb for surface water and 86 ppb for ground water. Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 111 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration value of 86 ppb was used to assess the contribution to drinking water.
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4.
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3.
i. The toxicity database for cyromazine is complete for assessing the risks to infants and children. However, the study providing the basis for the acute dietary exposure POD lacks a NOAEL, so the Agency is retaining a 3X FQPA SF for extrapolating a NOAEL.
ii. There is no evidence of neurotoxicity in the cyromazine repeated dose studies, which include subchronic or chronic dosing in multiple species. However, in the acute neurotoxicity study conducted in rats, reduced motor activity was seen at all doses tested and additional neurological effects (decreased foot splay in males and increased rearing behavior in females) were observed at the highest dose tested. Because a NOAEL was not established for the acute neurotoxicity effects, an FQPA SF will be retained for the acute risk assessment. In this case, the default FQPA SF of 10X can be reduced to 3X for the following reasons:
(1) the toxicity database is considered complete for cyromazine and no other studies via the oral route showed clinical signs or histopathology indicative of neurotoxicity;
(2) a 3X SF yields an acute PAD of 0.83 mg/kg/day, which is similar to the chronic PAD of 0.5 mg/kg/day. The chronic POD is considered very conservative and is based on 27% decreased body weight seen at the LOAEL of 150 mg/kg/day in absence of any other significant effects. The aPAD is conservative because it is unlikely that decreased motor activity would occur at doses similar to the chronic endpoint. The effects used to derive the chronic POD (decrease in body weight) were observed only after repeated exposure (15 weeks) and there was no indication of decreased activity or other neurological clinical signs in the chronic study; and
(3) motor activity seems to be a very sensitive indicator of acute toxicity of cyromazine. While there are indications of neurotoxicity in the ACN and inhalation studies, the selected endpoints are protective of those effects, therefore there is no concern for developmental neurotoxicity resulting from exposure to cyromazine. Based on the findings in the acute neurotoxicity study and the total weight of evidence, the requirement for the subchronic neurotoxicity study was waived.
iii. There is no evidence that cyromazine results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to cyromazine in drinking water. These assessments will not underestimate the exposure and risks posed by cyromazine.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure
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5.
Adequate enforcement methodology is available to enforce the tolerance expression. Adequate methods are available in Pesticide Analytical Manual (PAM), Vol. II for enforcement of the established tolerances for cyromazine in/on plant commodities. The working method “Determination of Cyromazine in Bean (snap)” Revision O, was derived from Ciba-Geigy Analytical Method No. AG0621, “Analytical Method for the Determination of Cyromazine and its Metabolite Melamine residues in Crops by Gas Chromatography with a Nitrogen/Phosphorous detector in the Nitrogen Specific Mode. (January 12, 1995).” Minor modifications were made to improve the performance of the method. The limit of quantitation for cyromazine is 0.05 ppm in most plant commodities. Adequate methods are available in PAM, Vol. II for enforcement of the established tolerances for cyromazine in/on meat, milk, poultry, and eggs. Cyromazine, per se, was recovered when analyzed through Protocol III (present Protocol D). The Agency concluded that the data were acceptable and no additional cyromazine multiresidue method (MRM) recovery data were required.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
There are Codex MRLs established for residues of cyromazine in/on several commodities. The U.S. tolerances being established for Onion, green, subgroup 3-07B and Tomato subgroup 8-10A are harmonized with Codex. The U.S. is not able to harmonize with Codex for Onion, bulb, subgroup 3-07A; Leafy green subgroup 4-16A; Leaf petiole subgroup 22B; Brassica, leafy greens, subgroup 4-16B; and pepper/eggplant subgroup 8-10B because differences in use patterns and residues in submitted field trials support higher U.S. tolerances; harmonization would cause tolerance exceedances and violative residues, despite legal use of cyromazine pursuant to U.S. labels. There are no Codex MRLs for the other commodities in this action.
EPA received three comments to the Notice of Filing. Two comments expressed concerns about wildfires, health and habitats. These comments did not raise any issues related to the Agency's safety determination of cyromazine tolerances. The receipt of these comments is acknowledged however, these comments are not relevant to this action. Another commenter stated the following, “In rule making, please use the following standard: The amounts of residues found in food must be safe for consumers and must be as low as possible.” When new or amended tolerances are requested for residues of a pesticide in food or feed, the Agency, as is required by section 408 of the FFDCA, estimates the risk of the potential exposure to these residues. The Agency has concluded after this assessment, that there is a reasonable certainty that no harm will result from aggregate human exposure to cyromazine and that, accordingly, the cyromazine tolerances on these commodities are safe. The commenter has provided no information suggesting that the levels approved are not safe.
EPA made two minor wording changes to the existing tolerance expression by deleting the phrases “the insecticide” and “. . . , in or on the commodity” at the end of the tolerance expression for consistency with Agency policy. For harmonization purposes, the Agency is establishing different tolerances for the following commodities than what was petitioned for: Leafy green subgroup 4-l6A, Brassica, leafy greens, subgroup 4-16B, Celtuce, Fennel, Florence, fresh leaves and stalk, Kohlrabi, Leaf petiole vegetable subgroup 22B, Onion, bulb, subgroup 3-07A, Pepper/eggplant subgroup 8-10B, and Vegetable, brassica, head and stem, group 5-16, except broccoli. Additionally, the Agency revised the commodity terminology to use the following correct commodity definitions: Leafy greens subgroup 4-16A, Leaf petiole vegetable subgroup 22B, Fennel, Florence, fresh
In this rule, EPA is establishing lower tolerances for cyromazine residues in or on onion, potato than the current tolerance. The current tolerance for onion, potato is 3.0 ppm, but onion, potato is a commodity in the onion, bulb, subgroup 3-07A, for which EPA is establishing a new tolerance in this rulemaking at 0.3 ppm. As a result, EPA intends for the allowable residues onion, potato to be reduced. As discussed in EPA's crop grouping rulemaking, EPA has determined that onion, potato is similar to other bulb onions and appropriately categorized in subgroup 3-07A.
In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures (SPS) Agreement, EPA intends to notify the WTO of the changes to these tolerances in order to satisfy its obligations under the Agreement. In addition, the SPS Agreement requires that Members provide a “reasonable interval” between the publication of a regulation subject to the Agreement and its entry into force to allow time for producers in exporting Member countries to adapt to the new requirement. Accordingly, EPA is establishing an expiration date for the existing tolerance to allow this tolerance to remain in effect for a period of six months after the effective date of this final rule. After the six-month period expires, this tolerance will be reduced or revoked, as indicated in the regulatory text, and allowable residues on onion, potato must conform to the tolerance for subgroup 3-07A.
This reduction in tolerance level is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods. The new tolerance level is supported by available residue data.
Therefore, tolerances are established for residues of the insecticide cyromazine,
In addition, EPA is removing the following tolerances because they are superseded by the new tolerances being established in this rulemaking: Cabbage, abyssinian at 10.0 ppm; cabbage, seakale at 10.0 ppm, garlic at 0.2 ppm; garlic, great-headed, bulb at 0.2 ppm; Hanover salad, leaves at 10.0 ppm; leek at 3.0 ppm; onion, bulb at 0.2 ppm; onion, green at 3.0 ppm; onion, tree at 3.0 ppm; onion, welsh at 3.0 ppm; pepper at 1.0 ppm; potato at 0.8 ppm; rakkyo, bulb at 0.2 ppm; shallot, bulb at 0.2 ppm; shallot, fresh leaves at 3.0 ppm; tomato at 0.5 ppm; turnip, greens at 10.0 ppm; vegetable, brassica, leafy, group 5, except broccoli at 10.0; vegetable, leafy, except brassica, group 4 at 7.0 ppm. Finally, EPA is setting a six-month expiration date for the current onion, potato tolerance at 3.0 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) 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 tolerances 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.
The revisions and additions read as follows:
(a)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of chlorantraniliprole in or on palm, oil. FMC Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective October 7, 2019. Objections and requests for hearings must be received on or before December 6, 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-2018-0656, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an 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-2018-0656 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 December 6, 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-2018-0656, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for chlorantraniliprole including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with chlorantraniliprole follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
Chlorantraniliprole does not exhibit immunotoxicity, neurotoxicity, carcinogenicity, or developmental toxicity. Additionally, no mutagenicity concerns were reported in the genotoxicity studies.
In oral and dermal toxicity studies in rats, minimally increased microvesiculation of adrenal cortex was observed mostly in males; however, supporting data demonstrated no effect on the capacity of the adrenal gland to produce corticosterone following stimulation. Therefore, adrenal cortex
Chlorantraniliprole does not exhibit prenatal or postnatal toxicity as there were no maternal or fetal effects in studies conducted in rats and rabbits. The relative absence of mammalian hazard may be due in part to chlorantranilprole's selectivity for insect ryanodine receptor (RyR) over mammalian counterparts. In short-term mammalian studies, the most consistent effects are increased liver weights and mild induction of liver enzymes.
Chlorantraniliprole is classified as not likely to be carcinogenic to humans, based on the weight of evidence of the data. No treatment-related tumors were reported in the submitted chronic and oncogenicity studies in rats and mice (18-month carcinogenicity study) or in the subchronic studies in mice, dogs, and rats.
Specific information on the studies received and the nature of the adverse effects caused by chlorantraniliprole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for chlorantraniliprole used for human risk assessment is discussed in Unit III.B. of the final rule published in the
1.
i.
No such effects were identified in the toxicological studies for chlorantraniliprole; therefore, a quantitative acute dietary exposure assessment is unnecessary.
ii.
iii.
iv.
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of chlorantraniliprole for chronic exposures for non-cancer assessments are estimated to be 39.9 ppb for surface water and 207 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration value of 207 ppb was used to assess the contribution to drinking water.
3.
Chlorantraniliprole is currently registered for the following uses that could result in residential exposures: Sod farms/turf, landscape ornamentals and interiorscapes, and as a termiticide. Residential exposure is expected to occur for short-term and intermediate-term durations; however, due to the lack of toxicity identified for short- and intermediate-term durations via relevant routes of exposure, residential exposure was not assessed. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found chlorantraniliprole to share a common mechanism of toxicity with any other substances, and chlorantraniliprole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that chlorantraniliprole does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a
1.
2.
3.
i. The toxicity database for chlorantraniliprole is complete.
ii. There is no indication that chlorantraniliprole is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that chlorantraniliprole results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to chlorantraniliprole in drinking water. Due to the lack of toxicity via the dermal route, as well as the lack of toxicity over the acute-, short- and intermediate-term via the oral route, no risk is expected from post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by chlorantraniliprole.
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.
4.
6.
Adequate enforcement methodology (liquid chromatography mass spectrometry (LC/MS/MS); Method DuPont-11374) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for chlorantraniliprole in or on palm oil.
Therefore, tolerances are established for residues of chlorantraniliprole, 3-bromo-N-[4-chloro-2-methyl-6-[(methylamino)carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1 H-pyrozole-5-carboxamide, in or on palm oil at 1.5 ppm.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735,
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) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes time-limited tolerances for residues of thiamethoxam in or on rice. This action is in response to EPA's granting of an emergency exemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on rice. This regulation establishes a maximum permissible level for residues of thiamethoxam in or on these commodities. The time-limited tolerances expire on December 31, 2024. This action is also associated with the utilization of a crisis exemption under the FIFRA authorizing use of the pesticide on rice.
This regulation is effective October 7, 2019. Objections and requests for hearings must be received on or before December 6, 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-2018-0779, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 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-2018-0779 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 December 6, 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-2018-0779, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for residues of thiamethoxam, 3-[(2-chloro-5-thiazolyl)methyl]tetrahydro-5-methyl-
Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative,
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
During 2015, the first year the rice delphacid pest appeared in Texas, the Texas Department of Agriculture (TDA) reported ratoon rice losses as high as 25%. TDA claims that they are experiencing high numbers of rice delphacid in ratoon rice and recently, pest populations over 8,000 nymphs and adult rice delphacids per 10 sweeps were observed in a rice field in Galveston county. Approximately 60% of Texas' rice crop is ratooned and in 2018, this represented more than 100,000 acres. There are no insecticides labeled specifically for rice delphacid, and TDA says that products registered for leafhopper control in rice are not efficacious in controlling rice delphacid. On October 31, 2018, the TDA issued a crisis exemption for use of thiamethoxam on rice. The crisis exemption expired on November 9, 2018. Due to the short duration of the crisis exemption, the pest was not fully controlled and therefore, TDA submitted a quarantine request for this use pattern.
After having reviewed the submission, EPA determined that an emergency condition existed in this State, and that the criteria for approval of an emergency exemption were met. On March 3, 2019, EPA authorized a quarantine exemption under FIFRA section 18 for the use of thiamethoxam on rice for control of rice delphacid in Texas.
As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of thiamethoxam in or on rice. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent, non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2024, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on rice after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.
Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether thiamethoxam meets FIFRA's registration requirements for use on rice or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of thiamethoxam by a State for special local needs under FIFRA section 24(c), nor does this tolerance by itself serve as the authority for persons in any State other than Texas to use this pesticide on the applicable crops under FIFRA section 18, absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for thiamethoxam, contact the Agency's Registration Division at the address provided under
Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of, and to make a determination on, aggregate exposure expected as a result of this emergency exemption request and the time-limited tolerances for residues of thiamethoxam on rice, grain at 6 ppm rice, straw at 2 ppm. EPA's assessment of exposures and risks associated with establishing time-limited tolerances follows.
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for thiamethoxam used for human risk assessment is discussed in Unit III.B. of the final rule published in the
1.
i.
ii.
iii.
iv.
2.
Based on the Pesticides in Flooded Applications Model (PFAM) or Tier 1 Rice Model and Pesticide in Water Calculator (PWC)), the estimated drinking water concentrations (EDWCs) of thiamethoxam for acute exposures are estimated to be 20 ppb parts per billion (ppb) for surface water and 63 ppb for ground water.
For chronic exposures for non-cancer assessments EDWCs are estimated to be 1.05 ppb for surface water and 58 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 63 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration value of 58 ppb was used to assess the contribution to drinking water.
3.
Thiamethoxam is currently registered for the following uses that could result in residential exposures: Turfgrass (including golf courses, residential lawns, and athletic fields), residential landscapes, structural/perimeter applications (indoors and outdoors in schools, apartments, etc.), and indoor control of bed bugs. EPA assessed residential exposure using the following assumptions: Short-term exposures, lasting from 1 to 30 days, may occur from uses of thiamethoxam in residential settings. These exposures may occur by dermal, inhalation, and incidental oral (children <6 years old) routes.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at:
4.
EPA has not found thiamethoxam to share a common mechanism of toxicity with any other substances, and thiamethoxam does not appear to produce a toxic metabolite produced by other substances. Thiamethoxam and its clothianidin metabolite have different mechanisms of toxicity in mammals, and since clothianidin has a complete database owing to its registration as a pesticide active ingredient, it is appropriate for EPA to evaluate its risks separately. For the purposes of this tolerance action, therefore, EPA has assumed that thiamethoxam does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
1.
2.
3.
i. The toxicity database for thiamethoxam is complete.
ii. Evidence of neurotoxicity was seen in the acute and DNT studies in the rat. However, there is a low degree of concern for the potential neurotoxic effects of thiamethoxam since: (1) Clear NOAELs were identified for the neurotoxic effects; (2) the neurotoxic effects were not the most sensitive endpoint in the toxicity database; and (3) the endpoints chosen for risk assessment are protective of any potential neurotoxicity.
iii. There is no evidence that thiamethoxam results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. There are no residual uncertainties with respect to dietary or residential exposure. The dietary exposure assessments are based on high-end residue levels from crop field trials and empirical and default processing factors, both of which account for parent and metabolites of concern, and the assumption of 100 PCT for all agricultural commodities. Furthermore, conservative, upper-bound assumptions were used to determine exposure through drinking water, such that these exposures have not been underestimated. Therefore, the actual risk from exposure to thiamethoxam will likely be much lower than calculated risk estimates. In addition, the residential exposure estimates are conservative and do not underestimate exposure and risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to thiamethoxam in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of youth and children as well as incidental oral exposure of children 1 to 2 years old (1 < 2). These assessments will not
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.
Thiamethoxam is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to thiamethoxam.
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 ranging from 130 for adults to 330 for children less than 6 years old. Because EPA's level of concern for thiamethoxam is an MOE of 100 or below, these MOEs are not of concern.
4.
5.
6.
An adequate method using liquid solvent extraction, solvent and solid-phase extraction clean-up, and high-performance liquid chromatography (HPLC) Method AG-675, is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
Neither the Codex nor Canada has established specific MRLs for thiamethoxam residues in rice commodities. Canada has established an “All food crops” MRL at 0.02 ppm for thiamethoxam that would apply to rice, but it is not specific to a use on rice.
Therefore, time-limited tolerances are established for residues of thiamethoxam, 3-[(2-chloro-5-thiazolyl)methyl]tetrahydro-5-methyl-
This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). 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). 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 in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances 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
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.
(b)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes a time-limited tolerance for residues of clothianidin in or on rice, grain. This action is in response to EPA's granting of an emergency exemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of thiamethoxam on rice. Emergency use of thiamethoxam on rice results in potential clothianidin (a major metabolite of thiamethoxam) residues that when combined with the residues from legal use of clothianidin on rice, require an increase in the tolerance for residues of clothianidin in rice. Although there is an existing regulation establishing a maximum permissible level for residues of clothianidin in or on rice, grain at 0.01 ppm, this rule would establish a new, time-limited maximum permissible level at 0.5 ppm for clothianidin in or on rice, grain. The time-limited tolerance expires on December 31, 2024. This action is also associated with the utilization of a crisis exemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of thiamethoxam on rice.
This regulation is effective October 7, 2019. Objections and requests for hearings must be received on or before December 6, 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-2019-0141, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 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 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-2019-0141, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l)(6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing a time-limited tolerance for residues of clothianidin, (
Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative,
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .”
Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.
During 2015, the first year the rice delphacid pest appeared in Texas, the Texas Department of Agriculture (TDA) reported ratoon rice losses as high as 25%. TDA claims that they are experiencing high numbers of rice delphacid in ratoon rice and recently, pest populations over 8,000 nymphs and adult rice delphacids per 10 sweeps were observed in a rice field in Galveston county. Approximately 60% of Texas' rice crop is ratooned and in 2018, this represented more than 100,000 acres. There are no insecticides labeled specifically for rice delphacid, and TDA says that products registered for leafhopper control in rice are not efficacious in controlling rice delphacid. On October 31, 2018, the TDA issued a crisis exemption for use of thiamethoxam on rice. The crisis exemption expired on November 9, 2018. Due to the short duration of the crisis exemption, the pest was not fully controlled and therefore, TDA submitted a quarantine request for this use pattern.
After having reviewed the submission, EPA determined that an emergency condition existed in this State, and that the criteria for approval of an emergency exemption were met. On March 3, 2019, EPA authorized a quarantine exemption under FIFRA section 18 for the use of thiamethoxam on rice for control of rice delphacid in Texas. EPA is establishing a time-limited tolerance for thiamethoxam on rice through a separate rulemaking. The emergency use of thiamethoxam in rice can potentially result in residues of clothianidin (a major metabolite of thiamethoxam) which might exceed the existing tolerance level of 0.01 ppm clothianidin in rice. Therefore, a time-limited tolerance for residues of clothianidin in rice, grain is being established. As part of its evaluation of the emergency exemption application for thiamethoxam, EPA assessed the potential risks presented by residues of clothianidin in or on rice, since clothianidin is a major metabolite of thiamethoxam. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent, non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although this time-limited tolerance expires on December 31, 2024, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on rice after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe. This time-limited tolerance increase is being approved to
Consistent with the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of, and to make a determination on, aggregate exposure expected as a result of this emergency exemption request for thiamethoxam, and the time-limited tolerances for residues of clothianidin on rice, grain at 0.5 ppm. EPA's assessment of exposures and risks associated with establishing time-limited tolerances follows.
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for clothianidin used for human risk assessment is discussed in Unit III.B. of the final rule published in the
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Based on the Pesticides in Water Calculator and Tier 1 Rice Model, the estimated drinking water concentrations (EDWCs) of clothianidin for acute exposures are estimated to be 67 parts per billion (ppb) for surface water and 180 ppb for ground water. For chronic exposures for non-cancer assessments are estimated to be 67 ppb for surface water and 139 ppb for ground water. This is based on use of clothianidin as a pesticide active ingredient and does not include clothianidin as a thiamethoxam metabolite, because when thiamethoxam is applied to crops, the clothianidin metabolite is not a major residue in drinking water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 180 ppb was used to assess the contribution to drinking water.
For chronic dietary risk assessment, the water concentration value of 139 ppb was used to assess the contribution to drinking water.
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Clothianidin is currently registered for the following uses that could result in residential exposures: Turf, ornamental plants and indoor surfaces. EPA assessed residential exposure using the following assumptions: Short-term handler (adults) and post-application exposures (adults and children) may occur in accordance with existing uses.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at:
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EPA has not found clothianidin to share a common mechanism of toxicity with any other substances, and clothianidin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that clothianidin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
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i. The toxicity database for clothianidin is complete, and includes developmental neurotoxicity, adult immunotoxicity and developmental immunotoxicity studies.
ii. The degree of concern for the quantitative susceptibility observed in the clothianidin two-generation reproduction and DNT studies is low based on the clear NOAELs for the offspring effects and the selection of regulatory doses that are protective of those effects.
iii. The rat is the most sensitive species tested, and the NOAEL and LOAEL selected from the two-generation reproduction study in rats are protective of effects observed in other species throughout the toxicology database.
iv. There are no residual uncertainties for pre- and/or post-natal toxicity.
v. The Agency is regulating the use of clothianidin based upon the most sensitive offspring effects observed in the reproduction toxicity study, and therefore the risk assessment is protective of these and other effects that occurred at higher doses.
vi. The exposure databases (dietary food, drinking water, and residential) are complete.
vii. The risk assessment for each potential exposure scenario includes all metabolites and/or degradates of concern and does not underestimate potential exposure and risk for infants or children. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to clothianidin in drinking water. EPA used similarly conservative assumptions to assess post application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by clothianidin.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Clothianidin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to clothianidin.
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 390 for adults and 150 for children. Because EPA's level of concern for clothianidin is an MOE of 100 or below, these MOEs are not of concern.
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An adequate method using liquid solvent extraction, solvent and solid-phase extraction clean-up, and high-performance liquid chromatography (HPLC) Method AG-675, is available to enforce the tolerances.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The time-limited tolerance of 0.5 ppm in or on rice, grain is consistent with the existing Codex MRL of 0.5 ppm. EPA is recommending that the tolerance level of 0.4 ppm suggested by the OECD Calculation Procedures be raised to 0.5 ppm to harmonize with the Codex MRL. The Agency notes that the compliance residue definitions for the US, Canada, and Codex are harmonized; all specify only clothianidin.
Therefore, a time-limited tolerance is established for residues of clothianidin, (
This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). 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). 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 in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances 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
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.
Fish and Wildlife Service, Interior.
Notice of findings.
We, the U.S. Fish and Wildlife Service (Service), announce findings that 12 species are not warranted for listing as endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). After a thorough review of the best available scientific and commercial information, we find that it is not warranted at this time to list the Berry Cave salamander, cobblestone tiger beetle, Florida clamshell orchid, longhead darter, Ocala vetch, Panamint alligator lizard, Peaks of Otter salamander, redlips darter, Scott riffle beetle, southern hognose snake, yellow anise tree, and yellow-cedar. However, we ask the public to submit to us at any time any new information relevant to the status of any of the species mentioned above or their habitats.
The findings in this document were made on October 7, 2019.
Detailed descriptions of the basis for each of these findings are available on the internet at
Supporting information used to prepare these findings is available for public inspection, by appointment, during normal business hours, by contacting the appropriate person, as specified under
If you use a telecommunications device for the deaf (TDD), please call the Federal Relay Service at 800-877-8339.
Under section 4(b)(3)(B) of the Act (16 U.S.C. 1531
Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations at part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Lists. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a threatened species because of any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In considering whether a species may meet the definition of an endangered species or a threatened species because of any of the five factors, we must look beyond the mere exposure of the species to the stressor to determine whether the species responds to the stressor in a way that causes actual impacts to the species. If there is exposure to a stressor, but no response, or only a positive response, that stressor does not cause a species to meet the definition of an endangered species or a threatened species. If there is exposure and the species responds negatively, we determine whether that stressor drives or contributes to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species. The mere identification of stressors that could affect a species negatively is not sufficient to compel a finding that listing is or remains warranted. For a species to be listed or remain listed, we require evidence that these stressors are operative threats to the species and its habitat, either singly or in combination, to the point that the species meets the definition of an endangered or a threatened species under the Act.
In conducting our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the Berry Cave salamander (
The species assessments for the Berry Cave salamander, cobblestone tiger beetle, Florida clamshell orchid, longhead darter, Ocala vetch, Panamint alligator lizard, Peaks of Otter salamander, redlips darter, Scott riffle beetle, southern hognose snake, yellow anise tree, and yellow-cedar contain more detailed biological information, a thorough analysis of the listing factors, and an explanation of why we determined that these species do not meet the definition of an endangered species or a threatened species. This supporting information can be found on the internet at
On January 22, 2003, we received a petition from Dr. John Nolt requesting that the Berry Cave salamander be listed as an endangered species under the Act. On March 18, 2010, we published a 90-day finding in the
The Berry Cave salamander is a member of the Tennessee cave salamander species complex. It is differentiated from other species by a distinctive dark spot or stripe on the anterior portion of the throat, a wider head, and flatter snout. The species is endemic to eastern Tennessee, where it was known historically from ten caves. The current range of the species is similar to its historical range, and recent surveys indicate the species currently occurs in nine caves.
Water quality and availability are fundamental to the survival of the Berry Cave salamander. The underground streams inhabited by Berry Cave salamanders are dynamic and vary in depth and velocity depending on local precipitation. The Berry Cave salamander is typically found resting on the bottom of pools and underneath cover, such as rocks, logs, and other organic debris either in low-velocity pools with mud substrate or in pools with gravel or cobble substrate.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Berry Cave salamander, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include decreased substrate and water quality. Since our previous 12-month findings, additional surveys and analysis of those data have provided a better understanding of the Berry Cave salamander. The surveys provided new information regarding the species' range, population dynamics and life history. We incorporated this new information into our status review and found that despite impacts from stressors, the species continues to persist across most of its historical range and has been found in additional caves outside its known historical range. Although we predict some continued impacts from these stressors in the foreseeable future, we anticipate the species will remain viable with resilient populations distributed within its representative physiographic province.
Therefore, we find that listing the Berry Cave salamander as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Berry Cave salamander species assessment and other supporting documents (see
On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the cobblestone tiger beetle, as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the
Cobblestone tiger beetles are approximately 11 to 14 millimeters (0.4 to 0.6 inches) in length and have large mandibles used to capture prey. Their hardened forewings are dull olive with a cream-colored border. When the forewings are spread, their bright red-orange abdomens are exposed.
The species occurs in several States throughout the eastern United States and into New Brunswick, Canada, and lives in riverine or shoreline habitats with cobble substrates. While there is no overall population estimate of the cobblestone tiger beetle, the species likely functions within a metapopulation structure. Its cobble bar habitat is found in hydrological regimes that undergo periods of intense scouring or flooding that create, maintain, and occasionally destroy the habitat. Vegetation is also an important component of the beetle's habitat, although plant species composition, structure, and density parameters will vary throughout the species' range.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the cobblestone tiger beetle, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include those related to changes in the natural hydrological regime and the effects of climate change, including increased temperatures, flooding, and storms. Our review indicates that despite these stressors, the continued persistence of occupied areas across the species' range provides sufficient resiliency, redundancy, and representation to sustain the species beyond the near term. Despite some reduction in its range, there is currently representation across the majority of the species' historical range. Where extant, the species has sufficient resiliency and redundancy to withstand environmental or demographic stochastic events as well as catastrophic events. Therefore, the risk of extinction is currently extremely low. In the future, the species is expected to retain its resiliency, redundancy, and representation to a sufficient degree such that the species will not be in danger of extinction in the foreseeable future.
Therefore, we find that listing the cobblestone tiger beetle as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the cobblestone tiger beetle species assessment and other supporting documents (see
On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the Florida clamshell orchid, as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the
The Florida clamshell orchid is a showy, flowering plant endemic to southern Florida. The species grows with the presence of a symbiotic fungus attached to tree limbs or snags. The orchid is found high in the tree canopy of a variety of south Florida habitat
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Florida clamshell orchid, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include habitat modification and destruction due to sea level rise, saltwater intrusion, and increasing hurricane storm surge.
Despite these past and ongoing stressors, the Florida clamshell orchid remains extant in 15 of its 18 historical populations, which provides redundancy for the species. In addition, these populations are highly resilient because they exist in favorable habitat conditions with host trees and adequate hydrology and moisture regimes. In addition, all populations (together extending approximately 809,000 hectares (2,000,000 acres)) are on public lands managed for conservation. Among numerous conservation efforts, the species is protected by the State of Florida under the Regulated Plant Index (which defines the categories of regulated plants in the state and lists the species in each category) and is the subject of successful propagation and reintroduction programs on the Florida Panther National Wildlife Refuge. In the foreseeable future, we anticipate sea level rise will reduce the resiliency of some populations and overall species redundancy; however, we predict inland populations to remain protected and resilient such that the species will not become endangered within the foreseeable future.
Therefore, we find that listing the Florida clamshell orchid as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Florida clamshell orchid species assessment and other supporting documents (see
On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the longhead darter, as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the
The longhead darter is a small freshwater fish, approximately 10 centimeters (4 inches) long, with a sharply pointed snout; brown, tan, olive, or straw-colored back and upper sides; a white or light yellow lower and underside; and a black, blotchy lateral line. The longhead darter is found in six states throughout the eastern United States. Rivers within the longhead darter's range are ecologically diverse. River gradients range from low to high, with variable substrate (
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the longhead darter, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include sedimentation, poor water quality, habitat fragmentation, and, to a lesser extent, effects of invasive species and effects of climate change, including increases in temperature, extreme precipitation, and drought. Despite these stressors and some level of decline in abundance, including the loss of at least three of its historical populations, the species continues to maintain resilient populations over time. Although we predict some continued impacts from these stressors in the foreseeable future, we anticipate this species will continue to have resilient populations that are distributed widely throughout its range.
Therefore, we find that listing the longhead darter as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the longhead darter species assessment and other supporting documents (see
On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the Ocala vetch, as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the
The Ocala vetch is an herbaceous, relatively robust perennial vine found in open marshy, shoreline habitats in Marion, Lake, and Volusia Counties in Florida. Four of the five areas where Ocala vetch occur are along Alexander Springs, Juniper Creek, Salt Springs, and Silver Glen Springs within Ocala National Forest, and the fifth area is along Lake Dexter within Lake Woodruff National Wildlife Refuge. The Ocala vetch has nearly hairless stems attaining lengths of 1.2 meters (3.9 feet) or more. The flowers are 10 to 12 millimeters (0.4 to 0.5 inches) long, with lavender blue to white petals and a faintly striped banner petal. As with most plants, the Ocala vetch requires sunlight, carbon dioxide, water, soil, and essential nutrients to survive and grow. It is a dicot flowering plant that requires insect pollination for seed production. Adult plants produce flowers from March to June.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Ocala vetch, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressor we identified in our analysis was sea level rise, which will likely have an impact on the future condition of the species. Historically, the species was known
Therefore, we find that listing the Ocala vetch as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Ocala vetch species assessment and other supporting documents (see
On July 11, 2012, we received a petition from the Center for Biological Diversity to list 53 species of reptiles and amphibians, including the Panamint alligator lizard, as endangered or threatened species under the Act. On September 18, 2015, we published a 90-day finding in the
The Panamint alligator lizard is a secretive species known only from a remote region in eastern California. Individuals can grow to be about 15 centimeters (6 inches) long from snout to vent, but have a tail that may extend up to twice that length. Dorsally, they range in color from beige to brown and have seven to eight darker cross bands; ventrally, they are whitish with gray splotches. The basic life cycle of the Panamint alligator lizard is typical of most oviparous (egg-laying) lizards: Eggs hatch to become nonbreeding juveniles, which then grow and mature to become breeding adults. Specifically, Panamint alligator lizards are known from six desert mountain ranges in Mono and Inyo Counties, California (roughly north to south): White, Inyo, Nelson, Coso, Argus, and Panamint. There is little information to suggest the species' historical range differs from its current range. Panamint alligator lizards are typically associated with the region's few riparian areas, but the species also occurs in the more plentiful talus (sloping) areas.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Panamint alligator lizard, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include reduced surface water, degraded riparian vegetation, impacts to refugia, crushing and other direct mortality, collecting, disease, predation, barriers to dispersal, small population effects, and the effects of climate change, including drought. While these stressors are likely impacting individuals, we do not have evidence of population-level impacts. In addition, while stressors caused by effects of climate change could occur over time, we do not expect them to be severe enough to impact the overall viability of the species. Lastly, ongoing Federal land management actions and existing regulatory mechanisms, which protect lizards and their habitat in at least 98.7 percent of the species' range, will continue to ameliorate threats into the foreseeable future.
Therefore, we find that listing the Panamint alligator lizard as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Panamint alligator lizard species assessment and other supporting documents (see
On July 11, 2012, we received a petition from the Center for Biological Diversity to list 53 species of reptiles and amphibians, including the Peaks of Otter salamander, as endangered or threatened species under the Act. On September 18, 2015, we published a 90-day finding in the
The Peaks of Otter salamander is a narrow-ranging, endemic, terrestrial salamander. It occurs in approximately 116 square kilometers (45 square miles) of mature forested habitats of the mountaintops and high-elevation areas between Flat Top Mountain and White Oak Ridge in Bedford and Botetourt Counties, Virginia. The species' habitat is almost entirely restricted to the Glenwood Ranger District of the George Washington and Jefferson National Forests and primarily between mile 77 and 84 of the National Park Service's Blue Ridge Parkway, with some limited occurrences on adjacent private lands. While there is no overall population estimate for the Peaks of Otter salamander, the best available information indicates the species historically and currently functions as a single population; we subdivided this population into 20 analytical units to assess the species' current and future condition.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Peak of Otter salamander, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include activities (primarily timber harvest) that disrupt or remove the forest canopy, understory vegetation, and cover objects; competition with red-backed salamanders; and changing climate patterns of increasing temperatures and changes in precipitation patterns. Except for one of its 20 analytical units, the Peaks of Otter salamander continues to occupy most of its known historical range. The species is well distributed throughout its range, across a variety of elevations and habitat types, and it appears that there are some local adaptations, which may be important to the species' ability to adapt to future changes in environmental conditions. The species currently has good representation, redundancy, and resiliency.
In the foreseeable future, a number of potential threats could negatively affect demographics or habitat, including habitat degradation or loss, competition, hybridization, and disease, all of which may be exacerbated by effects of changing climatic conditions. Our future predictions of resiliency indicate that the Peaks of Otter salamander is not likely to be significantly affected by the modelled threats and its analytical units are not particularly vulnerable to extirpation from stochastic events. Because conservation measures that protect the species and its habitat are currently being implemented and have been shown to be effective, it is likely
Therefore, we find that listing the Peaks of Otter salamander as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Peaks of Otter salamander species assessment and other supporting documents (see
On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the ashy darter (
The redlips darter is a small (about 11 centimeters (4.5 inches) long), colorful freshwater fish. This species is endemic to the Cumberland River drainage and occurs in four of its tributary systems in Kentucky and Tennessee: The Obey River, South Fork Cumberland River, Buck Creek, and Rockcastle River. The redlips darter is found on or near the stream bottom, in clear pools or eddies of medium to large upland streams, with silt-free sand or gravel substrates interspersed with large cobble, boulders, and, often, stands of water willow. Males and females become sexually mature between 1 and 2 years of age. Spawning occurs annually, starting as early as January and ending in early April, with peak activity in mid-March. Aquatic macroinvertebrates, including midge larvae, burrowing mayfly larvae, and worms are the primary prey items of the redlips darter. The maximum reported age of individuals is 52 months.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the redlips darter, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include water quality degradation from siltation and contaminants, and impoundments. In spite of water quality threats that have acted on the species historically and impoundments that have and will continue to limit connectivity between its populations, the redlips darter has expanded its range in each of the four river or stream systems it inhabits. In two of these systems, populations are composed of tens of thousands of individuals and have high resilience to environmental perturbations. Only one population currently has low resilience, although it is improving. Based on these population attributes, we found the species is not in danger of extinction currently or in the foreseeable future.
Therefore, we find that listing the redlips darter as endangered or threatened is not warranted. A detailed discussion of the basis for this finding can be found in the redlips darter species assessment form and other supporting documents (see
On September 20, 2013, we received a petition from WildEarth Guardians, requesting that the Scott riffle beetle be listed as an endangered or threatened species under the Act. On January 12, 2016, we published a 90-day finding in the
The Scott riffle beetle is a small, dark brown to black, aquatic beetle, 2.62 to 2.90 millimeters (0.10 to 0.11 inches) in length. The Scott riffle beetle occurs in only one known historical location at Historic Lake Scott State Park in Kansas. The beetle relies on the spring where it lives for consistent groundwater discharge; relatively shallow, unpolluted, oxygenated water; coarse substrate, such as medium sized rocks or broken concrete; an abundance of aquatic macrophytes, algae, and periphyton; and the availability of adjacent terrestrial habitat.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Scott riffle beetle, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include decreased groundwater flow related to regional water usage (which is also affected by drought due to climate change), water contamination, terrestrial invasive plant species, and loss of spring habitat. Our review found that, currently, the Scott riffle beetle has sufficient resiliency to withstand stochastic events. Also, as far as we know given past and recent survey efforts, there has been no known reduction in the species' redundancy or representation from historical conditions. The species and spring habitat itself are well protected from the effects of potential stochastic and catastrophic events because the spring has unique characteristics including its topographic location, elevation, geographic location within the aquifer, and direction of groundwater flow, which provide a high level of resilience to the biggest concern for the species: Diminished spring discharge and flow. In addition, the park surrounding the species and spring habitat are managed for their conservation by the State. Thus, the key habitat features the beetle relies on are currently present and will likely continue to be present in the foreseeable future.
Therefore, we find that listing the Scott riffle beetle as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the Scott riffle beetle species assessment and other supporting documents (see
On July 11, 2012, we received a petition from the Center for Biological Diversity to list 53 species of reptiles and amphibians, including the southern hognose snake, as endangered or threatened species under the Act. On July 1, 2015, we published a 90-day finding in the
The southern hognose snake is the smallest of the hognose snakes and is associated with xeric (dry) longleaf pine savannah, flatwoods, and sandhills from southeastern North Carolina, South Carolina, Georgia, and Florida. The species occupies upland habitat with well-drained, sandy soils, characterized by pine-dominated or pine-oak woodland where the canopy is open with a grassy understory.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the southern hognose snake, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressor affecting the species' biological status is habitat loss due to fire suppression, timber harvesting, sea level rise, conversion of land to agriculture, and urbanization. We found that the species' resilience may be reduced into the future, primarily due to loss of high quality and quantity habitat. However, populations persist across much of the species' historical range and 70 percent are likely to remain on the landscape, demonstrating a fairly high level of resilience. In addition, the species has sufficient redundancy and representation with more than two populations in six of its nine representative units.
In the future, while the species is expected to decline and some populations are likely to become extirpated, the species is expected to retain viability with resilient populations across much of its current range. Despite loss of redundancy and representation across its current range, representation will remain relatively high with seven of nine representative units remaining occupied with multiple populations. Redundancy and representation will likely decline from current conditions; however, the southern hognose snake is expected to remain viable into the foreseeable future.
Therefore, we find that listing the southern hognose snake as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the southern hognose snake species assessment and other supporting documents (see
On April 20, 2010, we received a petition from the Center for Biological Diversity, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy to list 404 aquatic, riparian, and wetland species, including the yellow anise tree, as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding in the
The yellow anise tree is a large, aromatic, perennial, evergreen shrub or a small tree that can reach up to 6 meters (20 feet) in height. It is a facultative wetland species found in spring-fed wetlands, seepage slopes or seepage streams, basin swamps, baygalls, bottomland forests, and hydric hammocks, from which they may extend to mesic hammocks, xeric hammocks, and wet or bottom flatwoods. The species is endemic to eastern Florida and occurs in three metapopulations.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the yellow anise tree, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include habitat destruction, water use, over-harvest, and the effects of climate change, including increased temperatures, changes in precipitation patterns, increased hurricanes and storms, and sea level rise. Currently, there is little evidence that these stressors are limiting the growth and reproduction of the species, and populations have maintained moderate to high resiliency. In addition, the life history and adaptive capacity of the species allows it to persist during times of drought and wet conditions, as well as during hurricane and storm events. Although we project that changes in climate patterns and habitat destruction due to development will impact yellow anise tree populations over the next 50 years, we predict that these impacts will be minimal. Lastly, we anticipate the species will continue to maintain moderate to high resiliency populations that are distributed across the historical range of the species.
Therefore, we find that listing the yellow anise tree as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the yellow anise tree species assessment and other supporting documents (see
On June 24, 2014, we received a petition from the Center for Biological Diversity, The Boat Company, Greater Southeast Alaska Conservation Community, and Greenpeace to list yellow-cedar as an endangered or threatened species under the Act. On April 10, 2015, we published a 90-day finding in the
Yellow-cedar is a slow growing tree that can live 500 to 700 years with individuals documented up to 1,600 years old. Yellow-cedar has a moderately broad geographic range, extending from southern Alaska to northern California, and occupies a wide variety of ecological niches. It reaches its largest size on well-drained soils but can employ a strategy of slow, shrub-like growth on the fringes of bogs and other poorly drained soils where nutrient availability is low. Yellow-cedar reproduces sexually through seed and asexually through vegetative layering (rooting of branches that grow into independent clones), but regeneration through layering is more common.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the yellow-cedar, and we evaluated all relevant factors under the five listing factors, including any regulatory mechanisms and conservation measures addressing these stressors. The primary stressors affecting the species' biological status include the effects of climate change (including changes in temperature and precipitation patterns), timber harvest, fire, and herbivory. We found that yellow-cedar is experiencing a decline
Therefore, we find that listing the yellow-cedar as an endangered species or threatened species under the Act is not warranted. A detailed discussion of the basis for this finding can be found in the yellow-cedar species assessment and other supporting documents (see
We request that you submit any new information concerning the taxonomy of, biology of, ecology of, status of, or stressors to the Berry Cave salamander, cobblestone tiger beetle, Florida clamshell orchid, longhead darter, Ocala vetch, Panamint alligator lizard, Peaks of Otter salamander, redlips darter, Scott riffle beetle, southern hognose snake, yellow anise tree, and yellow-cedar to the appropriate person, as specified under
Lists of the references cited in the petition findings are available on the internet at
The primary authors of this document are the staff members of the Species Assessment Team, Ecological Services Program.
The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels less than 50 feet length overall (LOA) using hook-and-line gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2019 Pacific cod total allowable catch apportioned to catcher vessels less than 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), October 3, 2019, through 2400 hours, A.l.t., December 31, 2019.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.
The 2019 Pacific cod total allowable catch (TAC) apportioned to catcher vessels less than 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA is 831 metric tons (mt), as established by the final 2019 and 2020 harvest specifications for groundfish of the GOA (84 FR 9416, March 14, 2019).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2019 Pacific cod TAC apportioned to catcher vessels less than 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 821 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. 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 cod by catcher vessels less than 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA. 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 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 directed fishing closure of Pacific cod by catcher vessels less than 50 feet LOA using hook-and-line gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 1, 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
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is exchanging unused yellowfin sole Community Development Quota (CDQ) for rock sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2019 total allowable catch of flathead sole and yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested.
Effective October 7, 2019 through December 31, 2019.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) 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 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,552 metric tons (mt), 5,440 mt, and 16,078 mt as established by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019) and flatfish exchange (84 FR 49067, September 18, 2019). The 2019 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,577 mt, 7,283 mt, and 12,084 mt as established by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019) and flatfish exchange (84 FR 49067, September 18, 2019).
The Aleutian Pribilof Island Community Development Association has requested that NMFS exchange 400 mt of rock sole CDQ reserves for 50 mt of flathead sole CDQ ABC reserves and 350 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 400 mt of rock sole CDQ reserves for 50 mt of flathead sole CDQ ABC reserves and 350 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019) and revised in flatfish exchanges (84 FR 49067, September 18, 2019), are further revised as follows:
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 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 flatfish exchange by the Aleutian Pribilof Island Community Development Association in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 24, 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
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend the Class E airspace extending upward from 700 feet above the surface at Charles Cole Memorial Hospital Heliport, Coudersport, PA, and revoke the Class E airspace extending upward from 700 feet above the surface at Cherry Springs Airport, Galeton, PA. The FAA is proposing this action as the result of the closure of the Cherry Spring Airport. The geographic coordinates of Charles Cole Memorial Hospital Heliport would also be updated to coincide with the FAA's aeronautical database. Airspace redesign is necessary for the safety and management of instrument flight rules (IFR) operations at Charles Cole Memorial Hospital Heliport.
Comments must be received on or before November 21, 2019.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2019-0757; Airspace Docket No. 19-AEA-13, at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11D, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Charles Cole Memorial Hospital Heliport, Coudersport, PA, and revoke the Class E airspace extending upward from 700 feet above the surface at Cherry Springs Airport, Galeton, PA, due to the closure of Cherry Springs Airport and to support IFR operations at these Charles Cole Memorial Hospital Heliport.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2019-0757/Airspace Docket No. 19-AEA-13.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order 7400.11D, Airspace Designations and Reporting Points, dated August 8, 2019, and effective September 15, 2019. FAA Order 7400.11D is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:
Amending the Class E airspace extending upward from 700 feet above the surface to within a 6.3-mile radius (increased from an 6-mile radius) of Charles Cole Memorial Hospital Heliport, Coudersport, PA; removing the exclusionary language from the airspace legal description as it is no longer required; and updating the geographic coordinates of Charles Cole Memorial Hospital Heliport to coincide with the FAA's aeronautical database;
And removing the Class E airspace extending upward from 700 feet above the surface at Cherry Springs Airport, Galeton, PA, due to the closure of the airport.
This action is the result of an airspace review caused by the closure of the Cherry Springs Airport, Galeton, PA.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11D, dated August 8, 2019, and effective September 15, 2019, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.3-mile radius of the Charles Cole Memorial Hospital Heliport.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA, we, or Agency) is announcing the availability of another draft chapter of a multichapter guidance for industry entitled “Hazard Analysis and Risk-Based Preventive Controls for Human Food.” This multichapter draft guidance is intended to explain our current thinking on how to comply with the requirements for hazard analysis and risk-based preventive controls under our rule entitled “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food.” The newly available draft chapter is entitled “Chapter 14—Recall Plan.”
Submit either electronic or written comments on the draft guidance by February 4, 2020 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the guidance to the Office of Food Safety (HFS-300), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Jenny Scott, Center for Food Safety and Applied Nutrition (HFS-300), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2166.
The FDA Food Safety Modernization Act (FSMA) (Pub. L. 111-353) enables FDA to better protect public health by helping to ensure the safety and security of the food supply. FSMA enables FDA to focus more on preventing food safety problems rather than relying primarily on reacting to problems after they occur. FSMA recognizes the important role industry plays in ensuring the safety of the food supply, including the adoption of modern systems of preventive controls in food production.
Section 103 of FSMA amended the Federal Food, Drug, and Cosmetic Act (FD&C Act), by adding section 418 (21 U.S.C. 350g) with requirements for hazard analysis and risk-based preventive controls for establishments that are required to register as food facilities under our regulations in 21 CFR part 1, subpart H, in accordance with section 415 of the FD&C Act (21 U.S.C. 350d). We have established regulations to implement these requirements within part 117 (21 CFR part 117).
In the
This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
The multichapter draft guidance for industry is intended to explain our current thinking on how to comply with the requirements for hazard analysis and risk-based preventive controls under part 117, principally in subparts C and G. The chapter that we are announcing in this document is entitled “Chapter 14—Recall Plan.” We intend to announce the availability for public comment of additional chapters of the draft guidance as we complete them.
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 117 have been approved under OMB control number 0910-0751.
Persons with access to the internet may obtain the draft guidance at either
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing receipt of a proposed amendment to the Mississippi Abandoned Mine Land Plan (hereinafter, the Plan) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Mississippi proposes revisions to its Plan to allow its AML program to receive limited liability protection for certain non-coal reclamation projects. Mississippi intends to revise its Plan in order to meet the requirements of SMCRA and the implementing Federal regulations.
This document gives the times and locations where the Mississippi Plan and this proposed amendment to that Plan are available for your inspection, establishes the comment period during which you may submit written comments on the amendment, and describes the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4:00 p.m., CST, November 6, 2019. If requested, we will hold a public hearing on the amendment on November 1, 2019. We will accept requests to speak at a hearing until 4:00 p.m., CST on October 22, 2019.
You may submit comments, identified by SATS No. MS-029-FOR, by any of the following methods:
•
•
•
Richard O'Dell, Director, Birmingham Field Office, Office of Surface Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215, Homewood, Alabama 35209, Telephone: (205) 290-7282, Email:
In addition, you may review a copy of the amendment during regular business hours at the following location: Mississippi Office of Geology, Department of Environmental Quality, 700 N. State Street, Jackson, Mississippi 39202, Telephone: (601) 961-5519.
Richard O'Dell, Director, Birmingham Field Office. Telephone: (205) 290-7282, Email:
The Abandoned Mine Land Reclamation Program was established by Title IV of the Act (30 U.S.C. 1201
By letter dated August 27, 2019 (Administrative Record No. MS-0428-01), Mississippi sent us an amendment to its Plan under SMCRA (30 U.S.C. 1201
Effective March 9, 2015, OSMRE published a final rule allowing certified AML programs to receive limited liability protection for certain non-coal reclamation projects (80 FR 6435). In the March 6, 2019, letter (Administrative Record No. MS-0428), we notified Mississippi that the state must update its Plan in order to meet the requirements of SMCRA and the implementing Federal regulations.
Mississippi proposes to amend its Plan to meet the requirements to receive limited liability protection for certain non-coal reclamation projects, and to meet the requirements of SMCRA and the implementing Federal regulations.
We are seeking your comments on whether the amendment satisfies the applicable plan approval criteria of 30 CFR 884.14 and 884.15. If we approve the amendment, it will become part of the state Plan.
If you submit written comments, they should be specific, confined to issues pertinent to the proposed Plan, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final plan will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.
We cannot ensure that comments received after the close of the comment period (see
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance dated October 12, 1993, the approval of state plan amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
When a State submits a Plan amendment to OSMRE for review, our regulations at 30 CFR 884.14 and 884.15, and agency policy require public notification and an opportunity for public comment. We accomplish this by publishing a notice in the
Intergovernmental relations, Surface mining, Underground mining.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to modify the operating schedule that governs the Amtrak Portal Bridge across the Hackensack River, mile 5.0, at Little Snake Hill, New Jersey. The bridge owner, National Railroad Passenger Corporation (Amtrak), submitted a request to require a greater advance notice for bridge openings, to increase the time periods the bridge remains in the closed position, and reduce bridge openings during the morning and evening commuter rush hours. It is expected that this change to the regulations will better serve the needs of the community while continuing to meet the reasonable needs of navigation.
Comments and related material must reach the Coast Guard on or before December 6, 2019.
You may submit comments identified by docket number USCG-2019-0086 using Federal e-Rulemaking Portal at
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Judy Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 514-4336, email
The Amtrak Portal Bridge at mile 5.0, across the Hackensack River, at Little Snake Hill, New Jersey, has a vertical clearance of 23 feet at mean high water and 28 feet at mean low water. Horizontal clearance is approximately 99 feet. The waterway users include recreational and commercial vessels, including tugboat/barge combinations.
The existing drawbridge operating regulations are listed at 33 CFR 117.723(e).
In December of 2018, the owner of the bridge, National Railroad Passenger Corporation, requested a change to the drawbridge operation regulations because the volume of train traffic across the bridge during the peak commuting hours makes bridge
The Coast Guard reached out to the maritime stakeholders with the requested change proposed by the bridge owner. A stakeholder provided a general objection to the change in the original request in December 2018, prior to the test deviation's publication.
The Coast Guard published a test deviation with request for comment that changed the original request, Hackensack River, New Jersey, in the
As a result of comments received from the test deviation and the bridge logs showing only three requests to open from March 14, 2019 through July 12, 2019, the Coast Guard proposes to permanently change the drawbridge operation regulations at 33 CFR 117.723(e), that would allow Amtrak Portal Bridge at mile 5.0, across the Hackensack River, at Little Snake Hill, New Jersey, to operate as follows:
The draw need not open for the passage of vessel traffic from 5 a.m. to 10 a.m. and from 3 p.m. to 8 p.m. Additional bridge openings shall be provided for tide restricted commercial vessels between 7 a.m. and 8 a.m. and between 5 p.m. and 6 p.m., if at least a two-hour advance notice is given by calling the number posted at the bridge. At all other times the bridge shall open on signal if at least two-hour advance notice is given. It is the Coast Guard's opinion that this rule meets the reasonable needs of marine and rail traffic.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed the NPRM and pursuant to OMB guidance, it is exempt from the requirements of Executive Order 13771.
The Coast Guard believes this rule is not a significant regulatory action. The bridge will still open for all vessel traffic after a two hour advance notice is given, except during the morning and afternoon commuter rush hour periods, where a one hour time period will allow passage of commercial vessels. The vertical clearance under the bridge in the closed position is relatively high enough to accommodate most vessel traffic during the time periods the draw is closed during the morning and evening commuter rush hours. We believe that this proposed change to the drawbridge operation regulations at 33 CFR 117.723(e) will meet the reasonable needs of navigation.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
The bridge provides 23 feet of vertical clearance at mean high water that should accommodate all the present vessel traffic except deep draft vessels. The bridge will continue to open on signal for any vessel provided at least 2-hour advance notice is given. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally, this action is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal e-Rulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; DHS Delegation No. 0170.1.
(e) The draw of the Amtrak Portal Bridge, mile 5.0, at Little Snake Hill, New Jersey, need not open for the passage of vessel traffic from 5 a.m. to 10 a.m. and from 3 p.m. to 8 p.m. Additional bridge openings shall be provided for tide restricted commercial vessels between 7 a.m. and 8 a.m. and between 5 p.m. and 6 p.m., if at least a two-hour advance notice is given by calling the number posted at the bridge. At all other times the bridge shall open on signal if at least two-hour advance notice is given.
Coast Guard, DHS.
Notice of inquiry; request for comments.
We are requesting your comments on a Letter of Intent and Preliminary Waterway Suitability Assessment we received from Sunoco Partners Marketing & Terminals to expand their existing liquefied hazardous gas (LHG) operations by increasing the number of liquefied propane and butane ship visits from approximately 120 per year to 432 ship visits per year. Additionally, they intend to expand operations to include 120 liquefied ethane ship visits per year. The Coast Guard is notifying the public of this proposed increase in LHG marine traffic on the Sabine-Neches Waterway and is soliciting comments relevant to the Coast Guard's preparation of a Letter of Recommendation for issuance to the federal, state, or local agency with jurisdiction over the proposed facility.
Your comments and related material must reach the Coast Guard on or before November 6, 2019.
You may submit comments identified by docket number USCG-2019-0615 using the Federal portal at
If you have questions about this notice of inquiry, call or email Mr. Scott K. Whalen, Vessel Traffic Service Director, Marine Safety Unit Port Arthur, U.S. Coast Guard; telephone 409-719-5086, email
Under 33 CFR 127.007(a), an owner or operator planning to build a new facility handling liquefied hazardous gas (LHG), or an owner or operator planning new construction to expand or modify marine terminal operations in an existing facility handling LHG, where the construction, expansion, or modification would result in an increase in the size and/or frequency of LHG marine traffic on the waterway associated with the proposed facility or modification to an existing facility, must submit a Letter of Intent (LOI) to the Captain of the Port of the zone in which the facility is or will be located. Under 33 CFR 127.007(e), an owner or operator planning such new construction or expansion of an existing facility must also file or update a Waterway Suitability Assessment (WSA) that addresses the proposed increase in LHG marine traffic in the associated waterway.
Under 33 CFR 127.009, after receiving an LOI, the Captain of the Port issues a Letter of Recommendation (LOR) as to the suitability of the waterway for LHG marine traffic to the appropriate jurisdictional authorities. The LOR is based on a series of factors listed in 33 CFR 127.009 that relate to the physical nature of the affected waterway and issues of safety and security associated with LHG marine traffic on the affected waterway.
On March 11, 2013, Sunoco Partners Marketing and Terminals, located in Nederland, TX, submitted an LOI and Preliminary WSA indicating the company's proposed plans to expand operations of an existing dock to handle liquefied hazardous gas, specifically propane and butane, with an estimated 132 vessels calling on the facility each year. On July 14, 2019, the COTP received a new LOI and an Addendum to the original WSA. The purpose of this notice is to solicit public comments on the proposed increase in LNG marine traffic on the Sabine-Neches Waterway. The Coast Guard believes that public input may be useful to the Captain of the Port Marine Safety Unit Port Arthur (COTP) with respect to validating the information provided in Sunoco's LOI and WSA Addendum and the development of the Coast Guard's LOR. A brief summary of Sunoco's proposal is available in the docket where indicated under
On January 24, 2011, the Coast Guard published Navigation and Vessel Inspection Circular (NVIC) 01-2011, titled “Guidance Related to Waterfront Liquefied Natural Gas (LNG) Facilities.” NVIC 01-2011 provides guidance for owners and operators seeking approval to build and operate LNG facilities. The Coast Guard will refer to NVIC 01-2011 for process information and guidance in evaluating Sunoco's WSA Addendum. NVIC 01-2011 is available in the docket where indicated under
We encourage you to submit comments through the Federal portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this notice of inquiry as being available in the docket, and all public comments, will be in our online docket at
This document is issued under authority of 5 U.S.C. 552 (a).
Postal Service
Proposed rule.
The Postal Service proposes to amend its Postage Evidencing Systems regulations. These changes would put the financial responsibility for returned checks and returned Automatic Clearinghouse (ACH) debit payments on the applicable resetting company (RC) and PC Postage provider. These responsibilities would include collecting a fee from the customer for each returned check and ACH debit payment of $30, as may be adjusted from time to time, and remitting the amount of the returned check or ACH debit payment, as applicable, plus the fee to the Postal Service within 10 calendar days of the date of the invoice. These changes would also update the SSAE 18 requirements and add the requirement for System and Organization Control (SOC) 2 reporting.
Comments must be received on or before November 6, 2019.
Mail or deliver written comments to: Manager, Payment Technology, 475 L'Enfant Plaza SW, Room 3500, Washington, DC 20260. Email and faxed comments are not accepted. You may inspect and photocopy all written comments, by appointment only, at USPS® Headquarters Library, 475 L'Enfant Plaza SW, 11th Floor North, Washington, DC 20260. These records are available for review on Monday through Friday, 9 a.m.-4 p.m., by calling 202-268-2904. All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.
Elizabeth M. Schafer, Treasurer,
The Postal Service proposes to amend 39 CFR part 501 to make the Resetting Company (RC) and the PC Postage provider, as applicable, financially responsible for returned checks and returned ACH debit payments, to update verbiage, and to require System and Organization Control (SOC) 2 reporting.
The amendment to Section 501.15(g) requires the Resetting Company (RC) to
The amendment to Section 501.15(i) updates Statements on Standards for Attestation Engagements (SSAE) from SSAE 16 to SSAE 18. Section 501.15(i) requires the RC to provide System and Organization Control (SOC) reports that demonstrate effective internal controls. SOC2 reports are a new requirement to support data security and privacy concerns. The American Institute of Certified Public Accountants (AICPA) created the SOC reporting framework as part of the SSAE 18. The SOC framework covers organizational controls over services with the intent to: (1) Address needs and reporting requirements by service organizations, and (2) Provide valuable information, including third party risk assessment. Section 501.15(j) is being changed to replace the term “provider” with “RC” in the last sentence.
The amendment to Section 501.16(d) requires the PC Postage provider (“provider”) to reimburse the Postal Service upon request for any returned check or ACH debits for postage payments and clarifies that the provider must, upon first learning of a returned check or ACH debit, immediately lock a customer's account to prevent a meter reset until the provider receives confirmation of payment of the returned items. The shift encourages the PC Postage provider to take adequate measures to authenticate the identity of the customer and ensure that the account that is debited is authorized, and clarifies that the provider must prevent customers who have returned ACH debits from continuing to charge postage until payment is confirmed. It further requires the PC Postage Provider to charge the customer a fee of $30, as may be adjusted from time to time, for each returned check and ACH debit payment and remit the amount of the returned check or ACH debit payment, as applicable, plus the fee to the Postal Service within 10 calendar days of the invoice.
The amendment to Section 501.16(i) updates Statements on Standards for Attestation Engagements (SSAE) from SSAE 16 to SSAE 18. This requires the provider to provide System and Organization Control (SOC) reports that demonstrate effective internal controls. SOC2 reports are a new requirement to support data security and privacy concerns. The American Institute of Certified Public Accountants (AICPA) created the SOC reporting framework as part of the SSAE 18. The SOC framework covers organizational controls over services with the intent to: (1) Address needs and reporting requirements by service organizations, and (2) Provide valuable information, including third party risk assessment.
For the reasons stated in the preamble, the Postal Service proposes to amend 39 CFR chapter 501 as follows:
Administrative practice and procedure, Postal Service
5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 410, 2601, 2605; Inspector General Act of 1978, as amended (Pub. L. 95-452, as amended); 5 U.S.C. App. 3.
(g) The RC is required to reimburse the Postal Service upon request for any returned checks or ACH debits for postage payments. The RC must, upon first becoming aware of a returned check or ACH debit, immediately lock the customer's CMRS account to prevent a meter reset until the RC receives confirmation of payment for the returned item. The RC is required to charge the customer a returned item fee for returned checks or ACH debits of $30, as may be adjusted from time to time, and remit the fee plus the amount of the returned item to the Postal Service within ten (10) calendar days after the receipt of the invoice.
(i)
(j)
(d) The provider must reimburse the Postal Service upon request for any returned checks or ACH debits for postage payments. The provider must, upon first becoming aware of a returned check or ACH debit, immediately lock the customer account to prevent resetting the account until the provider receives confirmation of payment for the returned item. The provider is required to charge the customer a returned item fee for returned checks and ACH debits of $30, as may be adjusted from time to time, and remit the fee plus the amount of the returned item to the Postal Service within ten (10) calendar days after the receipt of the invoice.
(f) Security and Revenue Protection. To receive Postal Service approval to continue to operate PC Postage systems, the provider must submit to a periodic examination and provide a SOC1 Type II Report of its PC Postage system and any other applications and technology infrastructure that may have a material impact on Postal Service revenues, as determined by the Postal Service.
Additionally, provider must submit to a periodic examination and provide a SOC2 Type II Report of its meter system data security, accuracy, processing integrity and data integrity for any applications, reports, and technology infrastructure that may have a material impact on the provider's reports, which the Postal Service relies upon. The examination shall be performed by a qualified, independent audit firm and shall be conducted in accordance with the Statements on Standards for Attestation Engagements (SSAEs) No. 18, Service Organizations, developed by the American Institute of Certified Public Accountants (AICPA), as amended or superseded. Expenses associated with such examination shall be incurred by the provider. The examination shall include testing of the operating effectiveness of relevant provider internal controls (SOC1 Type II SSAE 18 Report). If the service organization uses another service organization (sub-service provider), the provider should consider the nature and materiality of the transactions processed by the sub-service organization and the contribution of the sub-service organization's processes and controls in the achievement of the Postal Service's control objectives. The control objectives to be covered by the SOC 1 Type II SSAE 18 report are subject to Postal Service review and approval, and are to be provided to the Postal Service 30 days prior to the initiation of each examination period. Resetting companies are expected to submit any request for changes to control objectives by December 31 of each year, which will be taken under consideration by the Postal Service for review and approval. The Postal Service will provide common control objectives to be covered by the SOC 1 Type II SSAE 18 by February 28 each year. As a result of the examination, the service auditor shall provide the provider and the Postal Service with an opinion on the design and operating effectiveness of the provider's internal controls related to the meter system, and any other applications and technology infrastructure considered material to the services provided to the Postal Service by the RC. SOC1 and SOC2 examinations are to be conducted on no less than an annual basis, and are to be as of and for the 12 months ended June 30 of each year (except for new contracts for which the examination period will be no less than the period from the contract date to the following June 30, unless otherwise agreed to by the Postal Service). The SOC1 and SOC2 examination reports are to be provided to the Postal Service by August 15 of each year. To the extent that internal control weaknesses are identified in a SOC 1 Type II SSAE 18 report, the Postal Service requires prompt communication and remediation of such weaknesses and will review working papers and engage in discussions about the work performed with the service auditor. The Postal Service requires that all remediation efforts (if applicable) are completed and reported by the provider to the Postal Service's fiscal year end (September 30). In addition, the provider will be responsible for performing an examination of their internal control environment related to the meter system and any other applications and technology infrastructure considered material to the services provided to the Postal Service by the provider, in particular, disclosing changes to internal controls for the period of July 1 to September 30. This examination should be documented and submitted to the Postal Service by October 14 each year. The provider will be responsible for all costs related to the examinations conducted by the service auditor and the RC.
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes procedural changes to administrative hearings under the Communications Act of 1934,
Comments are due on or before November 6, 2019 and reply comments are due on or before November 21, 2019.
You may submit comments, identified by EB Docket No. 19-214, by any of the following methods:
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• 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.
For additional information on this proceeding, contact Lisa Boehley of the Market Disputes Resolution Division, Enforcement Bureau, at
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 19-86, EB Docket No. 19-214, adopted on September 3, 2019 and released on September 6, 2019. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554, or online at
1. In the Notice of Proposed Rulemaking (
2. The procedures outlined here are designed to supplement the Commission's current administrative law judge referral process and promote more efficient resolution of hearings. If adopted, the proposals would (a) codify and expand the use of a process that would rely on written testimony and documentary evidence in lieu of live testimony and cross-examination; (b) enable Commission staff to act as a case manager that would supervise development of the written hearing record when the Commission designates itself as the presiding officer at a hearing; and (c) dispense with the preparation of an intermediate opinion whenever the record of a proceeding can be certified to the Commission for final decision. The proposed procedures would expedite the Commission's hearing processes consistent with the requirements of the Communications Act and the Administrative Procedure Act (APA) while ensuring transparency and procedural fairness.
3. Several provisions of the Communications Act require or permit the Commission to conduct an adjudicatory hearing to resolve a matter. These provisions generally do not identify particular procedures that the Commission must follow. For example,
• Section 309(e) requires the Commission, when a substantial and material fact is presented or when it is unable to make the public interest finding in section 309(a), to designate a license application for a “full hearing”;
• Section 309(k)(3) requires a section 309(e) “full hearing” when the Commission is unable to make the requisite findings to grant a broadcast station renewal request;
• Section 312(c) requires the Commission to conduct a “hearing” before revoking a station license or construction permit pursuant to section 312(a);
• Section 316(a) and (b) provide that a “hearing” may be conducted before the Commission modifies a station license or construction permit;
• Section 9(c)(3) requires a “hearing” before the Commission may revoke an instrument of authorization for failure to pay a regulatory fee if “the licensee's response [to a notice of intent to revoke] presents a substantial and material question of fact”;
• Section 204(a) authorizes the Commission to conduct a “hearing” concerning the lawfulness of a tariff;
• Sections 208 and 209 require the Commission to conduct a “hearing” to resolve a complaint that a common carrier engaged in unlawful conduct, and to award damages when appropriate;
• Section 214(b) grants a right “to be heard” to parties receiving Commission notice of a carrier request to construct, extend, acquire, operate, or discontinue service, and section 214(d) provides that the Commission may “after a full opportunity for hearing” require a carrier to provide itself with adequate facilities.
4. The Commission has applied a variety of processes in these hearings. Traditionally, the Commission has designated most disputes concerning spectrum license applicants, permittees, or licensees under sections 309 and 312 for resolution in hearings before an administrative law judge using procedures similar to the formal adjudication provisions of the APA. By rule, the administrative law judge may grant a motion for summary decision on a written record only if “there is no genuine issue as to any material fact” and “a party is otherwise entitled to summary decision.” In contrast, the Commission has traditionally resolved section 204 hearings on the lawfulness of tariffs on a written record, and hearing rights for common carriers under section 214 are comparatively limited. The Commission has also delegated authority to the Enforcement Bureau to conduct hearings on section 208 complaints, in which all issues are resolved on a written record.
5. Under certain circumstances, the Commission has taken steps to streamline its hearing processes even for spectrum licensing matters. In 1981, the Commission adopted a streamlined approach for evaluating competing initial cellular applications under section 309(e) on a written record. More recently, the Commission ruled that certain license renewal proceedings may be resolved in a written hearing proceeding administered by the Commission itself in lieu of an administrative law judge when there are no substantial issues of material fact or credibility issues. The Commission has likewise required parties to certain broadcast proceedings to submit all or a portion of their affirmative direct cases in writing where the presiding officer determines that doing so will contribute significantly to the disposition of the proceeding. The Commission also adopted expedited procedures under section 309(j)(5) permitting “employees other than [administrative law judges] to preside at the taking of written evidence.” Relatedly, the Commission has delegated authority to particular operating Bureaus to act on certain licensing and permitting applications when the relevant Bureau determines that the application raises no “substantial and material questions of fact.”
6. To further streamline the Commission's hearing processes, we propose to codify and expand the Commission's use of hearings on a written record. The Commission's hearing rules provide that “[a]ny hearing upon an application shall be a full hearing in which the applicant and all other parties in interest shall be permitted to participate.” The Commission has on numerous occasions curtailed the use of oral testimony and cross examination in particular proceedings in order to expedite the hearing process. In our experience, disputes in Commission proceedings typically involve criticisms by one party of the evidence proffered by another party or the legal significance of that evidence, not actual conflicts in testimony between two witnesses concerning outcome determinative facts. Section 208 formal complaint proceedings amply demonstrate this point. We contemplate codifying and expanding the use of a written hearing process that can be used in most adjudicative proceedings, including those conducted by an administrative law judge. In particular, we propose to authorize the presiding officer to conduct a written hearing whenever factual disputes can be adequately resolved on a written record.
7. We propose that the Commission may, in any order designating a matter for hearing (designation order), require the administrative law judge or other presiding officer to conduct a hearing on a written record. We also propose that, in the absence of such a directive in a designation order, the presiding officer may conduct the hearing on a written record on her own initiative or on motion of a party. The presiding officer should include the date for filing such a motion in the scheduling order issued following release of the designation order. We seek comment on these proposals and on whether any additional procedural safeguards are warranted in this regard. We note that our current hearing rules allow parties to take depositions, which enable parties to examine witnesses in a live setting and may render live testimony unnecessary at a hearing.
8. We propose that parties in written hearing proceedings be required to file pleadings that include all evidence and arguments that support their respective positions. Consistent with the Commission's rules on summary decision and its formal complaint rules, such written submissions must be supported by evidence in the form of sworn statements based on personal knowledge and supporting documentation. The Commission, in its designation order, or the presiding officer will adopt a schedule for sequential filing of written evidentiary submissions. Enforcement Bureau staff will continue to represent the public interest in these proceedings and will have the opportunity, along with other interested parties, to file pleadings and submit evidence. We believe these procedures will expedite the resolution of hearing proceedings while safeguarding the rights of parties to a full and fair hearing. We seek comment on these proposals.
9. We also propose to require parties to demonstrate why oral argument may be necessary in a case. In our experience, oral argument does not materially aid in the resolution of the vast majority of cases, and routinely accommodating requests for oral argument unnecessarily prolongs the resolution of hearing proceedings.
10. Selection of a Presiding Officer. Each designation order will indicate whether the Commission itself, one or more Commissioners, or an administrative law judge will serve as the presiding officer. We tentatively conclude that the selection of a presiding officer should take into consideration who would “most fairly and reasonably accommodate” “the proper dispatch of [the Commission's] business and the ends of justice” in each case. To that end, we seek comment on if there are particular types of proceedings where it is or is not appropriate, on legal or policy grounds, for the Commission itself to serve as presiding officer. For example, if a case is likely to involve primarily interpretations of law or policy determinations, would the Commission itself be best suited to administer the hearing in such a case?
11. The APA provisions governing formal hearing proceedings generally identify only the agency, one or more agency heads, or one or more administrative law judges among those who may preside at formal hearings, but no such limitation applies to informal adjudications under the APA. Similarly, although section 5(c)(1) of the Communications Act limits delegations of authority to conduct hearings to individuals identified in 5 U.S.C. 556(b)(2) (members of the agency) and (b)(3) (administrative law judges), that limitation expressly applies only to hearings subject to APA formal hearing requirements. Accordingly, although we are not proposing any rule changes in this regard, we seek comment on whether there are other officials on the Commission's staff who may serve as the presiding officer in suitable circumstances. Would directing such individuals to administer hearing proceedings expedite our hearings process by making available additional neutral qualified personnel to conduct Commission hearings? We will address any proposed rule changes on this issue in a Further Notice of Proposed Rulemaking in this proceeding.
12. We also propose to direct the Chief of the Wireline Competition Bureau to exercise certain authority previously held by the Chief of the Common Carrier Bureau, the former's predecessor bureau, under section 214 of the Act. In particular, the Commission “delegate[d] to the Chief, Common Carrier Bureau, authority to issue orders revoking a common carrier's operating authority pursuant to [s]ection 214 of the Act, and to issue orders to cease and desist such operations, in cases where the Chief Administrative Law Judge, or the Presiding Officer designated, has issued a certification order to the Commission pursuant to [s]ection 1.92(c) of our rules that the carrier has waived its opportunity for hearing under that section.” We propose to direct the Chief of the Wireline Competition Bureau to issue such orders whenever the presiding officer assigned to a hearing proceeding determines that a common carrier has waived its opportunity for hearing. We seek comment on this proposal.
13. Selection of a Case Manager. The Commission's current hearing rules provide that “[h]earings will be conducted by the Commission, by one or more commissioners, or by a law judge designated pursuant to section 11 of the [APA].” We seek comment on directing designated Commission staff to perform specific case management functions when the Commission itself serves as the presiding officer in a hearing proceeding. A case manager could issue scheduling orders, rule on discovery motions and other interlocutory matters, administer the intake of evidence, hold conferences in order to settle or simplify the issues, and certify the record for decision by the Commission at the conclusion of a hearing. Under this proposal, a case manager's responsibilities may include one or more of the duties that are typically performed by the presiding officer, but a case manager would not have authority to resolve any new or novel issues or to issue orders on the merits resolving any issue designated for hearing in a case. We tentatively conclude that this proposal would significantly expedite our hearing processes when the Commission designates itself as the presiding officer. We seek comment on this tentative conclusion and on the relevance to this proposal, if any, of the Appointments Clause to the U.S. Constitution and the Supreme Court's decision in
14. We recognize that designated staff must demonstrate sufficient training and expertise to act as a case manager. We seek comment on the minimum training and qualifications, including adjudicatory and subject matter expertise, that individuals must possess to successfully perform this role. The Administrative Conference's “best practice” pertaining to presiding officer qualifications recommends that agencies “use adjudicators—rather than agency heads, boards, or panels—to conduct hearings and provide initial decisions[.]” Should this recommendation apply to Commission staff whose eligibility to act as a case manager is under consideration? We note that various staff within the Enforcement Bureau and the Commission's Office of General Counsel have extensive adjudicatory experience, and we therefore seek comment on whether we should direct particular staff within the Enforcement Bureau or Office of General Counsel to act as a case manager in hearing proceedings. We similarly seek comment on the qualifications of staff within the Commission's other bureaus to serve in this role.
15. The case manager in a hearing should be neutral. In formal adjudications, the APA formal hearing provisions prohibit agency staff from performing both prosecutorial and decisional activities. This “separation of functions” principle shields agency decisionmakers from off-record presentations by staff who have presented evidence or argument on behalf of or against a party to a proceeding and prohibits such staff from participating in the hearing decision. The separation of functions requirement in section 409(c)(1) of the Communications Act, which applies to both formal and informal adjudications, prevents a person who has participated in the presentation of a case at a hearing or upon review from making any additional presentation respecting such case to the presiding officer or to any authority within the Commission performing a review function, absent notice and opportunity for all parties to participate. The Administrative Conference recommends that agencies require internal separation of decisional and adversarial personnel in adjudications that are not subject to formal APA hearing requirements. In this context, an “adversary” refers to a staff member who took an active part in investigating, prosecuting, or advocating in the same case.
16. We propose to adopt the Administrative Conference's recommendation to “prohibit staff who took an active part in investigating, prosecuting, or advocating in a case” from serving as a case manager and from advising or assisting the case manager “in that same case.” Thus, we propose that staff who participated in identifying the specific issues designated for hearing; staff who take an active part in investigating, prosecuting, or advocating in a case; and staff who are expected to investigate and act upon petitions to deny (including administrative challenges thereto) may not serve as the case manager in that case. We seek comment on these proposals.
17. Unless otherwise designated, Commission hearings are “restricted” proceedings and thus ex parte presentations to or from Commission decision-making personnel are prohibited. “Decision-making personnel” include “[a]ny member, officer, or employee of the Commission . . . who is or may reasonably be expected to be involved in formulating a decision, rule or order in a proceeding.” Decision-making personnel also include “[u]nseparated Bureau or Office staff . . . with respect to decisions, rules, and orders in which their Bureau or Office participates in enacting, preparing, or reviewing.” We tentatively conclude that any Commission staff serving as a case manager in a case should be considered “decision-making personnel” for purposes of our ex parte rules. Finally, we tentatively conclude that the existing definition of “ex parte presentation” in section 1.1202 of the Commission's rules would continue to apply. We seek comment on these tentative conclusions and on whether other or additional measures are needed to ensure the impartiality of staff serving as the case manager.
18. Dispensing with Initial Decision When Appropriate. Section 409(a) of the Communications Act generally requires that the presiding officer prepare an initial, tentative, or recommended decision. With limited exceptions, the Commission's rules likewise state that “the presiding officer shall prepare an initial (or recommended) decision” at the close of a hearing. Upon agreement of the parties or where the Commission finds “that due and timely execution of its functions imperatively and unavoidably so requires,” however, “the Commission may direct that the record in a pending proceeding be certified to it for initial or final decision.”
19. We seek comment on whether the Commission should forego initial decisions whenever it serves as the presiding officer at a hearing, including cases in which the Commission directs that the record of the proceeding be certified to it for decision. Initial decisions have no apparent utility when the Commission is the presiding officer.
20. Evidentiary Rules. The Commission's current hearing rules provide that the Federal Rules of Evidence (28 U.S.C. Rules 101-1103) govern Commission hearings, but that these rules may be “relaxed if the ends of justice will be better served by so doing.” In practice, however, the Federal Rules of Evidence are not necessarily applied and instead serve merely as guidelines in determining the admissibility of evidence. This lack of clarity as to the relevant evidentiary standard has the potential to cause confusion for parties and to lead to evidentiary disputes between those who expect the Federal Rules of Evidence to apply and those who seek to avoid their application in a particular case.
21. We propose to amend this rule and adopt the more permissive evidentiary standard in the formal APA hearing requirements, which states, in relevant part, that “the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.” We seek comment on this proposal and on the conclusion of the Asimow Report that the more lenient standard in 5 U.S.C. 556(d) will result in fewer time-consuming disputes over “esoteric rules of evidence, such as the many exceptions to the hearsay rule,” and will be simpler for self-represented parties to navigate.
22. Proposed Rule Changes. Several rule changes are proposed in this proceeding. Specifically, we propose to add sections 1.370-1.377 to our Part 1 hearing rules to establish procedures for hearings to be resolved on a written record. We otherwise generally retain the current Part 0 and Part 1 hearing related rules with the proposed modifications. We seek comment on these proposed rules and on any other changes necessary to conform our rules to these proposals.
23. Related Issues. Finally, we seek comment on any other proposed rule changes that would streamline or expedite the Commission's hearing processes. We may address any such proposals in a Further Notice of Proposed Rulemaking in this proceeding.
24. Legal Authority. The Commission has broad authority “[to] conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” Congress “left largely to [the Commission's] judgment the determination of the manner of conducting its business which would most fairly and reasonably accommodate” the ends of justice.
25. In
26. The APA prescribes procedural standards governing formal and informal adjudications before federal agencies. The APA provisions governing formal adjudications appear in sections 554, 556, and 557 of title 5, 74 which require a formal hearing process that includes elements of a judicial trial in a civil action. Informal adjudication commonly refers to procedures for conducting cases when formal adjudication is not required. The APA prescribes minimum procedural requirements for informal adjudications. Section 555 of title 5 requires only that an agency afford participants the right to appear with counsel, the right to procure copies or transcripts of any evidence they have provided, and prompt notice of, and grounds for, the agency's denial of an application or petition. Section 558(c) includes certain additional procedures specific to proceedings involving licenses or other agency authorizations. That section generally requires an agency, prior to instituting proceedings to suspend or revoke a license, to provide the licensee with written notice of the facts that may warrant the agency's contemplated action and an opportunity to demonstrate compliance with all lawful requirements.
27. The APA, by itself, does not establish when agencies must follow the formal hearing procedures in Sections 554, 556, and 557. Instead, agencies must apply the APA in conjunction with the relevant enabling statute and use formal hearing procedures in “every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” Where an agency's enabling statute does not expressly require an “on the record” hearing and, instead, calls simply for a “hearing,” a “full hearing,” or uses similar terminology, the statute does not trigger the APA formal adjudication procedures absent clear evidence of congressional intent to impose the full panoply of trial type procedures of a formal hearing.
28. No express “on the record” language appears in the Communications Act's hearing provisions that would trigger the APA formal adjudication requirements. In addition, nothing in the text of the Act unambiguously requires trial-type hearings in all such proceedings. When Congress intended to require the Commission to conduct formal adjudication under the APA, it said so explicitly—section 503 of the Communications Act authorizes the Commission to impose a forfeiture penalty on a person after “a hearing before the Commission or an administrative law judge thereof in accordance with section 554 of” the APA. Consequently, we tentatively conclude that Commission hearings generally are subject only to the APA's informal adjudication requirements.
29. We also believe that the streamlined procedures proposed in this
30. Courts have applied the
31. In other recent opinions, courts have found that agencies may resolve factual disputes on a written record. In a series of cases involving FERC, the D.C. Circuit has consistently held that “[e]ven when there are disputed factual issues, FERC does not need to conduct an evidentiary hearing if it can adequately resolve the issues on a written record.” We therefore tentatively conclude that the Commission need not conduct an oral hearing if it can adequately resolve factual disputes on a written record.
32. Although the D.C. Circuit has upheld an agency's resolution of an issue of intent on a written record, the court has suggested in dicta in other cases that it may be inappropriate for an agency to resolve issues of intent or motive on a written record in certain circumstances. We seek comment on what those circumstances may be. For example, we seek comment on when the Commission cannot, consistent with the
33. We emphasize that when we designate a matter for hearing on a written record, we intend to give parties a “full” hearing, with ample notice of the issues under consideration, an opportunity to present all evidence and arguments that support the parties' respective positions, and an opportunity to confront and rebut opposing evidence and arguments. To that end, we seek comment on the Administrative Conference's recommended “best practices” for agency hearings that are not subject to APA formal hearing requirements (referred to herein as informal hearings), and whether and how to incorporate those recommendations in our rules.
34. Initial Regulatory Flexibility Act Certification. As required by the Regulatory Flexibility Act, see 5 U.S.C. 603, the Commission has prepared an Initial Regulatory Flexibility Certification reflecting its analysis that there will be no significant economic impact on small entities by the implementation of the policies and rules addressed in this
35. In this
36. The Commission estimates that the rule changes proposed in this
37. The Commission believes that the proposals on which it seeks comment in this
38. The Commission will send a copy of the
39. Paperwork Reduction Act. This document does not contain any proposed new information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
40. Ex Parte Rules. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with Section 1.1206(b) of the Commission's rules. In proceedings governed by Section 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (
41.
42.
Administrative practice and procedure.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 0, 1, and 76 as follows:
47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, unless otherwise noted.
47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409, unless otherwise noted.
(c)
(q) Issue orders revoking a common carrier's operating authority pursuant to section 214 of the Act, and issue orders to cease and desist such operations, in cases where the presiding officer has issued a certification order to the Commission pursuant to § 1.92(c) of our rules that the carrier has waived its opportunity for hearing under that section.
(a) * * *
(18) Issue or draft orders taking or recommending appropriate action in response to complaints or investigations, including, but not limited to, admonishments, damage awards where authorized by law or other affirmative relief, notices of violation, notices of apparent liability and related orders, notices of opportunity for hearing regarding a potential forfeiture, hearing designation orders, orders designating licenses or other authorizations for a revocation hearing and consent decrees. Issue or draft appropriate orders after a hearing proceeding has been terminated by the presiding officer on the basis of waiver. Issue or draft appropriate interlocutory orders and take or recommend appropriate action in the exercise of its responsibilities.
(b) Serve as trial staff in hearing proceedings conducted pursuant to § 1.201(a) regarding applications, revocation, forfeitures and other matters designated for hearing.
The Office of Administrative Law Judges consists of as many Administrative Law Judges qualified and appointed pursuant to the
47 U.S.C. 151, 154(i), 154(j), 155, 225, and 409.
(a) * * *
(2)
(a) After a presiding officer (other than the Commission) has been designated to conduct a hearing proceeding, and until he or she has issued an initial decision or certified the record to the Commission for decision, or the proceeding has been transferred to another presiding officer, all motions, petitions and other matters that may arise during the proceeding shall be acted upon by such presiding officer, except those which are to be acted upon by the Commission. See § 1.291(a)(1) of this chapter.
(b) Any question which would be acted upon by the presiding officer if it were raised by the parties to the proceeding may be raised and acted upon by the presiding officer on his or her own motion.
(c) Any question which would be acted upon by the presiding officer (other than the Commission) may be certified to the Commission on the presiding officer's own motion.
(d) Except for actions taken during the course of a hearing and upon the record thereof, actions taken by a presiding officer pursuant to the provisions of this section shall be recorded in writing and filed in the official record of the proceeding.
(e) The presiding officer may waive any rule governing the conduct of Commission hearings upon motion or upon the presiding officer's own motion for good cause, subject to the provisions of the Administrative Procedure Act and the Communications Act of 1934, as amended.
(f) The presiding officer may issue such orders and conduct such proceedings as will best conduce to the proper dispatch of business and the ends of justice.
(g)(1) For program carriage complaints filed pursuant to § 76.1302 of this chapter that the Chief, Media Bureau refers to a presiding officer for an initial decision, the presiding officer shall release an initial decision in compliance with one of the following deadlines:
(i) 240 calendar days after a party informs the presiding officer that it elects not to pursue alternative dispute resolution as set forth in § 76.7(g)(2) of this chapter; or
(ii) If the parties have mutually elected to pursue alternative dispute resolution pursuant to § 76.7(g)(2) of this chapter, within 240 calendar days after the parties inform the presiding officer that they have failed to resolve their dispute through alternative dispute resolution.
(2) The presiding officer may toll these deadlines under the following circumstances:
(i) If the complainant and defendant jointly request that the presiding officer toll these deadlines in order to pursue settlement discussions or alternative dispute resolution or for any other reason that the complainant and defendant mutually agree justifies tolling; or
(ii) If complying with the deadline would violate the due process rights of a party or would be inconsistent with fundamental fairness; or
(iii) In extraordinary situations, due to a lack of adjudicatory resources available at the time.
The record of actions taken by a presiding officer, including initial and recommended decisions and actions taken pursuant to § 0.341, is available through the Commission's Electronic Comment Filing System (ECFS). ECFS serves as the repository for records in the Commission's docketed proceedings from 1992 to the present. The public may use ECFS to retrieve all such records, as well as selected pre-1992 documents. The Office of the Secretary maintains copies of documents that include nonpublic information.
47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, unless otherwise noted.
(d) Except as otherwise expressly provided in this chapter, a duly authorized corporate officer or employee may act for the corporation in any matter which has not been designated for hearing and, in the discretion of the presiding officer, may appear and be heard on behalf of the corporation in a hearing proceeding.
(f)(1) * * *
(vii) Domestic Section 214 discontinuance applications pursuant to §§ 63.63 and/or 63.71 of this chapter;
(viii) Notices of network change and associated certifications pursuant to § 51.325
(ix) Hearing proceedings under §§ 1.201 through 1.377.
(a) In hearing proceedings, all pleadings, letters, documents, or other written submissions, shall be filed using the Commission's Electronic Comment Filing System, excluding confidential material as set forth in § 1.314 of these rules. An original and one copy of each written submission that includes confidential material shall be filed, along with an additional copy for each additional presiding officer, if more than one. Additional courtesy copies of electronically filed submissions shall be emailed as directed by the Commission.
(g)
(1) Before imposing a forfeiture penalty, the Commission may, in its discretion, issue a notice of opportunity for hearing. The formal hearing proceeding shall be conducted by an administrative law judge under procedures set out in subpart B of this part, including procedures for appeal and review of initial decisions. A final Commission order assessing a forfeiture under the provisions of this paragraph is subject to judicial review under section 402(a) of the Communications Act.
(3) Where the possible assessment of a forfeiture is an issue in a hearing proceeding to determine whether a pending application should be granted, and the application is dismissed pursuant to a settlement agreement or otherwise, and the presiding judge has not made a determination on the forfeiture issue, the presiding judge shall forward the order of dismissal to the attention of the full Commission. Within the time provided by § 1.117, the Commission may, on its own motion, proceed with a determination of whether a forfeiture against the applicant is warranted. If the Commission so proceeds, it will provide the applicant with a reasonable opportunity to respond to the forfeiture issue (see paragraph (f)(3) of this section) and make a determination under the procedures outlined in paragraph (f) of this section.
Whenever grounds exist for suspension of an operator license, as provided in § 303(m) of the Communications Act, the Chief of the Wireless Telecommunications Bureau, with respect to amateur and commercial radio operator licenses, may issue an order suspending the operator license. No order of suspension of any operator's license shall take effect until 15 days' notice in writing of the cause for the proposed suspension has been given to the operator licensee, who may make written application to the Commission at any time within the said 15 days for a hearing upon such order. The notice to the operator licensee shall not be effective until actually received by the operator licensee, and from that time the operator licensee shall have 15 days in which to mail the said application. In the event that physical conditions prevent mailing of the application before the expiration of the 15-day period, the application shall then be mailed as soon as possible thereafter, accompanied by a satisfactory explanation of the delay. Upon receipt by the Commission of such application for hearing, said order of suspension shall be designated for hearing and said suspension shall be held in abeyance until the conclusion of the hearing proceeding. If the license is ordered suspended, the operator shall send his, her, or its operator license to the Mobility Division, Wireless Telecommunications Bureau, in Washington, DC, on or before the effective date of the order, or, if the effective date has passed at the time notice is received, the license shall be sent to the Commission forthwith.
(e) In any case where a hearing proceeding is conducted pursuant to the provisions of this section, both the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Commission except that, with respect to any issue that pertains to the question of whether the proposed action would modify the license or permit of a person filing a protest pursuant to paragraph (c) of this section, such burdens shall be as described by the Commission.
(f) In order to utilize the right to a hearing and the opportunity to give evidence upon the issues specified in any order designating a matter for hearing, any licensee, or permittee, itself or by counsel, shall, within the period of time as may be specified in that order, file with the Commission a written appearance stating that it will present evidence on the matters specified in the order and, if required, appear before the presiding officer at a date and time to be determined.
(g) The right to file a protest or the right to a hearing proceeding shall, unless good cause is shown in a petition to be filed not later than 5 days before the lapse of time specified in paragraph (a) or (f) of this section, be deemed waived:
(b) An order to show cause why an order of revocation and/or a cease and desist order should not be issued will designate for hearing the matters with respect to which the Commission is inquiring and will call upon the person to whom it is directed (the respondent) to file with the Commission a written appearance stating that the respondent will present evidence upon the matters specified in the order to show cause and, if required, appear before a presiding officer at a time and place to be determined, but no earlier than thirty days after the receipt of such order. However, if safety of life or property is involved, the order to show cause may specify a deadline of less than thirty days from the receipt of such order.
(c) To avail themselves of such opportunity for a hearing, respondents, personally or by counsel, shall file with the Commission, within twenty days of the mailing of the order or such shorter period as may be specified therein, a written appearance stating that they will present evidence on the matters specified in the order and, if required, appear before the presiding officer at a time and place to be determined. The presiding officer in his or her discretion may accept a late-filed appearance. However, a written appearance tendered after the specified time has expired will not be accepted unless accompanied by a petition stating with particularity the facts and reasons relied on to justify such late filing. Such petition for acceptance of a late-filed appearance will be granted only if the presiding officer determines that the facts and reasons stated therein constitute good cause for failure to file on time.
(d) Hearing proceedings on the matters specified in such orders to show cause shall accord with the practice and procedure prescribed in this subpart and subpart B of this part, with the following exceptions: (1) In all such revocation and/or cease and desist hearings, the burden of proceeding with the introduction of evidence and the burden of proof shall be upon the Commission; and (2) the Commission may specify in a show cause order, when the circumstances of the proceeding require expedition, a time less than that prescribed in §§ 1.276 and 1.277 within which the initial decision in the proceeding shall become effective, exceptions to such initial decision must be filed, parties must file
(a) After the issuance of an order to show cause, pursuant to § 1.91, designating a matter for hearing, the occurrence of any one of the following events or circumstances will constitute a waiver of such hearing and the proceeding thereafter will be conducted in accordance with the provisions of this section.
(1) The respondent fails to file a timely written appearance as prescribed in § 1.91(c) indicating that the respondent will present evidence on the matters specified in the order and, if required by the order, that the respondent will appear before the presiding officer.
(2) The respondent, having filed a timely written appearance as prescribed in § 1.91(c), fails in fact to present evidence on the matters specified in the order or appear before the presiding officer in person or by counsel at the time and place duly scheduled.
(3) The respondent files with the Commission, within the time specified for a written appearance in § 1.91(c), a written statement expressly waiving his or her rights to a hearing.
(c) Whenever a hearing is waived by the occurrence of any of the events or circumstances listed in paragraph (a) of this section, the presiding officer shall, at the earliest practicable date, issue an order reciting the events or circumstances constituting a waiver of hearing and terminating the hearing proceeding. A presiding officer other than the Commission also shall certify the case to the Commission. Such order shall be served upon the respondent.
(a) As used in this subpart, a “consent order” is a formal decree accepting an agreement between a party to an adjudicatory hearing proceeding held to determine whether that party has violated statutes or Commission rules or policies and the appropriate operating Bureau, with regard to such party's future compliance with such statutes, rules or policies, and disposing of all issues on which the proceeding was designated for hearing. The order is issued by the officer designated to preside at the hearing proceeding.
(d) If agreement is reached, it shall be submitted to the presiding officer, who shall either sign the order, reject the agreement, or suggest to the parties that negotiations continue on such portion of the agreement as the presiding officer considers unsatisfactory or on matters not reached in the agreement. If the presiding officer signs the consent order, the record shall be closed. If the presiding officer rejects the agreement, the hearing proceeding shall continue. If the presiding officer suggests further negotiations and the parties agree to resume negotiating, the presiding officer may, in his or her discretion, decide whether to hold the hearing proceeding in abeyance pending the negotiations.
(g) Consent orders, pleadings relating thereto, and Commission orders with respect thereto shall be served on parties to the proceeding. Public notice will be given of orders issued by the Commission or by the presiding officer. Negotiating papers constitute work product, are available to parties participating in negotiations, but are not routinely available for public inspection.
(a) The provisions of this section apply to all final actions taken pursuant to delegated authority, including final actions taken by members of the Commission's staff on nonhearing matters. They do not apply to interlocutory actions of a presiding officer in hearing proceedings, or to orders designating a matter for hearing issued under delegated authority. See §§ 1.106(a) and 1.115(e).
(e)(1) Applications for review of an order designating a matter for hearing that was issued under delegated authority shall be deferred until exceptions to the initial decision in the case are filed, unless the presiding officer certifies such an application for review to the Commission. A matter shall be certified to the Commission if the presiding officer determines that the matter involves a controlling question of law as to which there is substantial ground for difference of opinion and that immediate consideration of the question would materially expedite the ultimate resolution of the litigation. A request to certify a matter to the Commission shall be filed with the presiding officer within 5 days after the designation order is released. A ruling refusing to certify a matter to the Commission is not appealable. Any application for review authorized by the presiding officer shall be filed within 5 days after the order certifying the matter to the Commission is released or such a ruling is made. Oppositions shall be filed within 5 days after the application for review is filed. Replies to oppositions shall be filed only if they are requested by the Commission. Replies (if allowed) shall be filed within 5 days after they are requested. The Commission may dismiss, without stating reasons, an application for review that has been certified, and direct that the objections to the order designating the matter for hearing be deferred and raised when exceptions in the initial decision in the case are filed.
For special provisions relating to hearing proceedings under this subpart that the Commission determines shall be conducted and resolved on a written record, see §§ 1.370-1.377.
For special provisions relating to AM broadcast station applications involving other North American countries see § 73.23.
The Commission will designate an official reporter for the recording and transcribing of hearing proceedings as necessary. Transcripts will be transmitted to the Secretary for inclusion in the Commission's Electronic Comment Filing System.
The evidence submitted by the parties, together with all papers and requests filed in the proceeding and any transcripts, shall constitute the exclusive record for decision. Where any decision rests on official notice of a material fact not appearing in the record, any party shall on timely request be afforded an opportunity to show the contrary. (5 U.S.C. 556; 47 U.S.C. 154, 159, 208, 209, 214, 309, 312, 316, and 409)
All pleadings filed in a hearing proceeding, as well as all letters, documents, or other written submissions, shall be filed using the Commission's Electronic Comment Filing System, excluding confidential material as set forth in § 1.314 of these rules. A courtesy copy of all submissions shall be contemporaneously provided to the presiding officer via electronic mail.
(b) The order designating an application for hearing shall be mailed to the applicant and the order, or a summary thereof, shall be published in the
(c) In order to avail themselves of the opportunity to be heard, applicants or their attorney shall file, within 20 days of the mailing of the order designating a matter for hearing, a written appearance stating that the applicant will present evidence on the matters specified in the order and, if required by the order, appear before the presiding officer at a date and time to be determined. Where an applicant fails to file such a written appearance within the time specified, or has not filed prior to the expiration of that time a petition to dismiss without prejudice, or a petition to accept, for good cause shown, such written appearance beyond expiration of said 20 days, the application will be dismissed with prejudice for failure to prosecute.
(d) The Commission will on its own motion name as parties to the hearing proceeding any person found to be a party in interest.
(e) In order to avail themselves of the opportunity to be heard, any persons named as parties pursuant to paragraph (d) of this section shall, within 20 days of the mailing of the order designating them as parties to a hearing proceeding, file personally or by attorney a written appearance that they will present evidence on the matters specified in the order and, if required by the order, appear before the presiding officer at a date and time to be determined. Any persons so named who fail to file this written appearance within the time specified, shall, unless good cause for such failure is shown, forfeit their hearing rights.
(f)(1) For program carriage complaints filed pursuant to § 76.1302 of this chapter that the Chief, Media Bureau refers to a presiding officer, each party, in person or by attorney, shall file a written appearance within five calendar days after the party informs the presiding officer that it elects not to pursue alternative dispute resolution pursuant to § 76.7(g)(2) of this chapter or, if the parties have mutually elected to pursue alternative dispute resolution pursuant to § 76.7(g)(2) of this chapter, within five calendar days after the parties inform the presiding officer that they have failed to resolve their dispute through alternative dispute resolution. The written appearance shall state that the party will appear for hearing and present evidence on the issues specified in the hearing designation order.
(2) If the complainant fails to file a written appearance by this deadline, or fails to file prior to the deadline either a petition to dismiss the proceeding without prejudice or a petition to accept, for good cause shown, a written appearance beyond such deadline, the presiding officer shall dismiss the complaint with prejudice for failure to prosecute.
(3) If the defendant fails to file a written appearance by this deadline, or fails to file prior to this deadline a petition to accept, for good cause shown, a written appearance beyond such deadline, its opportunity to present evidence at hearing will be deemed to have been waived. If the hearing is so waived, the presiding officer shall expeditiously terminate the proceeding and certify to the Commission the complaint for resolution based on the existing record. When the Commission has designated itself as the presiding officer, it shall expeditiously terminate the proceeding and resolve the complaint based on the existing record.
(a) Where the order designating a matter for hearing has failed to notify and name as a party to the hearing proceeding any person who qualifies as a party in interest, such person may acquire the status of a party by filing, under oath and not more than 30 days after the publication in the
(b) Any other person desiring to participate as a party in any hearing proceeding may file a petition for leave to intervene not later than 30 days after the publication in the
(c) Any person desiring to file a petition for leave to intervene later than 30 days after the publication in the
(b) No persons shall be precluded from giving any relevant, material, and competent testimony because they lack a sufficient interest to justify their intervention as parties in the matter.
(c) No communication will be considered in determining the merits of any matter unless it has been received into evidence. The admissibility of any communication shall be governed by the applicable rules of evidence in § 1.351, and no communication shall be admissible on the basis of a stipulation unless Commission counsel as well as counsel for all of the parties shall join in such stipulation.
The Commission, upon motion or upon its own motion, may, where such action will best conduce to the proper dispatch of business and to the ends of justice, consolidate in a hearing proceeding any cases that involve the same applicant or substantially the same issues, or that present conflicting claims.
(a) A motion to enlarge, change or delete the issues may be filed by any party to a hearing proceeding. Except as provided for in paragraph (b) of this section, such motions must be filed within 15 days after the full text or a summary of the order designating the case for hearing has been published in the
(b)(1) For program carriage complaints filed pursuant to § 76.1302 of this chapter that the Chief, Media Bureau refers to a presiding officer, such motions shall be filed within 15 calendar days after the deadline for submitting written appearances pursuant to § 1.221(h), except that persons not named as parties to the proceeding in the designation order may file such motions with their petitions to intervene up to 30 days after publication of the full text or a summary of the designation order in the
(2) Any person desiring to file a motion to modify the issues after the expiration of periods specified in paragraphs (a) and (b)(1) of this section shall set forth the reason why it was not possible to file the motion within the prescribed period. Except as provided in paragraph (c) of this section, the motion will be granted only if good cause is shown for the delay in filing. Motions for modifications of issues which are based on new facts or newly discovered facts shall be filed within 15 days after such facts are discovered by the moving party.
(e) In any case in which the presiding officer grants a motion to enlarge the issues to inquire into allegations that an applicant made misrepresentations to the Commission or engaged in other misconduct during the application process, the enlarged issues include notice that, after hearings on the enlarged issue and upon a finding that the alleged misconduct occurred and warrants such penalty, in addition to or in lieu of denying the application, the applicant may be liable for a forfeiture of up to the maximum statutory amount. See 47 U.S.C. 503(b)(2)(A).
(a) Hearing proceedings will be conducted by a presiding officer. The designated presiding officer will be identified in the order designating a matter for hearing. Only the Commission, one or more commissioners, or an administrative law judge designated pursuant to 5 U.S.C. 3105 may be designated as a presiding officer. Unless otherwise stated, the term
(b) If a presiding officer becomes unavailable during the course of a hearing proceeding, another presiding officer will be designated.
When the Commission designates itself as the presiding officer in a hearing proceeding, it may delegate authority to a case manager to develop the record in a written hearing (see §§ 1.370-1.377). The case manager must be a staff attorney who qualifies as a neutral under 5 U.S.C. 571 and 573. The Commission shall not designate any of the following persons to serve as case manager in a case, and they may not advise or assist the case manager: Staff who participated in identifying the specific issues designated for hearing; staff who have taken or will take an active part in investigating, prosecuting, or advocating in the case; or staff who are expected to investigate and act upon petitions to deny (including challenges thereto). A case manager shall have authority to perform any of the functions generally performed by the presiding officer, except that a case manager shall have no authority to resolve any new or novel issues, to issue an order on the merits resolving any issue designated for hearing in a case, to issue an order on the merits of any motion for summary decision filed under § 1.251, or to perform any other functions that the Commission reserves to itself in the order appointing a case manager.
From the time the presiding officer is designated until issuance of the presiding officer's decision or the transfer of the proceeding to the Commission or to another presiding officer, the presiding officer shall have such authority as granted by law and by the provisions of this chapter, including authority to:
(g) Require the filing of memoranda of law and the presentation of oral argument with respect to any question of law upon which the presiding officer or the Commission is required to rule during the course of the hearing proceeding;
(i) Dispose of procedural requests and ancillary matters, as appropriate;
(j) Take actions and make decisions in conformity with governing law;
(k) Act on motions to enlarge, modify or delete the hearing issues;
(l) Act on motions to proceed in forma pauperis pursuant to § 1.224;
(m) Decide a matter upon the existing record or request additional information from the parties; and
(n) Issue such orders and conduct such proceedings as will best conduce to the proper dispatch of business and the ends of justice.
(a) Parties may request that the presiding officer appoint a settlement officer to facilitate the resolution of the case by settlement.
(b) Where all parties in a case agree that such procedures may be beneficial, such requests may be filed with the presiding officer no later than 15 days prior to the date scheduled for the commencement of hearings or, in hearing proceedings conducted pursuant to §§ 1.370-1.377, no later than 15 days before the date set as the deadline for filing the affirmative case. The presiding officer shall suspend the procedural dates in the case pending action upon such requests.
(c) If, in the discretion of the presiding officer, it appears that the appointment of a settlement officer will facilitate the settlement of the case, the presiding officer shall appoint a “neutral” as defined in 5 U.S.C. 571 and 573 to act as the settlement officer.
(1) The parties may request the appointment of a settlement officer of their own choosing so long as that person is a “neutral” as defined in 5 U.S.C. 571 and 573.
(2) The appointment of a settlement officer in a particular case is subject to the approval of all the parties in the proceeding.
(3) Neither the Commission, nor any sitting members of the Commission, nor the presiding officer shall serve as the settlement officer in any case.
(4) Other members of the Commission's staff who qualify as neutrals may be appointed as settlement officers. The presiding officer shall not appoint a member of the Commission's staff as a settlement officer in any case if the staff member's duties include, or have included, drafting, reviewing, and/or recommending actions on the merits of the issues designated for hearing in that case.
(d) The settlement officer shall have the authority to require parties to submit their written direct cases for review. The settlement officer may also meet with the parties and/or their counsel, individually and/or at joint conferences, to discuss their cases and the cases of their competitors. All such meetings will be off-the-record, and the settlement officer may express an opinion as to the relative merit of the parties' positions and recommend possible means to resolve the proceeding by settlement. The proceedings before the settlement officer shall be subject to the confidentiality provisions of 5 U.S.C. 574. Moreover, no statements, offers of settlement, representations or concessions of the parties or opinions expressed by the settlement officer will be admissible as evidence in any Commission proceeding.
(a) In the event that a presiding officer (other than the Commission) deems himself or herself disqualified and desires to withdraw from the case, the presiding officer shall immediately so notify the Commission.
(b) * * *
(1) The person seeking disqualification shall file with the presiding officer an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification.
(2) The presiding officer may file a response to the affidavit; and if the presiding officer believes he or she is not disqualified, he or she shall so rule and continue with the hearing proceeding.
(3) The person seeking disqualification may appeal a ruling denying the request for withdrawal of the presiding officer, and, in that event, shall do so within five days of release of the presiding officer's ruling. Unless an appeal of the ruling is filed at this time, the right to request withdrawal of the presiding officer shall be deemed waived.
(a) The presiding officer may direct the parties or their attorneys to appear at a specified time and place for a status conference during the course of a hearing proceeding, or to submit suggestions in writing, for the purpose of considering, among other things, the matters set forth in paragraph (c) of this section. Any party may request a status conference at any time after release of the order designating a matter for hearing. During a status conference, the presiding officer may issue rulings regarding matters relevant to the conduct of the hearing proceeding including,
(b) The presiding officer shall schedule an initial status conference promptly after written appearances have been submitted under § 1.91 or § 1.221. At or promptly after the initial status conference, the presiding officer shall adopt a schedule to govern the hearing proceeding. If the Commission designated a matter for hearing on a written record under §§ 1.370-1.376, the scheduling order shall include a deadline for filing a motion to request an oral hearing in accordance with § 1.376. If the Commission did not designate the matter for hearing on a written record, the scheduling order shall include a deadline for filing a motion to conduct the hearing on a written record. Except as circumstances otherwise require, the presiding officer shall allow a reasonable period prior to commencement of the hearing for the orderly completion of all prehearing procedures, including discovery, and for the submission and disposition of all motions.
(c) In status conferences, the following matters, among others, may be considered:
(1) Clarifying, amplifying, or narrowing issues designated for hearing;
(2) Scheduling;
(3) Admission of facts and of the genuineness of documents (see § 1.246), and the possibility of stipulating with respect to facts;
(4) Discovery;
(5) Motions;
(6) Hearing procedure;
(7) Settlement (see § 1.93); and
(8) Such other matters that may aid in resolution of the issues designated for hearing.
(d) Status conferences may be conducted in person or by telephone conference call or similar technology, at the discretion of the presiding officer. An official transcript of all status conferences shall be made unless the presiding officer and the parties agree to forego a transcript, in which case any rulings by the presiding officer during the status conference shall be promptly memorialized in writing.
(e) The failure of any attorney or party, following reasonable notice, to appear at a scheduled status conference may be deemed a waiver by that party of its rights to participate in the hearing proceeding and shall not preclude the presiding officer from conferring with parties or counsel present.
The presiding officer shall enter upon the record a statement reciting all actions taken at a status conference convened under § 1.248 and incorporating into the record all of the stipulations and agreements of the parties which were approved by the presiding officer, and any special rules which the presiding officer may deem necessary to govern the course of the proceeding.
For provisions relating to prehearing discovery and preservation of admissible evidence in hearing proceedings under this Subpart B, see §§ 1.311 through 1.325.
(a)(1) Any party to an adjudicatory proceeding may move for summary decision of all or any of the issues designated for hearing. The motion shall be filed at least 20 days prior to the date set for commencement of the hearing or, in hearing proceedings conducted pursuant to §§ 1.370-1.377, at least 20 days before the date that the presiding officer sets as the deadline for filing the affirmative case. See § 1.372. The party filing the motion may not rest upon mere allegations or denials but must show, by affidavit or by other materials subject to consideration by the presiding officer, that there is no genuine issue of material fact for determination in the hearing proceeding.
(2) A party may file a motion for summary decision after the deadlines in paragraph (a)(1) of this section only with the presiding officer's permission, or upon the presiding officer's invitation. No appeal from an order granting or denying a request for permission to file a motion for summary decision shall be allowed. If the presiding officer authorizes a motion for summary decision after the deadlines in paragraph (a)(1) of this section, proposed findings of fact and conclusions of law on those issues which the moving party believes can be resolved shall be attached to the motion, and any other party may file findings of fact and conclusions of law as an attachment to pleadings filed by the party pursuant to paragraph (b) of this section.
(3) Motions for summary decision should be addressed to the Commission in any hearing proceeding in which the Commission is the presiding officer and it has appointed a case manager pursuant to § 1.242. The Commission, in its discretion, may defer ruling on any such motion until after the case manager has certified the record for decision by the Commission pursuant to § 1.377.
(d) The presiding officer may, in his or her discretion, set the matter for argument and may call for the submission of proposed findings, conclusions, briefs or memoranda of law. The presiding officer, giving appropriate weight to the nature of the proceeding, the issue or issues, the proof, and the need for cross-examination, if any, may grant a motion for summary decision to the extent that the pleadings, affidavits, materials obtained by discovery or otherwise, admissions, or matters officially noticed, show that there is no genuine issue as to any material fact and that a party is otherwise entitled to summary decision. If it appears from the affidavits of a party opposing the motion that the party cannot, for good cause shown, present by affidavit or otherwise facts essential to justify the party's opposition, the presiding officer may deny the motion, may order a continuance to permit affidavits to be obtained or discovery to be had, or make such other order as is just.
(e) If all of the issues (or a dispositive issue) are determined on a motion for summary decision, the hearing proceeding shall be terminated. When a presiding officer (other than the Commission) issues a Summary Decision, it is subject to appeal or review in the same manner as an Initial Decision. See §§ 1.271 through 1.282. If some of the issues only (including no dispositive issue) are decided on a motion for summary decision, or if the motion is denied, the presiding officer will issue a memorandum opinion and order, interlocutory in character, and the hearing proceeding will continue on the remaining issues. Appeal from interlocutory rulings is governed by § 1.301.
(f) The presiding officer may take any action deemed necessary to assure that summary decision procedures are not abused. The presiding officer may rule in advance of a motion that the proceeding is not appropriate for summary decision, and may take such other measures as are necessary to prevent any unwarranted delay.
(1) Should it appear to the satisfaction of the presiding officer that a motion for summary decision has been presented in bad faith or solely for the purpose of delay, or that such a motion is patently frivolous, the presiding officer will enter a determination to that effect upon the record.
(2) If, on making such determination, the presiding officer concludes that the facts warrant disciplinary action against an attorney, the matter, together with any findings and recommendations, will be referred to the Commission for consideration under § 1.24.
(3) If, on making such determination, the presiding officer concludes that the facts warrant a finding of bad faith on the part of a party to the proceeding, the presiding officer will certify the matter to the Commission, with findings and recommendations, for a determination as to whether the facts warrant the addition of an issue to the hearing proceeding as to the character qualifications of that party.
The presiding officer shall specify the time and place of oral hearings. All oral hearings will take place at Commission Headquarters unless the presiding officer designates another location.
Any hearing upon an application shall be a full hearing proceeding in which the applicant and all other parties in interest shall be permitted to participate but in which both the burden of proceeding with the introduction of evidence upon any issue specified by the Commission, as well as the burden of proof upon all such issues, shall be upon the applicant except as otherwise provided in the order of designation.
At any time during the course of the proceeding, or as directed by the presiding officer, but not later than 10 days after the transmission to the parties of the transcript of any oral conference or hearing, any party to the proceeding may file with the presiding officer a motion requesting corrections to the transcript, which motion shall be
(a) The presiding officer may direct any party to file proposed findings of fact and conclusions, briefs, or memoranda of law. If the presiding officer does not so order, any party to the proceeding may seek leave to file proposed findings of fact and conclusions, briefs, or memoranda of law. Such proposed findings of fact, conclusions, briefs, and memoranda of law shall be filed within the time prescribed by the presiding officer.
At the conclusion of hearing proceedings, the presiding officer shall promptly close the record after the parties have submitted their evidence, filed any proposed findings and conclusions under § 1.263, and submitted any other information required by the presiding officer. After the record is closed, it shall be certified by the presiding officer and filed in the Office of the Secretary. Notice of such certification shall be served on all parties to the proceedings.
(a) Except as provided in §§ 1.94, 1.251 and 1.274, when the proceeding is terminated on motion, or when the presiding officer is the Commission, the presiding officer shall prepare an initial (or recommended) decision, which shall be transmitted to the Secretary of the Commission. In the case of rate making proceedings conducted under sections 201-205 of the Communications Act, the presumption shall be that the presiding officer shall prepare an initial or recommended decision. The Secretary will make the decision public immediately and file it in the docket of the case.
(c) When the Commission is not the presiding officer, the authority of the presiding officer over the proceedings shall cease when the presiding officer has filed an Initial or Recommended Decision, or if it is a case in which the presiding officer is to file no decision, when they have certified the case for decision:
When the Commission serves as the presiding officer, it will not issue an initial or recommended decision. When the Commission is not the presiding officer, at any time before the record is closed all parties to the proceeding may agree to waive an initial or recommended decision, and may request that the Commission issue a final decision or order in the case. If the Commission has directed that its review function in the case be performed by a commissioner or a panel of commissioners, the request shall be directed to the appropriate review authority. The Commission or such review authority may in its discretion grant the request, in whole or in part, if such action will best conduce to the proper dispatch of business and to the ends of justice.
(a) When the Commission is not the presiding officer, and where the Commission finds upon the record that due and timely execution of its functions imperatively and unavoidably so requires, the Commission may direct that the record in a pending proceeding be certified to it for decision.
(b) When a presiding officer becomes unavailable to the Commission after the taking of evidence has been concluded, the Commission shall direct that the record be certified to it for decision. In that event, the Commission shall designate a new presiding officer in accordance with § 1.241 for the limited purpose of certifying the record to the Commission.
(c) In all other circumstances when the Commission is not the presiding officer, the presiding officer shall prepare and file an initial or recommended decision, which will be released in accordance with § 1.267.
(d) When a presiding officer becomes unavailable to the Commission after the taking of evidence has commenced but before it has been concluded, the Commission shall designate another presiding officer in accordance with § 1.241 to continue the hearing proceeding. Oral testimony already introduced shall not be reheard unless observation of the demeanor of the witness is essential to the resolution of the case.
(a) Upon review of any initial decision, the Commission may, in its discretion, limit the issues to be reviewed to those findings and conclusions to which exceptions have been filed, or to those findings and conclusions specified in the Commission's order of review issued pursuant to § 1.276(b).
(b) No party may file an exception to the presiding officer's ruling that all or part of the hearing be conducted and resolved on a written record, unless that party previously filed an interlocutory motion to request an oral hearing in accordance with § 1.376.
(a)(1) The Commission acts on petitions to amend, modify, enlarge or delete the issues in hearing proceedings which involve rule making matters exclusively.
(2) All other interlocutory matters in hearing proceedings are acted on by the presiding officer.
(3) Each interlocutory pleading shall identify the presiding officer in its caption. Unless the pleading is to be acted upon by the Commission, the presiding officer shall be identified by name.
(b) All interlocutory pleadings shall be submitted in accordance with the provisions of §§ 1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 1.51, and 1.52.
(c)(1) Procedural rules governing interlocutory pleadings are set forth in §§ 1.294-1.298.
(2) Rules governing appeal from, and reconsideration of, interlocutory rulings made by the presiding officer are set forth in § 1.301.
(3) Petitions requesting reconsideration of an interlocutory ruling will not be entertained.
(d) No initial decision shall become effective under § 1.276(e) until all interlocutory matters pending before the Commission in the proceeding at the time the initial decision is issued have been disposed of and the time allowed for appeal from interlocutory rulings of the presiding officer has expired.
(a) Any party to a hearing proceeding may file an opposition to an interlocutory request filed in that proceeding.
(b) Except as provided in paragraph (c) of this section or as otherwise ordered by the presiding officer, oppositions to interlocutory requests shall be filed within 4 days after the original pleading is filed, and replies to oppositions will not be entertained.
(c) Additional pleadings may be filed only if specifically requested or authorized by the person(s) who is to make the ruling.
(b) In the discretion of the presiding officer, rulings on interlocutory matters may be made orally to the parties. The presiding officer may, in his or her discretion, state reasons therefor on the record if the ruling is being transcribed, or may promptly issue a written statement of the reasons for the ruling, either separately or as part of an initial decision.
(a)
(1) If a ruling denies or terminates the right of any person to participate as a party to a hearing proceeding, such person, as a matter of right, may file an appeal from that ruling.
(2) If a ruling requires testimony or the production of documents, over objection based on a claim of privilege, the ruling on the claim of privilege is appealable as a matter of right.
(3) If a ruling denies a motion to disqualify the presiding officer or case manager, the ruling is appealable as a matter of right.
(4) A ruling removing counsel from the hearing is appealable as a matter of right, by counsel on his own behalf or by his client. (In the event of such ruling, the presiding officer will adjourn the hearing proceeding for such period as is reasonably necessary for the client to secure new counsel and for counsel to become familiar with the case).
(b)
(1) If an appeal is not allowed, or is dismissed by the Commission, or if permission to file an appeal is not requested, objection to the ruling may be raised after the record is certified for decision by the Commission or on review of the initial decision.
(2) If an appeal is allowed and is considered on its merits, the disposition on appeal is final. Objection to the ruling or to the action on appeal may not be raised after the record is certified for decision by the Commission or on review of the initial decision.
(3) If the presiding officer modifies their initial ruling, any party adversely affected by the modified ruling may file a request for permission to file appeal, pursuant to the provisions of this paragraph.
(c) * * *
(1) Unless the presiding officer orders otherwise, rulings made shall be effective when the order is released or (if no written order) when the ruling is made. The Commission may stay the effect of any ruling that comes before it for consideration on appeal.
Sections 1.311 through 1.325 provide for taking the deposition of any person (including a party), for interrogatories to parties, and for orders to parties relating to the production of documents and things and for entry upon real property. These procedures may be used for the discovery of relevant facts, for the production and preservation of evidence for use in a hearing proceeding, or for both purposes.
(a)
(c)(1) Except as provided by special order of the presiding officer, discovery may be initiated after the initial conference provided for in § 1.248(b) of this part.
(2) In all proceedings, the presiding officer may at any time order the parties or their attorneys to appear at a conference to consider the proper use of these procedures, the time to be allowed
(d)
(a) Any information produced in the course of a hearing proceeding may be designated as confidential by any parties to the proceeding, or third parties, pursuant to §§ 0.457, 0.459, or 0.461 of these rules. Any parties or third-parties asserting confidentiality for such materials must:
(1) Clearly mark each page, or portion thereof, for which a confidential designation is claimed. The parties or third parties claiming confidentiality should restrict their designations to encompass only the specific information that they assert is confidential. If a confidential designation is challenged, the party or third party claiming confidentiality shall have the burden of demonstrating, by a preponderance of the evidence, that the materials designated as confidential fall under the standards for nondisclosure enunciated in the FOIA and that the designation is narrowly tailored to encompass only confidential information.
(2) File with the Commission, using the Commission's Electronic Comment Filing System, a public version of the materials that redacts any confidential information and clearly marks each page of the redacted public version with a header stating “Public Version.” The Public Version shall be machine-readable whenever technically possible. Where the document to be filed electronically contains metadata that is confidential or protected from disclosure by a legal privilege (including, for example, the attorney-client privilege), the filer may remove such metadata from the Public Version before filing it electronically.
(3) File with the Secretary's Office an unredacted hard copy, meaning an unredacted version of the materials containing confidential information that clearly displays on each page of the unredacted version a header stating “Confidential Version.” The unredacted version must be filed on the same day as the Public Version.
(4) Serve one hard copy of the Public Version and one hard copy of the Confidential Version on the attorney of record for each party to the proceeding, or, where a party is not represented by an attorney, each party to the proceeding either by hand delivery, overnight delivery, or email, together with a proof of such service in accordance with the requirements of § 1.47(g). A hard copy of the Public Version and Confidential Version shall also be served on the presiding officer as identified in the caption.
(b) An attorney of record for any party or any party that receives unredacted materials marked as confidential may disclose such materials solely to the following persons, only for use in prosecuting or defending a party to the hearing proceeding, and only to the extent necessary to assist in the prosecution or defense of the case:
(1) Employees of counsel of record representing the parties in the hearing proceeding;
(2) Officers or employees of the receiving party who are directly involved in the prosecution or defense of the case;
(3) Consultants or expert witnesses retained by the parties; and
(4) Court reporters and stenographers in accordance with the terms and conditions of this section.
(c) The individuals identified above in paragraph (b) shall not disclose information designated as confidential to any person who is not authorized under this section to receive such information, and shall not use the information in any activity or function other than the prosecution or defense in the hearing proceeding. Each such individual who is provided access to the information shall sign a declaration or affidavit stating that the individual has personally reviewed the Commission's rules and understands the limitations they impose on the signing party.
(d) Parties may make copies of materials marked confidential solely for use by the Commission or persons designated in paragraph (b) of this section. Each party shall maintain a log recording the number of copies made of all confidential material and the persons to whom the copies have been provided.
(e) The presiding officer may adopt a protective order as appropriate.
(f) Upon final termination of a hearing proceeding, including all appeals and applications for review, the parties shall ensure that all originals and reproductions of any confidential materials, along with the log recording persons who received copies of such materials, shall be provided to the producing party. In addition, upon final termination of the proceeding, any notes or other work product derived in whole or in part from the confidential materials of an opposing or third party shall be destroyed.
(a)
(c) * * *
(2) If counsel cannot agree on the proper limits of the examination the taking of depositions shall continue on matters not objected to and counsel shall, within 24 hours, either jointly or individually, provide * * *
(3) The presiding officer shall promptly rule upon the question presented or take such other action as may be appropriate under § 1.313, and shall give notice of his ruling, expeditiously * * *
(b) Except as provided in this paragraph and in § 1.319, objection may be made to receiving in evidence any deposition or part thereof for any reason
(d) * * *
(3) The deposition of any witness, whether or not a party, may be used by any party for any lawful purpose.
(a)
(a) * * *
(1) Copies of the request shall be filed with the Commission and served on the presiding officer and all other parties to the hearing proceeding.
Subpenas requiring the attendance and testimony of witnesses, and subpenas requiring the production of any books, papers, schedules of charges, contracts, agreements, and documents relating to any matter under investigation or hearing, may be signed and issued by the presiding officer.
(a) Subpena forms are available on the Commission's internet site,
In hearings subject to this Subpart B, any oral or documentary evidence may be adduced, but the presiding officer shall exclude irrelevant, immaterial, or unduly repetitious evidence.
After a witness is called and has given direct testimony in an oral hearing, and before he or she is excused, any party may move for the production of any statement of such witness, or part thereof, pertaining to his or her direct testimony, in possession of the party calling the witness, if such statement has been reduced to writing and signed or otherwise approved or adopted by the witness. Such motion shall be directed to the presiding officer. If the party declines to furnish the statement, the testimony of the witness pertaining to the requested statement shall be stricken.
47 U.S.C. 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), 309, 1403, 1404, 1451, and 1452.
Hearings under this Subpart B that the Commission or one of its Bureaus, acting on delegated authority, determines shall be conducted and resolved on a written record are subject to §§ 1.371-1.377. If an order designating a matter for hearing does not specify whether those rules apply to a hearing proceeding, and if the proceeding is not subject to 5 U.S.C. 554, the presiding officer may, in their discretion, conduct and resolve all or part of the hearing proceeding on a written record in accordance with §§ 1.371-1.377.
Written hearings shall be resolved on a written record consisting of affirmative case, responsive case, and reply case submissions, along with all associated evidence in the record, including stipulations and agreements of the parties and official notice of a material fact.
(a) All pleadings filed in any proceeding subject to these written hearing rules must be submitted in conformity with the requirements of §§ 1.4, 1.44, 1.47, 1.48, 1.49, 1.50, 1.51(a), and 1.52.
(b) Pleadings must be clear, concise, and direct. All matters should be pleaded fully and with specificity.
(c) Pleadings shall consist of numbered paragraphs and must be supported by relevant evidence. Assertions based on information and belief are prohibited unless made in good faith and accompanied by a declaration or affidavit explaining the basis for the party's belief and why the party could not reasonably ascertain the facts from any other source.
(d) Legal arguments must be supported by appropriate statutory, judicial, or administrative authority.
(e) Opposing authorities must be distinguished.
(f) Copies must be provided of all non-Commission authorities relied upon which are not routinely available in national reporting systems, such as unpublished decisions or slip opinions of courts or administrative agencies. In addition, copies of state authorities relied upon shall be provided.
(g) Parties are responsible for the continuing accuracy and completeness of all information and supporting authority furnished in a pending proceeding. Information submitted, as well as relevant legal authorities, must be current and updated as necessary and in a timely manner before a decision is rendered on the merits.
(h) Pleadings shall identify the name, address, telephone number, and email address for either the filing party's attorney or, where a party is not represented by an attorney, the filing party. Pleadings may be signed by a party's attorney.
(i) Attachments to any pleading shall be Bates-stamped or otherwise identifiable by party and numbered sequentially. Parties shall cite to Bates-stamped or otherwise identifiable page numbers in their pleadings.
(j) Unless a schedule is specified in the order designating a matter for hearing, at the initial status conference under § 1.248(b), the presiding officer shall adopt a schedule for the sequential filing of pleadings required or permitted under these rules.
(k) Pleadings shall be served on all parties to the proceeding in accordance with § 1.211 and shall include a certificate of service. All pleadings shall be served on the presiding officer or case manager, as identified in the caption.
(l) Each pleading must contain a written verification that the signatory has read the submission and, to the best
(m) Any party to the proceeding may file a motion seeking waiver of any of the rules governing pleadings in written hearings. Such waiver may be granted for good cause shown.
(n) Any pleading that does not conform with the requirements of the applicable rules may be deemed defective. In such case, the presiding officer may strike the pleading or request that specified defects be corrected and that proper pleadings be filed with the Commission and served on the presiding officer or case manager and all parties within a prescribed time as a condition to being made a part of the record in the proceeding.
(o) Any party that fails to respond to official correspondence, a request for additional information, or an order or directive from the presiding officer or case manager may be subject to appropriate sanctions.
(a) Within 30 days after the completion of the discovery period as determined by the presiding officer, unless otherwise directed by the presiding officer, any party to the proceeding with the burden of proof shall file a pleading entitled “affirmative case” that fully addresses each of the issues designated for hearing. The affirmative case submission shall include:
(1) A statement of relevant material facts, supported by sworn statements based on personal knowledge, documentation, or by other materials subject to consideration by the presiding officer, and a full legal analysis of each of the issues designated for hearing;
(2) Citation to relevant sections of the Communications Act or Commission regulations or orders; and
(3) The relief sought.
(b) The affirmative case submission shall address all factual and legal questions designated for hearing, and state in detail the basis for the response to each such question. Responses based on information and belief are prohibited unless made in good faith and accompanied by a declaration or affidavit explaining the basis for the party's belief and why the party could not reasonably ascertain the facts. When a party intends in good faith to deny only part of a designated question in the affirmative case, that party shall specify so much of it as is true and shall deny only the remainder.
(c) Failure to address in an affirmative case submission all factual and legal questions designated for hearing may result in inferences adverse to the filing party.
(a) Any other party may file a responsive case submission in the manner prescribed under this section within 30 calendar days of the filing of the affirmative case submission, unless otherwise directed by the presiding officer. The responsive case submission shall include:
(1) A statement of relevant material facts, supported by sworn statements based on personal knowledge, documentation, or by other materials subject to consideration by the presiding officer, and a full legal analysis of any issues designated for hearing.
(2) Citation to relevant sections of the Communications Act or Commission regulations or orders; and
(3) Any relief sought.
(b) The responsive case submission shall respond specifically to all material allegations made in the affirmative case submission. Every effort shall be made to narrow the issues for resolution by the presiding officer.
(c) Statements of fact or law in an affirmative case filed pursuant to § 1.372 are deemed admitted when not rebutted in a responsive case submission.
(a) Any party who filed an affirmative case may file and serve a reply case submission within 15 days of the filing of any responsive case submission, unless otherwise directed by the presiding officer.
(b) The reply case submission shall contain statements of relevant material facts, supported by sworn statements based on personal knowledge, documentation, or by other materials subject to consideration by the presiding officer, and a full legal analysis that responds only to the factual allegations and legal arguments made in any responsive case. Other allegations or arguments will not be considered by the presiding officer.
(c) Failure to submit a reply case submission shall not be deemed an admission of any allegations contained in any responsive case.
(a) The presiding officer may require or permit the parties to file other written submissions such as briefs, proposed findings of fact and conclusions of law, or other supplementary documents or pleadings. The presiding officer may limit the scope of any such pleadings to certain subjects or issues.
(b) The presiding officer may require the parties to submit any additional information deemed appropriate for a full, fair, and expeditious resolution of the proceeding.
(a) Notwithstanding any requirement in the designation order that the hearing be conducted and resolved on a written record, a party may file a motion to request an oral hearing pursuant to § 1.291. Any such motion shall be filed after the submission of all the pleadings but no later than the date established in the scheduling order.
(b) The presiding officer may, on his or her own motion following the receipt of all written submissions, conduct an oral hearing to resolve a genuine dispute as to an outcome-determinative fact that the presiding officer finds cannot adequately be resolved on a written record. Any such oral hearing shall be limited to testimony and cross-examination necessary to resolve that dispute.
(c) Oral argument shall be permitted only if the presiding officer determines that oral argument is necessary to resolution of the hearing.
When the Commission is the presiding officer and it has appointed a case manager under § 1.242, the case manager shall certify the record for decision to the Commission promptly after the hearing record is closed. Notice of such certification shall be served on all parties to the proceeding.
(c)
(e)
(a) If the action is designated for hearing:
(1) In rendering an initial decision, the presiding officer (other than the Commission) shall utilize the FEIS in considering the environmental issues, together with all other non-environmental issues.
(2) When the Commission serves as the presiding officer or upon its review of an initial decision, the Commission will consider and assess all aspects of the FEIS and will render its decision, giving due consideration to the environmental and nonenvironmental issues.
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the presiding officer, as defined in 47 CFR 1.241, determines that such treatment would be unjust and contrary to the purposes of the EAJA in light of the actual relationship between the affiliated entities. In addition, the presiding officer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
(c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the presiding officer shall consider the following:
(a) * * * The presiding officer may require an applicant to file additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the presiding officer in a sealed envelope labeled “Confidential Financial Information”, accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on Bureau counsel, but need not be served on any other party to the proceeding. If the presiding officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Commission's established procedures under the Freedom of Information Act, §§ 0.441 through 0.466 of this chapter.
* * * The presiding officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.
(c) * * *
(1) The date on which an initial decision or other recommended disposition of the merits of the proceeding by a presiding officer (other than the Commission) becomes administratively final;
(b) * * * The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the presiding officer upon request by Bureau counsel and the applicant.
* * * A commenting party may not participate further in proceedings on the application unless the presiding officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comments.
* * * If a presiding officer (other than the Commission) approves the proposed settlement, it shall be forwarded to the Commission for final determination. If the Commission is the presiding officer, it shall approve or deny the proposed settlement.
(a) * * * However, on request of either the applicant or Bureau counsel, or on her own initiative, the presiding officer may order further proceedings, such as an informal conference, oral argument, additional written submissions or, as to issues other than excessive demand or substantial justification, an evidentiary hearing. * * *
(b) A request that the presiding officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
A presiding officer (other than the Commission) shall issue an initial decision on the application as soon as possible after completion of proceedings on the application. * * * When the Commission is the presiding officer, the Commission may, but is not required to, issue an initial or recommended decision.
* * * If review is taken, the Commission will issue a final decision on the application or remand the application to the presiding officer (other than the Commission) for further proceedings.
(b) If, after such hearing proceeding as may be necessary, the Commission determines that the “tentative selectee” has met the requirements of § 73.3591(a) it will make the appropriate grant. If the Commission is unable to make such a determination, it shall order that another random selection be conducted from among the remaining mutually exclusive applicants, in accordance with the provisions of this subpart.
(c) If, on the basis of the papers before it, the Commission determines that a substantial and material question of fact exists, it shall designate that question for hearing. Hearing proceedings shall be conducted by a presiding officer. See § 1.241.
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
(g) * * *
(2) Before designation for hearing, the staff shall notify, either orally or in writing, the parties to the proceeding of its intent to so designate, and the parties shall be given a period of ten (10) days to elect to resolve the dispute through alternative dispute resolution procedures, or to proceed with an adjudicatory hearing. Such election shall be submitted in writing to the Commission.
Surface Transportation Board.
Notice of proposed rulemaking.
The Surface Transportation Board (STB or Board) grants in part a petition filed by the American Chemistry Council (ACC) to amend the Board's railroad performance data reporting regulations. Specifically, the Board proposes to modify its regulations to include chemical and plastics traffic as a distinct reporting category for the “cars-held” metric.
Comments are due by December 6, 2019. Reply comments are due by January 6, 2020.
Comments and replies may be filed with the Surface Transportation Board either via e-filing or in writing addressed to: Surface Transportation Board, Attn: Docket No. EP 724 (Sub-No. 5), 395 E Street SW, Washington, DC 20423-0001. Comments and replies will be posted to the Board's website at
Amy Ziehm at (202) 245-0391. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339.
The Board's railroad performance data reporting regulations at 49 CFR part 1250, which became effective on March 21, 2017, require all Class I carriers and the Chicago Transportation Coordination Office (CTCO), through its Class I members, to report certain service performance metrics on a weekly, semiannual, and occasional basis.
On December 6, 2018, ACC filed a petition for rulemaking
On January 28, 2019, the Association of American Railroads (AAR) filed a reply in opposition to ACC's petition. By decision served on April 5, 2019 (
After considering the petition for rulemaking and the comments received, the Board will grant ACC's petition in
In 2014, the Board initiated a rulemaking proceeding to establish new regulations requiring all Class I railroads and the CTCO, through its Class I members, to report certain service performance metrics on a weekly basis.
In its petition, ACC argues that its requested changes “are desirable to give the Board and shippers consistent service metrics across railroads that provide adequate visibility into critical aspects of the national rail system.” (Pet. 1.) ACC states that STCC 28 traffic accounts for the highest number of manifest carloads, compared to all other two-digit STCC groups, and plays a key role in the national economy. (
ACC maintains that requiring accurate and consistent reporting of STCC 28 service metrics across rail carriers would enable early identification of service issues and a better opportunity to mitigate them. (
Additionally, ACC states that extending the same types of Chicago reporting requirements, including dwell time, to the Mississippi Gateways is important because the problems of one carrier at these points can have a cascading effect on other carriers in the national network. (
In its reply to ACC's petition, AAR argues that the Board should not adopt additional commodity-specific reporting, (AAR Reply 2-4, Jan. 28, 2019), and that joint Mississippi Gateways information is unnecessary and would be unduly burdensome (
In the
The Board directed AAR to explain in greater detail the “programming changes” railroads would need to make to comply with the proposed reporting requirements; the “other costs” that would be associated with complying with the proposed reporting requirements; and the specific process individual carriers would need to undertake to build “from the ground up data” to compile a joint service report at each proposed Mississippi Gateway location.
In response to the
In its May 6 comments, as described further below, AAR provides information on the formation and development of the CTCO and programs, efforts, and systems to collect and report performance data on the Chicago terminal. (AAR Comments 2-6, May 6, 2019.) AAR also provides quantitative estimates of the costs associated with each of ACC's requested reporting requirement changes. (
AAR responds that additional reporting of STCC 28 traffic as a line item in the “cars-held for more than 48 hours” report would necessitate each Class I carrier to alter the coding necessary to pull the data prescribed by the Board. (AAR Comments 9-10.) According to AAR, the cost associated with this request would total approximately $34,000 for all seven Class I railroads, as it would require three to four employees totaling roughly 80 hours to update existing computer coding, write new code to modify the search parameters, test new code against existing systems to make sure it does not cause problems, and have the new code approved. (
After considering ACC's petition and the responsive comments filed, the Board concludes that including STCC 28 traffic as a distinct reporting category for the cars-held metric at 49 CFR 1250.2(a)(6) would be reasonable, warranted, and consistent with the rail transportation policy (RTP) of 49 U.S.C. 10101. As explained in the
AAR asserts that the “disconnect” noted by ACC is merely the text of the Board's decision that accepted AAR's offer to voluntarily report the metrics that were already being shared with Chicago stakeholders. (AAR Reply 5-6, May 20, 2019.) AAR argues that the Board should not codify that voluntary report; instead, the Board should allow the railroads and Chicago stakeholders the flexibility to change reports as business and technology changes warrant, without having to come back to the Board and petition it to begin a rulemaking proceeding. (
The Board does not agree with ACC's claim of a disconnect between the Board's decision and the rule as codified, which is the sole basis for ACC's request to amend 49 CFR 1250.3(a). The Board explicitly stated in the
According to ACC, the Mississippi Gateways are complex terminals with many interchange yards and multiple carriers, and congestion may impact some, but not all, of the yards and carriers serving a gateway. (
ACC also argues that the additional data reporting would enable shippers to more accurately predict their transit times and, thus, more efficiently manage their own private railcar fleets. (
AAR maintains that ACC has not justified its request for joint reporting of metrics from the Mississippi Gateways. (AAR Reply 3, May 20, 2019.) As noted above, in its May 6, 2019 comments, AAR describes the circumstances that gave rise to the formation of the CTCO and the development of programs, efforts, and systems to address the complexity of Chicago operations, as well as the significant estimated costs of replicating them in the Mississippi Gateways. (AAR Comments 2-9.) AAR estimates that the cost to the Class I carriers of reproducing the joint yard inventory, yard dwell, and trains held reports for the Mississippi Gateways would total approximately $1.6 million in initial development, and approximately $330,000 in annual maintenance expenses. (
The Board finds that ACC's petition and comments do not provide adequate justification to extend the terminal reporting requirements applicable to Chicago to the Mississippi Gateways at this time. The Board has focused on reporting at Chicago due to Chicago's unique importance to the overall fluidity of the national rail network.
For the reasons discussed above, and as set forth below, the Board proposes to include chemical and plastics (STCC 28, except fertilizer) traffic as a distinct reporting category for the “cars-held” metric at 49 CFR 1250.2(a)(6). Interested persons may comment on the proposed rule by December 6, 2019; replies are due by January 6, 2020.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. Sections 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, Section 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” Section 605(b). Because the goal of the RFA is to reduce the cost to small entities of complying with federal regulations, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts only when a rule directly regulates those entities. In other words, the impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule.
The Board's proposed change to its regulations here is intended to improve the quality of the service data reported by Class I carriers and does not mandate or circumscribe the conduct of small entities. For the purpose of RFA analysis for rail carriers subject to the Board's jurisdiction, the Board defines a “small business” as only including those rail carriers classified as Class III rail carriers under 49 CFR 1201.1-1.
Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501-3521, Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3), and appendix, the Board seeks comments about the impact of the amendments in the proposed rules to the currently approved collection of the United States Rail Service Issues-Performance Data Reporting (OMB Control No. 2140-0033) regarding: (1) Whether the collection of information, as modified in the proposed rule and further described below, is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. The Board estimates that the new requirement to include chemical and plastics (STCC 28) traffic as a distinct reporting category would add a one-time hour burden of 15 hours (or 45 hours amortized over three years) per railroad because the railroads will need to update their existing reporting software programs to implement this change.
Administrative practice and procedure, Railroads, Reporting and recordkeeping requirements.
1. ACC's petition for rulemaking is granted in part and denied in part, as discussed above.
2. The Board proposes to amend its rules as set forth in this decision. Notice of the proposed rules will be published in the
3. Comments regarding the proposed rule are due by December 6, 2019. Replies are due by January 6, 2020.
4. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.
5. This decision is effective on the day of service.
By the Board, Board Members Begeman, Fuchs, and Oberman.
For the reasons set forth in the preamble, the Surface Transportation Board proposes to amend part 1250 of title 49, chapter X, of the Code of Federal Regulations as follows:
49 U.S.C. 1321 and 11145.
(a) * * *
(6) The weekly average of loaded and empty cars, operating in normal movement and billed to an origin or destination, which have not moved in 48 hours or more, sorted by service type (intermodal, grain, coal, crude oil, automotive, ethanol, fertilizer (the following Standard Transportation Commodity Codes (STCCs): 2812534, 2818142, 2818146, 2818170, 2818426, 2819173, 2819454, 2819815, 2871235, 2871236, 2871238, 2871244, 2871313, 2871315, and 2871451), chemicals or allied products (all remaining STCC 28), and all other).
The following appendix will not appear in the Code of Federal Regulations.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to remove the plant
We will accept comments received or postmarked on or before December 6, 2019. Comments submitted electronically using the Federal eRulemaking Portal (see
•
•
We request that you submit written comments only by the methods described above. We will post all comments on
Jodi Bush, Office Supervisor, telephone: 406-449-5225. Direct all questions or requests for additional information to: WATER HOWELLIA QUESTIONS, U.S. Fish and Wildlife Service, Montana Ecological Services Field Office, 585 Shepard Way, Suite 1, Helena, MT 59601. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 800-877-8337 for TTY assistance.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. Comments should be as specific as possible. We particularly seek comments concerning:
(1) Reasons why we should or should not remove water howellia from the List of Endangered and Threatened Plants;
(2) New biological or other relevant data concerning any threat (or lack thereof) to this species (for example, those associated with climate change);
(3) New information on any efforts by the State or other entities to protect or otherwise conserve the species;
(4) New information concerning the range, distribution, and population size or trends of this species;
(5) New information on the current or planned activities in the habitat or range that may negatively affect or benefit the species; and
(6) Information pertaining to the requirements for post-delisting monitoring of water howellia.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, may not meet the standard of information required by section 4(b)(1)(A) of the Act (16 U.S.C. 1531
Prior to issuing a final determination on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and information we collect, including commenters' names and addresses, if provided to us, will become part of the supporting record.
You may submit your comments and materials concerning the proposed rule by one of the methods listed in
If you submit information via
If you mail or hand-deliver hardcopy comments that include personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hardcopy submissions on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule and the draft post-delisting monitoring (PDM) plan, will be available for public inspection on
Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. We must receive requests for public hearings, in writing, by the date specified above in
In accordance with our joint policy on peer review published in the
On December 15, 1980, we published a notice of review in the
On February 21, 1990, we published a notice of review in the
On October 30, 1991, the Service was petitioned to list water howellia as an endangered species. On April 16, 1993, we published in the
On July 14, 1994, we published in the
In 1996, we drafted a recovery plan for the species (USFWS 1996, entire). To date, this plan has not been finalized.
On April 18, 2007, we published a notice in the
It is our intent to discuss only those topics directly related to delisting water howellia in this proposed rule. For more information on the description, biology, ecology, and habitat of water howellia, please refer to the final listing rule published in the
Water howellia was first collected in 1879, along the Columbia River in Multnomah County, Oregon (Gray 1880, entire), and is native to the northwestern United States. The taxonomy of water howellia as a full species in a monotypic genus is widely accepted as valid by the scientific community (The Plant List 2013, unpaginated; ITIS 2017).
Water howellia is an annual, aquatic herb in the bellflower family (Campanulaceae). The entire plant is smooth, possessing no hairs or projections. The stems are fragile, submerged and floating, reaching up to 39 inches (in.) (100 centimeters (cm)) in length. Stems branch several inches from the base, and each branch extends to the water surface. The numerous leaves are narrow and range from 1-2 in. (25-50 millimeters (mm)) long.
Water howellia produce two types of flowers: Cleistogamous (closed) and chasmogamous (showy, open for pollination). Small cleistogamous flowers are produced along the stem below the water surface and are self-fertilizing. Chasmogamous flowers are produced on the water surface and commonly self-pollinate (Lesica
Seed germination occurs in the fall, only when ponds dry and seeds are exposed to air (Lesica 1990). Water howellia seedlings overwinter in soil and resume growth in spring in northern climates (Mincemoyer 2005, p. 3) or begin growing after fall germination in southern climates (
Long-term viability of water howellia seeds is uncertain. Decreased germination rates have been documented for seeds residing in the soil longer than 8 months (Lesica 1992, pp. 415-416). However, monitoring data and observations from Montana (U.S. Forest Service (USFS) 2002, pp. 6-7; USFWS 1996, pp. 17-18) and Washington (Gilbert 2008, pers. comm.) indicate the presence of water howellia occurrences after 2 consecutive years with no plant observations, suggesting a significant number of seeds may remain viable for at least 3 years. This life-history strategy likely provides a buffer against unfavorable growing conditions in consecutive years.
Water howellia plants typically inhabit small, vernal freshwater wetlands and ponds with an annual cycle of filling with water in spring and drying up in summer or autumn (USFWS 1996, p. 14). These habitats can be glacial potholes or depressions (Shapley and Lesica 1997, p. 8; U.S. Department of Defense (USDOD) 2017a, p. 1) or river oxbows (Lesica 1997, p. 366) in Montana and western Washington, riverine meander scars (Idaho NHP 2017, p. 1; Wiechmann 2014a, p. 3) in Idaho, glacial-flood remnant wetlands (Robison 2007, p. 8) in eastern Washington, or landslide depressions (Johnson 2013, pers. comm.) in California, but are all ephemeral (transitory) to some degree. Depending on annual patterns of temperature and precipitation, the drying of the ponds may be complete or partial by autumn; these sites are usually shallow and less than 3 feet (ft) (1 meter (m)) in depth. Some ponds supporting water howellia are dependent on complex ground and surface water interactions. Snow melt runoff is important in maintaining suitable conditions in the spring, while localized groundwater flow mitigates water loss from evaporation and plant transpiration later in the summer (Reeves and Woessner 2004, pp. 7-9).
Water howellia occupies habitats across its range that vary in the extent of canopy cover, suggesting some flexibility in light tolerance. Many water howellia occurrences are surrounded or nearly surrounded, by forested vegetation (Mincemoyer 2005, p. 7), with numerous observations reporting water howellia occupying shaded portions of ponds and wetlands (Isle 1997, p. 32; McCarten
Water howellia is endemic to the Pacific Northwest with historical occurrences identified in California, Oregon, Washington, Idaho, and Montana (Shelly and Moseley 1988, pp. 6, 9). Currently, the species still occurs in all five States representing six distinct geographic areas. The species' historical distribution—before European settlement and modern development in the Pacific Northwest—is unknown. However, the geographic area historically occupied by the species was likely small, due to the species' requirement of ephemeral wetlands with specific filling and drying regimes. Since listing in 1994, new occurrences of water howellia have been documented in all five States, generally in areas known historically to support the species. Thus, locations of extant occurrences are generally representative of the areas where the species was thought to historically occur.
At the time of Federal listing (1994), 107 water howellia occurrences (defined as known populations) were known across the species' range (59 FR 35860; July 14, 1994). In 2017, a minimum of 307 occurrences were documented. The majority of extant occurrences (91 percent) are within three metapopulations occupying distinct, geographic areas in Montana's Swan Valley (Lake and Missoula Counties); Department of Defense property at Lewis-McChord, Pierce County in western Washington; and Turnbull National Wildlife Refuge (Turnbull Refuge), Spokane County in northeastern Washington (Figure 1). Regional occurrences of plants demonstrate metapopulation structure when regional persistence is governed by the processes of patch colonization, extirpation (local extinction), and recolonization (Freckleton and Watkinson 2002, p. 419). These metapopulations are important to the viability of the species as long-term persistence is expected of metapopulations compared to small, isolated occurrences that generally experience short persistence (Lesica 1992, p. 420). Consequently, identification of these metapopulations is important for directing conservation efforts toward the regional availability of suitable habitat (Freckleton and Watkinson 2002, p. 432). Currently, 258
Trends for water howellia are difficult to determine. Substantial numbers of new occurrences have been discovered since listing in 1994, and, most recently, several occurrences have been documented in Oregon, where the species was thought to be extirpated. However, this may not necessarily indicate a positive population trend. Rather, this could indicate increased efficiency at finding new occurrences. Consistent, standardized monitoring has not occurred across the range of the species, making it difficult to document trends. Additionally, an occurrence is broadly defined as “a known population.” Abundance of individual water howellia plants within occurrences fluctuates widely. This is due, in part, to environmental conditions of the preceding autumn,
Genetic variation among water howellia occurrences is low. Occurrences in California and Montana are genetically similar; however, occurrences in Idaho and Washington are more distantly related (Schierenbeck and Phipps 2010, p. 5). These data suggest that gene flow is occurring between occurrences separated by large geographic distances, albeit at a relatively low rate. A correlation between migratory waterfowl routes with either genetic similarity or distance indicates that waterfowl may be transporting seed or plant material between water howellia population areas (Schierenbeck and Phipps 2010, pp. 6-7). A more robust sampling and genetic analysis of water howellia occurrences across the species' range would be necessary to support or refute this hypothesis.
Here, we provide a summary of progress made on the draft recovery criteria for water howellia. More detailed information related to conservation efforts can be found below under
Below are the recovery criteria as described in the draft recovery plan and the progress made to date in implementing each.
1.
Monitoring indicates management plans have been effective at maintaining the minimum number of occurrences by reducing or eliminating anthropogenic threats associated with land management activities (
2.
3.
Additionally, the 5-year review recommended development of a memorandum of understanding (MOU) with the USFS and USDOD to ensure the continuation of existing conservation measures currently benefitting water howellia. Although a formal MOU has not been developed, both agencies have specific conservation strategies in place (for specific
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We must consider these same five factors in delisting a species. For species that are already listed as endangered or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the removal of the Act's protections. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered nor threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error.
Water howellia is currently listed as threatened. Section 3(20) of the Act defines a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C. 1532(20)). We consider “foreseeable future” to be that period of time within which a reliable prediction can be reasonably relied upon in making a determination about the future conservation status of a species, as described on January 16, 2009, Solicitor's opinion, and number M-37021 (DOI 2009, entire). We consider 30 years to be a reasonable period of time within which reliable predictions can be made for the species. This time period includes multiple generations of water howellia. Additionally, various global climate models and emission scenarios provide consistent predictions within that timeframe (IPCC 2014, p. 11). We consider 30 years a relatively conservative timeframe in view of the long-term protections in place for 84 percent of the species' occupied habitat occurring on Federal land.
A recovered species has had threats removed or reduced to the point that it no longer meets the Act's definition of endangered or threatened. A species is “endangered” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is “threatened” if it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. For the purposes of this analysis, we will evaluate whether or not the currently listed species, water howellia, should continue to be listed as threatened, based on the best scientific and commercial information available.
In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and during the five-factor threats analysis, we will attempt to determine the significance of the threat. The threat is significant if it drives or contributes to the risk of extinction of the species such that the species warrants listing as endangered or threatened as those terms are defined by the Act. However, the identification of factors that could affect a species negatively may not be sufficient to justify a finding that the species warrants listing or should remain listed. The information must include evidence sufficient to suggest that the potential threat is likely to materialize and that it has the capacity (sufficient magnitude and extent) to affect the species' status such that it meets the definition of endangered or threatened under the Act. This determination does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that a listing action is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered species or threatened species under the Act. The following analysis examines the five factors currently affecting water howellia, or that are likely to affect it within the foreseeable future.
Factor A requires the Service to consider present or threatened destruction, modification, or curtailment of water howellia habitat or range. The following potential threats were identified for this species at the time of listing: (1) Invasive species, (2) land management (primarily timber harvest and road building), (3) trampling by domestic livestock, (4) direct habitat loss from urbanization or dam construction, and (5) the narrow ecological requirements of the species (59 FR 35860; July 14, 1994). In the analysis that follows, we also considered climate change in the context of narrow ecological requirements. An assessment of threats (1) through (4) follows; the narrow ecological requirements of the species and climate change are discussed under Factor E, below.
In the 1994 final listing rule (59 FR 35860, July 14, 1994), invasive plant species were identified as a threat to water howellia in habitats where they overlap. Invasive species, such as reed canarygrass (
The mechanisms driving invasive potential of
Mechanical and chemical treatment efforts to decrease the abundance and distribution of
Invasive plants can be aggressive and quickly displace natives in some situations. While there are some small sites that may have been completely or partially overtaken by invasive plants, water howellia metapopulations appear to be holding their own in the face of invasive species. This conclusion is reinforced by
Land management activities that cause disturbance to vegetation surrounding water howellia occurrences were identified as a threat to the species in the 1994 final listing rule (59 FR 35860; July 14, 1994). Previous modeling efforts suggested that these activities, singularly or in combination, could result in a loss of vegetation at the pond fringe, disrupting the hydrological cycle and negatively impacting the phenology of water howellia (Reeves and Woessner 2004, pp. 10, 15). However, more recent evidence indicates that effects from land management activities are no longer a threat to the species.
Most land management activities that could disturb vegetation surrounding water howellia occurrences on State and Federal land are now prohibited. For example, land management activities that could disturb vegetation within 300 ft (91 m) of water howellia occurrences on USFS lands in Montana and California are typically not allowed because of standards and guidelines to protect the plant included in USFS Forest Plans (USFS 1995, p. IV-32; USFS 1997, p. 17; Johnson 2013, pers. comm.). Limited activities (including prescribed fire) may be allowed within the 300-ft (91-m) buffer, but only if needed to maintain the integrity of the buffer (USFS 1997, p. 17; Johnson 2013, pers. comm.). As a result of these actions, abundance and distribution of water howellia have remained stable in Montana's Swan Valley from 1978 to 2014 (Pipp 2017, p. 14). The Flathead National Forest (FNF) in Montana developed a conservation strategy for water howellia on USFS lands in 1994, and a second edition was finalized in 1997 (USFS 1997, entire). Additionally, the FNF amended their Land and Resource Management Plan (LRMP) in 1996, to provide measures specific to the conservation and recovery of water howellia (USFS 1996, entire). On State land in Montana, clear-cutting of timber and burning are prohibited within defined buffers surrounding waterbodies (Montana Code Annotated, p. 1). In Washington, wetlands containing water howellia on the Turnbull Refuge are buffered by the distance from mechanical thinning and prescribed fire used in treating conifer encroachment (Rule 2009, pers. comm.). Timber harvest and prescribed fire were not identified as potential threats to other water howellia occurrences in Washington (USDOD 2006, entire; USDOD 2012, entire; USDOD 2017a, entire; Anderson 2013, pers. comm.; Gilbert 2013, 2017, pers. comm.), or occurrences in Oregon or Idaho (Currin 2013, pers. comm.; USFWS 2009, entire; IDFG 2016, entire).
Some disturbance of vegetation surrounding water howellia occurrences from land management activities occurred historically, prior to existing guidelines and standards in Federal land management plans. For example, in Montana's Swan Valley, historical disturbances caused from land management activities (
The effects of historic road building within vegetated buffers surrounding water howellia occurrences have largely been mitigated on Federal and State lands. Guidance established in the FNF LRMP and FNF conservation strategy for water howellia have resulted in the stabilization of roads to reduce sedimentation where they exist within 300 ft (91 m) of water howellia ponds in Montana (USFS 2001, p. II-46; USFS 1997, p. 18). No effects of historic roads occurring within vegetated buffers on water howellia in the Swan Valley were found in a recent analysis (Pipp 2017, p. 16). Similarly, in California, small spur roads are being closed and hydrologically stabilized in areas occupied by water howellia on the Mendocino National Forest (MNF) to minimize anthropogenic contribution to landscape instability per direction in the MNF LRMP (USFS 1995, p. III-26; Johnson 2008, pers. comm.). These conservation measures appear to be working in California, as all seven known occurrences of water howellia are still extant. In Idaho, the Idaho Transportation Department (ITD) is to avoid adverse effects to wetlands during project implementation, and a Best Management Practices Manual identifies measures to minimize any potential effects during project implementation (ITD 2014, entire; ITD 2017, p. 1). The State of Idaho identified two water howellia occurrences within 98 ft (30 m) of an established highway and expressed concern about indirect effects of road work resulting in sedimentation and, of less concern, potential removal of shade (IDFG 2016, p. 4). However, we have no information of any potential effects that road work may pose to this population. Roads were not cited as a threat to water howellia occurrences in Washington or Oregon (USDOD 2006, entire; USDOD 2012, entire; USDOD 2017a, entire; USFWS 2007, entire; USFWS 2010; entire; Anderson 2013, pers. comm.; Currin 2013, pers. comm.).
Land management activities (
Trampling of water howellia by domestic livestock was cited as a threat in the 1994 final listing rule for the species (59 FR 35860; July 14, 1994). Direct effects of plant crushing, seed bank disturbance, and alterations to substrate are likely to occur when livestock enter and exit ponds and wetlands. In addition, increased nutrient loading may be an indirect effect of livestock occupancy in and near water howellia habitat. Many water howellia occurrences are within habitats actively used by livestock. However, the level of livestock-caused disturbance that water howellia can withstand is not known and likely varies with site-specific conditions, as well as timing, severity, and duration of cattle use of occupied water howellia habitat.
The effects of trampling on water howellia occurrences on Federal and State land have largely been mitigated with fencing, cattle barricades, elimination of grazing in some areas occupied by water howellia, or limitations on the duration of time livestock have access to sensitive pond and wetland habitats (USFS 2002, p. 6; Mincemoyer 2005, p. 11; Johnson 2008, 2013, pers. comm.; Frymire 2017, pers.comm.). In Montana, analyses of monitoring data spanning nearly 30 years have concluded that despite some grazing in occupied habitat, the presence of water howellia has not been affected (Pipp 2017, p. 17).
Although no causal link was made between grazing levels and the probability of water howellia presence in the Pipp (2017) analysis, it appears that management actions implemented concurrently with grazing have provided protections to water howellia habitat and allowed the species to be conserved in Montana's Swan Valley (Pipp 2017, p. 17). In California, specific grazing regimes near five occupied ponds within an active grazing allotment on National Forest land appear to be effective; monitoring indicates no effects to water howellia occurrences from livestock trampling (Johnson 2013, pers. comm.). Two other water howellia occurrences in California are within inactive grazing allotments, where livestock are not currently present and not expected to be present in the future (Johnson 2013, 2017, pers. comm.). Trampling is not reported as a threat in Washington, Idaho, or Oregon (USDOD 2006, entire; USDOD 2017a, entire; USFWS 2007, entire; USFWS 2010, entire; Currin 2013, pers. comm.; IDFG 2016, entire). It is unknown where grazing may occur on the 37 occurrences on private property. Therefore, the extent of trampling and other livestock-related alterations to water howellia habitat on these private lands is unknown. However, potential trampling effects from livestock on Federal and State land have been largely mitigated.
Trampling of water howellia by domestic livestock is not a threat to the species on Federal or State land at current grazing levels because of mitigation measures being implemented, including riparian fencing, cattle guards, and timely removal or relocation of livestock from the sensitive pond and wetland habitats. We have no information indicating levels of livestock use (and thus potential trampling) will increase beyond current levels in the future. The severity and frequency of trampling of water howellia occurrences on private land are unknown, but as significantly fewer water howellia occurrences are known from private lands, these impacts are likely not significant at the species level. We conclude, based on the available information, that trampling by domestic livestock is not a significant threat to water howellia.
Habitat loss from urbanization and dam construction occurred historically,
Direct habitat loss from urbanization and dam construction occurred along the Columbia River in Oregon, and water howellia was thought to be extirpated from that area prior to 2015 (USFWS 2017, entire; Norman 2010, pers. comm.). However, since then, two occurrences of water howellia have been located in the Portland, Oregon, metro area (ORBIC 2017, unpaginated).
Most of the water howellia occurrences on corporate or private lands in Montana were previously owned by Plum Creek Timber. In 2007, approximately 67,000 ac (27,000 ha) of Plum Creek land in the Swan Valley were sold to The Nature Conservancy (TNC) and Trust for Public Land; ownership was then transferred to either the USFS or the State of Montana (Swan Valley Connections 2017, entire). The 47 water howellia occurrences and potential habitat that were formerly on Plum Creek land are now protected from urbanization through either the FNF LRMP (USFS 1997, entire) or State agency direction for managing timberlands (DNRC 1996, p. 1). The FNF LRMP mandates avoidance of disturbance, including urbanization, in forested buffers of a minimum of 300 ft (91 m) from water howellia occurrences. The State of Montana manages its timberlands for long-term revenue and biodiversity (DNRC 1996, p. 2) and not for short-term revenue from selling timbered State lands and the potential urbanization that may follow.
It is unknown if historical habitat loss occurred in California; however, most known occurrences of water howellia are within USFS lands, including some within designated wilderness areas (Johnson 2013, pers. comm.). Therefore, no current or future threat of habitat loss from urbanization is expected because any disturbance of vegetated buffers surrounding water howellia ponds is prohibited under the LRMP unless it is necessary to promote natural ecological and hydrological function (USFS 1995, pp. IV-19, 35). It is unknown how urbanization has affected the 37 water howellia occurrences on private land, but because there are significantly fewer occurrences known from private lands, these impacts are likely not significant at the species level.
In sum, habitat loss from urbanization and dam construction occurred historically, particularly in Oregon, but is no longer considered a significant threat. In Oregon, recent new discoveries of water howellia suggest that the species has been able to remain extant on the landscape where it was once considered extirpated. In areas surrounding the extant, larger metapopulations, habitat loss from urbanization and dam construction is not considered a threat to the species because of conservation strategies and land transfers implemented in Montana (USFS) and Washington (USDOD and USFWS). Further, known habitat in California is largely within USFS lands, including designated wilderness; thus, there is no significant threat of habitat loss from urbanization or dam construction in California.
The following stressors warranted consideration as possible current or future threats to water howellia under Factor A: Invasive species, land management activities, trampling by domestic livestock, and direct habitat loss from urbanization or dam construction (59 FR 35860; July 14, 1994). However, these stressors have not occurred to the extent anticipated at the time of listing in 1994, or the stressors are being adequately managed, or the species is tolerant of the stressor as described below.
• Suppression efforts directed at
• Land management plans and conservation management strategies have been adopted by Federal and State agencies to mitigate the effects of land management activities on water howellia and are in place for all three metapopulations. These plans vary in duration, but are mandated by Federal and State law and are expected to continue to provide protections to water howellia habitat into the future, even if the species is delisted.
• The installation of riparian fencing and cattle barricades and the implementation of specific grazing routines have effectively mitigated the effects of trampling on water howellia.
• The extant metapopulations, as well as most occurrences in California, are largely managed by Federal agencies that have conservation strategies in place. Therefore, neither urbanization nor dam construction is a threat to water howellia.
• Limited information is available regarding the 37 occurrences (12 percent of known occurrences) that occur on private property. Due to the low number of occurrences on private land relative to Federal and State land, impacts are likely, not significant at the species level.
Therefore, based on the available information, we do not consider there to be any significant threats related to the present or threatened destruction, modification, or curtailment of habitat or range of water howellia.
Overutilization, for any purpose, was not considered a threat in the final rule to list water howellia (59 FR 35860; July 14, 1994). We are not aware of any current utilization of water howellia for commercial, recreational, scientific, or educational purposes. Regarding future utilization, interest has been expressed by the Valencia Wetland Mitigation Bank in Priest River, Idaho, to collect seed via soil plugs from vigorous water howellia occurrences for use in establishing new occurrences where appropriate habitat exists (Wiechmann 2014b, entire). Initially, a harvest of 5 to 7 soil plugs from other Idaho occurrences has been proposed. It is unclear how “vigorous” populations have been defined in this context, although any proposed collection of soil plugs would have to be permitted by the Service, assuming a Federal nexus. The proposed project would be beneficial if it created another occurrence of water howellia in northern Idaho or had educational value. We are not aware of any other current or future plans for utilization of the species. Therefore, based on the available information, we find that there are no significant threats to water howellia related to overutilization for commercial, recreational, scientific, or educational purposes.
Predation (herbivory) on water howellia by domestic livestock was considered a threat in the final rule to list the species (59 FR 35860; July 14, 1994). As described in more detail above under the Factor A discussion, grazing is limited within the species' habitat, and the persistence of water howellia in ponds accessible to livestock in the Swan Valley metapopulation has not been affected
Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to water howellia discussed under other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require us to consider relevant Federal, State, and Tribal laws, regulations, and other such mechanisms that may minimize any of the threats we describe in the threats analyses under the other four factors or otherwise enhance conservation of the species. We give the strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations; an example would be State governmental actions enforced under a State statute or constitution or Federal action under the statute.
For currently listed species, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. Therefore, we examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or eliminated.
In our discussion under Factors A, B, C, and E, we evaluate the significance of threats as mitigated by any conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze the extent to which conservation measures and existing regulatory mechanisms address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats.
Although inadequacy of existing regulatory mechanisms was not specifically identified as a threat to water howellia at the time of listing in 1994, we did mention the very limited number of protections that existed for the species (59 FR 35860, July 14, 1994, see p. 59 FR 35862). Specifically, we discussed the designation of water howellia as a sensitive species by the USFS and referred to wetland protection measures provided under section 404 of the Federal Clean Water Act (33 U.S.C. 1251
The Clean Water Act (CWA) was designed, in part, to protect surface waters of the United States from unregulated pollution from point sources. The CWA provides some benefit to water howellia through the regulation of discharge into surface waters through a permitting process; however, the historical threats to water howellia habitat have not typically been associated with point sources of pollution, and current information does not point to these as threats for occurrences today.
Under section 404 of the CWA, the U.S. Army Corps of Engineers (USACE) regulates the discharge of fill material into waters of the United States, including wetlands. In general, the term “wetland” refers to areas meeting the USACE's criteria of hydric soils, hydrology (either sufficient annual flooding or water on the soil surface), and hydrophytic vegetation (plants specifically adapted for growing in wetlands). Some habitat occupied by water howellia is considered isolated waters under the CWA. As a result of various Supreme Court decisions, the CWA jurisdiction over isolated waters has been uncertain and generally determined case-by-case. Further, federal agencies are currently considering removing isolated waters from CWA jurisdiction (82 FR 34899; July 27, 2017). Thus, the extent of water howellia receiving the protections of the CWA now and in the future is uncertain. However, the protections of the CWA to water howellia habitat that is under CWA jurisdiction are expected to remain, without the provisions of the Act.
The Food Security Act was designed, in part, to protect wetlands by removing incentives for farmers to convert wetlands into crop fields. The Food Security Act likely provides some indirect protection of potential water howellia habitats on private land, but not those on Federal or State land. Although there are no data directly linking the Food Security Act and water howellia, historically, it has been demonstrated that the Food Security Act has had positive impacts on wetland function (Gleason
Environmental review of potential effects of Federal actions is mandated under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
Federal activities on USFS lands are subject to the National Forest Management Act of 1976 (NFMA; 16 U.S.C. 1600
Water howellia is given consideration as a federally listed species by Federal agencies, and, if delisted, it would likely continue to be included on the sensitive species list for the USFS, as it was at the time of listing (59 FR 35860; July 14, 1994). Under the 2012 National Forest System land planning rule (77 FR 21162; April 9, 2012), the status given is “species of conservation concern,” and direction is given to provide ecological conditions necessary to maintain viable populations of species of conservation concern (Hayward
Similar to NFMA, the Federal Land Policy and Management Act (43 U.S.C. 1701
Water howellia occurrences and habitats on Federal military installations (Lewis-McChord in Pierce County, Washington) are managed under an INRMP (USDOD 2006, pp. 4-6; USDOD 2017, p. X-X) authorized by the Sikes Act (16 U.S.C. 670a
As directed by the National Wildlife Refuge System Improvement Act (Pub. L. 105-57, 16 U.S.C. 668dd), Refuge managers have the authority and responsibility to protect native ecosystems, fulfill the purposes for which an individual refuge was founded, and implement strategies to achieve the goals and objectives stated in management plans. For example, Turnbull Refuge (Spokane County, Washington) includes extensive habitat for water howellia, including 35 known occupied sites. The National Wildlife Refuge's comprehensive conservation plan (CCP) is a land management plan with a 15-year term that directs protection of these habitats and identifies specific objectives relative to research and monitoring, invasive species management, and education regarding water howellia (USFWS 2007, p. 2-22). Given the 15-year timeframe of CCPs, these protections would remain in place until 2022 regardless of water howellia Federal listing status.
Ridgefield National Wildlife Refuge in western Washington finalized a CCP in 2010, which included several conservation strategies for water howellia. These strategies included allowing natural flood-up and various methods (
In addition to specific protections for water howellia provided under CCPs, the species is permanently protected by the mission of all National Wildlife Refuges to manage their lands and waters for the conservation of fish, wildlife, and plant resources and their habitats.
The Montana Streamside Management Zone Act (SMZ), in part, designates vegetated buffer strips around surface waters, including wetlands adjacent to streams (and thus potential water howellia habitat), within the boundaries of timber harvest units in Montana. The SMZ law covers Federal, State, and private commercial timber practices (Montana Code Annotated 2009, p. 1). The SMZ law specifically prohibits slash fill of wetlands, off-road vehicle use, and clear cutting within 50 ft (15 m) of water bodies (Administrative Rules of Montana 2007, p. 7). There are no buffer strips designated for isolated wetlands (those not adjacent to a stream/river) under the SMZ and only voluntary restrictions on equipment travel through isolated wetlands. Although unclear, some water howellia occurrences in Montana's Swan Valley may occur in isolated wetlands. Thus, the direct loss of habitat or plants for a small number of occurrences from timber harvest activities is a possibility if water howellia plants occupy isolated wetlands within a timber harvest unit. However, audits of timber sale practices conducted by interdisciplinary review teams have consistently documented few violations of the SMZ law and generally high compliance (>90%) with voluntary regulations in the recent past (Montana DNRC 2016, entire). Thus, while there is potential for water howellia habitat to be lost for occurrences in isolated wetlands, the magnitude of the stressor appears small. As State law, the protections of the SMZ are expected to continue if we delist water howellia.
This conservation strategy identifies focus areas, community types, species, and inventory needs along with their conservation concerns and strategies in Montana (Montana FWP 2005, p. 170). The emphasis of the strategy is conserving a broad range of species and habitats, not just game species and their habitats. The Swan Valley (site of the Montana water howellia metapopulation) is designated a “Terrestrial Conservation Focus Area in Greatest Need.” Multiple conservation strategies include riparian area conservation, conservation easement planning, sustainable land management practices, and weed control
Washington State's Natural Heritage Plan identifies priorities for preserving natural diversity, including wetlands, in Washington State (Washington Department of Natural Resources (DNR) 2007, 2011, entire). The progressive plan aids Washington DNR in conserving key habitats that are currently imperiled or expected to be in the future. The prioritization of conservation efforts provided by this plan is expected to remain in place if we delist water howellia; however, the effects of plan implementation on water howellia would depend upon whether habitat for water howellia was part of a conservation effort.
Washington State's Forest Practices Act, and associated regulations and rules, (Washington Annotated Code 2008, p. 30-3) provides protection of wetlands from the fill and cutting that could result from commercial timber harvest operations. Minimum buffers of 25 ft (8 m) are designated around ponds and wetlands inside timber sale boundaries, effectively prohibiting most harvest and all heavy equipment used in these areas. These buffers protect water howellia habitat from disturbance and minimize impacts to water quality. As State law, these protections are expected to remain in place if we delist water howellia.
Oregon SB 533/ORS 564 requires non-Federal public agencies to protect State-listed plant species found on their lands (Oregon Revised Statute 2009, entire). Any land action on Oregon non-Federal public lands which results, or might result, in the taking of an endangered or threatened species requires consultation with the Oregon Department of Agriculture (ODA) staff. Removal of Federal protections for water howellia would remove State protection of the species under this statute since water howellia was never formally listed by ODA. However, protections are expected to remain in place due to other rare, sensitive plant species in the area inhabited by water howellia and the commitment of the Metro (Portland-area regional government) to protect the only known occurrences of water howellia in Oregon (Currin 2013, pers. comm.).
As discussed above and under the other factors, conservation measures and existing regulatory mechanisms (such as Federal and State land management plans and conservation strategies) have minimized, and are continuing to minimize, the previously identified threats of invasive species, land management activities (primarily timber harvest and road building), trampling by domestic livestock, and direct habitat loss from urbanization or dam construction to all three water howellia metapopulations. As indicated above, we anticipate that the majority of these mechanisms will remain in place regardless of the species' Federal listing status. Consequently, we find that conservation measures, along with existing regulatory mechanisms, are adequate to address these specific stressors.
Factor E requires the Service to consider any other factors that may be affecting water howellia. Under this factor, we discuss: (1) The narrow ecological requirements of the species in the context of climate change, (2) small population size/low genetic diversity, and (3) the potential for cumulative effects of stressors.
Here we consider the narrow ecological requirements of water howellia in the context of observed or projected changes in climate. The 1994 listing rule (59 FR 35860; July 14, 1994) did not discuss the potential impacts of climate change on water howellia. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). The term “climate” refers to the mean and variability of relevant quantities (
Scientific measurements spanning several decades demonstrate that changes in climate are occurring. In particular, warming of the climate system is unequivocal, and many of the observed changes in the last 60 years are unprecedented over decades to millennia (IPCC 2014, p. 2). The current rate of climate change may be as fast as any extended warming period over the past 65 million years and is projected to accelerate in the next 30 to 80 years (National Research Council 2013, p. 5). Thus, rapid climate change is adding to other sources of extinction pressures, such as land use and invasive species, which will likely place extinction rates in this era among just a handful of the severe biodiversity crises observed in Earth's geological record (AAAS 2014, p. 7).
Examples of various other observed and projected changes in climate and associated effects and risks, and the basis for them, are provided for global and regional scales in recent reports issued by the IPCC (2013c, 2014), and similar types of information for the United States and regions within it can be found in the National Climate Assessment (Melillo
Results of scientific analyses presented by the IPCC show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate alone and is “very likely” (defined by the IPCC as 95 percent or higher probability) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from fossil fuel use (IPCC 2014, pp. 47-48; see also Walsh
Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions. Model results yield very similar projections of average global warming until about 2030. Thereafter, the magnitude and rate of warming vary through the end of the century depending on the assumptions about population levels, emissions of GHGs, and other factors that influence climate
Global climate projections are informative, and in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (
Various changes in climate may have direct or indirect effects on species. These may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables like habitat fragmentation (IPCC 2014, p. 67; for additional examples, see Franco
As is the case with all stressors that we assess, even if we conclude that a species is currently affected or is likely to be affected in a negative way by one or more climate-related impacts, it does not necessarily follow that the species meets the definition of an “endangered species” or a “threatened species” under the Act. If a species is listed as endangered or threatened, knowledge regarding the vulnerability of the species to, and known or anticipated impacts from, climate-associated changes in environmental conditions can be used to help devise appropriate strategies for its recovery.
Climate change trends predicted for the Pacific Northwest (Oregon, Washington, Idaho, and Montana) broadly consist of an increase in annual average temperature; an increase in extreme precipitation events; and, with less certainty, variability in annual precipitation (Dalton
A potential increase in precipitation as a result of climate change may affect the species in several ways. First, increases in precipitation may increase the surface area of existing ponds and wetlands, or create new ones. These new habitats would be available for colonization by water howellia and could increase the range and resiliency of the species. However, new habitats would also be available to invasive species such as
Alternatively, a potential decrease in precipitation as a result of climate change also may affect water howellia in several ways. Decreases in precipitation may result in water levels that are too low to support the submergent flower production. Additionally, earlier drawdowns and the faster receding of water in these wetlands as a result of decreased precipitation may ultimately limit the continued persistence of ephemeral ponds. This could provide an opportunity for expansion of
Changes in precipitation from snow to rain may also affect water howellia, particularly in the southernmost occurrences (
The ability of water howellia to self-fertilize and produce seeds at both the early season submergent and later season emergent forms may be an advantage to surviving lengthened, shortened, or generally more inconsistent growing seasons than occurred historically. Seed production from both flower forms in one growing
Associated wetland vegetation that positively contributes to suitable microclimates for water howellia could be altered by predicted variance in temperatures and precipitation. An increase in daily temperatures paired with a decrease in precipitation could potentially result in stressed and dying vegetation, which could result in an increased risk of wildfire, insect pathogens such as pine bark beetles, an increase in noxious or invasive weeds, and an increase in atmospheric carbon dioxide levels that could accelerate natural ecological succession. The loss of vegetation around ponds from wildfire or other events could accelerate sedimentation, resulting in the loss of water howellia occurrences. Montana and eastern Washington occurrences of water howellia could be more resilient to these processes than other occurrences because of their distribution over a larger landscape with many separate occurrences. Increasing temperatures combined with increased demand for ground and surface water for human development may compound negative impacts to water howellia in eastern Washington and northern Idaho. Climate-induced effects on water howellia may appear first in California, as these occurrences are at the southern edge of the known range. However, these effects may be buffered by the higher elevation (approximately 3,800 ft/1,158 m) at which the California occurrences are found compared to elsewhere in the range (western Washington: Approximately 15 ft/5m).
Predicted environmental changes resulting from climate change may have both positive and negative effects on water howellia, depending on the extent and type of impact and depending on site-specific conditions within each habitat type. The primary predicted negative effect is the alteration of hydrologic regimes potentially resulting in inconsistent growing seasons. This effect will likely be buffered by the ability of water howellia to produce seeds during both early and late seasons. Predicted environmental effects that may be positive for water howellia include increased habitat, seed dispersal, and species distribution in some areas, including within the three metapopulations due to predicted increases in precipitation across the northern range of the species (IPCC 2014, p. 61). The intact nature and current spatial arrangement (geographically diverse and at varying elevations) of the three large metapopulations will likely provide more resilience to climate change than the smaller, isolated occurrences. Effects of potential composition shifts in vegetation surrounding water howellia occurrences as a result of climate change are unknown.
In summary, climate change is affecting and will continue to affect temperature and precipitation events. The extent, duration, and impact of those changes are unknown, but could potentially increase or decrease precipitation in some areas. Water howellia may experience climate change-related effects in the future, most likely at the individual or local population level. Regional occurrences may experience some shifts. However, it is anticipated that the metapopulations important to the viability of the species would continue to persist because of resiliency due to geographic and elevational diversity. Available information indicates the species is adaptable to variable conditions. Therefore, based upon available information, we conclude that climate change is not a significant threat to water howellia.
The final rule to list water howellia (59 FR 35860; July 14, 1994) cited small population size and lack of genetic variation within and among occurrences as a contributor to its vulnerability. Small occurrences with low genetic diversity could limit a species' or population's ability to respond to novel changes in its environment, necessitating redundancy of occurrences across larger areas to increase the probability of survival. At the time of listing in 1994, the only genetic investigation of the species showed very low genetic diversity within and among occurrences in Washington and Montana (Lesica
The relatively low genetic diversity of water howellia across its current range may limit the species' ability to respond to environmental changes. However, gene flow is occurring among occurrences, and the redundancy of smaller occurrences across the species' range may mitigate for reduced genetic plasticity within individual occurrences (
Many of the stressors faced by water howellia are interrelated and could work in concert with each other, resulting in a cumulative adverse effect on the species. For example, stressors discussed under Factor A that individually do not rise to the level of a threat could together result in habitat loss. Similarly, small population size in combination with stressors discussed under Factor A could present a potential concern.
Climate change is occurring across the range of the species, coinciding with all other identified stressors. As described previously, variations in climatic conditions may favor or preclude invasive species, depending on site-specific habitat factors. Also described previously, climate change may alter hydrological cycles. However, despite changing climate conditions, water howellia has persisted across its range. Analysis of nearly 30 years of data on water howellia occurrences in the Swan Valley indicates the species has persisted even with climate change interacting with other potential stressors (Pipp 2017, entire). This suggests that the cumulative effects of climate change and other stressors are not meaningful at the metapopulation level, nor at the species level. Nevertheless, we recognize that there are uncertainties associated with climate change predictions; ongoing management and monitoring of water howellia (via the PDM plan) is designed to detect potential future changes in the species' distribution and abundance.
There may be locations of water howellia occurrences where invasive species are present, and cattle have access to occupied ponds. Grazing may
Given the lack of threats within water howellia occurrences and increases in abundance and distribution since listing in 1994, we conclude that climate change, small population size and low genetic diversity, and cumulative effects are not significant threats to water howellia.
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to water howellia including invasive species (Factor A), land management activites (Factor A), trampling by domestic livestock (Factor A), direct habitat loss from urbanization or dam construction (Factor A), narrow ecological requirements of the species in the context of climate change (Factor E), predation (herbivory) by domestic livestock (Factor C), small population size/low genetic variation (Factor E), and cumulative effects of stressors (Factor E). Based on the best available information, and as described in our five-factor analysis, above, the identified stressors fall into one or more of the following categories:
• Stressors that have not occurred to the extent anticipated at the time of listing and existing information indicates that this will not change in the future (trampling by domestic livestock, predation (herbivory), direct habitat loss from urbanization).
• Stressors that are adequately managed and existing information indicates that this will not change in the future (invasive species, land management activities).
• Stressors for which the species is tolerant and existing information indicates that this will not change in the future (narrow ecological requirements, small population size/low genetic variation, climate change, cumulative effects).
Thus, our analysis of this information indicates that these stressors are not of sufficient imminence, intensity, or magnitude to indicate that water howellia is in danger of extinction or likely to become so within the foreseeable future throughout all of its range. Therefore, after assessing the best available information, we conclude that water howellia is not in danger of extinction throughout all of its range nor is it likely to become so in the foreseeable future.
Because we determined that water howellia is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we will consider whether there are any significant portions of its range in which water howellia is in danger of extinction or likely to become so in the foreseeable future.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range (SPR). Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the Act. Under this reading, we should first consider whether the species warrants listing “throughout all” of its range and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either an endangered or a threatened species according to the “throughout all” language.
Having determined that the water howellia is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we now consider whether it may be in danger of extinction or likely to become so in the foreseeable future in an SPR. The range of a species can theoretically be divided into portions in an infinite number of ways, so we first screen the potential portions of the species' range to determine if there are any portions that warrant further consideration. To do the “screening” analysis, we ask whether there are portions of the species' range for which there is substantial information indicating that: (1) The portion may be significant; and, (2) the species may be, in that portion, either in danger of extinction or likely to become so in the foreseeable future. For a particular portion, if we cannot answer both questions in the affirmative, then that portion does not warrant further consideration and the species does not warrant listing because of its status in that portion of its range. We emphasize that answering these questions in the affirmative is not a determination that the species is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range—rather, it is it is a step in determining whether a more detailed analysis of the issue is required.
If we answer these questions in the affirmative, we then conduct a more thorough analysis to determine whether the portion does indeed meet both of the SPR prongs: (1) The portion is significant and (2) the species is, in that portion, either in danger of extinction or likely to become so in the foreseeable future. Confirmation that a portion does indeed meet one of these prongs does not create a presumption, prejudgment, or other determination as to whether the species is an endangered species or threatened species. Rather, we must then undertake a more detailed analysis of the other prong to make that determination. Only if the portion does indeed meet both SPR prongs would the species warrant listing because of its status in a significant portion of its range.
At both stages in this process—the stage of screening potential portions to identify any portions that warrant further consideration and the stage of undertaking the more detailed analysis of any portions that do warrant further consideration—it might be more efficient for us to address the “significance” question or the “status” question first. Our selection of which question to address first for a particular portion depends on the biology of the species, its range, and the threats it faces. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the second question for that portion of the species' range.
For water howellia, we chose to evaluate the status question (
We examined the following threats: Invasive species, land management activities, trampling by domestic livestock, direct habitat loss from urbanization or dam construction, narrow ecological requirements of the species in the context of climate change, predation (herbivory) by domestic livestock, small population size/low genetic variation, and the cumulative effects of these threats. We found no concentration of threats in any portion of the water howellia's range at a biologically meaningful scale. Since we found no portions of the species' range where threats are significantly concentrated or substantially greater than in other portions of its range, we did not identify any portions where the species may be in danger of extinction or likely to become so in the foreseeable future. Therefore, no portions warrant further consideration through a more detailed analysis, and the species is not in danger of extinction or likely to become so in the foreseeable future in any significant portion of its range. Our approach to analyzing SPR in this determination is consistent with the court's holding in
Our review of the best available scientific and commercial information indicates that the water howellia is not in danger of extinction nor likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Therefore, we find that the water howellia does not meet the definition of an endangered species or a threatened species, and we propose to remove the species from the List.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to water howellia. After review and analysis of the information regarding stressors as related to the five statutory factors, we find that the ongoing stressors are not of sufficient imminence, intensity, or magnitude to indicate that this species is presently in danger of extinction throughout all or a significant portion of its range. Additionally, no threats exist currently, nor are any potential stressors expected to rise to the level, that would likely cause the species to become in danger of extinction in the foreseeable future throughout all or a significant portion of the species' range. Because the species is neither in danger of extinction now nor likely to become so in the foreseeable future throughout all or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species under the Act. As a consequence of this determination, we find that water howellia no longer requires the protection of the Act, and we propose to remove the species from the Federal List of Endangered and Threatened Plants.
This proposal, if made final, would revise 50 CFR 17.12(h) to remove water howellia from the Federal List of Endangered and Threatened Plants. Because no critical habitat was ever designated for this species, this rule will not affect 50 CFR 17.96.
The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect water howellia.
Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been delisted due to recovery. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.
We are proposing to delist water howellia based on new information we have received as well as conservation actions taken. Since delisting would be, in part, due to conservation taken by stakeholders, we have prepared a draft post-delisting monitoring (PDM) plan for water howellia. The draft PDM plan discusses the current status of the taxon and describes the methods proposed for monitoring if we delist the taxon. The draft PDM plan: (1) Summarizes the status of water howellia at the time of proposed delisting; (2) describes frequency and duration of monitoring; (3) discusses monitoring methods and potential sampling regimes; (4) defines what potential triggers will be evaluated to address the need for additional monitoring; (5) outlines reporting requirements and procedures; (6) proposes a schedule for implementing the PDM plan; and (7) defines responsibilities. It is our intent to work with our partners towards maintaining the recovered status of water howellia. We will seek public and peer reviewer comments on the draft PDM plan, including its objectives and procedures (see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We are aware of two water howellia occurrences that occur on tribal lands; we have notified the Tribes that may be affected by this proposed rule and offered government-to-government consultation.
A complete list of all references cited in this proposed rule is available at
The authors of this proposed rule are staff members of the Montana Ecological Services Field Office and field and regional offices in California, Colorado, Idaho, Oregon, and Washington.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by November 6, 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.
The Department of Agriculture will submit the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13 on or after the date of publication of this notice. Comments are requested regarding: Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, Washington, DC; New Executive Office Building, 725 17th Street NW, Washington, DC 20503. Commenters are encouraged to submit their comments to OMB via email to:
Comments regarding these information collections are best assured of having their full effect if received by November 6, 2019. Copies of the submission(s) may be obtained by calling (202) 720-8681.
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.
Forest Service, USDA.
Renewal of the Pacific Northwest National Scenic Trail Advisory Council.
The United States Department of Agriculture (USDA) intends to renew the Pacific Northwest National Scenic Trail Advisory Council (Council). In accordance with provisions of the National Trails System Act of 1968, and the Federal Advisory Committee Act (FACA), the Council is being renewed to provide advice and recommendations to the Secretary of Agriculture (Secretary) during the development of the Comprehensive Management Plan for the Pacific Northwest National Scenic Trail (Trail) including the nature and purposes of the Trail, objectives and practices for the Trail, standards for the erection and maintenance of markers along the Trail, and other matters related to the administration of the Trail. Additional information concerning the Council can be found by visiting the Council's website at:
Becky Blanchard, Pacific Northwest National Scenic Trail Administrator, Pacific Northwest Region—USDA Forest Service, by phone at 503-808-2449 or by email at
Pursuant with the provisions of FACA, the Secretary intends to renew the Council to continue providing advice and recommendations on matters related to the Pacific Northwest National Scenic Trail (Trail). The Council consists of approximately 25 members (not more than 35) to represent interests as required by the National Trails System Act. The purpose of the Council is to provide advice on the nature and purposes of the Trail, objectives and practices for the Trail, standards for the erection and maintenance of markers along the Trail, and other matters related to the administration of the Trail.
The Council shall be comprised of 25 members, not more than 35 members and approved by the Secretary of Agriculture where each will serve a 2-year term, although appointments shall have staggered terms. The Council membership will be fairly balanced in terms of the points of view represented and functions to be performed. A designated Federal employee, in accordance with Sections 10(e) and (f) of the FACA regulations, will serve as the Designated Federal Officer (DFO). Non-Federal members of the Council shall serve without pay, but will be reimbursed for reasonable costs incurred while performing duties on behalf of the Council, subject to approval by the DFO. The Council shall include representation from experts in the following interest areas:
(1) The head of each Federal department or independent agency administering lands through which the trail route passes, or his designee;
(2) a member appointed to represent each State through which the trail passes, and such appointments shall be made from recommendations of the Governors of such States;
(3) one or more members appointed to represent private organizations, including corporate and individual landowners and land users, which in the opinion of the Secretary, have an established and recognized interest in the trail. These members may represent social, environmental, or economic organizations; and
(4) one or more members appointed to represent tribal interests.
Of these members, one will become the Chairperson who is recognized for their ability to lead a group in a fair and focused manner and who has been briefed on the mission of this Council. The Council will meet on an annual basis or as needed. This will be determined by the Council. Meetings are open to the public and may include a “public forum” that may offer 5-10 minutes for participants to present comments to the Council. A meeting notice will be published in the
Forest Service.
Notice of Intent to Establish Secure Rural Schools Resource Advisory Committees.
The United States Department of Agriculture (USDA) intends to establish the following: The Rocky Mountain Resource Advisory Committee (RAC) in Rocky Mountain Region (R2) by consolidating Bighorn, Medicine-Bow Routt, Shoshone, Grand Mesa Uncompahgre Gunnison and Pike-San Isabel RACs; the Northern Utah RAC in the Intermountain Region (R4) by consolidating the Ashley RAC and the Uinta Wasatch Cache RAC; the Mendo-Lake County RAC in the Pacific Southwest Region (R5) by consolidating the Mendocino RAC and Lake County RAC; the Gifford Pinchot RAC in the Pacific Northwest Region (R6) by consolidating the North Gifford Pinchot RAC and the South Gifford Pinchot RAC; and the Northern Wisconsin RAC in the Eastern Region (R9) by consolidating the Chequamegon RAC and Nicolet RAC. Secure Rural Schools (SRS) RACs pursuant to the Secure Rural Schools and Community Self-Determination Act (the Act), as amended, most recently by the Agricultural Improvement Act of 2018 (Pub. L. 115-334). The SRS RACs will operate in compliance with the Federal Advisory Committee Act (FACA). The purpose of the SRS RACs is to improve collaborative relationships among people who use and care for National Forests. The Secretary has determined that the work of the SRS RACs are in the public's interest and relevant to the duties of the Department of Agriculture. The SRS RACs are statutory committees. Additional information concerning the SRS RACs can be found by visiting the SRS RACs website at:
Jonathan Word, National Partnership Coordinator, Forest Service Secure Rural Schools Program, by telephone at (928) 699-5016 or by email at
In accordance with the provisions of FACA, the Secretary of Agriculture intends to establish SRS RACs to provide advice and recommendations to the Forest Service concerning projects and funding consistent with SRS Title II of the Act. The duties of SRS RACs include monitoring projects, advising the Secretary on the progress and results of monitoring efforts, and making recommendations to the Forest Service for any appropriate changes or adjustments to the projects being monitored by the SRS RACs.
The SRS RACs will be comprised of no more than 15 members, no fewer than 9 members in accordance with the Agriculture Improvement Act of 2018; hereafter, 2018 Farm Bill. Members will be approved by the Secretary of Agriculture except in Arizona and Montana where they will be approved by the Regional Forester and each will serve a 4-year term. SRS RACs membership will be balanced in terms of the points of view represented and functions to be performed. The SRS RACs shall include representation from the following interest areas:
(1) Five persons who represent:
(a) Organized Labor or Non-Timber Forest Product Harvester Groups,
(b) Developed Outdoor Recreation, Off Highway Vehicle Users, or Commercial Recreation Activities,
(c) Energy and Mineral Development, or Commercial or Recreational Fishing Interests,
(d) Commercial Timber Industry, or
(e) Federal Grazing or Other Land Use Permits, or Represent NonIndustrial Private Forest Land Owners, within the area for which the committee is organized.
(2) Five persons who represent:
(a) Nationally Recognized Environmental Organizations,
(b) Regionally or Locally Recognized Environmental Organizations,
(c) Dispersed Recreational Activities,
(d) Archaeological and Historical Interests, or
(e) Nationally or Regionally Recognized Wild Horse and Burro Interest Groups, Wildlife or Hunting Organizations, or Watershed Associations.
(3) Five persons who represent:
(a) State Elected Office (or a designee),
(b) County or Local Elected Office,
(c) American Indian Tribes within or adjacent to the area for which the committee is organized,
(d) Area School Officials or Teachers, or
(e) Affected Public at Large.
Of these members, one will become the Chairperson who is recognized for their ability to lead a group in a fair and focused manner and who has been briefed on the mission of the RAC. A chairperson is selected by a majority of RAC members. The Committee will meet on an annual basis or as needed and determined by the Agency.
In the event that a vacancy arises, the Designated Federal Officer (DFO) may fill the vacancy in the manner in which the original appointments were made. In accordance with the SRS Act, members of the SRS RAC shall serve without compensation. SRS RAC members may be allowed travel and per diem expenses for attendance at committee meetings, subject to approval of the DFO responsible for administrative support to the SRS RAC.
Equal opportunity practices in accordance with USDA policies shall be followed in all appointments to the SRS RACs. To ensure that the recommendations of the SRS RACs have taken into account the needs of the diverse groups served by USDA, membership will, to the extent practicable, include individuals with demonstrated ability to represent all racial and ethnic groups, women and men, and persons with disabilities.
Forest Service, USDA.
Notice of meeting.
The Wrangell-Petersburg Resource Advisory Committee (RAC) will meet in Petersburg, Alaska and Wrangell, Alaska. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following website:
The meeting will be held on Wednesday, November 6, 2019, from 6:30 p.m. to 9:00 p.m., or until business is concluded.
All RAC meetings are subject to cancellation. For updated status of the meeting prior to attendance, please contact Linda Slaght, RAC Coordinator, by phone at 907-772-5948 or via email at
The meeting will be held at the Wrangell Ranger District Office, 525 Bennett Street, Wrangell, Alaska 99929 and at the Petersburg Ranger District office, 12 North Nordic Drive, Petersburg, Alaska 99833. The two locations will be connected via video teleconference.
Interested persons may attend in person at either location, or by teleconference. For anyone who would like to attend by teleconference, please contact Linda Slaght, RAC Coordinator, by phone at 907-772-5948 or via email at
Written comments may be submitted as described under
Linda Slaght, RAC Coordinator, by phone at 907-772-5948 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The purpose of the meeting is to:
1. Review progress of previously funded projects;
2. Review new project proposals; and
3. Conclude any business that may be remaining concerning recommendations for allocation of Title II funding to projects.
The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by Friday, November 1, 2019, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests time for oral comments may be sent to Linda Slaght, RAC Coordinator, Post Office Box 1328, Petersburg, Alaska 99833; by email to
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a meeting of the Pennsylvania Advisory Committee to the Commission will convene by conference call at 11:30 a.m. (EST) on Tuesday, October 15, 2019. The purpose of the meeting is to discuss the two briefing meetings on the Committee's project titled, School Discipline and School-to-Prison Pipeline in PA. The first briefing will be on Tuesday, November 19, 2019 and conducted via conference call; the second daylong, in-person briefing will be on Thursday, November 21, 2019. Details for both briefings will be provided in subsequent
Tuesday, October 15, 2019, 2019, at 11:30 a.m. (EDT).
Ivy Davis at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 800-353-6461 and conference call ID number: 6813288. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free conference call-in number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1-800-877-8339 and providing the operator with the toll-free conference call-in number: 800-353-6461 and conference call ID number: 6813288.
Members of the public are invited to make statements during the Public Comment section of the meeting or to submit written comments. The statements must be received in the regional office approximately 30 days after the scheduled meeting. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, or emailed to Corrine Sanders at
Records and documents discussed during the meeting will be available for public viewing as they become available at:
Economic Development Administration, U.S. Department of Commerce.
Notice and opportunity for public comment.
The Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of the firms contributed importantly to the total or partial separation of the firms' workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. These petitions are received pursuant to section 251 of the Trade Act of 1974, as amended.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
On January 15, 2016 in the U.S. District Court for the Western District of Michigan, Benjamin James Cance (“Cance”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Cance was convicted of violating Section 38 of the AECA by knowingly and willfully exporting without the required U.S. Department of State licenses gun components designated as defense articles on the United States Munitions List. Cance was sentenced to forty-eight (48) months in prison, two years of supervised release, a fine of $3,000 and an assessment of $200. Cance was also placed on the U.S. Department of State's Debarred List.
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”).
BIS has received notice of Cance's conviction for violating Section 38 of the AECA, and pursuant to Section 766.25 of the Regulations has provided notice and an opportunity for Cance to make a written submission to BIS. BIS has not received a submission from Cance.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Cance's export privileges under the Regulations for a period of 10 years from the date of Cance's conviction. I have also decided to revoke any BIS-issued license in which Cance had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On November 13, 2018, in the U.S. District Court for the Middle District of Georgia, Kenneth S. Chait (“Chait”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C 1701,
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”).
BIS received notice of Chait's conviction for violating IEEPA and, pursuant to Section 766.25 of the Regulations, provided notice and an opportunity for Chait to make a written submission to BIS. Chait requested additional time to make a written submission. BIS granted Chait an extension until July 20, 2019. To date, however, BIS has not received a written submission from Chait.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Chait's export privileges under the Regulations for a period of five years from the date of Chait's conviction. I have also decided to revoke any BIS-issued licenses in which Chait had an interest at the time of his conviction.
Accordingly, it is hereby ordered:
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On February 26, 2019, in the U.S. District Court for the District of Columbia, Arash Sepehri, a/k/a William Anderson, a/k/a Aresh Sepheri Eshtajran (“Sepehri”), was convicted of violating 18 U.S.C. 371. Specifically, Sepehri was convicted of knowingly and willfully conspiring to export U.S.-origin items, including high-resolution sonar equipment, data input boards, acoustic transducers and rugged laptops, from the United States to Iran without the required licenses from the U.S. Government. Sepehri was sentenced to twenty-five (25) months in prison, with credit for time served, and a $100 special assessment.
Pursuant to Section 1760(e) of the Export Control Reform Act (“ECRA”),
BIS has received notice of Sepehri's conviction for violating 18 U.S.C. 371, and has provided notice and an opportunity for Sepehri to make a written submission to BIS, as provided in Section 766.25 of the Export Administration Regulations (“EAR” or the “Regulations”). 15 CFR 766.25.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Sepehri's export privileges pursuant to ECRA for a period of seven years from the date of Sepehri's conviction. I have also decided to revoke any BIS license issued under ECRA in which Sepehri had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Inmate Number: 75222-112,
FCI Lompoc,
Federal Correctional Institution,
3600 Guard Road,
Lompoc, CA 93436.
On December 20, 2018, in the U.S. District Court for the Middle District of Georgia, Rasheed Al Jijakli (“Jijakli”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701,
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by BIS.
BIS received notice of Jijakli's conviction for violating IEEPA and pursuant to Section 766.25 of the Regulations has provided notice and an opportunity for Jijakli to make a written submission to BIS. BIS has not received a written submission from Jijakli.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Jijakli's export privileges under the Regulations for a period of 10 years from the date of Jijakli's conviction. I have also decided to revoke any BIS-issued licenses in which Jijakli had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
In the Matter of: Eldar Rezvanov, Inmate Number: 35027-016, Moshannon Valley Correctional Institution, 555 Geo Drive, Philipsburg, PA 16866.
On July 24, 2018, in the U.S. District Court for the Eastern District of Virginia, Eldar Rezvanov (“Rezvanov”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Rezvanov was convicted of violating Section 38 of the AECA by knowingly and willfully exporting, causing the export of, and attempting to export items designated as defense articles on the United States Munitions List from the United States to Russia without the required U.S. Department of State licenses. The items included, seven assembled firearms, ten firearm stocks, 130 fully assembled lower recievers, 133 firearm frames, 158 firearm barrels, 266 firearm slides, 453 functional firearm parts (including springs and firing pins), and 966 firearm magazines. Rezvanov was sentenced to forty-six (46) months in prison, three years of supervised release, and an assessment of $100. Rezvanov also was placed on the U.S. Department of State Debarred List.
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”).
BIS has received notice of Rezvanov's conviction for violating Section 38 of the AECA, and pursuant to § 766.25 of the Regulations has provided notice and an opportunity for Rezvanov to make a written submission to BIS. BIS has not received a submission from Rezvanov.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Rezvanov's export privileges under the Regulations for a period of 10 years from the date of Rezvanov's conviction. I have also decided to revoke any BIS-issued license in which Rezvanov had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On April 25, 2018, in the U.S. District Court for the District of Arizona, Barbara Jo Luque (“Luque”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Luque was convicted of violating Section 38 of the AECA by intentionally attempting to willfully and knowingly export and cause to be exported from the United States to Mexico items designated as defense articles on the United States Munitions List, namely, 5,000 rounds of FMJ Russian 7.62x39 mm ammunition and 125 AK-47 KCI thirty-round magazines, without the required U.S. Department of State licenses. Luque was sentenced to six months in prison, with credit for time served, two years of supervised release, and a special assessment of $100.
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”).
BIS has received notice of Luque's conviction for violating Section 38 of the AECA and pursuant to Section 766.25 of the Regulations has provided notice and an opportunity for Luque to make a written submission to BIS. BIS has not received a submission from Luque.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Luque's export privileges under the Regulations for a period of seven years from the date of Luque's conviction. I have also decided to revoke any BIS-issued license in which Luque had an interest at the time of her conviction.
Accordingly,
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the antidumping duty order on certain hot-rolled flat-rolled carbon-quality steel products (hot-rolled steel) from the Russian Federation. The period of review (POR) is December 1, 2017 through November 30, 2018. Interested parties are invited to comment on these preliminary results.
Applicable October 7, 2019.
Preston Cox, 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) 482-5041.
In response to Commerce's notice of opportunity to request an administrative review on hot-rolled steel from the Russian Federation,
On March 14, 2019, Commerce published in the
Carbon-Quality Steel Products from the Russian Federation: Certification of No Shipments for PAO Severstal,” dated April 18, 2019.
For the purposes of this order, “hot-rolled steel” means certain hot-rolled flat-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers) regardless of thickness, and in straight lengths, of a thickness less than 4.75 mm and of a width measuring at least 10 times the thickness.
Universal mill plate (
Specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, and the substrate for motor lamination 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 micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.
Steel products to be included in the scope of this order, regardless of Harmonized Tariff Schedule of the United States (HTSUS) definitions, are products in which: (1) Uiron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.012 percent of boron, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 percent of vanadium, or 0.15 percent of zirconium.
All products that meet the physical and chemical description provided above are within the scope of this agreement unless otherwise excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of this agreement:
The covered merchandise is classified in the HTSUS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.40.60.60, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, 7211.19.75.90, 7212.40.10.00, 7212.40.50.00, 7212.50.00.00. Certain hot-rolled flat-rolled carbon-quality steel covered include: Vacuum degassed, fully stabilized; high strength low alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.01.80. Although the HTSUS subheadings are provided for convenience and Customs purposes, the
Based on record evidence, we preliminarily determine that NLMK, Severstal PAO, and Severstal Export GmbH had no shipments of subject merchandise during the POR. Specifically, CBP indicated that it found no shipments by NLMK, Severstal PAO, and Severstal Export GmbH during the POR.
Interested parties may submit case briefs no later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce using Enforcement and Compliance's ACCESS system within 30 days after the date of publication of this notice.
All submissions must be filed electronically using ACCESS and served on interested parties.
Unless the deadline is extended, Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act).
In accordance with Commerce's practice, we find it appropriate to complete the review and issue liquidation instructions to CBP concerning entries for NLMK, Severstal PAO, and Severstal Export GmbH following issuance of the final results of review. If we continue to find that NLMK, Severstal PAO, and Severstal Export GmbH had no shipments of subject merchandise in the final results, we will instruct CBP to liquidate any existing entries of merchandise produced by NLMK, Severstal PAO, and Severstal Export GmbH, but exported by other parties, at the rate for the intermediate reseller, if available, or at the all-others rate.
We intend to issue instructions to CBP 15 days after the publication date of the final results of this review.
If the final results of review continue to find that NLMK, Severstal PAO, and Severstal Export GmbH had no shipments during the POR, there will be no change to the existing cash deposit requirements.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with August anniversary dates. In accordance with Commerce's regulations, we are initiating those administrative reviews.
Applicable October 7, 2019.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Commerce has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with August anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of
In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the POR. We intend to place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act, the following guidelines regarding collapsing of companies for purposes of respondent selection will apply. In general, Commerce has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.
Section 504 of the Trade Preferences Extension Act of 2015 amended the Act by adding the concept of particular market situation (PMS) for purposes of constructed value under section 773(e) of the Act.
Neither section 773(e) of the Act nor 19 CFR 351.301(c)(2)(v) set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of initial responses to section D of the questionnaire.
In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, Commerce analyzes each entity exporting the subject merchandise. In accordance with the separate rates criteria, Commerce assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, Commerce requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on Commerce's website at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than August 31, 2020.
None
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested.
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with the procedures outlined in Commerce's regulations at 19 CFR 351.305. Those procedures apply to administrative reviews included in this notice of initiation. Parties wishing to participate in any of these administrative reviews should ensure that they meet the requirements of these procedures (
Commerce's regulations identify five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). These regulations require any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The regulations, at 19 CFR 351.301, also provide specific time limits for such factual submissions based on the type of factual information being submitted. Please review the final rule, available at
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
Parties may request an extension of time limits before a time limit established under Part 351 expires, or as otherwise specified by the Secretary.
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Notice of Application for an amended Export Trade Certificate of Review for Alaska Groundfish Commission (“AGC”), Application Number 18-1A002.
The Office of Trade and Economic Analysis (“OTEA”) of the International Trade Administration, Department of Commerce, received an application for an amended Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed application and requests comments relevant to whether the Certificate should be issued.
Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) (“the Act”) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. A Certificate protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325. OTEA is issuing this notice pursuant to 15 CFR 325.6(a), which requires the Secretary of Commerce to publish a summary of the application in the
Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be nonconfidential.
An original and five (5) copies, plus two (2) copies of the nonconfidential version, should be submitted no later than 20 days after the date of this notice to: Office of Trade and Economic Analysis, International Trade Administration, U.S. Department of Commerce, Room 21028, Washington, DC 20230.
Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 18-1A002.”
• Add following as Members of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.2(1)).
The proposed amendment would result in the following 24 Members:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Skate Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday October 22, 2019 at 9 a.m.
The meeting will be held at the New Bedford Harbor Hotel, 222 Union Street, New Bedford, MA 02740; phone: (508) 999-1292.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Skate Advisory Panel will discuss Amendment 5/Limited Access to the skate fishery and review Plan Development Team (PDT) analyses to date; continued discussion on the structure of a limited access program for the skate bait and wing fisheries including draft alternatives. The Advisory Panel will make recommendations to the Skate Committee. Other business may be discussed as necessary.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
16 U.S.C. 1801
Corporation for National and Community Service.
Notice.
The Corporation for National and Community Service (CNCS) has submitted a public information collection request (ICR) entitled Senior Corps Project Progress Report for review and approval in accordance with the Paperwork Reduction Act.
Comments may be submitted, identified by the title of the information collection activity, by November 6, 2019.
Direct written comments and/or suggestions regarding the items contained in this Notice to the Attention: CNCS Desk Officer, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-5806. Provide written comments within 30 days of Notice publication.
Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Anne Otih, at 202-606-7570 or by email to
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions;
• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and
• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
A 60-day Notice requesting public comment was published in the
Department of the Air Force.
Notification of extension of public comment period.
The U.S. Air Force is issuing this notice to advise the public of an extension to the public comment period. The initial Notice of Availability was published in the
Mr. Ramon Ortiz, NGB/A4AM, 3501 Fetchet Avenue, Joint Base Andrews, MD 20762-5157, ph: (240) 612-7042.
Office of Electricity, Department of Energy.
Notice of application.
Castleton Commodities Merchant Trading L.P. (Applicant or CCMT) has applied to renew its authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before November 6, 2019.
Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to
The Department of Energy (DOE) regulates exports of electricity from the United States to a foreign country, pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b) and 7172(f)). Such exports require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).
On October 2, 2014, DOE issued Order No. EA-359-B, which authorized CCMT to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities. That authorization expires on October 5, 2019. On September 27, 2019, CCMT filed an application with DOE for renewal of the export authorization contained in Order No. EA-359-B for an additional five-year term.
In its application, the Applicant states that it “does not currently own or control electric generation or transmission facilities, and does not have a power supply of its own in the United States on which its exports of power could have a reliability, fuel use or system stability impact.” Affiliates of the Applicant do own generating facilities, but “neither Applicant nor any of its affiliates owns or controls any electric power . . . transmission facilities and none of them has a franchised electric power service area.” The electric energy that the Applicant proposes to export to Canada would be surplus energy purchased from third parties, such as wholesale generators, electric utilities and Federal power marketing agencies, pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning CCMT's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-359-C. An additional copy is to be provided directly to both Daniel E.
A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE determines that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.
Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program website at
On September 27, 2019, Rumford Falls Hydro, LLC filed a Notice of Intent (NOI) and Pre-Application Document to re-license its 44.5-megawatt Rumford Falls Hydroelectric Project No. 2333. The Federal Energy Regulatory Commission (Commission) will conduct an environmental site review for the project on October 24, 2019. The project is located on the Androscoggin River, in Oxford County, Maine.
The environmental site review is being held to provide all stakeholders, interested in the project's future relicensing proceedings, an opportunity to view the project's facilities and surrounding areas.
Under the Commission's Integrated Licensing Process, the Commission conducts its National Environmental Policy Act (NEPA) scoping meeting within 90 days of the filing of the licensee's NOI. An environmental site review is typically held in conjunction with that scoping meeting. However, access to some project facilities may be limited by winter weather during December of 2019 when scoping for this project is currently anticipated. For this reason, the Commission will conduct the environmental site review in October before the onset of winter; additional site reviews will not be conducted in conjunction with NEPA scoping meetings for the project in December of 2019. Therefore, we are waiving 5.8(b)(viii) of the Commission's regulations requiring an environmental site review within 30 days of issuance of a notice of commencement of proceeding to facilitate the early environmental site review. The Commission encourages all interested parties to participate in the October environmental site review to facilitate productive scoping meetings later this year. Details of the project specific environmental site review follow.
Please notify Mr. Randy Dorman of Great Lakes Hydro America at (207) 755- 5605 or at
If you need further logistical information or directions, please contact the Mr. Randy Dorman with the information above. All other questions regarding the environmental site review or the Commission's Integrated Licensing Process may be directed to Ryan Hansen of the Commission's staff at (202) 502-8074 or via email at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Marshall County Mine Panel 19E Project involving construction and operation of facilities by Texas Eastern Transmission, LP (Texas Eastern) in Marshall County, West Virginia. The Commission will use this EA in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies about issues regarding the project. The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity/authorization. NEPA also requires the Commission to discover concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of issues to address in the EA. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on October 31, 2019.
You can make a difference by submitting your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Commission staff will consider all filed comments during the preparation of the EA.
If you sent comments on this project to the Commission
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would
Texas Eastern provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” This fact sheet addresses a number of typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. It is also available for viewing on the FERC website (
The Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. To sign up go to
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (CP19-509-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426
Texas Eastern proposes to excavate and elevate pipeline segments of its Lines 10, 15, 25, and 30, and these pipelines range from 30-inch to 36-inch-diameter. Concurrent with pipeline elevation, portions of Lines 10 and 15 will be replaced with new pipe to accommodate a minimum Class 2 design.
The general location of the project facilities is shown in appendix 1.
Construction workspace would disturb about 34.2 acres of land for the pipeline excavation, elevation, and/or replacement. Following construction, Texas Eastern would maintain about 12.0 acres of existing right-of-way for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses.
The EA will discuss impacts that could occur as a result of the construction and operation of the proposed project under these general headings:
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
The EA will present Commission staffs' independent analysis of the issues. The EA will be available in electronic format in the public record through eLibrary
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
If the Commission issues the EA for an allotted public comment period, a
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable proceeding in accordance with Rule 2010, 18 CFR 385.2010.
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e) (1) (v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Take notice that on September 27, 2019, pursuant to sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824e and 825e and Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206, Wolverine Power Supply Cooperative, Inc. (Complainant) filed a formal complaint against Midcontinent Independent System Operator, Inc., (Respondent or MISO) alleging that, Respondent's rules governing the Planning Resource Auction (PRA) is unjust and unreasonable because the PRA fails to establish an appropriate forward price signal and identify the real cost of maintaining reliability, all as more fully explained in the complaint.
The Complainant certifies that copies of the complaint were served on the contacts listed for Respondent in the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the eFiling link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Tenaska Clear Creek Wind, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 21, 2019.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental assessment (EA) that will discuss the environmental impacts of the Port Arthur LNG Expansion Project (Project) involving construction and operation of facilities by Sempra PALNG Holdings, LLC (Sempra) in Jefferson County, Texas. The Commission will use this EA in its decision-making process to determine whether the project is in the public interest.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies about issues regarding the project. The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from its action whenever it considers the issuance of an authorization. NEPA also requires the Commission to discover concerns the public may have about proposals. This process is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the EA on the important environmental issues. By this notice, the Commission requests public comments on the scope of issues to address in the EA. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on November 12, 2019.
You can make a difference by submitting your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the EA. Commission staff will consider all filed comments during the preparation of the EA.
If you sent comments on this project to the Commission
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
A fact sheet prepared by the FERC entitled An Interstate Natural Gas Facility On My Land? What Do I Need To Know? is available for viewing on the FERC website (
The Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. To sign up go to
For your convenience, there are three methods you can use to submit your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (PF19-5-000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426
Sempra plans to construct and operate additional liquefaction capacity at the site of the recently approved Port Arthur Liquefaction Project near Port Arthur, Texas. The planned expansion would add two liquefaction trains, increasing liquefied natural gas production capacity from 13.5 million metric tons per annum (MTPA) to approximately 27.0 MTPA.
The general location of the project facilities is shown in appendix 1.
Construction and operation of the planned project would be wholly within property already certificated for the Port Arthur Liquefaction Project. No additional land would be required. The Project facilities, once constructed, would occupy approximately 60 acres.
The EA will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• socioeconomics;
• land use;
• air quality and noise;
• public safety; and
• cumulative impacts
Commission staff will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, Commission staff have already initiated a NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the Commission receives an application. As part of the pre-filing review, Commission staff will contact federal and state agencies to discuss their involvement in the scoping process and the preparation of the EA.
The EA will present Commission staffs' independent analysis of the issues. The EA will be available in electronic format in the public record through eLibrary
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate in the preparation of the EA.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office, and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes: Federal, state, and local government representatives and agencies; elected officials; and other interested parties. This list also includes all affected landowners (as defined in the Commission's regulations) who own homes within certain distances of aboveground facilities as well as anyone who submits comments on the project. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If the Commission issues the EA for an allotted public comment period, a
Once Sempra files its application with the Commission, you may want to become an intervenor which is an official party to the Commission's proceeding. Only intervenors have the right to seek rehearing of the Commission's decision and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
Public sessions or site visits will be posted on the Commission's calendar located at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NESHAP for Phosphoric Acid Manufacturing and Phosphate Fertilizers Production (EPA ICR Number 1790.09, OMB Control Number 2060-0361), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2020. Public comments were previously requested, via the
Additional comments may be submitted on or before November 6, 2019.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2012-0676, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Table 1 and Table 1A of Unit II., pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This cancellation order follows a March 5, 2019
The effective date of the cancellation listed in Table 1 of Unit II. is December 31, 2018, and the registrant may continue to sell and distribute existing stocks of this product until December 31, 2019. The effective date of the cancellations listed in Table 1A of Unit II. is October 7, 2019, and the registrant may continue to sell and distribute existing stocks of these products until October 7, 2020.
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-2018-0651, is available at
This notice announces the cancellation, 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 Table 1 and Table 1A of this unit.
The registrant of the request in Table 1, requests to cancel the registration on December 31, 2018.
Table 2 of this unit includes the names and addresses of record for all registrants of the products in Table 1 and Table 1A of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1 and Table 1A of this unit.
During the public comment period provided, EPA received no comments in response to the March 5, 2019
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)), EPA hereby approves the requested cancellations of the registrations identified in Table 1 and Table 1A of Unit II.
Accordingly, the Agency hereby orders that the product registrations identified in Table 1 and Table 1A of Unit II. are canceled. The effective date of these cancellations is specified in the
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 cancellation action. The existing stocks provisions for the products subject to this order are as follows:
The registrant of 432-1477, listed in Table 1, requested the cancellation to be effective on December 31, 2018, therefore, the registrant may continue to sell and distribute existing stocks of these products until December 31, 2019, which is 1 year after the effective date of the cancellation. Thereafter, the registrant is prohibited from selling or distributing the product listed in Table 1, except for export in accordance with FIFRA section 17 (7 U.S.C. 136o), or proper disposal.
For all other voluntary cancellations listed in Table 1A, the registrants may continue to sell and distribute existing stocks of products listed in Table 1A of Unit II. until 1 year after the publication of the Cancellation Order in the
Persons other than the registrants may sell, distribute, or use existing stocks of the products listed in Table 1 and Table 1A of Unit II. until existing stocks are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products.
7 U.S.C. 136
U.S. Environmental Protection Agency (EPA).
Notice of Appointment.
The National Environmental Education and Training Foundation (doing business as The National Environmental Education Foundation or “NEEF”) was created by Section 10 of Public Law 101-619, the National Environmental Education Act of 1990 (NEEA) as a private 501(c)(3) non-profit organization. It was established by Congress as a common ground upon which leaders from business and industry, all levels of government, public interest groups, and others can work cooperatively to raise a greater national awareness of environmental issues beyond traditional classrooms.
Per NEEA, the EPA Administrator appoints and reappoints eligible individuals to serve on NEEF's Board of Directors. The Administrator announces the following four-year appointments to NEEF's Board of Directors, effective 90 days after publication of this notice:
• Jeniffer Harper-Taylor—Siemens Foundation (Re-appointment)
• Jennifer Love—Royal Caribbean International
• Lori A. McFarling—Discovery Education
• Steve Sikra—Proctor & Gamble
In December 2018, NEEF signed a first-time Memorandum of Understanding with the (EPA) Acting Administrator Andrew R. Wheeler to establish increased coordination between EPA and NEEF on key EPA initiatives including but not limited to EPA's Recycling Initiative, Trash Free Waters Program, Winning on Reducing Food Waste initiative, and the Healthy Schools Initiative.
For information regarding this Notice of Appointment, please contact Lee Tanner, (202)-564-4988) Acting Supervisor for Office of Environmental Education, U.S. EPA 1200 Pennsylvania Avenue NW, Washington, DC 20460. General information concerning NEEF may be found here:
Section 10(a) of the National Environmental Education Act of 1990 (NEEA) establishes the National Environmental Education Foundation and its underlying terms. The statute in its
Section 10 of the NEEA provides the following, in pertinent part:
(a) Establishment and Purposes—
(1) ESTABLISHMENT—(A) There is hereby established the National Environmental Education Foundation. The Foundation is established in order to extend the contribution of environmental education and training to meeting critical environmental protection needs, both in this country and internationally; to facilitate the cooperation, coordination, and contribution of public and private resources to create an environmentally advanced educational system; and to foster an open and effective partnership among Federal, State, and local government, business, industry, academic institutions, community based environmental groups, and international organizations.
(B) The Foundation is a charitable and nonprofit corporation whose income is exempt from tax, and donations to which are tax deductible to the same extent as those organizations listed pursuant to section 501(c) of the Internal Revenue Code of 1986. The Foundation is not an agency or establishment of the United States.
(2) PURPOSES—The purposes of the Foundation are—
(A) subject to the limitation contained in the final sentence of subsection (d) herein, to encourage, accept, leverage, and administer private gifts for the benefit of, or in connection with, the environmental education and training activities and services of the United States Environmental Protection Agency;
(B) to conduct such other environmental education activities as will further the development of an environmentally conscious and responsible public, a well-trained and environmentally literate workforce, and an environmentally advanced educational system; and
(C) to participate with foreign entities and individuals in the conduct and coordination of activities that will further opportunities for environmental education and training to address environmental issues and problems involving the United States and Canada or Mexico.
(3) PROGRAMS—The Foundation will develop, support, and/or operate programs and projects to educate and train educational and environmental professionals, and to assist them in the development of environmental education and training programs and studies.
(b) Board of Directors-
(1) ESTABLISHMENT AND MEMBERSHIP—(A) The Foundation shall have a governing Board of Directors (hereafter referred to in this section as `the Board'), which shall consist of 13 directors, each of whom shall be knowledgeable or experienced in the environment, education and/or training. The Board shall oversee the activities of the Foundation and shall assure that the activities of the Foundation are consistent with the environmental and education goals and policies of the EPA and with the intents and purposes of this Act. The membership of the Board, to the extent practicable, shall represent diverse points of view relating to environmental education and training.
(2) APPOINTMENT AND TERMS—(A) Members of the Board shall be appointed by the EPA Administrator.
(B) Within 90 days of the date of the enactment of this Act, and as appropriate thereafter, the Administrator shall publish in the
(C) The directors shall be appointed for terms of 4 years. The Administrator shall appoint an individual to serve as a director in the event of a vacancy on the Board within 60 days of said vacancy in the manner in which the original appointment was made. No individual may serve more than 2 consecutive terms as a director.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), “RCRA Subtitle C Reporting Instructions and Forms” (EPA ICR No. 0976.19, OMB Control No. 2050-0024) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through May 30, 2020. 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.
Comments must be submitted on or before December 6, 2019.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2019-0558, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Peggy Vyas, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 703-308-5477; fax number: 703-308-8433; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) 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; (ii) evaluate the accuracy of the Agency's estimate of the
Section 3002 of RCRA requires hazardous waste generators to report, at least every 2 years, the quantity and nature of hazardous waste generated and managed during that reporting cycle. Section 3004 requires treatment, storage, and disposal facilities (TSDFs) to report any waste received. This is mandatory reporting. The information is collected via the Hazardous Waste Report (EPA Form 8700-13 A/B). This form is also known as the “Biennial Report” form.
Section 3010 of RCRA requires any person who generates or transports regulated waste or who owns or operates a facility for the treatment, storage, or disposal of regulated waste to notify the EPA of their activities, including the location and general description of activities and the regulated wastes handled. The entity is then issued an EPA Identification number. Entities use the Notification Form (EPA Form 8700-12) to notify EPA of their hazardous waste activities. This form is also known as the “Notification” form.
Section 3005 of RCRA requires TSDFs to obtain a permit. To obtain the permit, the TSDF must submit an application describing the facility's operation. The RCRA Hazardous Waste Part A Permit Application form (EPA Form 8700-23) defines the processes to be used for treatment, storage, and disposal of hazardous wastes; the design capacity of such processes; and the specific hazardous wastes to be handled at the facility. This form is also known as the “Part A” form.
T
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Updated CEQ-EPA Presidential Innovation Award for Environmental Educators and the President's Environmental Youth Awards Application (Revision)” (EPA ICR No. 2524.03, OMB Control No. 2090-0031) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed revision of the ICR, which is currently approved through April 30, 2022. 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.
Comments must be submitted on or before December 6, 2019.
Submit your comments, referencing Docket ID Number EPA-HQ-OA-2015-0553, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Javier Araujo, Office of the Administrator, Office of Environmental Education, MC-1704A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-2642; fax number: 202-564-2753; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Environmental Protection Agency (EPA).
Notice of delegation of authority.
On September 12, 2019, the Environmental Protection Agency (EPA) sent the Commonwealth of Virginia (Virginia) a letter acknowledging that Virginia's delegation of authority to implement and enforce the National Emissions Standards for Hazardous Air Pollutants (NESHAPs) and New Source Performance Standards (NSPS) had been updated, as provided for under previously approved delegation mechanisms. To inform regulated facilities and the public, EPA is making available a copy of EPA's letter to Virginia through this notice.
On September 12, 2019, EPA sent Virginia a letter acknowledging that Virginia's delegation of authority to implement and enforce Federal NESHAPs had been updated.
Copies of documents pertaining to this action are available for public inspection during normal business hours at the Air and Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103-2029. Copies of Virginia's submittal are also available at the Virginia Department of Environmental Quality, 1111 East Main Street, Richmond, Virginia 23219.
Riley Burger, (215) 814-2217, or by email at
On February 21, 2019, Virginia notified EPA that Virginia had updated its incorporation by reference of Federal NESHAPs to include many such standards, as they were published in final form in the Code of Federal Regulations (CFR) dated July 1, 2018. On September 12, 2019, EPA sent Virginia a letter acknowledging that Virginia now has the authority to implement and enforce the NESHAPs as specified by Virginia in its notice to EPA, as provided for under previously approved automatic delegation mechanisms. All notifications, applications, reports, and other correspondence required pursuant to the delegated NESHAPs must be submitted to both EPA, Region III and to the Virginia Department of Environmental Quality, unless the delegated standard specifically provides that such submittals may be sent to EPA or a delegated State. In such cases, the submittals should be sent only to the Virginia Department of Environmental Quality. A copy of EPA's letter to Virginia follows:
The United States Environmental Protection Agency (EPA) has previously delegated to the Commonwealth of Virginia (Virginia) the authority to implement and enforce various federal New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAP), and National Emission Standards for Hazardous Air Pollutants for Source Categories (MACT standards) which are found at 40 CFR parts 60, 61 and 63, respectively. In those actions, EPA also delegated to Virginia the authority to implement and enforce any future federal NSPS, NESHAP or MACT Standards on the condition that Virginia legally adopt the future standards, make only allowed wording changes, and provide specified notice to EPA.
In a letter dated February 21, 2019, Virginia submitted to EPA revised versions of Virginia's regulations which incorporate by reference specified federal NSPS, NESHAP and MACT standards, as those federal standards had been published in final form in the Code of Federal Regulations dated July 1, 2018. Virginia committed to enforcing the federal standards in conformance with the terms of EPA's previous delegations of authority and made only allowed wording changes.
Virginia stated that it had submitted the revisions “to retain its authority to enforce the NSPSs and NESHAPs under the delegation of authority granted by EPA on August 27, 1981 (46 FR 43300) and to enforce the MACT standards under the delegation of authority granted by EPA on January 26, 1999 (64 FR 3938) and January 8, 2002 (67 FR 825).”
Virginia provided copies of its revised regulations which specify the NSPS, NESHAP and MACT Standards which it had adopted by reference. Virginia's revised regulations are entitled 9 VAC 5-50 “New and Modified Stationary Sources,” and 9 VAC 5-60 “Hazardous Air Pollutant Sources.” These revised regulations have an effective date of February 20, 2019.
Based on Virginia's submittal, EPA acknowledges that EPA's delegations to Virginia of the authority implement and enforce EPA's NSPS, NESHAP, and MACT Standards have been updated, as provided for under the terms of EPA's previous
Please note that on December 19, 2008, in
Accordingly, EPA no longer allows sources the SSM exemption as provided for in the vacated provisions at 40 CFR 63.6(f)(1) and (h)(1), even though EPA has not yet formally removed these SSM exemption provisions from the General Provisions of 40 CFR part 63. Because Virginia incorporated 40 CFR part 63 by reference, Virginia should also no longer allow sources to use the former SSM exemption from the General Provisions of 40 CFR part 63 due to the Court's ruling in
EPA appreciates Virginia's continuing NSPS, NESHAP and MACT standards enforcement efforts, and also Virginia's decision to take automatic delegation of additional or updated NSPS, NESHAP and MACT standards by adopting them by reference.
This notice acknowledges the update of Virginia's delegation of authority to implement and enforce NESHAP, NSPS, and MACT.
10:00 a.m., Thursday, November 21, 2019.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW, Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will hear oral argument in the matter
Any person attending this oral argument who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and § 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
1-(866) 867-4769, Passcode: 678-100.
5 U.S.C. 552b.
10:00 a.m., Thursday, November 21, 2019.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW, Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will hear oral argument in the matter
Any person attending this oral argument who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and § 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
1-(866) 867-4769, Passcode: 678-100.
5 U.S.C. 552b.
10:00 a.m., Friday, November 22, 2019.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW, Washington, DC 20004 (enter from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and § 2706.160(d).
Emogene Johnson (202) 434-9935/(202) 708-9300 for TDD Relay/1-800-877-8339 for toll free.
1-(866) 867-4769, Passcode: 678-100.
5 U.S.C. 552b.
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, if any, 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)).
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th and Constitution Avenue NW, Washington, DC 20551-0001, not later than November 7, 2019.
1.
1.
2.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled National Healthcare Safety Network (NHSN) to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on June 5, 2019 to obtain comments from the public and affected agencies. CDC received two comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) 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;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
National Healthcare Safety Network (NHSN)—Revision—National Center for Emerging and Zoonotic Infection Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Division of Healthcare Quality Promotion (DHQP), National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC) collects data from healthcare facilities in the National Healthcare Safety Network (NHSN) under OMB Control Number 0920-0666. During the early stages of its development, NHSN began as a voluntary surveillance system in 2005 managed by DHQP. NHSN provides facilities, states, regions, and the nation with data necessary to identify problem areas, measure the progress of prevention efforts, and ultimately eliminate healthcare-associated infections (HAIs) nationwide. NHSN allows healthcare facilities to track blood safety errors and various healthcare-associated infection prevention practice methods such as healthcare personnel influenza vaccine status and corresponding infection control adherence rates.
Some cases of LOS can be prevented through proper central line insertion and maintenance practices. These are addressed in the CDC's Healthcare Infection Control Practices Advisory Committee (CDC/HICPAC)
Data reported under the Patient Safety Component are used to determine the magnitude of the healthcare-associated adverse events and trends in the rates of the events, in the distribution of pathogens, and in the adherence to prevention practices. Data will help detect changes in the epidemiology of adverse events resulting from new medical therapies and changing patient risks. Additionally, reported data is being used to describe the epidemiology of antimicrobial use and resistance and to better understand the relationship of antimicrobial therapy to this rising problem. Under the Healthcare Personnel Safety Component, protocols and data on events—both positive and adverse—are used to determine (1) the magnitude of adverse events in healthcare personnel, and (2) compliance with immunization and sharps injuries safety guidelines. Under the Biovigilance Component, data on adverse reactions and incidents associated with blood transfusions are reported and analyzed to provide national estimates of adverse reactions and incidents. Under the Long-Term Care Facility Component, data is captured from skilled nursing facilities. Reporting methods under the LTCF component have been created by using forms from the PS Component as a model with modifications to specifically address the specific characteristics of LTCF residents and the unique data needs of these facilities reporting into NHSN. The Dialysis Component offers a simplified user interface for dialysis users to streamline their data entry and analyses processes as well as provide options for expanding in the future to include dialysis surveillance in settings other than outpatient facilities. The Outpatient Procedure Component (OPC) gathers data on the impact of infections and outcomes related to operative procedures performed in Ambulatory Surgery Centers (ASCs). The OPC is used to monitor two event types: Same Day Outcome Measures and Surgical Site Infections (SSIs).
NHSN has increasingly served as the operating system for HAI reporting compliance through legislation established by the states. As of March 2019, 36 states, the District of Columbia and the City of Philadelphia, Pennsylvania have opted to use NHSN as their primary system for mandated reporting. Reporting compliance is completed by healthcare facilities in their respective jurisdictions, with emphasis on those states and municipalities acquiring varying consequences for failure to use NHSN. Additionally, healthcare facilities in five U.S. territories (Puerto Rico, American Samoa, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands) are voluntarily reporting to NHSN. Additional territories are projected to follow with similar use of NHSN for reporting purposes.
NHSN's data is used to aid in the tracking of HAIs and guide infection prevention activities/practices that protect patients. The Centers for Medicare and Medicaid Services (CMS) and other payers use these data to determine incentives for performance at healthcare facilities across the US and surrounding territories, and members of the public may use some protected data to inform their selection among available providers. Each of these parties is dependent on the completeness and accuracy of the data. CDC and CMS work closely and are fully committed to ensuring complete and accurate reporting, which are critical for protecting patients and guiding national, state, and local prevention priorities.
CMS collects some HAI data and healthcare personnel influenza vaccination summary data, which is done on a voluntary basis as part of its Fee-for-Service Medicare quality reporting programs, while others may report data required by a federal mandate. Facilities that fail to report quality measure data are subject to partial payment reduction in the applicable Medicare Fee-for-Service payment system. CMS links their quality reporting to payment for Medicare-eligible acute care hospitals, inpatient rehabilitation facilities, long-term acute care facilities, oncology hospitals, inpatient psychiatric facilities, dialysis facilities, and ambulatory surgery centers. Facilities report HAI data and healthcare personnel influenza vaccination summary data to CMS via NHSN as part of CMS's quality reporting programs to receive full payment. Still, many healthcare facilities, even in states without HAI reporting legislation, submit limited HAI data to NHSN voluntarily.
NHSN's data collection updates continue to support the incentive programs managed by CMS. For example, survey questions support requirements for CMS' quality reporting programs. Additionally, CDC has collaborated with CMS on a voluntary National Nursing Home Quality Collaborative, which focuses on recruiting nursing homes to report HAI data to NHSN and to retain their continued participation. This project has resulted in a significant increase in long-term care facilities reporting to NHSN. The collection of information is authorized by the Public Health Service Act (42 U.S.C. 242b, 242k, and 242m (d)).
The proposed changes in this new ICR include revisions made to 40 NHSN data collection tools for a total of 76 data collection tools included in this ICR. The reporting burden decreased by 2,363,508 hours for a total estimated burden of 3,033,930 hours.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the annual adjustment in the amount in controversy (AIC) threshold amounts for Administrative Law Judge (ALJ) hearings and judicial review under the Medicare appeals process. The adjustment to the AIC threshold amounts will be effective for requests for ALJ hearings and judicial review filed on or after January 1, 2020. The calendar year 2020 AIC threshold amounts are $170 for ALJ hearings and $1,670 for judicial review.
This annual adjustment takes effect on January 1, 2020.
Liz Hosna (
Section 1869(b)(1)(E) of the Social Security Act (the Act), as amended by section 521 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA), established the amount in controversy (AIC) threshold amounts for Administrative Law Judge (ALJ) hearings and judicial review at $100 and $1,000, respectively, for Medicare Part A and Part B appeals. Section 940 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), amended section 1869(b)(1)(E) of the Act to require the AIC threshold amounts for ALJ hearings and judicial review to be adjusted annually. Beginning in January 2005, the AIC threshold amounts are to be adjusted by the percentage increase in the medical care component of the consumer price index (CPI) for all urban consumers (U.S. city average) for July 2003 to July of the year preceding the year involved and rounded to the nearest multiple of $10. Section 940(b)(2) of the MMA provided conforming amendments to apply the AIC adjustment requirement to Medicare Part C/Medicare Advantage (MA) appeals and certain health maintenance organization and competitive health plan appeals. Health care prepayment plans are also subject to MA appeals rules, including the AIC adjustment requirement. Section 101 of the MMA provides for the application of the AIC adjustment requirement to Medicare Part D appeals.
The statutory formula for the annual adjustment to the AIC threshold amounts for ALJ hearings and judicial review of Medicare Part A and Part B appeals, set forth at section 1869(b)(1)(E) of the Act, is included in the applicable implementing regulations, 42 CFR 405.1006(b) and (c). The regulations require the Secretary of Health and Human Services (the Secretary) to publish changes to the AIC threshold amounts in the
Section 940(b)(2) of the MMA applies the AIC adjustment requirement to Medicare Part C appeals by amending section 1852(g)(5) of the Act. The implementing regulations for Medicare Part C appeals are found at 42 CFR 422, subpart M. Specifically, sections 422.600 and 422.612 discuss the AIC threshold amounts for ALJ hearings and judicial review. Section 422.600 grants any party to the reconsideration (except the MA organization) who is dissatisfied with the reconsideration determination a right to an ALJ hearing as long as the amount remaining in controversy after reconsideration meets the threshold requirement established annually by the Secretary. Section 422.612 states, in part, that any party, including the MA organization, may request judicial review if the AIC meets the threshold requirement established annually by the Secretary.
Section 1876(c)(5)(B) of the Act states that the annual adjustment to the AIC dollar amounts set forth in section 1869(b)(1)(E)(iii) of the Act applies to certain beneficiary appeals within the context of health maintenance organizations and competitive medical plans. The applicable implementing regulations for Medicare Part C appeals are set forth in 42 CFR 422, subpart M and apply to these appeals in accordance with 42 CFR 417.600(b). The Medicare Part C appeals rules also apply to health care prepayment plan appeals in accordance with 42 CFR 417.840.
The annually adjusted AIC threshold amounts for ALJ hearings and judicial review that apply to Medicare Parts A, B, and C appeals also apply to Medicare Part D appeals. Section 101 of the MMA added section 1860D-4(h)(1) of the Act regarding Part D appeals. This statutory provision requires a prescription drug plan sponsor to meet the requirements set forth in sections 1852(g)(4) and (g)(5) of the Act, in a similar manner as MA organizations. As noted previously, the annually adjusted AIC threshold requirement was added to section 1852(g)(5) of the Act by section 940(b)(2)(A) of the MMA. The implementing regulations for Medicare Part D appeals can be found at 42 CFR 423, subparts M and U. More specifically, § 423.2006 of the Part D appeals rules discusses the AIC threshold amounts for ALJ hearings and judicial review. Sections 423.2002 and 423.2006 grant a Part D enrollee, who is dissatisfied with the independent review entity (IRE) reconsideration determination, a right to an ALJ hearing if, in part, the amount remaining in controversy after the IRE reconsideration meets the threshold amount established annually by the Secretary. Sections 423.2006 and 423.2136 allow a Part D enrollee to request judicial review of an ALJ or Medicare Appeals Council decision if, in part, the AIC meets the threshold amount established annually by the Secretary.
As previously noted, section 940 of the MMA requires that the AIC threshold amounts be adjusted annually, beginning in January 2005, by the percentage increase in the medical care component of the CPI for all urban consumers (U.S. city average) for July 2003 to July of the year preceding the year involved and rounded to the nearest multiple of $10.
The AIC threshold amount for ALJ hearings will rise to $170 and the AIC threshold amount for judicial review will rise to $1,670 for CY 2020. These amounts are based on the 67.234 percent increase in the medical care component of the CPI, which was at 297.600 in July 2003 and rose to 497.687 in July 2019. The AIC threshold amount for ALJ hearings changes to $167.23 based on the 67.234 percent increase over the initial threshold amount of $100 established in 2003. In accordance with section 1869(b)(1)(E)(iii) of the Act, the adjusted threshold amounts are rounded to the nearest multiple of $10. Therefore, the CY 2020 AIC threshold amount for ALJ hearings is $170.00. The AIC threshold amount for judicial review changes to $1,672.34 based on the 67.234 percent increase over the initial threshold amount of $1,000. This amount was rounded to the nearest multiple of $10, resulting in the CY 2020 AIC threshold amount of $1,670.00 for judicial review.
In the following table we list the CYs 2016 through 2020 threshold amounts.
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Office on Trafficking in Persons; Administration for Children and Families; HHS.
Request for public comment.
The Office on Trafficking in Persons (OTIP), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is requesting to reinstate a previously approved information collection with revisions to information collected on clients enrolled in the Trafficking Victim Assistance Grant Program.
Written comments and recommendations for the proposed information collection should be sent directly to the following: Office of Management and Budget, Paperwork Reduction Project, Email:
Copies of the proposed collection may be obtained by emailing
OTIP proposes to collect information to measure grant project performance, provide technical assistance to grantees, assess program outcomes, improve program evaluation, respond to congressional inquiries and mandated reports, and inform policy and program development that is responsive to the needs of victims.
The information collection captures information on participant demographics (
Estimated Total Annual Burden Hours: 2,005.
22 U.S.C. 7105.
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 Endocrinologic and Metabolic Drugs Advisory Committee. The general function of the committee 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 November 13, 2019, from 8 a.m. to 5 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 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,
FDA is establishing a docket for public comment on this meeting. The docket number is FDA-2019-N-4284. The docket will close on November 12, 2019. Submit either electronic or written comments on this public meeting by November 12, 2019. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before November 12, 2019. The
Comments received on or before October 29, 2019, will be provided to the committee. 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
LaToya Bonner, 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:
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 LaToya Bonner (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.
Correction.
The Food and Drug Administration (FDA) is correcting a notice that appeared in the
Jesse Anderson, Office of Computational Science, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 301-348-1816,
In FR Doc. 2019-17877, appearing on page 43139, in the
On page 43140, in the first column, in the
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.
Fax written comments on the collection of information by November 6, 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
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10a.m.-12p.m., 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 520(g) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360j(g)) establishes the statutory authority to collect information regarding investigational devices and establishes rules under which new medical devices may be tested using human subjects in a clinical setting. The Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-
Investigations of significant risk devices, ones that present a potential for serious harm to the rights, safety, or welfare of human subjects, are subject to the full requirements of the IDE regulation. Nonsignificant risk device investigations,
Upon approval of an IDE application by FDA, a sponsor must submit certain requests and reports. Under § 812.35, a sponsor who wishes to make a change in the investigation that affects the scientific soundness of the study or the rights, safety, or welfare of the subjects, is required to submit a request for the change to FDA. Section 812.150 requires a sponsor to submit reports to FDA. These requests and reports are submitted to FDA as supplemental applications. This information is needed for FDA to assure protection of human subjects and to allow review of the study's progress. Section 812.36(c) identifies the information necessary to file a treatment IDE application. FDA uses this information to determine if wider distribution of the device is in the interest of the public health. Section 812.36(f) identifies the reports required to allow FDA to monitor the size and scope of the treatment IDE, to assess the sponsor's due diligence in obtaining marketing clearance of the device, and to ensure the integrity of the controlled clinical trials.
Section 812.140 lists the recordkeeping requirements for investigators and sponsors. FDA requires this information for tracking and oversight purposes. Investigators are required to maintain records, including correspondence and reports concerning the study, records of receipt, use or disposition of devices, records of each subject's case history and exposure to the device, informed consent documentation, study protocol, and documentation of any deviation from the protocol. Sponsors are required to maintain records including correspondence and reports concerning the study, records of shipment and disposition, signed investigator agreements, adverse device effects information, and, for a nonsignificant risk device study, an explanation of the nonsignificant risk determination, records of device name and intended use, study objectives, investigator information, investigational review board information, and statement on the extent that good manufacturing practices will be followed.
For a nonsignificant risk device investigation, the investigators' and sponsors' recordkeeping and reporting burden is reduced. Pertinent records on the study must be maintained by both parties, and reports are made to sponsors and institutional review boards (IRBs). Reports are made to FDA only in certain circumstances,
In the
FDA estimates the burden of this collection of information as follows:
Our estimated burden for the information collection reflects an overall decrease of 528 hours. We attribute this adjustment to a decrease in the number of submissions we received over the last few years.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In accordance with the Federal Advisory Committee Act, this notice announces that the Advisory Committee on Interdisciplinary, Community Based Linkages (ACICBL) will hold public meetings for the 2020 calendar year (CY). Information about ACICBL, agendas, and materials for these meetings can be found on the ACICBL website at
February 20-21, 2020, 8:30 a.m.-5:00 p.m. Eastern Time (ET) and 8:30 a.m.-2:00 p.m. ET; May 1, 2020, 10:00 a.m.-4:00 p.m. ET; October 20, 2020, 10:00 a.m.-4:00 p.m. ET.
The meeting scheduled from February 20-21, 2020, will be held in-person at 5600 Fishers Lane, Room 5E29, Rockville, Maryland 20857 and can be accessed via teleconference and Adobe Connect webinar. The meetings scheduled on May 1, 2020, and October 20, 2020, will both be held via teleconference and Adobe Connect webinar. Instructions for joining the meetings either in-person or remotely will be posted on the ACICBL website 30 business days before the date of the meeting. For meeting information updates, go to the ACICBL website meeting page at
Joan Weiss, Ph.D., RN, CRNP, FAAN, Senior Advisor and Designated Federal Official, Division of Medicine and Dentistry, HRSA, 5600 Fishers Lane, Rockville, Maryland 20857; 301-443-0430; or
ACICBL provides advice and recommendations to the Secretary of HHS on policy, program development, and other matters of significance concerning activities under sections 750-760, Title VII, Part D of the Public Health Service Act. Agenda items are subject to change as priorities dictate. ACICBL meetings and agenda items for CY 2020 may include, but are not limited to, discussion and development of topics for the 18th report. Refer to the ACICBL website listed above for all current and updated information concerning each of the CY 2020 ACICBL meetings, including draft agendas and meeting materials that will be posted before each meeting. Agendas will be posted on the ACICBL website at least 14 calendar days before each meeting.
Members of the public will have the opportunity to provide comments. Public participants may submit written statements in advance of the scheduled meetings. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to submit a written statement or make oral comments to the ACICBL should be sent to Joan Weiss using the contact information above at least 5 business days before the scheduled meeting date.
Individuals who need special assistance or another reasonable accommodation should notify Joan Weiss using the contact information listed above at least 10 business days before the meeting they wish to attend. Since the in-person meeting occurs in a federal government building, attendees must go through a security check to enter the building. Non-U.S. Citizen attendees must notify HRSA of their planned attendance at least 20 business days prior to the meeting in order to facilitate their entry into the building. All attendees are required to present government-issued identification prior to entry.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval for the following collection of information; 1625-NEW, Merchant Mariner Credentialing—Job Task Analysis. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before December 6, 2019.
You may submit comments identified by Coast Guard docket number [USCG-2019-0753] to the Coast Guard using the Federal eRulemaking Portal at
A copy of the ICR is available through the docket on the internet at
Mr. Anthony Smith, Office of Information Management, telephone 202-475-3532, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. Consistent with the requirements of Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, and Executive Order 13777, Enforcing the Regulatory Reform Agenda, the Coast Guard is also requesting comments on the extent to which this request for information could be modified to reduce the burden on respondents.
In response to your comments, we may revise the this ICR or decide not to seek approval for the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2019-0753], and must be received by December 6, 2019.
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
Federal Emergency Management Agency, DHS.
Notice and request for comments.
The Federal Emergency Management Agency, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on a revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the admission applications and student stipend agreements for FEMA courses and programs that are delivered on-campus and throughout the Nation, in coordination with State and local training officials and local colleges and universities.
Comments must be submitted on or before December 6, 2019.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Smiley White, Supervisory Program Specialist, United States Fire Administration, 301-447-1055. You may contact the Information Management Division for copies of the proposed collection of information at email address:
FEMA offers courses and programs that are delivered at National Emergency Training Center (NETC) in Emmitsburg, Maryland, the Center for Domestic Preparedness (CDP) in Anniston, Alabama, and throughout the Nation in coordination with State and local training officials and local colleges and universities to carry out the authorities listed below. To facilitate meeting these requirements, FEMA collects information necessary to be accepted for courses and for the student stipend or travel reimbursement program for these courses. There are several organizations within FEMA that deliver training and education in support of the FEMA mission.
1. Section 7 of Public Law 93-498, Federal Fire Prevention and Control Act, as amended, established the National Fire Academy (NFA) to advance the professional development of fire service personnel and of other persons engaged in fire prevention and control activities.
2. Section 611.f. of Subchapter VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) as amended, 42 U.S.C. 5121-5207, authorizes the Director to conduct or arrange, by contract or otherwise, for training programs for the instruction of emergency preparedness officials and other persons in the organization, operation, and techniques of emergency preparedness; conduct or operate schools or classes, including the payment of travel expenses, in accordance with subchapter I of chapter 57 of title 5, United States Code, and the Standardized Government Travel Regulations, and per diem allowances, in lieu of subsistence for trainees in attendance or the furnishing of subsistence and quarters for trainees and instructors on terms prescribed by the Director; and provide instructors and training aids as deemed necessary. This training is conducted through the Emergency Management Institute (EMI).
3. Title XIV of the National Defense Authorization Act of 1997, Public Law 104-201, 110 Stat. 2432; Title I of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Public Law 105-119, 111 Stat. 2440; Sections 403 and 430 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135; and Section 611 of the Post-Katrina Emergency Management Reform Act of 2006, Public Law 109-295, 120 Stat. 1355, all authorize CDP to serve as a training facility for all relevant federally supported training efforts that target State and local law enforcement, firefighters, emergency medical personnel, and other key agencies such as public works and State and local emergency management. The focus of the training is to prepare relevant State and local officials to deal with chemical, biological, or nuclear terrorist acts and handle incidents dealing with hazardous materials.
4. Public Law 110-53, 121 Stat. 386, 6 U.S.C. 1102 established a National Domestic Preparedness Consortium within the Department of Homeland Security. According to the enacting legislation, the members of the Consortium consist of CDP; the National Energetic Materials Research and Testing Center, New Mexico Institute of Mining and Technology; the National Center for Biomedical Research and Training, Louisiana State University; the National Emergency Response and Rescue Training Center, Texas A&M University; the National Exercise, Test, and Training Center, Nevada Test Site; the Transportation Technology Center, Incorporated, in Pueblo, Colorado; and the National Disaster Preparedness Training Center, University of Hawaii. Other organizations have been added to the Consortium membership since the passage of the enacting legislation. The Consortium shall identify, test, and deliver training to State, local, and tribal emergency response providers, provide on-site and mobile training at the performance, management, and planning levels, and facilitate the delivery of training by the training partners of the Department.
5. Under the authorities of Executive Orders 12127 and 12148, the Administrator, Federal Emergency Management Agency, is responsible for carrying out the mandates of the public laws mentioned above.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before January 6, 2020.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-1962, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
Each LOMR was finalized as in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Office of the Secretary, HUD.
Notice of appointments.
The Department of Housing and Urban Development announces the establishment of the Departmental Performance Review Board (PRB) to make recommendations to the appointing authority on the performance and compensation of its Senior Executive Service (SES), Senior Level (SL) and Senior Technical (ST) professionals.
Persons desiring any further information about the PRB and its members may contact Heather R. Dieguez, Acting Director, Office of Executive Resources, Department of Housing and Urban Development, Washington, DC 20410. Telephone (202) 402-3380. (This is not a toll-free number).
The following persons may be named to serve on the PRB from 2019 to 2021. They are listed by type of appointment, name, and official title.
Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
In accordance with the Endangered Species Act, as amended, and the National Environmental Policy Act, we, the U.S. Fish and Wildlife Service, announce the availability of the final environmental impact statement and draft record of decision analyzing the impacts of issuance of an incidental take permit (ITP) for implementation of the MidAmerican Energy Company's
We will finalize the record of decision and issue a permit no sooner than 30 days after the publication of this notice of availability in the
Electronic copies of the documents this notice announces will be available online in Docket No. FWS-R3-ES-2018-0037 at
Paper copies will be available at 22 county libraries in Iowa. Additional electronic copies of the documents as well as the list of libraries with paper copies will be available at
Amber Schorg, Fish and Wildlife Biologist, or Kraig McPeek, Illinois-Iowa Ecological Services Office Project Leader, Illinois-Iowa Field Office, by U.S. mail at 1511 47th Ave., Moline, IL 61265, or by phone at 309-757-5800.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of several documents related to an incidental take permit application under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
Our proposed action is to issue an ITP to the applicant under section 10(a)(1)(B) of the ESA, (16 U.S.C. 1539(a)(1)(B)), that authorizes incidental take of the federally endangered Indiana bat, federally threatened northern long-eared bat, and federally protected bald eagle, as well as the little brown bat and tricolored bat, from the applicant's maintenance and operation of its wind power generation facilities in Iowa. Little brown bat and tricolored bat are not federally protected, but they are currently being evaluated for protection. Additionally, 50 CFR 22.11 provides for the permitting of eagles under ESA permits. The applicant has chosen to include these as covered species and treated them as if they were ESA listed.
MidAmerican Energy Company is one of the largest electric utilities in Iowa, and operates over 22 projects with more than 4,040 MW of installed energy generation capacity. MidAmerican Energy Company's ability to serve its customers depends on the predictable operation and maintenance of its wind power facilities. The plan area for the HCP includes areas where authorized incidental take would occur and conservation measures would take place, covering all of Iowa. The applicant requested a term of 30 years from the date of ITP issuance to include the operational life of the covered projects. The applicant will implement minimization and mitigation measures to offset impacts to the covered species according to the HCP.
The applicant has agreed to include the following minimization measures:
• Feathering turbine blades at all projects below manufacturer's cut-in speeds at night for the entire active season for bats. Feathering below cut-in speeds is a way of minimizing the rotational speed of turbine blades when not producing energy.
• Minimizing the rotational speed of turbine blades until wind speeds reach 5.0 meters per second when temperatures are above 50 degrees Fahrenheit from mid-July through September at four facilities with the highest risk to covered bat species.
• Removing carrion and increasing landowner education efforts to reduce attractants to bald eagles.
• Carrying out a fatality monitoring and adaptive management program to adjust conservation measures if needed to ensure compliance with the ITP and HCP.
The mitigation measures include the following commitments:
• Protecting and restoring a minimum of 1,309 acres of bat habitat and 42 artificial structures for bat use.
• Protecting and restoring additional bat habitat up to a total of 3,200 acres, and 50 artificial structures, if needed, to compensate for projected future take based on the monitoring program results.
• Providing funding to manage and monitor all mitigation lands.
• Providing funding for conservation activities to immediately benefit bald eagles to mitigate for take of bald eagles.
• Providing mitigation funding in advance of take so that mitigation implementation stays ahead of impacts to covered species.
The applicant has applied for an ITP under the ESA that would authorize incidental take of four bat species and bald eagles and would be in effect for a period of 30 years. The proposed incidental take of bats and eagles would occur from lawful, non-Federal activities from the applicant's operation of existing wind energy generation facilities within the permit area. The HCP permit area includes lands used for operations of 22 projects in Iowa where the applicant has existing wind power facilities. The plan area includes the permit area, and also the rest of Iowa, to include all areas that may be influenced by the HCP, including mitigation activities. The final EIS considers the direct, indirect, and cumulative effects of implementing the HCP, including measures to minimize and mitigate such impacts to the maximum extent practicable.
Section 9 of the ESA and its implementing regulations prohibit the “take” of animal species listed as endangered or threatened. (16 U.S.C. 1538)
Section 10(a)(1)(B) of the ESA contains provisions for issuing incidental take permits to non-Federal entities for the incidental take of endangered and threatened species, provided the following criteria are met: (a) The taking will be incidental; (b) the applicant will minimize and mitigate, to the maximum extent practicable, the impact of such taking; (c) the applicant will develop an HCP and ensure that adequate funding for the plan will be provided; (d) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (e) the applicant will carry out any other measures that the Secretary of the Interior may require as being necessary or appropriate for the purposes of the HCP. An applicant may choose to cover non-listed species in the HCP, and these species will be treated as ESA-listed species.
On August 31, 2018, we published a
We intend to issue a final ROD with respect to whether we issue an ITP allowing the applicants to implement the
A final ITP decision will be made no sooner than 30 days after the publication of this notice of availability and completion of the record of decision.
In addition to this notice, EPA is publishing a notice in the
The EPA also serves as the repository (EIS database) for EISs that Federal agencies prepare. All EISs must be filed with EPA, which publishes a notice of availability on Fridays in the
We provide this notice under section 10(c) of the ESA (16 U.S.C.1539(c)) and its implementing regulations (50 CFR 17.22) and the NEPA (42 U.S.C. 4321
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits to conduct
We must receive your written comments on or before November 6, 2019.
•
•
Daniel Marquez, via phone at 760-431-9440, via email at
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications for permits under section 10(a)(1)(A) of the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531
With some exceptions, the ESA prohibits activities that constitute take of listed species unless a Federal permit is issued that allows such activity. The ESA's definition of “take” includes such activities as pursuing, harassing, trapping, capturing, or collecting in addition to hunting, shooting, harming, wounding, or killing.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered or threatened species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. These activities often include such prohibited actions as capture and collection. Our regulations implementing section 10(a)(1)(A) for these permits are found in the Code of Federal Regulations at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
Proposed activities in the following permit requests are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing these permits. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to these applications. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Written comments we receive become part of the administrative record associated with this action. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
If we decide to issue permits to any of the applicants listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits to conduct activities intended to enhance the propagation or survival of endangered species under the Endangered Species Act of 1973, as amended. We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
We must receive written data or comments on the applications by November 6, 2019.
•
•
Karen Marlowe, Permit Coordinator, 404-679-7097 (telephone),
We invite review and comment from local, State, and Federal agencies and the public on applications we have received for permits to conduct certain activities with endangered and threatened species under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered or threatened species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. These activities often include such prohibited actions as capture and collection. Our regulations implementing section 10(a)(1)(A) for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
Proposed activities in the following permit requests are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing these permits. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to these applications. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Department of the Interior.
Notice of availability.
In accordance with the Oil Pollution Act of 1990 (OPA), the National Environmental Policy Act of 1969 (NEPA), the
Alternatively, you may request a CD of the Final Phase V.3 RP/SEA (see
Nanciann Regalado, at
The Florida Coastal Access Project was selected for funding and implementation in Phase V of
The Consent Decree, as discussed in the “Background” section below, terminated and replaced the Framework Agreement and provided that the Trustees shall use remaining early restoration funds as specified in the early restoration plans and in accordance with the Consent Decree. The Trustees have determined that decisions concerning any unexpended early restoration funds are to be made by the appropriate TIG, in this case the Florida TIG.
A notice of availability of the Draft Phase V.3 Restoration Plan and Supplemental Environmental Assessment was published in the
On April 20, 2010, the mobile offshore drilling unit
The Trustees conducted the natural resource damage assessment (NRDA) for the
The
• U.S. Department of the Interior (DOI), as represented by the National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• U.S. Environmental Protection Agency (EPA);
• State of Louisiana Coastal Protection and Restoration Authority, Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;
• State of Mississippi Department of Environmental Quality;
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• State of Texas: Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.
On April 4, 2016, the Trustees reached and finalized a settlement of their natural resource damage claims with BP in a Consent Decree approved by the United States District Court for the Eastern District of Louisiana. Pursuant to that Consent Decree, restoration projects in the Florida Restoration Area are now chosen and managed by the Florida TIG. The Florida TIG is composed of the following six Trustees: State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; DOI; NOAA; EPA; and USDA.
The Final Phase V.3 RP/SEA/FONSI is being released in accordance with OPA, NRDA regulations found in the Code of Federal Regulations (CFR) at 15 CFR part 990, NEPA, the Consent Decree, the Final PDARP/PEIS, and the Final Phase V ERP/EA.
The Florida TIG has selected to fund the third phase of the Florida Coastal Access Project in the Final Phase V.3 RP/SEA to address lost recreational
The documents comprising the Administrative Record for the Final Phase V.3 RP/SEA can be viewed electronically at
The authority for this action is the Oil Pollution Act of 1990 (33 U.S.C.
Department of the Interior.
Notice of availability.
In accordance with the Oil Pollution Act of 1990 (OPA), the National Environmental Policy Act (NEPA), the
Alternatively, you may request a CD of the SRP and FONSI (see
Nanciann Regalado, via email at nanciann_regalado@fws.gov, via telephone at 678-296-6805, or via the Federal Relay Service at 800-877-8339.
Notice of availability of the draft SRP was published in the
On April 20, 2010, the mobile offshore drilling unit
The Trustees conducted the natural resource damage assessment (NRDA) for the
The
• U.S. Department of the Interior (DOI), as represented by the National Park Service, U.S. Fish and Wildlife Service, and Bureau of Land Management;
• National Oceanic and Atmospheric Administration (NOAA), on behalf of the U.S. Department of Commerce;
• U.S. Department of Agriculture (USDA);
• U.S. Environmental Protection Agency (EPA);
• State of Louisiana Coastal Protection and Restoration Authority, Oil Spill Coordinator's Office, Department of Environmental Quality, Department of Wildlife and Fisheries, and Department of Natural Resources;
• State of Mississippi Department of Environmental Quality (MDEQ);
• State of Alabama Department of Conservation and Natural Resources and Geological Survey of Alabama;
• State of Florida Department of Environmental Protection and Fish and Wildlife Conservation Commission; and
• State of Texas: Texas Parks and Wildlife Department, Texas General Land Office, and Texas Commission on Environmental Quality.
On April 4, 2016, the United States District Court for the Eastern District of Louisiana entered a Consent Decree resolving civil claims by the
In the final SRP and FONSI, the MS TIG selected an additional $10 million in funding to support further acquisition and/or habitat management and project success monitoring within the project area of the Grand Bay Project originally selected in the 2016-2017 RP/EA. In that document, the MS TIG evaluated and selected several restoration projects from a reasonable range of alternatives. Projects selected for implementation included the Grand Bay Project. As described in Section 3.4 of the 2016-2017 RP/EA, the Mississippi TIG allocated $6 million to initiate the acquisition and to commence management in nearshore coastal and wetland habitats within the Grand Bay Project area, which includes the acquisition boundaries of the Grand Bay National Wildlife Refuge (Refuge), the Grand Bay National Estuarine Research Reserve (NERR), and the Grand Bay Savanna Coastal Preserve (Preserve). The final 2016-2017 RP/EA can be found at
In accordance with NEPA, as part of the final SRP, the Trustees issued a FONSI. The FONSI is available in Appendix A of the final SRP.
The documents comprising the Administrative Record for the SRP can be viewed electronically at
The authority for this action is the Oil Pollution Act of 1990 (33 U.S.C. 2701
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act of 1969, as amended, and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) announces the availability of the Record of Decision (ROD) for the Central Coast Field Office Approved Resource Management Plan (RMP) Amendment. This plan amendment identifies the Federal mineral estate, located primarily in Fresno, Monterey and San Benito counties, California, that is available for oil and gas leasing and development. It also identifies leasing stipulations to protect resources.
The BLM California Acting State Director signed the ROD on October 4, 2019, which constitutes the final decision of the agency and makes the approved RMP amendment effective immediately. Signing of the ROD also authorizes the issuance, with controlled surface use stipulations, of implementation-level decisions regarding 14 previously litigated oil and gas leases in Monterey and San Benito counties. Signing of the ROD initiates a 30-day appeal period for these leasing decisions to the Interior Board of Land Appeals.
Copies of the ROD and approved RMP amendment are available upon request from the Bureau of Land Management Central Coast Field Office, 940 2nd Ave., Marina, CA 93933 or via the internet at
Sky Murphy, BLM Planning and Environmental Coordinator, telephone: (831) 582-2200; address: Bureau of Land Management Central Coast Field Office, 940 2nd Ave., Marina, CA 93933; or email:
The BLM's decision makes approximately 680,000 acres of Federal mineral estate available for leasing with controlled surface use stipulations and another roughly 42,000 acres available for leasing with no surface occupancy requirements. An additional 67,500 acres of Federal mineral estate are closed to leasing and development in designated wilderness areas, wilderness study areas, and national monuments. The BLM plan also supports recovery of threatened and endangered plants and animals in the Ciervo Panoche Natural Area by protecting core populations from surface disturbance. This decision does not authorize any actual drilling for exploration or development of oil and gas resources. The BLM predicts a range from zero to 37 new oil and gas wells could be developed on Federal mineral estate during the next 20 years as a result of this plan amendment. Any future proposals for leasing or development would go through additional environmental reviews based on site-specific project information and other requirements for consultation, coordination and public involvement. The ROD also authorizes issuance of implementation-level decisions for 14 previously litigated oil and gas leases.
The Notice of Availability for the proposed RMP amendment and Final EIS was published on May 10, 2019, initiating a 30-day public protest period (84 FR 20657). The Final EIS analyzed the environmental impacts of six alternative amendments to the RMP including the No Action Alternative. The BLM received 436 protests, 24 of which were from parties with standing. Of the 24 protests with standing, seven were denied as the issues are already addressed in the document and 17 were dismissed as they did not raise protestable issues. The remaining 412 protests were dismissed due to lack of standing.
In accordance with the regulations at 43 CFR 1610.3-2(e), the BLM submitted the proposed RMP amendment and Final EIS for a 60-day Governor's Consistency Review on May 10, 2019. On July 9, 2019, the Governor of California submitted a letter to the BLM California Acting State Director asserting inconsistencies between the proposed RMP amendment and State land use plans, programs, and policies related to the impacts of climate change. The BLM Acting California State Director issued a response to the Governor that addressed the recommendation of the Governor on August 1, 2019. Pursuant to 43 CFR 1610.3-2(e), the BLM provided a 30-day period for the Governor to appeal this response to the BLM Director. That appeal period closed on August 30, 2019, and no appeal was received. Therefore, this decision approves Alternative F, the BLM's preferred alternative in the Final EIS, with no modifications.
Administrative remedies are available to those who are a party to the case and are adversely affected by the leasing decisions included in this ROD. An administrative appeal may be made to the Office of Hearings and Appeals, Office of the Secretary, U.S. Department of Interior, Board of Land Appeals (Board) in strict compliance with the regulations in 43 CFR part 4. Notices of appeal must be filed with the BLM officer who made the decision within 30 days after publication of this decision. If a notice of appeal does not include a statement of reasons, such statement must be filed with the BLM California State Office, 2800 Cottage Way, W1623, Sacramento, CA 95825 and the Board within 30 days after the notice of appeal is filed. The notice of appeal and any statement of reasons, written arguments, or briefs must also be served upon the Regional Solicitor: U.S. Department of the Interior, Office of the Solicitor, Pacific Southwest Region, 2800 Cottage Way, Room E-1712, Sacramento, CA 95825-1890.
Before including your phone number, email address, or other personal identifying information in your appeal, you should be aware that your entire appeal—including your personal identifying information—may be made publicly available at any time. While you can ask us in your appeal to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The proposed information collection was previously published in the
If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any other additional information, please contact: Neil Troppman, ATF National Tracing Center either by mail at 244 Needy Road, Martinsburg, WV 25405, by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The proposed information collection was previously published in the
If you have additional comments, particularly with respect to the estimated public burden or associated response time, have suggestions, need a copy of the proposed information collection instrument with instructions, or desire any other additional information, please contact: Jennifer George, Fire Investigations & Arson Enforcement Division, either by mail at ATF NCETR, Corporal Road, Building 3750, Redstone Arsenal, Huntsville, AL 35898, by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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(2)
(3)
(4)
(5)
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(7)
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before November 6, 2019. Such persons may also file a written request for a hearing on the application on or before November 6, 2019.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette
In accordance with 21 CFR 1301.34(a), this is notice that on July 9, 2019, Cambridge Isotope Laboratories, 50 Frontage Road, Andover, Massachusetts 01810 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import the listed controlled substances for analytical research, testing and clinical trials.
Office of Attorney Recruitment and Management, Justice Management Division Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Justice Management Division, Office of Attorney Recruitment and Management (OARM), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The Department of Justice encourages public comment and will accept input until December 6, 2019.
If you have additional comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Deana Willis, Assistant Director, Office of Attorney Recruitment and Management, 450 5th Street NW, Suite 10200, Washington, DC 20530;
Written comments and/or suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Office of Attorney Recruitment and Management, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Evaluate whether, and if so, how, the quality, utility, and clarity of the information to be collected can be enhanced; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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a. The estimated burden associated with this collection is 586 hours, 40 minutes. It is estimated that new applicants will take 2 hours to complete the request form and justification and that previously selected recipients requesting continued funding will take 20 minutes to complete a renewal form. The burden hours for collecting respondent data, 586 hours, 40 minutes, are calculated as follows: 275 new respondents × 2 hours = 550 hours, plus 110 renewing respondents × 20 minutes = 36 hours, 40 minutes.
b. An estimate of the
If additional information is required, please contact: Melody Braswell,
The Bureau of International Labor Affairs, United States Department of Labor.
Notice; request for information and invitation to comment.
This notice is a request for information and/or comment on three reports issued by the Bureau of International Labor Affairs (ILAB) regarding child labor and forced labor in certain foreign countries. Relevant information submitted by the public will be used by the Department of Labor (DOL) in preparing its ongoing reporting as required under Congressional mandates and a Presidential directive. The 2018 Findings on the Worst Forms of Child Labor report (TDA Report), published on September 27, 2019, discusses efforts of 131 countries and territories to eliminate the worst forms of child labor over the course of 2018 and assesses whether countries made significant, moderate, minimal, or no advancement during that year to address the worst forms of child labor. It also suggests actions foreign countries can take to eliminate the worst forms of child labor through legislation, enforcement, coordination, policies, and social programs. The 2018 edition of the List of Goods Produced by Child Labor or Forced Labor (TVPRA List), published on September 20, 2018, makes available to the public a list of goods from countries that ILAB has reason to believe are produced by child labor or forced labor in violation of international standards. Finally, the List of Products Produced by Forced or Indentured Child Labor (E.O. 13126 List), provides a list of products, identified by country of origin, that DOL, in consultation and cooperation with the Departments of State (DOS) and Homeland Security (DHS), has a reasonable basis to believe might have been mined, produced, or manufactured with forced or indentured child labor. Relevant information submitted by the public will be used by DOL in preparing the next edition of the TDA Report, to be published in 2020; the next edition of the TVPRA List, to be published in 2020; and possible updates to the E.O. 13126 List as needed.
Submitters of information are requested to provide their submission to DOL's Office of Child Labor, Forced Labor, and Human Trafficking (OCFT) at the email or physical address below by 5 p.m. on January 13, 2020.
Information submitted to the Department of Labor should be submitted directly to OCFT, Bureau of International Labor Affairs, U.S. Department of Labor. Comments, identified as “Docket No. DOL-2019-0005,” may be submitted by any of the following methods:
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Austin Pedersen, 202-693-4867 and Chanda Uluca, 202-693-4905. Please see email contact information above.
I. The Trade and Development Act of 2000 (TDA), Public Law 106-200 (2000), established eligibility criteria for receipt of trade benefits under the Generalized System of Preferences (GSP). The TDA amended the GSP reporting requirements of Section 504 of the Trade Act of 1974, 19 U.S.C. 2464, to require that the President's annual report on the status of internationally recognized worker rights include “findings by the Secretary of Labor with respect to the beneficiary country's implementation of its international commitments to eliminate the worst forms of child labor.”
The TDA Conference Report clarifies this mandate, indicating that the President consider the following when considering whether a country is complying with its obligations to eliminate the worst forms of child labor: “(1) whether the country has adequate laws and regulations proscribing the worst forms of child labor; (2) whether the country has adequate laws and regulations for the implementation and enforcement of such measures; (3) whether the country has established formal institutional mechanisms to investigate and address complaints relating to allegations of the worst forms of child labor; (4) whether social programs exist in the country to prevent the engagement of children in the worst forms of child labor, and to assist with the removal of children engaged in the worst forms of child labor; (5) whether the country has a comprehensive policy for the elimination of the worst forms of child labor; and (6) whether the country is making
DOL fulfills this reporting mandate through annual publication of the U.S. Department of Labor's Findings on the Worst Forms of Child Labor report with respect to countries eligible for GSP. To access the 2018 TDA Report, please visit
II. Section 105(b) of the Trafficking Victims Protection Reauthorization Act of 2005 (“TVPRA of 2005”), Public Law 109-164 (2006), 22 U.S.C 7112(b), as amended by Section 133 of the Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act of 2018, Public Law 115-425, directs the Secretary of Labor, acting through ILAB, to “develop and make available to the public a list of goods from countries that ILAB has reason to believe are produced by forced labor or child labor in violation of international standards, including, to the extent practicable, goods that are produced with inputs that are produced with forced labor or child labor.” (TVPRA List).
Pursuant to its mandate under the TVPRA of 2005, on December 27, 2007, DOL published in the
ILAB published its first TVPRA List on September 30, 2009, and issued updates annually from 2010 through 2013. In 2014, ILAB began publishing the TVPRA List every other year, pursuant to changes in the law (see 22 U.S.C. 7112(b)). ILAB can also publish more frequent updates, at its discretion. For a copy of previous editions of the TVPRA List and other related materials, see ILAB's TVPRA web page at
III. Executive Order No. 13126 (E.O. 13126) declared that it was “the policy of the United States Government . . . that the executive agencies shall take appropriate actions to enforce the laws prohibiting the manufacture or importation of goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part by forced or indentured child labor.” The E.O. 13126 List is intended to ensure that U.S. federal agencies do not procure goods made by forced or indentured child labor. Under procurement regulations, federal contractors who supply products on the E.O. 13126 List must certify that they have made a good faith effort to determine whether forced or indentured child labor was used to produce the items supplied. Pursuant to E.O. 13126, and following public notice and comment, DOL published in the January 18, 2001,
Pursuant to Sections D through G of the Procedural Guidelines, the E.O. 13126 List may be updated through consideration of submissions by individuals or through ILAB's own initiative.
DOL has officially revised the E.O. 13126 List seven times, most recently on March 25, 2019, each time after public notice and comment as well as consultation with DOS and DHS.
The current E.O. 13126 List, Procedural Guidelines, and related information can be accessed on the internet at
Information Requested and Invitation to Comment: Interested parties are invited to comment and provide information regarding these reports. DOL requests comments on or information relevant to updating the findings and suggested government actions for countries reviewed in the TDA Report, assessing each country's individual advancement toward eliminating the worst forms of child labor during the current reporting period compared to previous years, and maintaining and updating the TVPRA and E.O. Lists, including information on goods produced with inputs that are produced with forced labor or child labor. For more information on the types of issues covered in the TDA Report, please see “TDA Guidance Questions” in the appendix of the report. Materials submitted should be confined to the specific topics of the TDA Report, the TVPRA List, and the E.O. 13126 List. DOL will generally consider sources with dates up to five years old (
This notice is a general solicitation of comments from the public.
22 U.S.C. 7112(b)(2)(C) and 19 U.S.C. 2464.
Information Security Oversight Office (ISOO), National Archives and Records Administration (NARA).
Notice of Federal Advisory Committee meeting.
We are announcing an upcoming meeting of the National Industrial Security Program Policy Advisory Committee (NISPPAC).
The meeting will be on November 20, 2019, from 10:00 a.m. to 12:30 p.m.
National Archives and Records Administration; 700 Pennsylvania Avenue NW; McGowan Theater; Washington, DC 20408.
Robert Tringali, Program Analyst, ISOO, by mail at National Archives and Records Administration; 700 Pennsylvania Avenue NW; Washington, DC 20408, by telephone at 202.357.5335, or by email at
The purpose of this meeting is to discuss National Industrial Security Program policy matters.
This meeting will be open to the public, in accordance with the Federal Advisory Committee Act (5 U.S.C. app 2) and implementing regulations. However, due to space limitations and access procedures, you must submit the name and telephone number of individuals planning to attend to the Information Security Oversight Office (ISOO) no later than Friday, November 15, 2019. ISOO will provide additional instructions for accessing the meeting's location. Note: Please enter through the Constitution Ave. special events entrance.
National Credit Union Administration (NCUA).
Notice and request for comment.
The National Credit Union Administration (NCUA), as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the following extension of a currently approved collection, as required by the Paperwork Reduction Act of 1995.
Written comments should be received on or before December 6, 2019 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Mackie Malaka, National Credit Union Administration, 1775 Duke Street, Suite 6018, Alexandria, Virginia 22314; Fax No. 703-519-8579; or email at
Address requests for additional information to Mackie Malaka at the address above or telephone 703-548-2704.
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on October 2, 2019.
National Credit Union Administration (NCUA).
Notice and request for comment.
The National Credit Union Administration (NCUA), as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the following extension of a currently approved collection, as required by the Paperwork Reduction Act of 1995.
Written comments should be received on or before November 6, 2019 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of this information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for NCUA, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by contacting Mackie Malaka at (703) 548-2704, emailing
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on October 2, 2019.
National Science Foundation.
Notice of permit modification request.
The National Science Foundation (NSF) is required to publish a notice of requests to modify permits issued to conduct activities regulated under the Antarctic Conservation Act of 1978. This is the required notice of a requested permit modification.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by November 6, 2019. Permit applications may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314.
Nature McGinn, ACA Permit Officer, at the above address, 703-292-8030, or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
National Science Foundation.
Notice of permit modification request received and permit issued.
The National Science Foundation (NSF) is required to publish a notice of requests to modify permits issued to conduct activities regulated and permits issued under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act in the Code of Federal Regulations. This is the required notice of a requested permit modification and permit issued.
Nature McGinn, ACA Permit Officer, Office of Polar Programs, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314; 703-292-8224; email:
The National Science Foundation (NSF), as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541, 45 CFR part 671), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection.
1. NSF issued a permit (ACA 2015-010) to Lockheed Martin Corporation on on October 31, 2014. The issued permit allows the permit holder to, as the contractor providing operational support for the United States Antarctic Program (USAP), be responsible for waste management activities for the USAP. A recent modification to this permit, dated November 7, 2016, allowed a change in permit holder from Lockheed Martin Corporation to Leidos Innovations Group (Leidos), 7400 South Tucson Way, Centennial, CO 80112.
Now the applicant proposes a permit modification to extend the expiration date of the permit from September 30, 2019 to October 31, 2019. The Environmental Officer has reviewed the modification request and has determined that the amendment is not a material change to the permit, and it will have a less than a minor or transitory impact.
The permit modification was issued on September 30, 2019.
9:30 a.m., Tuesday, October 22, 2019.
NTSB Conference Center, 429 L'Enfant Plaza SW, Washington, DC 20594.
The one item is open to the public.
59567 Highway Accident Report—Pedestrian Bridge Collapse Over SW 8th Street, Miami, Florida, March 15, 2018.
Candi Bing at (202) 314-6403 or by email at
The press and public may enter the NTSB Conference Center one hour prior to the meeting for set up and seating.
Individuals requesting specific accommodations should contact Rochelle McCallister at (202) 314-6305 or by email at
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Schedule updates, including weather-related cancellations, are also available at
The National Transportation Safety Board is holding this meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b).
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Reporting of Defects and Noncompliance.”
Submit comments by November 6, 2019. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0090), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email:
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2019-0067 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2019-0067 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “10 CFR part 21, Reporting of Defects and Noncompliance.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Proposed information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on this proposed collection of information. The information collection is entitled, “Requests to Federally Recognized Indian Tribes for Information.”
Submit comments by December 6, 2019. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2019-0136 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2019-0136 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on October 2, 2019, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to move the Rules in Chapter XIII of the currently effective Rulebook (“current Rulebook”), which governs net capital requirements, to proposed Chapter 11 of the shell structure for the Exchange's Rulebook that will become effective upon the migration of the Exchange's trading platform to the same system used by the Cboe Affiliated Exchanges (as defined below) (“shell Rulebook”). 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.
In 2016, the Exchange's parent company, Cboe Global Markets, Inc. (formerly named CBOE Holdings, Inc.) (“Cboe Global”), which is also the parent company of Cboe C2 Exchange, Inc. (“C2”), acquired Cboe EDGA Exchange, Inc. (“EDGA”), Cboe EDGX Exchange, Inc. (“EDGX” or “EDGX Options”), Cboe BZX Exchange, Inc. (“BZX” or “BZX Options”), and Cboe BYX Exchange, Inc. (“BYX” and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the “Cboe Affiliated Exchanges”). The Cboe Affiliated Exchanges are working to align certain system functionality, retaining only intended differences, between the Cboe Affiliated Exchanges, in the context of a technology migration. Cboe Options intends to migrate its trading platform to
The Exchange proposes to relocate current Chapter XIII, which governs net capital requirements, to proposed Chapter 11 in the shell Rulebook. The Exchange notes that in addition to relocating the net capital requirement rules to proposed Chapter 11 in the shell Rulebook, the proposed rule change deletes the rules from the current Rulebook. The proposed rule change relocates the rules as follows:
The proposed changes are of a non-substantive nature and will not amend the relocated rules other than to update their rule numbers, conform paragraph structure and number/lettering format to that of the shell Rulebook, and make cross-reference changes to shell rules.
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.
As stated, the proposed rule change makes no substantive changes to the rules. The proposed rule change is merely intended to relocate the Exchange's rules to the shell Rulebook and update their numbers, paragraph structure, including number and lettering format, and cross-references to conform to the shell Rulebook as a whole in anticipation of the technology migration on October 7, 2019. As such, the proposed rule change is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest, by improving the way the Exchange's Rulebook is organized, making it easier to read, and, particularly, helping market participants better understand the rules of the Exchange, which will also result in less burdensome and more efficient regulatory compliance.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended as a competitive change, but rather, seeks to make non-substantive rule changes in relocating the rules and updating cross-references to shell rules in anticipation of the October 7, 2019 technology migration. The Exchange also does not believe that the proposed rule change will impose any undue burden on competition because the relocated rule text is exactly the same as the Exchange's current rules, all of which have all been previously filed with the Commission.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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 paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order approving the substitution of certain securities pursuant to section 26(c) of the Investment Company Act of 1940, as amended (the “Act”) and an order of exemption pursuant to section 17(b) of the Act from section 17(a) of the Act.
Mutual of America Life Insurance Company (“Mutual of America”), Wilton Reassurance Life Company of New York (“Wilton,” and together with Mutual of America, the “Companies”), Mutual of America Separate Account No. 2, Mutual of America Separate Account No. 3, American Separate Account No. 2, and American Separate Account No. 3 (the “Separate Accounts,” and together with the Companies, the “Section 26 Applicants”); and Mutual of America Variable Insurance Portfolios, Inc. (“Investment Corporation II”) and Mutual of America Capital Management LLC (the “Adviser,” and collectively with Investment Corporation II and the Section 26 Applicants, the “Section 17 Applicants”).
The Section 26 Applicants seek an order pursuant to section 26(c) of the Act, approving the substitution of shares issued by certain investment portfolios (the “Existing Portfolios”) of Mutual of America Investment Corporation (“Investment Corporation I”) for shares of certain investment portfolios of the Investment Corporation II (the “Replacement Portfolios”), held by the Separate Accounts to support certain variable annuity insurance contracts (“Non-Qualified Annuity Contracts”) and variable life insurance contracts (the “Life Insurance Contracts”).
The application was filed on May 15, 2019 and amended on August 20, 2019 and September 27, 2019.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Secretary of the Commission and serving the Applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 28, 2019 and should be accompanied by proof of service on the Applicants in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. Applicants: Mutual of America Life Insurance Company, 320 Park Avenue, New York, New York 10022.
Hae-Sung Lee, Senior Counsel, at (202) 551-7345, or Trace W. Rakestraw, Branch Chief at (202) 551-6825 (Division of
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an Applicant using the Company name box, at
1. Mutual of America is a mutual life insurance company organized under the laws of the state of New York and is authorized to transact its business in 50 states and the District of Columbia.
2. Wilton is a life insurance company organized under New York law and is authorized to transact the business of life insurance, including annuities, in all 50 states, the Virgin Islands, and the District of Columbia. Wilton was a wholly-owned subsidiary of a holding company that was, in turn, 100% owned by Mutual of America. Mutual of America sold the holding company that owned Wilton but retained full authority and responsibility to take all actions in regard to American Separate Account No. 2 and American Separate Account No. 3, under an agreement with the holding company, and assumptively reinsured the variable contracts offered through those accounts.
3. Each Separate Account meets the definition of “separate account,” as defined in section 2(a)(37) of the Act and rule 0-1(e) thereunder. The Separate Accounts are registered with the Commission under the Act as unit investment trusts. The assets of the Separate Accounts support the Contracts and interests in the Separate Accounts offered through such Contracts. The Companies are the legal owners of the assets in their respective Separate Accounts. The Separate Accounts are segmented into subaccounts, and each subaccount invests in an underlying registered open-end management investment company or series thereof.
4. The Contracts are individual and group flexible premium variable annuity and variable life insurance contracts. Each Contract is registered under the Securities Act of 1933, as amended (the “1933 Act”) on Form N-4 or Form N-6 (or, in the case of the variable life insurance contract supported by American Separate Account No. 3, on Form S-6). Each Contract has particular fees, charges, and investment options, as described in the Contracts' respective prospectuses.
5. As set forth under each Contract, as well as in the prospectus for each Contract, the Companies reserve the right to substitute shares of the underlying fund for shares of another underlying fund. The substitutions will be performed only for the Non-Qualified Annuity Contracts and the Life Insurance Contracts. The substitutions will not affect the Qualified Annuity Contracts.
6. The Companies, on their own behalf and on behalf of their Separate Accounts, propose to exercise their contractual rights to substitute underlying funds currently available under the Contracts for different underlying funds (“Substitutions” or each, a “Substitution”), as shown in the table below:
7. The Existing Portfolios are series of Investment Corporation I, a Maryland corporation registered as an open-end management investment company under the Act (File No. 811-05084) and whose shares are registered under the 1933 Act (File No. 033-06486). Investment Corporation I issues separate classes (or series) of shares, each of which represents a separate portfolio of investments. There are currently 27 series of Investment Corporation I; they are the Existing Portfolios. Investment Corporation I intends to begin offering shares of its series directly to the general public through the retail market.
8. The Replacement Portfolios are series of Investment Corporation II, a Maryland corporation. On June 13, 2019, Investment Corporation II filed a new registration statement on Form N-1A to register as an open-end management investment company under the Act (File No. 811-23449) and to register shares of the Replacement Portfolios under the 1933 Act (File No. 333-232095). There will be 26 series of
9. The Adviser serves as the investment adviser for the Existing Portfolios and the Replacement Portfolios. The Adviser is a Delaware limited liability company that is registered as an investment adviser under the Investment Advisers Act of 1940. A sub-adviser has not been engaged to manage any of the Portfolios.
10. Applicants state that the primary purpose of the Substitutions is to preserve the favorable tax treatment of the Non-Qualified Annuity Contracts and the Life Insurance Contracts that are currently supported by the Existing Portfolios. With exception of Substitution No. 8, each Existing Portfolio and its corresponding Replacement Portfolio have identical investment objectives, strategies, and risks and substantially identical fee structures (with different expense ratios due to differences in net assets). With respect to Substitution No. 8, the Existing Portfolio and its corresponding Replacement Portfolio have substantially similar objectives, strategies, and risks, and the Replacement Portfolio has a lower expense ratio. The Portfolios are advised by the same Adviser and share a common board of directors. As such, the Substitutions will permit owners of the Non-Qualified Annuity Contracts (“Non-Qualified Annuity Contract Owners”) and owners of the Life Insurance Contracts (“Life Insurance Contract Owners”) to maintain the favorable tax treatment of their Non-Qualified Annuity and Life Insurance Contracts and continue their investments in substantially identical underlying funds (or a substantially similar underlying fund with respect to Substitution No. 8).
11. In order to preserve that favorable tax treatment, Section 26 Applicants propose to reallocate contract values attributable to the Non-Qualified Annuity and Life Insurance Contracts from the Existing Portfolios to the Replacement Portfolios. Applicants represent that the Substitutions will preserve the favorable tax treatment of the Non-Qualified Annuity and Life Insurance Contracts because the Replacement Portfolios will be offered only under variable annuity and life insurance contracts. The Replacement Portfolios will not be sold directly to the general public through the retail market.
12. Mutual of America will cause the Adviser to enter into a written contract with Investment Corporation II whereby, for a period of two years following the date of substitution for each Substitution (the “Substitution Date”), the Adviser will, at least as frequently as the last business day of each fiscal quarter, reimburse the expenses of the Replacement Portfolio to the extent that the net annual operating expenses of the Replacement Portfolio (after taking into account any other fee waivers or expense reimbursements) for such period exceed, on an annualized basis, the net annual operating expenses of the Existing Portfolio for the most recent fiscal year preceding the date of the application (the “Expense Caps”). Any amounts waived or reimbursed by the Adviser will not be subject to recoupment rights. Any Expense Cap that applies to a Replacement Portfolio as a condition of this application is separate and apart from any other contractual expense reimbursement agreement between Investment Corporation II and the Adviser. To the extent that an Expense Cap caps a Replacement Portfolio's net annual operating expenses at a lower percentage of net assets than any other contractual expense reimbursement agreement between Investment Corporation II and the Adviser, such other contractual expense reimbursement agreement will have no practical impact on the Replacement Portfolio's net annual operating expenses due to the operation of the Expense Cap. In addition, for each Substitution, the Section 26 Applicants will not increase the Contract fees and charges that would otherwise be assessed under the terms of the Contracts for the Non-Qualified Annuity and Life Insurance Contract Owners for a period of at least two years following the Substitution Date.
13. Applicants represent that as of the Substitution Date, the Separate Accounts will redeem shares of the applicable Existing Portfolios for cash and/or in-kind. Redemption requests and purchase orders will be placed simultaneously so that the Non-Qualified Annuity and Life Insurance Contract values will remain fully invested at all times.
14. Each Substitution will be effected at the relative net asset values of the respective shares of the Replacement Portfolios in conformity with section 22(c) of the Act and rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The Substitutions will be effected without change in the amount or value of any Non-Qualified Annuity and Life Insurance Contracts.
15. Non-Qualified Annuity and Life Insurance Contract Owners will not incur any fees or charges as a result of the Substitutions. The obligations of the Section 26 Applicants, and the rights of the Non-Qualified Annuity and Life Insurance Contract Owners, under the Contracts will not be altered in any way. The Companies and/or their affiliates (other than Investment Corporation II) will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses, and other fees and expenses. No fees or charges will be paid by the Non-Qualified Annuity and Life Insurance Contract Owners to effect the Substitutions. The Substitutions will not cause the Contract fees and charges currently being paid by Non-Qualified Annuity and Life Insurance Contract Owners to be greater after any Substitution than before the Substitution. In addition, the Substitutions will in no way alter the tax treatment of affected Contract owners in connection with their Contracts, and no tax liability will arise for Contract owners as a result of the Substitutions.
16. From the date of the Pre-Substitution Notice (defined below) through 30 days following the Substitution Date, Non-Qualified Annuity and Life Insurance Contract Owners may make at least one transfer of Contract value from the subaccount investing in an Existing Portfolio (before the Substitution) or the Replacement Portfolio (after the Substitution) to any other available subaccount under the Contract without charge and without imposing any transfer limitations. Further, on a Substitution Date, values
17. For each Substitution, at least 30 days prior to the Substitution Date, Non-Qualified Annuity and Life Insurance Contract Owners will be notified via prospectus supplements (i) that the Section 26 Applicants received or expect to receive Commission approval of the Substitution and (ii) of the anticipated Substitution Date (the “Pre-Substitution Notice”). Pre-Substitution Notices sent to Non-Qualified Annuity and Life Insurance Contract Owners (including a subset of contract owners that own inactive contracts (“Inactive Contract Owners”)) will be filed with the Commission pursuant to rule 497(e) under the 1933 Act. The Pre-Substitution Notice will also advise Non-Qualified Annuity and Life Insurance Contract Owners of their pre- and post-Substitution rights. For each Substitution, the Section 26 Applicants will also deliver to affected Non-Qualified Annuity and Life Insurance Contract Owners (including Inactive Contract Owners), at least 30 days before the Substitution Date, a prospectus for the Replacement Portfolio.
18. In addition, within five business days after the Substitution Date, Non-Qualified Annuity and Life Insurance Contract Owners (including Inactive Contract Owners) whose assets were allocated to the Replacement Portfolio as part of the Substitution will be sent a written notice (a “Confirmation”) informing them that the Substitution was carried out as previously notified. The Confirmation will also restate the information set forth in the Pre-Substitution Notice. The Confirmation will also reflect the values of the Non-Qualified Annuity or Life Insurance Contract Owner's positions in the Existing Portfolio before the Substitution and the Replacement Portfolio after the Substitution.
1. The Section 26 Applicants request that the Commission issue an order pursuant to section 26(c) of the Act approving the Substitutions. Section 26(c) prohibits any depositor or trustee of a unit investment trust that invests exclusively in the securities of a single issuer from substituting the securities of another issuer without the approval of the Commission. Section 26(c) provides that such approval shall be granted by order from the Commission if the evidence establishes that the substitution is consistent with the protection of investors and the purposes of the Act.
2. The Section 26 Applicants submit that the Substitutions meet the standards set forth in section 26(c) and that, if implemented, the Substitutions would not raise any of the concerns that Congress intended to address when the Act was amended to include this provision. Applicants state that they are seeking the Substitutions to preserve the favorable tax treatment of the Non-Qualified Annuity Contracts and the Life Insurance Contracts. A key feature of annuity and life insurance contracts is the deferral of federal income taxes on the accumulated earnings within such contracts if fund shares supporting such contracts are not offered directly to the general public. The Existing Portfolios are presently sold in a manner that facilitates the deferral of federal income taxes on the accumulated earnings under the Non-Qualified Annuity and Life Insurance Contracts. However, in an effort to expand the markets to which the Existing Portfolios are offered, Investment Corporation I intends to begin offering shares of the Existing Portfolios directly to the general public through the retail market. While this initiative will generally benefit the Existing Portfolios, and will not affect the tax treatment of the Qualified Annuity Contracts, it would result in the Non-Qualified Annuity and Life Insurance Contracts no longer receiving tax deferral unless the Substitutions are performed.
3. Companies have reserved the right under the Contracts to substitute shares of another underlying fund for one of the current funds offered as an investment option under the Contracts. The Contracts and the Contracts' prospectuses disclose this right.
4. The Section 26 Applicants submit that the Substitutions are not of the type that section 26 was designed to prevent because they will not result in costly forced redemptions, nor will they affect any other aspects of the Contracts. In the current situation, Contract owners are contractually provided investment discretion during the accumulation phase of the Contracts to allocate and reallocate their Contract values among the investment options available under the Contracts. Accordingly, after the Substitutions, each Non-Qualified Annuity and Life Insurance Contract Owner may exercise his or her own judgment as to the most appropriate investment alternative available under the Contract. Moreover, for each Substitution, the Section 26 Applicants will offer Non-Qualified Annuity and Life Insurance Contract Owners the opportunity to transfer amounts out of the affected subaccounts which, as with all transfers under the Contracts, will be without any cost or other penalty (other than those necessary to implement policies and procedures designed to detect and deter disruptive transfers) for a period beginning on the date of the Pre-Substitution Notice (which supplement will be delivered to the Non-Qualified Annuity and Life Insurance Contract Owners at least 30 days before the Substitution Date) and ending no earlier than 30 days after the Substitution Date. The Substitutions, therefore, will not result in the type of forced redemption that section 26(c) was designed to prevent.
5. The Substitutions are also unlike the type of substitution that section 26(c) was designed to prevent in that the Substitutions have no impact on other aspects of the Contracts. Specifically, the Substitutions will not affect the type of benefits offered by the Companies under the Contracts, or numerous other rights and privileges associated with the Contracts.
6. The Section 17 Applicants request an order under section 17(b) exempting them from the provisions of section 17(a) to the extent necessary to permit the Section 17 Applicants to carry out some or all of the Substitutions. The Section 17 Applicants state that because the Substitutions may be effected, in whole or in part, by means of in-kind redemptions and purchases, the Substitutions may be deemed to involve one or more purchases or sales of securities or property between affiliated persons.
7. Section 17(a)(1) of the Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, from knowingly selling any security or other property to that company. Section 17(a)(2) of the Act generally prohibits the persons described above, acting as principals, from knowingly purchasing any security or other property from the registered investment company.
8. The Section 17 Applicants state that the proposed transactions may involve a transfer of portfolio securities by the Existing Portfolios to the Separate
9. The Section 17 Applicants submit that the terms of the proposed in-kind purchases of shares of the Replacement Portfolios by the Separate Accounts, including the consideration to be paid and received, as described in the application, are reasonable and fair and do not involve overreaching on the part of any person concerned. The Section 17 Applicants also submit that the terms of the proposed in-kind transactions, including the consideration to be paid by each Existing Portfolio and received by each Replacement Portfolio involved, are reasonable, fair, and do not involve overreaching principally because the transactions will conform with all but one of the conditions enumerated in rule 17a-7 under the Act.
10. The proposed transactions will take place at relative net asset value in conformity with the requirements of section 22(c) of the Act and rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The Substitutions will be effected without change in the amount or value of any Non-Qualified Annuity Contract or any Life Insurance Contract. The Substitutions will in no way alter the tax treatment of Non-Qualified Annuity and Life Insurance Contract Owners in connection with their Contracts, and no tax liability will arise for Non-Qualified Annuity and Life Insurance Contract Owners as a result of the Substitutions. The fees and charges under the Non-Qualified Annuity and Life Insurance Contracts will not increase because of the Substitutions. Even though the Company, the Separate Accounts, the Adviser, Investment Corporation II, and the Replacement Portfolios may not rely on rule 17a-7, the Section 17 Applicants believe that the rule's conditions outline the type of safeguards that result in transactions that are fair and reasonable to registered investment company participants and preclude overreaching in connection with an investment company by its affiliated persons.
11. The Section 17 Applicants also submit that the proposed in-kind purchases by the Separate Accounts are consistent with the investment policies and restrictions of the Section 17 Applicants and the Replacement Portfolio. Finally, the Section 17 Applicants submit that the Substitutions are consistent with the general purposes of the Act.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. The Substitutions will not be effected unless the Companies determine that: (i) The Contracts allow the substitution of shares of registered open-end investment companies in the manner contemplated by the application; (ii) the Substitutions can be consummated as described in the application under applicable insurance laws; and (iii) any regulatory requirements in each jurisdiction where the Contracts are qualified for sale have been complied with to the extent necessary to complete the Substitutions.
2. The Companies or an affiliate thereof (other than Investment Corporation II) will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses and other fees and expenses. No fees or charges will be paid by Non-Qualified Annuity and Life Insurance Contract Owners to effect the Substitutions. The Substitutions will not cause the Contract fees and charges currently being paid by Non-Qualified Annuity and Life Insurance Contract Owners to be greater after the Substitution than before the Substitution.
3. The Substitutions will be effected at the relative net asset values of the respective shares of the Replacement Portfolios in conformity with section 22(c) of the Act and rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Applicants. The Substitutions will be effected without change in the amount or value of any Non-Qualified Annuity Contract or Life Insurance Contract.
4. The Substitutions will in no way alter the tax treatment of Non-Qualified Annuity and Life Insurance Contract Owners in connection with their Contracts, and no tax liability will arise for Non-Qualified Annuity and Life Insurance Contract Owners as a result of the Substitutions.
5. The obligations of the Section 26 Applicants, and the rights of the Non-Qualified Annuity and Life Insurance Contract Owners, under the Non-Qualified Annuity and Life Insurance Contracts will not be altered in any way.
6. For each Substitution, Non-Qualified Annuity and Life Insurance Contract Owners will be permitted to transfer Contract value from the subaccount investing in the Existing Portfolio (before the Substitution Date) or the Replacement Portfolio (after the Substitution Date) to any other available subaccount without charge for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date. Except with respect to any frequent trading restrictions described in the relevant prospectus, the Applicants will not exercise any rights reserved under the Contracts to impose restrictions on transfers between the subaccounts, including limitations on the future number of transfers, for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.
7. For each Substitution, all Non-Qualified Annuity and Life Insurance Contract Owners will be notified via the Pre-Substitution Notice, at least 30 days before the Substitution Date, about: (i) The intended Substitution of the Existing Portfolio with the Replacement Portfolio; (ii) the intended Substitution Date; and (iii) information with respect to transfers as set forth in Condition 6 above. In addition, for each Substitution, the Section 26 Applicants will also deliver to Non-Qualified Annuity and Life Insurance Contract Owners, at least 30 days before the Substitution Date, a prospectus for the applicable Replacement Portfolio.
8. For each Substitution, the Section 26 Applicants will deliver to each Non-Qualified Annuity and Life Insurance Contract Owner within five business days after the Substitution Date, a written confirmation which will include: (i) A confirmation that the Substitution was carried out as previously notified; (ii) a restatement of the information set forth in the Pre-Substitution Notice; and (iii) values of the Non-Qualified Annuity and Life Insurance Contract Owner's positions in the Existing Portfolio before the Substitution and the Replacement Portfolio after the Substitution.
9. Mutual of America will cause the Adviser, as the investment adviser of the Replacement Portfolios, to enter into a written contract with Investment Corporation II whereby, for a period of two years following the Substitution Date for each Substitution, the Adviser will, at least as frequently as the last business day of each fiscal quarter,
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to make minor updates to and relocate Chapter XIX, which governs the hearings and review process for persons aggrieved by Exchange action, of the currently effective Rulebook (“current Rulebook”) to proposed Chapter 15 of the shell structure for the Exchange's Rulebook that will become effective upon the migration of the Exchange's trading platform to the same system used by the Cboe Affiliated Exchanges (as defined below) (“shell Rulebook”). 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.
In 2016, the Exchange's parent company, Cboe Global Markets, Inc. (formerly named CBOE Holdings, Inc.) (“Cboe Global”), which is also the parent company of Cboe C2 Exchange, Inc. (“C2”), acquired Cboe EDGA Exchange, Inc. (“EDGA”), Cboe EDGX Exchange, Inc. (“EDGX” or “EDGX Options”), Cboe BZX Exchange, Inc. (“BZX” or “BZX Options”), and Cboe BYX Exchange, Inc. (“BYX” and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the “Cboe Affiliated Exchanges”). The Cboe Affiliated Exchanges are working to align certain system functionality, retaining only intended differences, between the Cboe Affiliated Exchanges, in the context of a technology migration. Cboe Options intends to migrate its trading platform to the same system used by the Cboe Affiliated Exchanges, which the Exchange expects to complete on October 7, 2019. In connection with this technology migration, the Exchange has a shell Rulebook that resides alongside its current Rulebook, which shell Rulebook will contain the Rules that will be in place upon completion of the Cboe Options technology migration.
The Exchange proposes to relocate and reorganize current Chapter XIX, which governs the hearings and review process for persons aggrieved by Exchange action, into proposed Chapter 15 in the shell Rulebook. The Exchange notes that in addition to relocating and reorganizing the current rules, the proposed rule change deletes these rules from the current Rulebook. The proposed rule change relocates and, where applicable, reorganizes the rules as follows:
The proposed rule changes make only non-substantive changes to the rules in order to update and/or headings that better flow with the relocated and reorganized rules, update cross-references to other rules and chapters that will be implemented upon migration, update certain technical text formatting that will be used in the Rules upon migration (
Additionally, the proposed rule change deletes “Part B” from the current rule, as there is no Part A, and combines all rule provisions in current Part B into a single rule, as they all relate to a procedure that may be used instead of the procedure set forth in current Rules 19.1 through 19.6 (proposed Rules 15.1 through 15.6) if permitted by the Rules. The Exchange believes this reorganization simplifies these Rules and eliminates potential confusion given the lack of a Part A in this Chapter.
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.
The proposed rule change does not make any substantive changes to the rules and is merely intended to consolidate and reorganize the Exchange's Rules in anticipation of the technology migration on October 7, 2019. The Exchange believes that the non-substantive proposed changes, which update technical text and formatting (
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange reiterates that the proposed rule change is being proposed in the context of a technology migration of the Cboe Affiliated Exchanges, and not as a competitive filing. The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition because it does not make any substantive changes to the current Exchange Rules. The proposed rule change merely intends to provide consolidated rules upon migration and is consistent with the technical text and formatting in the shell Rulebook that will be in place come October 7, 2019. The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition because the proposed rules are the same as the Exchange's current rules, all of which have all been previously filed with the Commission.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Options 3 at Section 4, “Acceptance of Quotes and Orders,” adopt a new Section 5, “Entry and Display of Single-Leg Orders,” Section 7, “Types of Order,” at Supplementary Material .03 and Section 22 titled “Limitations on Orders.” The Exchange proposes to amend Options 3, Section 15, “Simple Order Risk Protections” and Supplementary Material of Options 5, Section 2, “Order Protection
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 3 at Section 4, “Acceptance of Quotes and Orders,” adopt a new Section 5, “Entry and Display of Single-Leg Orders,” Section 7, “Types of Order,” at Supplementary Material .03 and Section 22 titled “Limitations on Orders.” The Exchange proposes to amend Options 3, Section 15, “Simple Order Risk Protections” and Supplementary Material of Options 5, Section 2, “Order Protection.” Each rule change will be discussed in greater detail below.
Currently, Options 3, Section 4 is titled “Acceptance of Quotes or Orders.” The Exchange proposes to retitle Options 3, Section 4 as “Entry and Display of Quotes.” The Exchange proposes to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes. These requirements reflect the current System operation today. The Exchange proposes to memorialize the various requirements for the submission of quotes into the System for greater transparency. The Exchange proposes to provide at new Options 3, Section 4(b), “Quotes are
The Exchange proposes a provision regarding firm quote within proposed Options 3, Section 4(b)(5):
Firm Quote. Where quotes in options on another market or markets are subject to relief from the firm quote requirement set forth in the Rule 602 of Regulation NMS under the Exchange Act orders and quotes will receive an automatic execution at or better than the NBBO based on the best bid or offer in markets whose quotes are not subject to such relief. Such determination may be made by way of notification from another market that its quotes are not firm or are unreliable; administrative message from the Option Price Reporting Authority (“OPRA”); quotes received from another market designated as “not firm” using the appropriate indicator; and/or telephonic or electronic inquiry to, and verification from, another market that its quotes are not firm. The Exchange shall maintain a record of each instance in which another exchange's quotes are excluded from the Exchange's calculation of NBBO, and shall notify such other exchange that its quotes have been so excluded. Where quotes in options on another market or markets previously subject to relief from the firm quote requirement set forth in the Quote Rule are no longer subject to such relief, such quotations will be included in the calculation of NBBO for such options. Such determination may be made by way of notification from another market that its quotes are firm; administrative message from OPRA; and/or telephonic or electronic inquiry to, and verification from, another market that its quotes are firm.
ISE's Options 2, Section 5(d) describes Firm Quote for purposes of Market Maker quote submission. The Exchange proposes to memorialize within its Rules the requirement for the dissemination of quotations pursuant to Reg NMS.
Similarly, the Exchange proposes to provide the following at proposed new Options 3, Section 4(b)(6):
Trade-Through Compliance and Locked or Crossed Markets. A quote will not be executed at a price that trades through another market or displayed at a price that would lock or cross another market. If, at the time of entry, a quote would cause a locked or crossed market violation or would cause a trade-through violation, it will either re-priced and displayed at one minimum price variance above (for offers) or below (for bids) the national best price or immediately cancelled, as configured by the Member.
Today, quotations may not be executed against at prices that trade-through an away market as provided for in the Options Order Protection and Locked/Crossed Market Plan which is also described within Options 5. Also, quotations may not lock or cross an away market. By stating this limitation in the rule, Market Makers will have greater clarity as to this limitation. Further, the Exchange is making clear that a quote that would cause a locked or crossed market violation or would cause a trade-through violation will be re-priced. The Exchange would display the quote at one minimum price variation (“MPV”) above (for offers) or below (for bids) the national best price or the quote would be immediately cancelled if requested by the Member. Repricing quotes is consistent with the Act because the Exchange is not permitted to lock or cross an away market's quote or order. The Exchange reprices the quotes one MPV inferior to cause the displayed price to reflect the available market on the Exchange.
Finally, the Exchange proposes at Options 3, Section 4(b)(7) to provide, “Quotes submitted to the System are subject to the following: Minimum increments provided for in Options 3, Section 3 and risk protections provided for in Options 3, Section 15.” If the Market Maker does not submit a quotation compliant with Options 3, Section 3, the quote will not be accepted by the System. The Exchange is noting herein the manner in which a quote may be rejected by the System to provide market participants with expectations as to the interplay among the various Exchange Rules. Specifically, if the Market Maker does not submit a quotation compliant with Options 3, Section 3, the quote will not be accepted by the System because market participants are required to abide by Options 3, Section 3 which describes the increments with which options series are to be quoted. Options 3, Section 15 provides a list of all protections applicable to quotes that may be rejected. The Exchange believes that this rule will provide Members with requirements and conditions for submitting quotations and provide transparency as to limitations that cause a quote to be rejected.
The Exchange proposes to provide at Options 3, Section 4(c), “Quotes will be displayed in the System as described in Options 3, Section 23.” Options 3, Section 23, titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange. This list represents the available data feeds and the content of those data feeds which are offered today by the Exchange.
As discussed in more detail below, the Exchange proposes to relocate
The amendment to Options 3, Section 4 to create a list of all the requirements and conditions for submitting quotes on the Exchange within one rule is consistent with the Act because it will provide greater transparency to market participants of the applicable requirements. Further, this proposal will make the current rule clear and understandable for market participants thereby protecting investors and the general public. The Exchange notes that while some of these requirements appear in other rules, for ease of reference the requirements are located within a single rule with this proposal. The proposal reflects the Exchange's current practice with respect to quoting requirements. This proposal will conform this Rule to other Nasdaq affiliated markets filing similar rules.
Similar to Options 3, Section 4, which describes requirements for quotes, the Exchange proposes to adopt a new Options 3, Section 5, “Entry and Display of Single-Leg Orders” and describe the current requirements and conditions for entering orders. The Exchange notes that the requirements provided for within this rule represent the current practice. The purpose of Options 3, Section 5 is to memorialize this information within a single rule.
The Exchange proposes to state within new Options 3, Section 5(a), “Members can enter orders into the System, subject to the following requirements and conditions:”. The Exchange proposes within new Options 3, Section 5(a)(1), “Members shall be permitted to transmit to the System multiple orders at a single as well as multiple price levels.” The Exchange's new rule text at Options 3, Section 5(a) proposes to make clear that multiple orders may be transmitted to the System as single or multiple price levels. This is the case today. The Exchange proposes to memorialize the manner in which orders may be submitted to the System to add more detail to its rules. The Exchange proposes at new Options 3, Section 5(a)(2), “The System accepts orders beginning at a time specified by the Exchange and communicated on the Exchange's website.” The System accepts orders beginning at a time specified by the Exchange and communicated on the Exchange's website.
The Exchange proposes at new Options 3, Section 5(a)(3), “The System shall time-stamp an order which shall determine the time ranking of the order for purposes of processing the order.” Further, all orders are time-stamped to determine the time ranking of the order for purposes of processing the order within the System. This is also the case today and the Exchange is adding this detail to its rules to describe the time-stamp.
The Exchange proposes to add at new Options 3, Section 5(a)(4), “Orders submitted to the System are subject to the following: Minimum increments provided for in Options 3, Section 3, risk protections provided for in Options 3, Section 15, and the restrictions of any order type as provided for in Options 3, Section 7. Orders may execute at multiple prices.” All orders must adhere to other rule requirements such as minimum increments, risk protection rules and order types. Similar to the rule text for quotes, order are currently subject the minimum increment requirements in Options 3, Section 3 and also the risk protections for orders which are listed within current Options 3, Section 15. This rule provides a list of other requirements which may impact the execution of an order. Finally, orders may execute at multiple prices.
The Exchange proposes to add to new Options 3, Section 5(a)(5) the following, “Nullification by Mutual Agreement. Trades may be nullified if all parties participating in the trade agree to the nullification. In such case, one party must notify the Exchange and the Exchange promptly will disseminate the nullification to OPRA. It is considered conduct inconsistent with just and equitable principles of trade for a party to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder.” The rule text of new Options 3, Section 5(a)(5) is relocated from Options 3, Section 4(b) because it related to orders. The Exchange proposes to caption proposed Options 3, Section 5(a)(5) as “Nullification by Mutual Agreement” and add the following sentence to this provision, “It is considered conduct inconsistent with just and equitable principles of trade for a party to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder.” The Exchange believes that it is consistent with the Act to permit parties to agree to a nullification provided the nullification does not violate other exchange rules. The Exchange notes that parties may not agree to a mutual agreement for purposes that would cause another rule to be violated. The Exchange believes that it is consistent with the Act and protection of investors and general public to make clear the expected behavior with respect to nullifications.
The rule text at proposed Options 3, Section 5(b) is relocated from Options 3, Section 15(a). The Exchange notes that this NBBO Protection applies to orders and therefore is being discussed within proposed Options 3, Section 5, which applies to all market participants. In contrast, Options 3, Section 4, which applies to quotes entered by Market Makers, describes the Firm Quote protections and the interplay of NBBO with respect to quotes. Trade-Through is described in both Options 3, Sections 4 and 5. The Exchange proposes to change the word “rejected” to “cancelled” within new Options 3, Section 5(b) because an order may be accepted by the System and then immediately cancelled. New Options 3, Section 5(c) seeks to define the Exchange's best bid and offer as the “BBO.” The Exchange provides, “The System automatically executes eligible orders using the Exchange's displayed best bid and offer (“BBO”).”
Similar to Options 3, Section 4(b)(6), the Exchange proposes to note at new Options 3, Section 5(d),
Trade-Through Compliance and Locked or Crossed Markets. An order will not be executed at a price that trades through another market or displayed at a price that would lock or cross another market. An order that is designated by the Member as routable will be routed in compliance with applicable Trade-Through and Locked and Crossed Markets restrictions. Orders that are not automatically executed will be handled as provided in Supplementary Material .02 to Options 5, Section 2; provided that Members may specify that a Non-Customer order should instead be cancelled automatically by the System at the time of receipt.
Today, orders may not be executed at a price that trades through an away market. Also, orders may not lock or cross an away market. Routable orders must comply with Trade-Through and Locked and Crossed Markets restrictions. Finally, the Exchange proposes to cross-reference Supplementary Material .02 to Options 5, Section 2 to describe the manner in which orders that are not automatically executed are handled. Today, Members may specify that a Non-Customer order should instead be cancelled automatically by the System at the time of receipt. By including this information within this rule, the Exchange proposes to provide Members with information related to trade-through in one location with cross-references to provide transparency. This rule text is similar to rule text within BX Chapter VI, Section 7(b)(3)(C). Noting these limitations within the rule is consistent with the Act because Members will have greater clarity as to limitations.
Finally, the Exchange proposes to add rule text at new Options 3, Section 5(e), similar to Options 3, Section 4(c) which states, “Orders will be displayed in the System as described in Options 3, Section 23.”
The Exchange's proposal to adopt a new Options 3, Section 5, “Entry and Display of Orders” and describe the current requirements and conditions for entering orders, similar to proposed changes to Options 3, Section 4 for quotes is consistent with the Act because it will provide transparency as to manner in which orders may be submitted to the System. The Exchange's new rule reflects the current requirements for submitting orders into the System. Similar to proposed Options 3, Section 4, the Exchange proposes to memorialize requirements and limitations within one rule for ease of reference.
The Exchange proposes to amend Supplementary Material .03(c) to Options 3, Section 7 to add the following sentence to Specialized Quote Feed (“SQF”), “Market Makers may only enter interest into SQF in their assigned options series.” The Exchange notes that today Market Makers may utilize SQF to quote only in their assigned options series as provided for in Options 2, Section 3, Appointment of Market Makers. Adding this information to the SQF protocol is consistent with the Act because the Exchange desires to make clear the manner in which Market Makers may submit quotes through the protocol. Market Makers are obligated to provide liquidity on ISE in the options series to which they are assigned, which liquidity benefits all market participants. This amendment is similar to language currently within Phlx Rule 1080(a)(i)(B).
The Exchange proposes to delete the first sentence introductory sentence of Options 3, Section 15 which provides, “Incoming orders that are executable against orders and quotes in the System will be executed automatically by the System subject to the following:” and relocate the rule text to Options 3, Section 5 as described herein as well as Section 15(a)(1) and (a)(2), into proposed new Options 3, Section 5(b) and renumber Options 3, Section 15(b) as new “a.” The Exchange proposes to relocate current Options 3, Section 15(b)(1)(C) to Options 3, Section 15(b)(2)(B). Current Options 3, Section 15(b)(1)(D) will be re-lettered as “C”. Options 3, Section 15(b)(1) provides for single-leg order risk protections. The Exchange proposes to relocate the Size Limitation protection to Options 3, Section 15(b)(2) because this section applies to order and quote risk protections. Size Limitation protection applies to both orders and quotes and is therefore properly placed within this section. The Exchange proposes to add the words “or quote” to the description to make clear that this protection applies to both orders and quotes.
The Exchange believes that relocating this rule and adding “or quotes” is consistent with the Act because the Exchange will make clear that the Size Limitation risk protection would apply to all interest on the Exchange.
The Exchange proposes to amend Options 3, Section 22 to retitle the Section from “Limitations on Orders” to “Limitations on Order Entry.” The Exchange believes that this title is more appropriate for these rules.
The Exchange proposes to amend Options 3, Section 22(b) to amend the title of the section from “Principal Transactions” to “Limitations on Principal Transactions.” This rule provides for the exposure of orders entered on the Exchange. Specifically, with respect to orders entered when a Member is acting as agent and principal on an order, the order must be exposed for one second prior to execution to allow an opportunity for price improvement. The Exchange has filed for certain functionalities which are exceptions to the general standard of one second exposure. These functionalities have provisions which describe the manner in which orders can be entered into the Facilitation
The Exchange proposes to relocate Supplementary Material .01 to Options 3, Section 22 to new Section 22(b)(i) and state “This Rule” instead of “Options 3, Section 22(d).” The Exchange notes that the references to “d” should refer to “b” and those cross-references are being updated.
The Exchange proposes to amend the title of Options 3, Section 22(c), from “Solicitation Orders” to “Limitation on Solicitation Orders.” The Exchange proposes to add exceptions for
The Exchange proposes to re-letter current “d” as “e” as the Exchange proposes new rule text at proposed Options 3, Section 22(d) which provides, “Prior to or after submitting an order to ISE, a Member cannot inform another Member or any other third party of any of the terms of the order for purposes of violating this Rule.” Similar rule text is contained in The Nasdaq Options Market LLC (“NOM”) Rules.
It will be a violation of Options 3, Section 22(e) for an Electronic Access Member to cause the execution of an order it represents as agent on the Exchange by orders it solicited from Members and non-Member broker-dealers to transact with such orders, whether such solicited orders are entered into the System directly by the Electronic Access Member or by the solicited party (either directly or through another Member), if the Member fails to expose orders on the Exchange as required by Options 3, Section 22(e).
This rule text is repetitive of the provisions within current Options 3, Section 22(c). The Exchange is clearly providing within Options 3, Section 22(c) that a Member must expose an order for one second. Further, the Member cannot inform another Member or third party of the terms of the order, which would be a violation of the rule pursuant to proposed Options 3, Section 22(c). The Exchange does not believe that the rule text within Supplementary Material .02 to Options 3, Section 22 provides additional information, but rather is repetitive of the prohibitions within the rule, as proposed.
The Exchange proposes to update the rule citations in Supplementary Material .01 to Options 3, Section 22 to refer to paragraph “b” instead of “d”. The Exchange proposes to update the rule numbers for the remainder of the Rule and also update the cross-reference in Supplementary Material .04 to Options 3, Section 22.
The Exchange proposes to make clear with this Rule that Members may not gain by failing to expose orders submitted on an agency basis. The Exchange is promoting transparency of orders to prevent Members from seeking price discovery and potentially preventing price improvement, which may result from exposing an order. The Exchange's proposal to amend Options 3, Section 22 will conform this Rule to other Nasdaq affiliated markets filing similar rules.
The Exchange proposes to amend Supplementary Material .02(f) within Options 5, Section 2. This rule currently states, “A pattern or practice of submitting unrelated orders that cause an exposure period to conclude early will be deemed conduct inconsistent with just and equitable principles of trade and a violation of Options 9, Section 1 and other Exchange Rules.” The Exchange proposes to cross-reference Options 3, Section 22 to provide further clarity on the manner in which Members may be found to have violated Supplementary Material .02 to Options 5, Section 2. Specifically, the Exchange proposes to remove the word “unrelated” and more specifically indicate all submitting orders that cause an exposure period to conclude early for the purposes of violating Options 3, Section 22 will also be deemed conduct inconsistent with just and equitable principles of trade and a violation of Options 9, Section 1 and other Exchange Rules. The Exchange believes that this additional language referencing Options 3, Section 22 will provide context for the violation as Options 3, Section 22 describes the exposure requirements for orders. Further, the Exchange believes all orders, not just “unrelated” orders may cause a rule violation. The Exchange believes that it is consistent with the Act to make clear the manner in which a Member may violate Options
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes are consistent with the Act. The Exchange is memorializing its current practice by reflecting the various requirements and limitations for quote entry in one rule for ease of reference and clarity. The Exchange is also proposing to conform this rule to similar rules across other Nasdaq affiliated exchanges. Making clear the manner in which Market Makers may generate and submit option quotations will provide these market participants with clear guidance within the rules. The Exchange notes that other rules already limit the use of quotations on the Exchange. Options 2, Section 5 makes clear that Market Makers may submit quotes.
The Exchange's proposal to add a provision regarding Firm Quote within new Options 3, Section 4(b)(5) will bring greater transparency to the limitations that Market Makers have today with respect to firm quote. ISE's Options 2, Section 5(d) describes firm quote for purposes of Market Maker quote submission. The Exchange is proposing to add rule text to provide context as to this restriction for submitting quotes. The proposed rule text makes clear the manner in which Firm Quote relief is applied. The Exchange believes it is consistent with the Act to provide greater detail as to the current obligations for Market Makers with respect to firm quote. The addition rule text is consistent with the Act because the Exchange is adding detail regarding the method in which orders which are firm or locked and crossed will be handled in the System.
The notifications for Firm Quote are made clear with the proposed rule text. The Exchange believes that it is consistent with the Act to specify when quotes are firm and the handling of such quotes by the System for the protection of investors and the general public. The clarity is designed to promote just and equitable principles of trade by notifying all participants engaged in market making of potential outcomes. Further, the Exchange's proposal to add more detail at proposed new Options 3, Section 4(b)(6) regarding trade-through and locked and crossed markets is consistent with the Act. Today, quotations may not be executed against at prices that trade-through an away market. Also, quotations may not lock or cross an away market. Also, quotations may not lock or cross an away market. By stating this limitation in the rule, Members will have greater clarity as to this limitation. The repricing of quotations is consistent with the Act because repricing prevents the Exchange from disseminating a price which locks or crosses another market. The Exchange's proposal to note that quotes are subject to minimum increments provided for in Options 3, Section 3 and risk protections provided for in Options 3, Section 15 is consistent with the Act because this rule brings greater transparency to these requirements which are already noted in the aforementioned rules. Options 2, Section 5(b)(1) similarly requires a Market Maker to quote in the minimum increments specified in Options 3, Section 3. Options 3, Section 15, titled “Simple Order Risk Protections” provides a list of all protections applicable to quotes that may cause an order to be rejected. The Exchange believes that this rule will provide Market Makers with requirements and conditions for submitting quotations and provide transparency as to limitations that cause a quote to be rejected.
The Exchange's proposal to make clear that quotes will be displayed in the System as described in Options 3, Section 23 is intended to bring greater transparency as to the data available on the Exchange. Options 3, Section 23, titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange.
The Exchange proposes to retitle Options 3, Section 5 as “Entry and Display of Single-Leg Orders” to describe the current requirements and conditions for entering orders, similar to proposed changes to Options 3, Section 5 for quotes is consistent with the Act because it will provide transparency as to manner in which orders may be submitted to the System. The Exchange's new rule text memorializes the current requirements for submitting orders into the System. Similar to proposed Options 3, Section 4, the Exchange proposes to memorialize requirements and limitations within one rule for ease of reference.
The Exchange's new rule text at Options 3, Section 5(a) proposes to make clear that multiple orders may be transmitted to the System as single or multiple price levels to add greater transparency to the Exchange's rules. The Exchange proposes to memorialize the manner in which orders may be submitted to the System to add more detail to its rules. For example, the time the System begins accepting orders, information concerning the time-stamp, which determines the time ranking of the order, as well as restrictions to order entry. Orders submitted to the System are subject to minimum increments specified in Options 3, Section 3 risk protections provided for in Options 3, Section 15, and the restrictions of any order type as provided for in Options 3, Section 7. The Exchange believes that listing the requirements and limitations is consistent with the Act because it will provide Members with the information necessary to process orders on ISE. In addition, noting that parties may not agree to a mutual agreement for purposes that would cause another rule to be violated is consistent with the Act because it provides transparency to Members that certain behavior would cause a rule violation. The Exchange believes that this provision protects
Further, the Exchange's proposal to add more detail at proposed new Options 3, Section 5(d) regarding trade-through and locked and crossed markets is consistent with the Act. Today, orders may not be executed against at prices that trade-through an away market. Also, orders may not lock or cross an away market. Routable orders must comply with Trade-Through and Locked and Crossed Markets restrictions. By stating this limitation in the rule, Members will have greater clarity as to this limitation. The rule also seeks to aggregate information relating to trading-through so as to provide Members with clear guidelines for submitting orders.
The Exchange's proposal to make clear that orders will be displayed in the System as described in Options 3, Section 23 is intended to bring greater transparency as to the data available on the Exchange. Options 3, Section 23 titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange.
The Exchange's proposal to amend Supplementary Material .03(c) to Options 3, Section 7 to make clear that Market Makers may only enter interest into SQF in their assigned options series is consistent with the Act. Options 2, Section 3, Appointment of Market Makers, describes the manner in which Market Makers are appointed in options series. This sentence simply provides that SQF may only be utilized for quoting in assigned options series.
The Exchange's proposal to relocate Options 3, Section 15(a)
The Exchange's proposal to amend Options 3, Section 22 to list all the exceptions to the exposure requirement is consistent with the Act because this rule change will bring greater clarity to the Rulebook. The Exchange is adding rule text currently contained in a NOM rule to describe the required period that orders are to be exposed.
The Exchange's proposal to amend Supplementary Material .02(f) within Rule Options 5, Section 2 to make clear behavior that would violate this rule is consistent with the Act because the Exchange seeks to provide Members with specific information as to the type of behavior the rule seeks to limit. This rule currently states, “A pattern or practice of submitting unrelated orders that cause an exposure period to conclude early will be deemed conduct inconsistent with just and equitable principles of trade and a violation of Options 9, Section 1 and other Exchange Rules.” The Exchange proposes to cross-reference Options 3, Section 22 to provide further clarity on the manner in which Members may be found to have violated Options 5, Section 2. Specifically, the Exchange proposes to remove the word “unrelated” and more specifically indicate all submitting orders that cause an exposure period to conclude early for the purposes of violating Options 3, Section 22 will also be deemed conduct inconsistent with just and equitable principles of trade and a violation of Options 9, Section 1 and other Exchange Rules. The Exchange believes that this additional language referencing Options 3, Section 22 will provide context for the violation as Options 3, Section 22 describes the exposure requirements for orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes does not impose an undue burden on competition because the Exchange is memorializing its current practice by reflecting the various requirements and limitations in one rule for ease of reference and clarity and all Market Makers are subject to the these requirements today. The Exchange is memorializing its current practice by reflecting the various requirements and limitations for quote entry in one rule for ease of reference and clarity. The Exchange is also proposing to conform this rule to similar rules across other Nasdaq affiliated exchanges.
The Exchange's proposed new Options 3, Section 5 describes the requirements and conditions pursuant to which Members can enter orders into the System. The Exchange's proposal does not impose an undue burden on competition because it applies uniformly to all Members. This rule memorializes the manner in which orders may be submitted to the System and provides transparency as to manner in which orders may be submitted to the System. The Exchange is also proposing to conform this rule to similar rules across other Nasdaq affiliated exchanges.
The Exchange's proposal to amend Supplementary Material .03(c) to Options 3, Section 7 to make clear that Market Makers may only enter interest into SQF in their assigned options series does not impose an undue burden on competition, rather it makes clear that SQF may only be utilized for quoting in assigned options series. This rule is applicable to all Market Makers.
The Exchange's proposal to relocate Options 3, Section 15(a) into proposed new Options 3, Section 5(b) does not impose an undue burden on competition because this rule text relates to orders, which topic is described within new Options 3, Section 5. Relocating the Size Limitation protection to another section of the rule to make clear it applies to quotes and orders will bring greater transparency to this rule.
The Exchange's proposal to amend Options 3, Section 22 to list all the exceptions to the exposure requirement does not impose an undue burden on competition because this rule change will bring greater clarity to the Rulebook. The Exchange's proposal to relocate rule text to create topic headings and discuss each topic discretely will bring greater clarity to this rule text. The Exchange's proposal to add a new Options 3, Section (c) will make clear the type of behavior that would cause a Member to violate Options 3, Section 22 when disclosing information to another Member or any other third party with respect to the terms of the order.
The Exchange's proposal to amend Supplementary Material .02(f) within Rule Options 5, Section 2 to make clear behavior that would violate this rule does not impose an undue burden on competition because it seeks to provide Members with specific information as to the type of behavior the rule seeks to limit. This rule would apply uniformly to all Members.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Options 3 at Section 4, “Acceptance of Quotes and Orders,” adopt a new Section 5, “Entry and Display of Orders,” Section 7, “Types of Order,” at Supplementary Material .03 and Section 22 titled “Limitations on Orders.” The Exchange proposes to amend Options 3, Section 15, “Simple Order Risk Protections.”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 3 at Section 4, “Acceptance of Quotes and Orders,” adopt a new Section 5, “Entry and Display of Orders,” Section 7, “Types of Order,” at Supplementary Material .03 and Section 22 titled “Limitations on Orders.” The Exchange proposes to amend Options 3, Section 15, “Simple Order Risk Protections.” Each rule change will be discussed in greater detail below.
Currently, Options 3, Section 4 is titled “Acceptance of Quotes or Orders.” The Exchange proposes to retitle Options 3, Section 4 as “Entry and Display of Quotes.” The Exchange proposes to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes. These requirements reflect the current System operation today. The Exchange proposes to memorialize the various requirements for the submission of quotes into the System for greater transparency. The Exchange proposes to provide at new Options 3, Section 4(b), “Quotes are subject to the following requirements and conditions:”. The Exchange proposes to add at Options 3, Section 4(b)(1) that “Market Makers may generate and submit option quotations.” Current Options 2, Section 5 makes clear that Market Makers may submit quotes.
The Exchange proposes a provision regarding firm quote within proposed Options 3, Section 4(b)(5):
GEMX's Options 2, Section 5(d) describes Firm Quote for purposes of Market Maker quote submission. The Exchange proposes to memorialize within its Rules the requirement for the dissemination of quotations pursuant to Reg NMS.
Similarly, the Exchange proposes to provide the following at proposed new Options 3, Section 4(b)(6):
Today, quotations may not be executed against at prices that trade-through an away market as provided for in the Options Order Protection and Locked/Crossed Market Plan which is described within Options 5. Also, quotations may not lock or cross an away market. By stating this limitation in the rule, Market Makers will have greater clarity as to this limitation. Further, the Exchange is making clear that a quote that would cause a locked or crossed market violation or would cause a trade-through violation will be re-priced. The Exchange would display the quote at one minimum price variation (“MPV”) above (for offers) or below (for bids) the national best price or the quote would be immediately cancelled if requested by the Member. Repricing quotes is consistent with the Act because the Exchange is not permitted to lock or cross an away market's quote or order. The Exchange reprices the quotes one MPV inferior to cause the displayed price to reflect the available market on the Exchange.
Finally, the Exchange proposes at Options 3, Section 4(b)(7) to provide, “Quotes submitted to the System are subject to the following: minimum increments provided for in Options 3, Section 3 and risk protections provided for in Options 3, Section 15.” If the Market Maker does not submit a quotation compliant with Options 3, Section 3, the quote will not be accepted by the System. The Exchange is noting herein the manner in which a quote may be rejected by the System to provide market participants with expectations as to the interplay among the various Exchange Rules. Specifically, if the Market Maker does not submit a quotation compliant with Options 3, Section 3, the quote will not be accepted by the System because market participants are required to abide by Options 3, Section 3 which describes the increments with which options series are to be quoted. Options 3, Section 15 provides a list of all protections applicable to quotes that may be rejected. The Exchange believes that this rule will provide Members with requirements and conditions for submitting quotations and provide transparency as to limitations that cause a quote to be rejected.
The Exchange proposes to provide at Options 3, Section 4(c), “Quotes will be displayed in the System as described in Options 3, Section 23.” Options 3, Section 23, titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange. This list represents the available data feeds and the content of those data feeds which are offered today by the Exchange.
As discussed in more detail below, the Exchange proposes to relocate current Options 3, Section 4(b)
The amendment to Options 3, Section 4 to create a list of all the requirements and conditions for submitting quotes on the Exchange within one rule is consistent with the Act because it will provide greater transparency to market participants of the applicable requirements. Further, this proposal will make the current rule clear and understandable for market participants thereby protecting investors and the general public. The Exchange notes that while some of these requirements appear in other rules, for ease of reference the requirements are located within a single rule with this proposal. The proposal reflects the Exchange's current practice with respect to quoting requirements. This proposal will conform this Rule to other Nasdaq affiliated markets filing similar rules.
Similar to Options 3, Section 4, which describes requirements for quotes, the Exchange proposes to adopt a new Options 3, Section 5, “Entry and Display of Orders” and describe the current requirements and conditions for entering orders. The Exchange notes that the requirements provided for within this rule represent the current practice. The purpose of Options 3, Section 5 is to memorialize this information within a single rule.
The Exchange proposes to state within new Options 3, Section 5(a), “Members can enter orders into the
The Exchange proposes at new Options 3, Section 5(a)(3), “The System shall time-stamp an order which shall determine the time ranking of the order for purposes of processing the order.” Further, all orders are time-stamped to determine the time ranking of the order for purposes of processing the order within the System. This is also the case today and the Exchange is adding this detail to its rules to describe the time-stamp.
The Exchange proposes to add at new Options 3, Section 5(a)(4), “Orders submitted to the System are subject to the following: Minimum increments provided for in Options 3, Section 3, risk protections provided for in Options 3, Section 15, and the restrictions of any order type as provided for in Options 3, Section 7. Orders may execute at multiple prices.” All orders must adhere to other rule requirements such as minimum increments, risk protection rules and order types. Similar to the rule text for quotes, order are currently subject the minimum increment requirements in Options 3, Section 3 and also the risk protections for orders which are listed within current Options 3, Section 15. This rule provides a list of other requirements which may impact the execution of an order. Finally, orders may execute at multiple prices.
The Exchange proposes to add to new Options 3, Section 5(a)(5) the following, “Nullification by Mutual Agreement. Trades may be nullified if all parties participating in the trade agree to the nullification. In such case, one party must notify the Exchange and the Exchange promptly will disseminate the nullification to OPRA. It is considered conduct inconsistent with just and equitable principles of trade for a party to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder.” The rule text of new Options 3, Section 5(a)(5) is relocated from Options 3, Section 4(b) because it related to orders. The Exchange proposes to caption proposed Options 3, Section 5(a)(5) as “Nullification by Mutual Agreement” and add the following sentence to this provision, “It is considered conduct inconsistent with just and equitable principles of trade for a party to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder.” The Exchange believes that it is consistent with the Act to permit parties to agree to a nullification provided the nullification does not violate other exchange rules. The Exchange notes that parties may not agree to a mutual agreement for purposes that would cause another rule to be violated. The Exchange believes that it is consistent with the Act and protection of investors and general public to make clear the expected behavior with respect to nullifications.
The rule text at proposed Options 3, Section 5(b) is relocated from Options 3, Section 15(a). The Exchange notes that this NBBO Protection applies to orders and therefore is being discussed within proposed Options 3, Section 5, which applies to all market participants. In contrast, Options 3, Section 4, which applies to quotes entered by Market Makers, describes the Firm Quote protections and the interplay of NBBO with respect to quotes. Trade-Through is described in both Options 3, Sections 4 and 5. The Exchange proposes to change the word “rejected” to “cancelled” within new Options 3, Section 5(b) because an order may be accepted by the System and then immediately cancelled. New Options 3, Section 5(c) seeks to define the Exchange's best bid and offer as the “BBO.” The Exchange provides, “The System automatically executes eligible orders using the Exchange's displayed best bid and offer (“BBO”).”
Similar to Options 3, Section 4(b)(6), the Exchange proposes to note at new Options 3, Section 5(d),
Trade-Through Compliance and Locked or Crossed Markets. An order will not be executed at a price that trades through another market or displayed at a price that would lock or cross another market. An order that is designated by the Member as routable will be routed in compliance with applicable Trade-Through and Locked and Crossed Markets restrictions. Orders that are not automatically executed will be handled as provided in Supplementary Material .02 to Options 5, Section 2; provided that Members may specify that a Non-Customer order should instead be cancelled automatically by the System at the time of receipt.
Today, orders may not be executed at a price that trades through an away market. Also, orders may not lock or cross an away market. Routable orders must comply with Trade-Through and Locked and Crossed Markets restrictions. Finally, the Exchange proposes to cross-reference Supplementary Material .02 to Options 5, Section 2 to describe the manner in which orders that are not automatically executed are handled. Today, Members may specify that a Non-Customer order should instead be cancelled automatically by the System at the time of receipt. By including this information within this rule, the Exchange proposes to provide Members with information related to trade-through in one location with cross-references to provide transparency. This rule text is similar to rule text within BX Chapter VI, Section 7(b)(3)(C). Noting these limitations within the rule is consistent with the Act because Members will have greater clarity as to limitations.
Finally, the Exchange proposes to add rule text at new Options 3, Section 5(e), similar to Options 3, Section 4(c) which states, “Orders will be displayed in the System as described in Options 3, Section 23.”
The Exchange's proposal to adopt a new Options 3, Section 5, “Entry and Display of Orders” and describe the current requirements and conditions for entering orders, similar to proposed changes to Options 3, Section 4 for quotes is consistent with the Act because it will provide transparency as to manner in which orders may be submitted to the System. The Exchange's new rule reflects the current requirements for submitting orders into the System. Similar to proposed Options 3, Section 4, the Exchange proposes to memorialize requirements and limitations within one rule for ease of reference.
The Exchange proposes to amend Supplementary Material .03(c) to Options 3, Section 7 to add the following sentence to Specialized Quote Feed (“SQF”), “Market Makers may only enter interest into SQF in their assigned options series.” The Exchange notes that today Market Makers may utilize SQF to quote only in their assigned options series as provided for in Options 2, Section 3, Appointment of Market Makers. Adding this information to the SQF protocol is consistent with the Act because the Exchange desires to make clear the manner in which Market Makers may submit quotes through the protocol. Market Makers are obligated to provide liquidity on GEMX in the options series to which they are assigned, which liquidity benefits all market participants. This amendment is similar to language currently within Phlx Rule 1080(a)(i)(B).
The Exchange proposes to delete the first sentence introductory sentence of Options 3, Section 15 which provides, “Incoming orders that are executable against orders and quotes in the System will be executed automatically by the System subject to the following:” and relocate the rule text to Options 3, Section 5 as described herein as well as Section 15(a)(1) and (a)(2), into proposed new Options 3, Section 5(b) and renumber Options 3, Section 15(b) as new “a.” The Exchange proposes to relocate current Options 3, Section 15(b)(1)(C) to Options 3, Section 15(b)(2)(B). Current Options 3, Section 15(b)(1)(D) will be re-lettered as “C”. Options 3, Section 15(b)(1) provides for order risk protections. The Exchange proposes to relocate the Size Limitation protection to Options 3, Section 15(b)(2) because this section applies to order and quote risk protections. Size Limitation protection applies to both orders and quotes and is therefore properly placed within this section. The Exchange proposes to add the words “or quote” to the description to make clear that this protection applies to both orders and quotes. The Exchange believes that relocating this rule and adding “or quotes” is consistent with the Act because the Exchange will make clear that the Size Limitation risk protection would apply to all interest on the Exchange.
The Exchange proposes to amend Options 3, Section 22 to retitle the Section from “Limitations on Orders” to “Limitations on Order Entry.” The Exchange believes that this title is more appropriate for these rules.
The Exchange proposes to amend Options 3, Section 22(b) to amend the title of the section from “Principal Transactions” to “Limitations on Principal Transactions.” This rule provides for the exposure of orders entered on the Exchange. Specifically, with respect to orders entered when a Member is acting as agent and principal on an order, the order must be exposed for one second prior to execution to allow an opportunity for price improvement. The Exchange has filed for certain functionalities which are exceptions to the general standard of one second exposure. These functionalities have provisions which describe the manner in which orders can be entered into the Facilitation Mechanism,
The Exchange proposes to relocate Supplementary Material .01 to Options 3, Section 22 to new Section 22(b)(i) and state “This Rule” instead of “Options 3, Section 22(d).” The Exchange notes that the references to “d” should refer to “b” and those cross-references are being updated.
The Exchange proposes to amend the title of Options 3, Section 22(c), from “Solicitation Orders” to “Limitation on Solicitation Orders.” The Exchange proposes to add exceptions for
The Exchange proposes to re-letter current “d” as “e” as the Exchange proposes new rule text at proposed Options 3, Section 22(d) which provides, “Prior to or after submitting an order to GEMX, a Member cannot inform another Member or any other third party of any of the terms of the order for purposes of violating this Rule.” Similar rule text is contained in The Nasdaq Options Market LLC (“NOM”) Rules.
It will be a violation of Options 3, Section 22(e) for an Electronic Access Member to cause the execution of an order it represents as agent on the Exchange by orders it solicited from Members and non-Member broker-dealers to transact with such orders, whether such solicited orders are entered into the System directly by the Electronic Access Member or by the solicited party (either directly or through another Member), if the Member fails to expose orders on the Exchange as required by Options 3, Section 22(e).
This rule text is repetitive of the provisions within current Options 3, Section 22(c). The Exchange is clearly providing within Options 3, Section 22(c) that a Member must expose an order for one second. Further, the
The Exchange proposes to update the rule citations in Supplementary Material .01 to Options 3, Section 22 to refer to paragraph “b” instead of “d”. The Exchange proposes to update the rule numbers for the remainder of the Rule and also update the cross-reference in Supplementary Material .04 to Options 3, Section 22.
The Exchange proposes to make clear with this Rule that Members may not gain by failing to expose orders submitted on an agency basis. The Exchange is promoting transparency of orders to prevent Members from seeking price discovery and potentially preventing price improvement, which may result from exposing an order. The Exchange's proposal to amend Options 3, Section 22 will conform this Rule to other Nasdaq affiliated markets filing similar rules.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes are consistent with the Act. The Exchange is memorializing its current practice by reflecting the various requirements and limitations for quote entry in one rule for ease of reference and clarity. The Exchange is also proposing to conform this rule to similar rules across other Nasdaq affiliated exchanges. Making clear the manner in which Market Makers may generate and submit option quotations will provide these market participants with clear guidance within the rules. The Exchange notes that other rules already limit the use of quotations on the Exchange. Options 2, Section 5 makes clear that Market Makers may submit quotes.
The Exchange's proposal to add a provision regarding Firm Quote within new Options 3, Section 4(b)(5) will bring greater transparency to the limitations that Market Makers have today with respect to firm quote. GEMX's Options 2, Section 5(d) describes firm quote for purposes of Market Maker quote submission. The Exchange is proposing to add rule text to provide context as to this restriction for submitting quotes. The proposed rule text makes clear the manner in which Firm Quote relief is applied. The Exchange believes it is consistent with the Act to provide greater detail as to the current obligations for Market Makers with respect to firm quote. The addition rule text is consistent with the Act because the Exchange is adding detail regarding the method in which orders which are firm or locked and crossed will be handled in the System. The notifications for Firm Quote are made clear with the proposed rule text. The Exchange believes that it is consistent with the Act to specify when quotes are firm and the handling of such quotes by the System for the protection of investors and the general public. The clarity is designed to promote just and equitable principles of trade by notifying all participants engaged in market making of potential outcomes. Further, the Exchange's proposal to add more detail at proposed new Options 3, Section 4(b)(6) regarding trade-through and locked and crossed markets is consistent with the Act. Today, quotations may not be executed against at prices that trade-through an away market. Also, quotations may not lock or cross an away market. Also, quotations may not lock or cross an away market. By stating this limitation in the rule, Members will have greater clarity as to this limitation. The repricing of quotations is consistent with the Act because repricing prevents the Exchange from disseminating a price which locks or crosses another market. The Exchange's proposal to note that quotes are subject to minimum increments provided for in Options 3, Section 3 and risk protections provided for in Options 3, Section 15 is consistent with the Act because this rule brings greater transparency to these requirements which are already noted in the aforementioned rules. Options 2, Section 5(b)(1) similarly requires a Market Maker to quote in the minimum increments specified in Options 3, Section 3. Options 3, Section 15, titled “Simple Order Risk Protections” provides a list of all protections applicable to quotes that may cause an order to be rejected. The Exchange believes that this rule will provide Market Makers with requirements and conditions for submitting quotations and provide transparency as to limitations that cause a quote to be rejected.
The Exchange's proposal to make clear that quotes will be displayed in the System as described in Options 3, Section 23 is intended to bring greater transparency as to the data available on the Exchange. Options 3, Section 23,
The Exchange proposes to retitle Options 3, Section 5 as “Entry and Display of Orders” to describe the current requirements and conditions for entering orders, similar to proposed changes to Options 3, Section 5 for quotes is consistent with the Act because it will provide transparency as to manner in which orders may be submitted to the System. The Exchange's new rule text memorializes the current requirements for submitting orders into the System. Similar to proposed Options 3, Section 4, the Exchange proposes to memorialize requirements and limitations within one rule for ease of reference.
The Exchange's new rule text at Options 3, Section 5(a) proposes to make clear that multiple orders may be transmitted to the System as single or multiple price levels to add greater transparency to the Exchange's rules. The Exchange proposes to memorialize the manner in which orders may be submitted to the System to add more detail to its rules. For example, the time the System begins accepting orders, information concerning the time-stamp, which determines the time ranking of the order, as well as restrictions to order entry. Orders submitted to the System are subject to minimum increments specified in Options 3, Section 3 risk protections provided for in Options 3, Section 15, and the restrictions of any order type as provided for in Options 3, Section 7. The Exchange believes that listing the requirements and limitations is consistent with the Act because it will provide Members with the information necessary to process orders on GEMX. In addition, noting that parties may not agree to a mutual agreement for purposes that would cause another rule to be violated is consistent with the Act because it provides transparency to Members that certain behavior would cause a rule violation. The Exchange believes that this provision protects investors and the public interest because it specifically prohibits market manipulation within propose new rule. The Exchange's proposal to define both the Exchange's best bid and offer as the “BBO” is consistent with the Act because it provides context to the usage of these terms in the Rulebook. The Exchange notes, within Options 3, Section 7, the orders are displayed and non-displayed.
Further, the Exchange's proposal to add more detail at proposed new Options 3, Section 5(d) regarding trade-through and locked and crossed markets is consistent with the Act. Today, orders may not be executed against at prices that trade-through an away market. Also, orders may not lock or cross an away market. Routable orders must comply with Trade-Through and Locked and Crossed Markets restrictions. By stating this limitation in the rule, Members will have greater clarity as to this limitation. The rule also seeks to aggregate information relating to trading-through so as to provide Members with clear guidelines for submitting orders.
The Exchange's proposal to make clear that orders will be displayed in the System as described in Options 3, Section 23 is intended to bring greater transparency as to the data available on the Exchange. Options 3, Section 23 titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange.
The Exchange's proposal to amend Supplementary Material .03(c) to Options 3, Section 7 to make clear that Market Makers may only enter interest into SQF in their assigned options series is consistent with the Act. Options 2, Section 3, Appointment of Market Makers, describes the manner in which Market Makers are appointed in options series. This sentence simply provides that SQF may only be utilized for quoting in assigned options series.
The Exchange's proposal to relocate Options 3, Section 15(a)
The Exchange's proposal to amend Options 3, Section 22 to list all the exceptions to the exposure requirement is consistent with the Act because this rule change will bring greater clarity to the Rulebook. The Exchange is adding rule text currently contained in a NOM rule to describe the required period that orders are to be exposed.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to add a new section (b) to Options 3, Section 4 to describe the current requirements and
The Exchange's proposed new Options 3, Section 5 describes the requirements and conditions pursuant to which Members can enter orders into the System. The Exchange's proposal does not impose an undue burden on competition because it applies uniformly to all Members. This rule memorializes the manner in which orders may be submitted to the System and provides transparency as to manner in which orders may be submitted to the System. The Exchange is also proposing to conform this rule to similar rules across other Nasdaq affiliated exchanges.
The Exchange's proposal to amend Supplementary Material .03(c) to Options 3, Section 7 to make clear that Market Makers may only enter interest into SQF in their assigned options series does not impose an undue burden on competition, rather it makes clear that SQF may only be utilized for quoting in assigned options series. This rule is applicable to all Market Makers.
The Exchange's proposal to relocate Options 3, Section 15(a) into proposed new Options 3, Section 5(b) does not impose an undue burden on competition because this rule text relates to orders, which topic is described within new Options 3, Section 5. Relocating the Size Limitation protection to another section of the rule to make clear it applies to quotes and orders will bring greater transparency to this rule.
The Exchange's proposal to amend Options 3, Section 22 to list all the exceptions to the exposure requirement does not impose an undue burden on competition because this rule change will bring greater clarity to the Rulebook. The Exchange's proposal to relocate rule text to create topic headings and discuss each topic discretely will bring greater clarity to this rule text. The Exchange's proposal to add a new Options 3, Section (c) will make clear the type of behavior that would cause a Member to violate Options 3, Section 22 when disclosing information to another Member or any other third party with respect to the terms of the order.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to adopt fees for the MIDP order routing option.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing
The Exchange is proposing to adopt fees under Equity 7, Section 118(a) for use of the MIDP order routing option. First, the Exchange is proposing to adopt a fee of $0.0030 per share executed in securities of all three Tapes,
The Exchange is also proposing to assess the applicable charges and credits under Equity 7, Sections 114
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal is reasonable, equitable and not unfairly discriminatory because the pricing proposed above for MIDP Orders is generally set at levels that the Exchange is assessed for the execution of such orders at away venues. The Exchange believes that it is reasonable, equitable and not unfairly discriminatory to assess a $0.0030 per share executed fee for securities in all three Tapes priced at $1 or more per share to a member that enters an MIDP Order that routes and executes at venues with a protected quotation under Regulation NMS other than BX, or Nasdaq because, as an example, PHLX assesses a standard transaction charge of $0.0030 per share executed to a member organization that enters an order in a security that it trades priced at $1 or more per share that executes in Nasdaq PSX.
The Exchange believes that it is reasonable, equitable and not unfairly discriminatory to assess a fee of $0.0012 per share executed for securities in all three Tapes priced at $1 or more per share to a member that enters an MIDP Order that routes and executes at venues ineligible for a protected quotation under Regulation NMS because the Exchange is assessed various fees for the execution of such orders at away venues and the proposed fee is reflective of the value provided by the Exchange in providing this functionality and the overall fees assessed by such venues.
The Exchange believes that assessing no charge for an MIDP Order that routes and executes at BX is reasonable, equitable and not unfairly discriminatory because it is reflective of the fee assessed the Exchange for the execution of such orders at BX, which currently assesses no fee for an Order with Midpoint pegging that removes liquidity.
The Exchange believes that it is reasonable, equitable and not unfairly discriminatory to assess the proposed charge for MIDP Orders in any Tape securities priced below $1 per share because it is consistent with what it currently charges for all orders in securities priced at less than $1 per share that execute on Nasdaq or at an away venue.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the proposed pricing for MIDP Orders are intended to recoup the Exchange's costs associated with providing routing services, which are wholly optional. As discussed above, the Exchange believes that its proposed pricing remains competitive with other equity exchanges, as they are reflective of the costs incurred by the Exchange in receiving executions of routed midpoint orders to the various venues. In addition, because the Exchange's routing services are the subject of competition, including price competition, from other exchanges and broker-dealers that offer routing services, as well as the ability of members to use their own routing capabilities, it is likely that the Exchange will lose market share as a result of the proposed fees if they are unattractive to market participants. In this regard, the Exchange notes that the proposed fees are similar to the RMPT and RMPL routing strategies of BYX and
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 30, 2019, NYSE American LLC (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 30, 2019, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (the “Commission”).
Notice.
Notice of application for an order under sections 6(c) and 17(b) of the Investment Company Act of 1940 (“Act”) for exemptions from section 17(a) of the Act, and under section 17(d) of the Act and rule 17d-1 thereunder to permit certain joint transactions.
Applicants request an order (“Requested Order”) to permit certain registered investment companies to invest a portion of their assets in certain fixed rate notes issued in connection with a community investment program sponsored by an affiliated non-profit corporation.
Calvert Fund, Calvert Impact Fund, Inc., Calvert Management Series, Calvert Responsible Index Series, Inc., Calvert Social Investment Fund, Calvert Variable Series, Inc., Calvert World Values Fund, Inc. (collectively, the “Calvert Funds”), and Calvert Research and Management (“CRM” and, collectively with the Calvert Funds, the “Applicants”).
The application was filed on December 27, 2018 and amended on May 29, 2019.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 28, 2019, and should be accompanied by proof of service on the applicants, in the form of an affidavit, or, for lawyers, a certificate of service. Pursuant to rule 0-5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. Applicants: the Calvert Funds, 1825 Connecticut Ave. NW, Suite 400, Washington, DC 20009 and Katy D. Burke, Calvert Research and Management, Two International Place, Boston, MA 02110.
Jill Ehrlich, Senior Counsel, at (202) 551-6819, or David J. Marcinkus, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or an applicant using the Company name box, at
1. Each Calvert Fund is registered under the Act as an open-end management investment company that offers one or more series of shares. Calvert Fund, Calvert Management Series, and Calvert Social Investment Fund are each organized as a business trust under the laws of the Commonwealth of Massachusetts. Calvert World Values Fund, Inc., Calvert Responsible Index Series, Inc., Calvert Variable Series, Inc., and Calvert Impact Fund, Inc. are each organized as corporations under the laws of the state of Maryland. All of the Calvert Funds are advised by CRM, an investment adviser registered under the Investment Advisers Act of 1940 (the “Advisers Act”).
2. Although each of the Calvert Funds has distinct investment objectives and policies, a guiding philosophy of each Calvert Fund is an interest in fostering environmental, social, and governance (“ESG”) initiatives by investing a small percentage of its net assets pursuant to special non-principal investment strategies, including high social impact (“HSI”) investment opportunities such as the CIN Program (as defined below). HSI investments may be made by the Calvert Funds in a variety of ways, including through the purchase of debt securities. The registration statement of any Fund relying on the Requested Order will include disclosure designed to inform investors about the risks that may be associated with HSI investing, including the fact that such investments may offer a rate of return below the market rate prevailing at the time of the investment.
3. Calvert Impact Capital, Inc. (“CIC”)
4. The Community Investment Notes Program (the “CIN Program”) sponsored by CIC is designed to provide financing solutions to organizations seeking to address an array of social and environmental problems. In connection with the CIN Program, CIC issues notes
5. From 1998 to 2016, the Calvert Funds' HSI investments included the acquisition of notes (the “Existing Notes”) issued through the CIN Program in accordance with an exemptive order issued by the Commission in 1998 (the “1998 Order”).
6. From 1998 to 2016, the Boards of Directors/Trustees (collectively, the “Funds' Board”) of the Calvert Funds that invested in the Existing Notes and other HSI investments gained experience with respect to the oversight of HSI investing. CRM and the Funds' Board have determined that the ability to continue to invest through the CIN Program would be appropriate for the Calvert Funds, including making additional investments in notes issued by CIC through the CIN Program (such notes together with the Existing Notes, the “Notes”).
7. The Funds' Board has authorized each Calvert Fund to invest up to 3% of its net assets in HSI investments. The decision to participate in the CIN Program would be made by the Adviser in a manner consistent with the investment objectives and policies adopted by the Funds' Board, disclosure provided to the Funds' shareholders, the fiduciary duties of the Adviser, and subject to the oversight of the Funds' Board. The Adviser would not receive any compensation for the Funds' investments in the Notes (aside from the potential impact on a Fund's asset-based advisory fee). Information about the Calvert Funds' investments in the CIN Program is presented to the Funds' Board on a quarterly basis, thereby mitigating potential conflicts that CRM may have with the CIN Program.
8. Responsibility for the business, property, and affairs of CIC is vested in its Board of Directors (the “CIC Board”). The CIC Board and the Funds' Board share certain common trustees/directors, as described in the application. Currently, there is one common trustee/director between the CIC Board (comprised of thirteen directors) and the Funds' Board (comprised of eight directors/trustees). Further, CRM supports CIC in a number of ways. CRM has licensed use of the Calvert name to CIC and has committed to make an annual $250,000 donation to CIC in each of five consecutive years beginning in 2018. Additionally, in response to requests from intermediaries for information about impact investing or CIC, representatives of a limited purpose broker-dealer affiliated with CRM may direct such intermediaries to CIC.
In light of the overlapping Board members, the Calvert Funds' ownership in the Notes, and the other potential means of affiliation described in the application, CIC may be deemed to be an affiliated person of each of the Calvert Funds for purposes of section 17(a) and 17(d) of the Act. Additionally, because the Calvert Funds are affiliated persons of one another through their common investment adviser, each of the Funds might be deemed to be participating in a joint transaction with each other Fund through investments in the Notes within the scope of section 17(d). Applicants submit that the Requested Order would be consistent with the standards of sections 6(c), 17(b), and 17(d) of the Act and rule 17d-1 under the Act.
Applicants agree that the Requested Order will be subject to the following conditions:
1. The Funds' Board will be responsible for reviewing the CIN Program not less frequently than annually. The Funds may continue to participate in the CIN Program through investment in the Notes only if, at the time of such review, the Funds' Board concludes that (i) continued participation in the CIN Program by the Funds remains consistent with the investment objectives and policies of each of the Funds; and (ii) such participation is not on a basis that is less advantageous than that of other Noteholders of the same class.
2. The Funds will invest in the Notes only in accordance with the investment objectives, policies and restrictions of the applicable Fund as disclosed in its registration statement, and the Funds will not be permitted to acquire the Notes to an extent greater than that which is permitted under the terms of their prospectus at the time of such investment and any limits approved by those members of the Funds' Board who are not “interested persons” of the Funds as defined by section 2(a)(19) of the Act.
3. The Adviser will not invest in CIC by directly purchasing Notes for its own account. Neither the Adviser nor any entity controlling, controlled by, or under common control with (within the meaning of section 2(a)(9) of the Act) the Adviser will receive any compensation for the Funds' investment in the Notes or for services provided to CIC in connection with the Funds' investment in the Notes, provided that: (i) The market value of the Notes in which the Funds may, from time to time, invest will be included in the calculation of any investment advisory fee payable by a Fund to its Adviser pursuant to the terms of an investment advisory contract that satisfies the requirements of section 15(a) of the Act and subject to section 36 of the Act, where such fee is calculated based on a percentage of the average daily net assets of any such Fund; and (ii) in response to requests from intermediaries for information about impact investing or CIC, representatives of an entity affiliated with the Adviser may direct such intermediaries to CIC, provided that such activities would not affect the value of, or interest paid under the terms of, any Note purchased by a Fund in reliance on the Requested Order.
4. All Noteholders will participate in the income (losses) generated by the assets underlying the Notes in
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend its Rule regarding how complex orders are processed through the Solicitation Auction Mechanism (“C-SAM” or “C-SAM Auction”), and move that Rule from the currently effective Rulebook (“current Rulebook”) to the shell structure for the Exchange's Rulebook that will become effective upon the migration of the Exchange's trading platform to the same system used by the Cboe Affiliated Exchanges (as defined below) (“shell Rulebook”). 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.
In 2016, the Exchange's parent company, Cboe Global Markets, Inc. (formerly named CBOE Holdings, Inc.) (“Cboe Global”), which is also the parent company of Cboe C2 Exchange, Inc. (“C2”), acquired Cboe EDGA Exchange, Inc. (“EDGA”), Cboe EDGX Exchange, Inc. (“EDGX” or “EDGX Options”), Cboe BZX Exchange, Inc. (“BZX” or “BZX Options”), and Cboe BYX Exchange, Inc. (“BYX” and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the “Cboe Affiliated Exchanges”). The Cboe Affiliated Exchanges are working to align certain system functionality, retaining only intended differences between the Cboe Affiliated Exchanges, in the context of a technology migration. Cboe Options intends to migrate its trading platform to the same system used by the Cboe Affiliated Exchanges, which the Exchange expects to complete on October 7, 2019. Cboe Options believes offering similar functionality to the extent practicable will reduce potential confusion for market participants.
In connection with this technology migration, the Exchange has a shell Rulebook that resides alongside its current Rulebook, which shell Rulebook will contain the Rules that will be in place upon completion of the Cboe Options technology migration. The Exchange proposes to add the provisions of its Rules regarding C-SAM Auctions, as proposed to be modified in this rule filing, to Rule 5.40 in the shell Rulebook.
The proposed rule change moves the provisions regarding SAM Auctions for complex orders from current Interpretation and Policy .01
The Exchange believes it will provide more clarity to the Rules to have a separate rule regarding how SAM Auctions apply to complex orders (“C-SAM Auctions”), and thus proposes to add Rule 5.40 to the shell Rulebook. As they are today, complex orders will continue to be processed and executed in a C-SAM Auction in a substantially similar manner as simple orders are processed and executed in an SAM Auction pursuant to Rule 5.39,
The proposed rule change adds to the proposed introductory paragraph
The proposed rule change deletes the restriction that a solicited order cannot be for the account of any Market-Maker appointed in the class. Current Rule 6.74B, Interpretation and Policy .03, which applies to SAM Auctions of complex orders), imposes this restriction.
The Exchange does not believe permitting an appointed Market-Maker to be solicited for a C-SAM Auction provides the Market-Maker with any advantages with respect to its potential quotes in the applicable series in the Simple Book. Rule 4.18 prohibits any TPH from misusing material nonpublic information, and requires TPHs to have policies and procedures designed to prevent the misuse of material nonpublic information. When a market participant is solicited to be the contra-side in a crossing auction, the knowledge of that auction is not yet public. If an appointed Market-Maker was solicited for a C-SAM Auction and modified its quotes in the Simple Book in the applicable series in response to that auction, the Exchange may determine that to be a violation of Rule 4.18 (which the Exchange intends to move to Rule 8.17 of the shell Rulebook with no substantive changes). Such an action would only impact C-SAM Auction execution prices if those quotes were at the BBO in the applicable series. This is true for any TPH solicited for a C-SAM Auction that modified the prices of any orders it has resting in the applicable legs in the Simple Book or in the applicable complex strategy resting in the COB, as C-SAM permissible execution prices are based on all interest resting in the Simple Book.
The proposed introductory paragraph for Rule 5.40 is the same as the corresponding paragraph for C-AIM Auctions (Rule 5.38 in the shell Rulebook), which is the Exchange's price improvement crossing auction for Agency Orders of all sizes and substantially similar to the Exchange's C-SAM Auctions, except C-AIM Auctions permit facilitations and customer-to-customer immediate crosses, while C-SAM Auctions only permit solicitations and do not permit customer-to-customer immediate crosses, as set forth above.
Proposed Rule 5.40(a) sets forth eligibility requirements for a C-SAM Auction. Proposed Rule 5.40(a)(5) states the Trading Permit Holder that electronically submits an order into a C-SAM Auction (the “Initiating TPH”) may not designate an Agency Order or Solicited Order as Post Only. A Post Only complex order is a complex order the System ranks and executes pursuant to Rule 5.33 in the shell Rulebook,
The proposed rule change moves the various other C-SAM Auction eligibility requirements to proposed paragraph (a) and makes nonsubstantive changes:
• The requirement that an Agency Order be in a class of options the Exchange designates as eligible for C-SAM Auctions moves from current Interpretation and Policy .01 to proposed subparagraph (a)(1).
• The requirement that the Initiating TPH mark an Agency Order for C-SAM processing moves from current subparagraph (b)(1)(A) to proposed subparagraph (a)(2).
• The provision regarding the minimum size for Agency Orders moves from current Interpretation and Policy .03 to proposed subparagraph (a)(3) (the proposed rule change does not propose to amend the minimum size requirements. Additionally, the requirement that the Solicited Order be for the same size as the Agency Order moves from current subparagraphs (a)(2) and (a)(3) to proposed subparagraph (a)(3).
• The provision regarding the minimum increment for the Agency Order and Solicited Order price moves from current subparagraph (a)(3) to proposed subparagraph (a)(4).
The proposed rule change also explicitly states that all of the eligibility requirements in proposed paragraph (a) must be met for a C-SAM Auction to be initiated, and that the System rejects or cancels both an Agency Order and Solicited Order submitted to a C-SAM Auction that do not meet the conditions in proposed paragraph (a). This is consistent with current functionality, and the proposed rule change is merely adding this detail to the Rule.
Proposed Rule 5.40(a) is the same as the corresponding paragraph for C-AIM Auctions in Rule 5.38(a) of the shell Rulebook, other than the minimum size requirement applicable to C-SAM Auctions.
Proposed Rule 5.40(b) sets forth the requirements for the stop price of the Agency Order. It states the Solicited Order must stop the entire Agency Order at a price that satisfies the following:
• If the Agency Order is to buy (sell) and (a) the applicable side of the BBO on any component of the complex strategy represents a Priority Customer order on the Simple Book, the stop price must be at least one minimum increment better than the SBB (SBO); or (b) the applicable side of the BBO on each component of the complex strategy represents a non-Priority Customer order or quote on the Simple Book, the stop price must be at or better than the SBB (SBO). This ensures the execution price of the Agency Order will improve the SBBO if there is a Priority Customer order in any of the legs on the Simple Book. The proposed rule change protects Priority Customers in any of the component legs of the Agency Order in the Simple Book. By permitting a Priority Customer Agency Order to trade at the SBBO if there is a resting non-Priority Customer order in the Book, the proposed rule change also protects Priority Customer orders submitted into a C-SAM Auction. The Exchange believes the proposed rule change is consistent with general customer priority principles.
• If the Agency Order is to buy (sell) and a buy (sell) complex order rests on the COB, the stop price must be at least one minimum increment better than the bid (offer) of the resting complex order, unless the Agency Order is a Priority Customer order and the resting order is not a Priority Customer, in which case the stop price must be at or better than the bid (offer) of the resting complex order. This ensures the execution price of the Agency Order will improve the price of any resting Priority Customer complex orders on the COB, and that the execution price of a Priority Customer Agency Order will not be inferior to the price of any resting non-Priority Customer complex orders on the COB. The proposed rule change protects Priority Customers on the same side of the COB as the current rule does. By permitting a Priority Customer Agency Order to trade at the same price as a resting non-Priority Customer order, the proposed rule change also protects Priority Customer orders submitted into a C-SAM Auction. Application of this check at the initiation of a C-SAM Auction may result in the Agency Order executing at a better price, since the stop price must improve any same-side complex orders (with the exception of a Priority Customer Agency Order and a resting non-Priority Customer order described above). The proposed rule change is consistent with general customer priority principles.
• If the Agency Order is to buy (sell) and (a) the BBO of any component of the complex strategy represents a Priority Customer order on the Simple Book, the stop price must be at least one minimum increment better than the SBO (SBB), or (b) the BBO of each component of the complex strategy
• If the Agency Order is to buy (sell) and the best-priced sell (buy) complex order on the COB represents (a) a Priority Customer complex order, the stop price must be at least one minimum increment better than the SBO (SBB); or (b) a complex order that is not a Priority Customer, the stop price must be at or better than the price of the resting complex order. This ensures the execution price of the Agency Order will improve the price of any Priority Customer complex orders resting in the COB at the same price as the stop price, and not be through the price of any other complex order resting in the COB.
These proposed price checks are consistent with the permissible execution prices as set forth in proposed paragraph (e), as described below.
Proposed paragraph (c) describes the C-SAM Auction process. Pursuant to proposed subparagraph (c)(1), one or more C-SAM Auctions in the same complex strategy may occur at the same time. C-SAM Auctions in different complex strategies may be ongoing at any given time, even if the complex strategies have overlapping components. A C-SAM Auction may be ongoing at the same time as a SAM Auction in any component of the complex strategy.
To the extent there is more than one C-SAM Auction in a complex strategy underway at a time, the C-SAM Auctions conclude sequentially based on the exact time each C-SAM Auction commenced, unless terminated early pursuant to proposed Rule 5.40(d). In the event there are multiple C-SAM Auctions underway that are each terminated early pursuant to proposed paragraph (d), the System processes the C-SAM Auctions sequentially based on the exact time each C-SAM Auction commenced. If the System receives a simple order that causes both a SAM Auction and C-SAM Auction (or multiple SAM and/or C-SAM Auctions) to conclude pursuant to proposed Rules 5.39(d) and 5.40(d), the System first processes SAM Auctions (in price-time priority) and then processes C-SAM Auctions (in price-time priority). At the time each C-SAM Auction concludes, the System allocates the Agency Order pursuant to proposed paragraph (e) and takes into account all C-SAM Auction responses and unrelated orders in place at the exact time of conclusion.
The Exchange believes it is appropriate to permit concurrent C-SAM Auctions in the same complex strategy for the same reasons it will permit concurrent C-AIM Auctions for larger-sized Agency Orders, and for the same reason it will permit concurrent simple SAM Auctions to occur. Different complex strategies are essentially different products, as orders in those strategies cannot interact, just as orders in different series or classes cannot interact. Similarly, while it is possible for a complex order to leg into the Simple Book, a complex order may only execute against simple orders if there is interest in each component in the appropriate ratio for the complex strategy. A simple order in one component of a complex strategy cannot on its own interact with a complex order in that complex strategy. Therefore, the Exchange believes it is appropriate to permit concurrent SAM and C-SAM Auctions that share a component. As proposed, C-SAM Auctions will ensure that Agency Orders execute at prices that protect Priority Customer orders in the Simple Book and that are not inferior to the SBBO at the conclusion of the C-SAM Auction, even when there are concurrent simple and complex auctions occurring. The proposed rule change sets forth how any SAM auctions with overlapping components will conclude if terminated due to the same event.
The Exchange notes it is currently possible for auctions in a component leg and a complex strategy containing that component (such as a simple SAM Auction in the component and a complex order auction (“COA”) in the complex strategy that contains that component) to occur concurrently, and at the end of each auction, it is possible for interest resting in the Simple Book to trade against the complex order subject to the COA. While these auctions may be occurring at the same time, they will be processed in the order in which they are terminated (similar to how the System will process auctions as proposed above). In other words, suppose today there is a SAM Auction in a series and a COA in a complex strategy for which one of the components is the same series both occurring, which began and will terminate in that order, and each of which lasts 100 milliseconds. While it is possible for both auctions to terminate nearly simultaneously, the System will still process them in the order in which they terminate. When the SAM Auction terminates, the System will process it in accordance with current Rule 6.74B (Rule 5.39 in the shell Rulebook), and the auctioned order may trade against any resting interest (and responses submitted to that SAM Auction, which may only trade against the order auctioned in that SAM current Rule 6.74B, or the contra-side order submitted to the SAM Auction (Rule 5.39 in the shell Rulebook)). The System will then process the COA Auction when it terminates, and the auctioned order may trade against any resting interest, including any simple interest that did not execute against the SAM order (in addition to the contra-side order and responses submitted to that COA Auction, which may only trade against the order auctioned in that COA), pursuant to current Rule 6.53C.
The proposed rule change moves and makes nonsubstantive changes to other provisions regarding the C-SAM Auction process to proposed paragraph (c):
• The proposed rule change moves the provision regarding the C-SAM Auction notification message (currently called a request for responses (“RFR”)) from current subparagraph (b)(1)(B) to proposed subparagraph (c)(2). The proposed provision specifies that the message will detail the side, size, price, Capacity, Auction ID, and complex strategy of the Agency Order to all Users that elect to receive C-SAM Auction notification messages. This is consistent with the current RFR that is disseminated. The current rule states that the RFR states the price, side, and size of the Agency Order; the proposed rule change adds details regarding other information that is included in the notification messages. The proposed rule change also adds that C-SAM Auction notification messages are not included in OPRA, which is also consistent with current functionality.
• The proposed rule change moves the provision regarding the length of the C-SAM Auction period from current subparagraph (b)(1)(C) to proposed subparagraph (c)(3). The proposed rule
• The proposed rule change clarifies in proposed Rule 5.40(c)(4) that the Initiating TPH may not modify or cancel an Agency Order or Solicited Order after submission to a C-SAM Auction. This is consistent with current functionality, and the proposed rule change merely adds this detail to the Rules.
The proposed rule change also moves all provisions regarding C-SAM Auction responses into proposed subparagraph (c)(5), as well as makes certain changes described below, as well as nonsubstantive changes:
• The proposed rule change moves the provision regarding which market participants may respond to C-SAM Auctions, as well as what must be specified in the responses (including price, size, side, and Auction ID) from current subparagraphs (b)(1)(B) and (C) to proposed subparagraph (c)(5). Currently, all TPHs may submit responses to an RFR, except response may not be entered for the account of an options market-maker from another options exchange. The Exchange proposes to permit all Users, except for the Initiating TPH (the response cannot have the same EFID as the Agency Order),
• The proposed rule change moves the provision regarding the permissible minimum increment for C-SAM responses from current subparagraph (b)(1)(E) to proposed subparagraph (c)(5)(A), but makes no substantive changes.
• Proposed subparagraph (c)(5)(B) states that C-SAM buy (sell) responses are capped at the following prices that exist at the conclusion of the C-SAM Auction: (i) The better of the SBO (SBB) or the offer (bid) of a resting complex order at the top of the COB; or (ii) one minimum increment lower (higher) than the better of the SBO (SBB) or the offer (bid) of a resting complex order at the top of the COB if the BBO of any component of the complex strategy or the resting complex order, respectively, is a Priority Customer order. The System executes these C-SAM responses, if possible, at the most aggressive permissible price not outside the SBBO at the conclusion of the C-SAM Auction or price of the resting complex order. This will ensure the execution price is at or better than the SBBO (or better than the SBBO if any component is represented by a Priority Customer order) or prices of resting complex orders (or better than the best-priced resting complex order if represented by a Priority Customer complex order) at the end of the C-SAM Auction as set forth in proposed Rule 5.40(e). Therefore, as proposed, the price at which any response may be entered (and thus be executed) will ultimately not be through the SBBO or the best-priced resting orders on the COB at the conclusion of the C-SAM Auction.
• Proposed subparagraph (c)(5)(C) states a User may submit multiple C-SAM responses at the same or multiple prices to a C-SAM Auction. This is consistent with current functionality. Current Rule 6.74B contains no restriction on how many responses a User may submit; the proposed rule change merely makes this explicit in the Rules. The proposed rule change also states for purposes of a C-SAM Auction, the System aggregates all of a User's complex orders on the COB and C-SAM responses for the same EFID at the same price. This (combined with the proposed size cap) will prevent a User from submitting multiple orders or responses at the same price to obtain a larger pro-rata share of the Agency Order.
• Proposed subparagraph (c)(5)(D) states the System caps the size of a C-SAM response, or the aggregate size of a User's complex orders on the COB and C-SAM responses for the same EFID at the same price, at the size of the Agency Order (
• Proposed subparagraph (c)(5)(E) states C-SAM responses must be on the opposite side of the market as the Agency Order, and the System rejects a C-SAM response on the same side of the market as the Agency Order. This is consistent with current functionality, and the proposed rule change merely adds this detail to the rules. Additionally, the Exchange believes this is reasonable given that the purpose of a C-SAM response is to trade against the Agency Order in the C-SAM Auction into which the C-SAM response was submitted.
• The provision that states C-SAM responses are not visible to C-SAM Auction participants or disseminated to OPRA moves from current subparagraph (b)(1)(D) to proposed subparagraph (c)(5)(F).
• The provision that states C-SAM responses may be cancelled moves from current subparagraph (b)(1)(G) to proposed subparagraph (c)(5)(G). The proposed rule change also clarifies that C-SAM responses may be modified (which is consistent with current functionality and merely clarified in the rules).
Proposed Rule 5.40(c) is substantially similar to the corresponding provision applicable to C-AIM Auctions in Rule 5.38(c) of the shell Rulebook.
Pursuant to proposed Rule 5.40(d), a C-SAM Auction concludes at the earliest to occur of the following times:
• The end of the C-SAM Auction period;
• upon receipt by the System of an unrelated non-Priority Customer complex order on the same side as the Agency Order that would post to the COB at a price better than the stop price;
• upon receipt by the System of an unrelated Priority Customer complex order on the same side as the Agency Order that would post to the COB at a price equal to or better than the stop price;
• upon receipt by the System of an unrelated non-Priority Customer order or quote that would post to the Simple Book and cause the SBBO on the same side as the Agency Order to be better than the stop price;
• upon receipt by the System of a Priority Customer order in any component of the complex strategy that would post to the Simple Book and cause the SBBO on the same side as the Agency Order to be equal to or better than the stop price;
• upon receipt by the System of a simple non-Priority Customer order that would cause the SBBO on the opposite side of the Agency Order to be better than the stop price, or a Priority Customer order that would cause the SBBO on the opposite side of the Agency Order to be equal to or better than the stop price;
• upon receipt by the System of an order that would case the SBBO to be a price not permissible under the Limit Up-Limit Down Plan or Regulation SHO, provided, however, that in such instance, the C-SAM Auction concludes without execution;
• the market close; and
• any time the Exchange halts trading in the complex strategy or any component of the complex strategy, provided, however, that in such instance, the C-SAM Auction concludes without execution.
The proposed events that would cause a C-SAM Auction to conclude early are the same as those that would cause a C-AIM Auction to conclude early (as is currently the case).
The Exchange proposes to conclude the C-SAM Auction in response to the incoming orders described above, as they would cause the SBBO or the best-priced complex order on the same side of the market as the Agency Order to be better priced than the stop price, or cause the stop price to be the same price as the SBBO with a Priority Customer order on the BBO for a component or a Priority Customer complex order on the COB. Similarly, the incoming orders described above would cause the opposite side SBBO to be at or better than the stop price. These events would create circumstances under which a C-SAM Auction would not have been initiated, and therefore, the Exchange believes it is appropriate to conclude a C-SAM Auction when they exist.
Additionally, the proposed rule change would conclude a C-SAM Auction in response to an incoming order that would cause the SBBO to be at a price not permissible under the Limit Up-Limit Down Plan or Regulation SHO,
Proposed Rule 5.40(d)(2) states if the System receives an unrelated market or marketable limit complex order (against the SBBO or the best price of a complex order resting in the COB), including a Post Only complex order, on the opposite side of the market during a C-SAM Auction, the C-SAM Auction does not end early, and the System executes the order against interest outside the C-SAM Auction or posts the complex order to the COB. If contracts remain from the unrelated complex order at the time the C-SAM Auction ends, they may be allocated for execution against the Agency Order pursuant to proposed Rule 5.40(e). Because these orders may have the opportunity to trade against the Agency Order following the conclusion of the C-SAM Auction, which execution must still be at or better than the SBBO and the best-priced complex orders on the COB, the Exchange does not believe it is necessary to cause a C-SAM Auction to conclude early in the event the Exchange receives such orders. This will provide more time for potential price improvement, and the unrelated complex order will have the opportunity to trade against the Agency Order in the same manner as all other contra-side interest.
At the conclusion of a C-SAM Auction, the System will execute the Agency Order against the Solicited Order or contra-side complex interest in a substantially similar manner as it does today.
The Agency Order will execute against the Solicited Order if there are no Priority Customer complex orders resting on the COB on the opposite side of the Agency Order at or better than the stop price and the aggregate size of contra-side interest at an improved price(s) is insufficient to satisfy the Agency Order.
The System will cancel an Agency Order and Solicited Order with no execution if:
• Execution of the Agency Order against the Solicited Order would not be (1) at or between the SBBO at the conclusion of the SAM Auction; (2) better than the SBBO if there is a Priority Customer order in any leg component in the Simple Book; (3) at or better than the best-priced complex resting on the COB; or (4) better than the best-priced complex order resting on the COB if it is a Priority Customer complex order;
• there is a Priority Customer complex order resting on the COB on the opposite side of the Agency Order at or better than the stop price, and the aggregate size of the Priority Customer complex order and any other contra-side interest is insufficient to satisfy the Agency Order; or
• there is a non-Priority Customer complex order resting on the COB on the opposite side of the Agency Order at a price better than the stop price, and the aggregate size of the resting complex order and any other contra-side interest is insufficient to satisfy the Agency Order.
Unlike today, the Agency Order will only execute against the Solicited Order or C-SAM responses and complex orders resting in the COB, and will not leg into the Simple Book, at the conclusion of a C-SAM Auction. As proposed, the execution prices for an Agency Order will always be better than the SBBO existing at the conclusion of the C-SAM Auction if it includes a Priority Customer order on any leg, as well as better than the best-priced complex order resting on the COB if it is a Priority Customer complex order, and thus is consistent with general customer priority principles with respect to complex orders, pursuant to which complex orders may only trade against complex interest at prices that improve the BBO of any component that is represented by a Priority Customer order.
The Simple Book and the COB are separate, and orders on each do not interact unless a complex order legs into the Simple Book. As a result, the System is not able to calculate the aggregate size of complex auction responses and complex orders on the COB and the size of simple orders in the legs that comprise the complex strategy at each potential execution price (as executions may occur at multiple prices) prior to execution of an order following an auction for complex orders. The current priority following a C-SAM Auction provides that the System will first execute the complex order against all interest in the Simple Book, and then against interest in the COB.
The amount of aggregate interest available to execute against the Agency Order is relevant in a C-SAM Auction with respect to the allocation of contracts against the Agency Order and other interest because of the all-or-none nature of the Agency Order. Because the System will not be able to determine the aggregate size of contra-side interest (including simple and complex) at improved prices, it would not be able to determine whether the Agency Order would execute against the Solicited Order or other contra-side interest.
The Exchange notes there would be significant technical complexities associated with reprogramming priority within the System to permit Agency Orders to leg into the Simple Book following a C-SAM Auction and allocate the Agency Order in a manner consistent with standard priority principles and crossing auctions, while making the most crossing functionality available to TPHs. The proposed rule change will ensure the Agency Order executes in accordance with the C-SAM allocation principles, which provide Priority Customers with priority over the Solicited Order (and other contra-side interest) but also provide for the Solicited Order to execute against the Agency Order if there is no price improvement and no Priority Customer interest present. The Exchange believes providing this functionality will encourage TPHs to submit large complex orders into C-SAM Auctions and provide customer orders with opportunities for price improvement. It will also ensure orders (including Priority Customer orders) on the Simple Book are protected in accordance with standard complex order priority principles, as an Agency Order will only be permitted to execute at prices that do not trade at the SBBO existing at the conclusion of the C-SAM Auction if it includes a Priority Customer order on any leg, and that do not trade through the SBBO existing at the conclusion of the C-SAM Auction.
As noted above, the stop price of the Agency Order must be better than the same and opposite side of the SBBO if there is a Priority Customer order at the BBO in any component of the complex strategy. Additionally, the stop price must be better than the price of any Priority Customer order resting at the top of the COB on either side of the Agency Order. Further, a C-SAM Auction concludes upon receipt of an unrelated Priority Customer order in any component of the complex strategy that would post to the Simple Book and cause the SBBO on either side of the Agency Order to be equal to or better than the stop price, or upon the receipt of an unrelated Priority Customer complex order on either side of the Agency Order that post to the COB with a price equal to or better than the stop price. Additionally, any execution prices at the conclusion of the C-SAM Auction are subject to the standard complex order priority, which will ensure an Agency Order must execute at a price that improves the SBBO if there is a Priority Customer order at the BBO in any leg.
Proposed Rule 5.40, Interpretations and Policies .01 and .02 are the same as current Rule 6.74B, Interpretations and Policies .02 and .03, which currently
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.
The Exchange's C-SAM will function in a substantially similar manner following the technology migration as it does today. The proposed rule change clarifies in the Rules that the Solicited Order may be comprised of multiple contra-party orders will benefit investors. Permitting the Solicited Order to be comprised of multiple contra-party orders may increase the opportunity for customers to have orders participate in a C-SAM Auction. As a result, this may increase opportunities for price improvement, because this will increase the liquidity available for the Solicited Order, which is consistent with the purpose of C-SAM Auctions. The Exchange believes that this is beneficial to participants because allowing multiple contra-parties should foster competition for filling the Solicited Order and thereby result in potentially better prices, as opposed to only allowing one contra-party and, thereby requiring that contra-party to do a larger size order which could result in a worse price for the trade.
The proposed rule change to prohibit Initiating TPHs from designating an Agency Order or Solicited Order as Post Only is appropriate, as the purpose of a Post Only order is to not execute upon entry and instead rest in the Book, while the purpose of a C-SAM Auction is to receive an execution following the Auction but prior to entering the COB.
The proposed rule change to require the stop price to be at least one minimum increment better than the best-priced complex order in the COB, unless the Agency Order is a Priority Customer order and the resting order is not a Priority Customer, in which case the stop price must be at or better than the price of the complex order will protect investors. It will protect Priority Customer orders on the same side of the COB. By permitting a Priority Customer Agency Order to trade at the same price as a resting non-Priority Customer order, the proposed rule change also protects Priority Customer orders submitted into a C-SAM Auction. Additionally, application of this check at the initiation of a C-SAM Auction may result in the Agency Order executing at a better price, since the stop price must improve any same-side orders (with the exception of a Priority Customer Agency Order and a resting non-Priority Customer order described above). The proposed rule change is consistent with general customer priority principles.
As noted above, the proposed rule change will allow C-SAM Auctions to occur concurrently with other C-SAM Auctions. Although C-SAM Auctions will be allowed to overlap, the Exchange does not believe that this raises any issues that are not addressed by the proposed rule change. For example, although overlapping, each C-SAM Auction will be started in a sequence and with a time that will determine its processing. Thus, even if there are two C-SAM Auctions that commence and conclude, at nearly the same time, each C-SAM Auction will have a distinct conclusion at which time the Auction will be allocated. In turn, when the first C-SAM Auction concludes, unrelated orders that then exist will be considered for participation in the Auction. If unrelated orders are fully executed in such C-SAM Auction, then there will be no unrelated orders for consideration when the subsequent Auction is processed (unless new unrelated order interest has arrived). If instead there is remaining unrelated order interest after the first C-SAM Auction has been allocated, then such unrelated order interest will be considered for allocation when the subsequent Auction is processed. As another example, each C-SAM response is required to specifically identify the Auction for which it is targeted and if not fully executed will be cancelled back at the conclusion of the Auction. Thus, C-SAM responses will be specifically considered only in the specified Auction.
The proposed rule change to allow multiple auctions to overlap is consistent with functionality already in place on other exchanges.
The proposed events that will conclude a C-SAM Auction are reasonable and promote a fair and
Executions following the conclusion of a C-SAM Auction will occur in a substantially similar manner as they do today, except the Agency Order may not leg into the simple market to trade against simple orders in the legs. Pursuant Rule 5.33 in the shell Rulebook (which will govern the electronic trading of complex orders following the migration), if an order is able to leg into the Simple Book, the System would first execute an order against Priority Customer orders in the Simple Book, then against any complex order interest in the COB (or auction responses), and last against any other simple interest in the Simple Book (with executions against the Simple Book occurring in the applicable ratio). This would occur at each price at which the complex order may execute. Requiring the System to make these determinations by going “back and forth” between the Simple Book and the COB at multiple price levels would be more complicated after a C-SAM Auction. The System must determine the aggregate amount of interest available at each execution price level before executing any portion of the Agency Order to determine the final auction price and how to allocate the Agency Order against contra-side interest at the conclusion of a C-SAM Auction. This is necessary because the System must determine at each price level the aggregate non-Priority Customer interest to determine whether there is sufficient size of contra-side interest at improved prices and thus whether the Agency Order will execute against the Solicited Order or contra-side interest.
As noted above, there would be significant technical complexities associated with reprogramming priority within the System to permit Agency Orders to leg into the Simple Book following a C-SAM Auction
As discussed above, the Exchange believes the proposed rule change protects Priority Customer orders on the Simple Book, because executions following a C-SAM Auction will be subject to the general complex order priority
Given the infrequency with which complex orders currently leg into the Simple Book, the Exchange believes it is in the best interest of investors to not implement additional technical complexities given the expected minimal impact, if any, that not permitting Agency Orders to leg into the Simple Book following a C-SAM Auction would have on execution opportunities for orders in the Simple Book.
The proposed rule change to permit all Users to respond to C-SAM Auctions will benefit investors, because it may result in more Users having the opportunity to participate in executions at C-SAM Auctions, which may lead to more opportunities to price improvement. The Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, because other exchanges permit all market participants to respond to similar price improvement auctions.
The Exchange believes the proposed rule changes that add detail to the Rules, which are consistent with current functionality, will remove impediments to and perfect the mechanism of a free and open market and protect investors, as these changes provide transparency in the Rules regarding C-SAM Auctions. Additionally, the proposed rule change aligns rule language with corresponding provisions in the Exchange's other complex order price improvement crossing mechanism in Rule 5.38 of the shell Rulebook.
The proposed rule change is also consistent with Section 11(a)(1) of the Act
The “Effect vs. Execute” exemption permits an exchange member, subject to certain conditions, to effect transactions for covered accounts by arranging for an unaffiliated member to execute transactions on the exchange. To comply with Rule 11a2-2(T)'s conditions, a member: (i) Must transmit the order from off the exchange floor; (ii) may not participate in the execution of the transaction once it has been transmitted to the member performing the execution;
In the context of automated trading systems, the Commission has found that the off-floor transmission requirement is met if a covered account order is transmitted from a remote location directly to an exchange's floor by electronic means.
The second condition of Rule 11a2-2(T) requires that neither a member nor an associated person of such member participate in the execution of its order once [sic]. The Exchange represents that, upon submission to the C-SAM Auction, an order or C-SAM response will be executed automatically pursuant to the rules set forth for C-SAM Auctions. In particular, execution of an order (including the Agency and Solicited Order) or a C-SAM response sent to the mechanism depends not on the TPH entering the order or response, but rather on what other orders and responses are present and the priority of those orders and responses. Thus, at no time following the submission of an order or response is a TPH or associated person of such TPH able to acquire control or influence over the result or timing of order or response execution.
Rule 11a2-2(T)'s third condition requires that the order be executed by an exchange member who is unaffiliated with the member initiating the order. The Commission has stated that the requirement is satisfied when automated exchange facilities, such as the C-SAM Auction are used, as long as the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange.
A TPH (not acting in a market-maker capacity) could submit an order for a covered account from off of the Exchange's trading floor to an unaffiliated Floor Broker for submission for execution in the C-SAM Auction from the Exchange's trading floor and satisfy the effect-versus-execute exemption (assuming the other conditions are satisfied).
Rule 11a2-2(T)'s fourth condition requires that, in the case of a transaction effected for an account with respect to which the initiating member or an
The Exchange believes that the instant proposal is consistent with Rule 11a2-2(T), and that therefore the exception should apply in this case. Therefore, the Exchange believes the proposed rule change is consistent with Section 11(a) of the Act and the Rules thereunder.
The proposed rule change is generally intended to align certain system functionality currently offered by Cboe Options to the Exchange's System in order to provide a consistent technology offering for the Cboe Affiliated Exchanges. A consistent technology offering, in turn, will simplify the technology implementation, changes and maintenance by Users of the Exchange that are also participants on Cboe Affiliated Exchanges. This will provide Users with greater harmonization of price improvement auction mechanisms available among the Cboe Affiliated Exchanges.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe the proposed rule change to permit all Users to respond to C-SAM Auctions will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, because it will permit more types of market participants (
The Exchange does not believe the proposed rule change to amend the C-SAM Auction will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, as the proposed changes to the C-SAM Auction will apply to all orders submitted to an Auction in the same manner. C-SAM Auctions will continue to be voluntary for TPHs to use, and are available to all TPHs. The Exchange does not believe the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act, because the proposed changes are substantially the same as another options exchange's rules. The general framework and primary features of the Exchange's current C-SAM Auction is not changing, and will continue to protect orders, including Priority Customer orders, resting in the Book and the COB.
The proposed rule change will provide continued consistency across the Exchange's (and the Cboe Affiliated Exchanges', as applicable) price improvement mechanisms. The general framework and primary features of the proposed C-SAM Auction process (such as the eligibility requirements, auction response period, same-side stop price requirements, response requirements, and auction notification process), are substantively the same as the framework for the Exchange's AIM, C-AIM, and SAM price improvement auctions, as recently proposed to be amended in connection with the Exchange's upcoming technology migration.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to move the Rules in Chapter XII, which governs margin requirements, of the currently effective Rulebook (“current Rulebook”) to proposed Chapter 10 of the shell structure for the Exchange's Rulebook that will become effective upon the migration of the Exchange's trading platform to the same system used by the Cboe Affiliated Exchanges (as defined below) (“shell Rulebook”). 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.
In 2016, the Exchange's parent company, Cboe Global Markets, Inc. (formerly named CBOE Holdings, Inc.) (“Cboe Global”), which is also the parent company of Cboe C2 Exchange, Inc. (“C2”), acquired Cboe EDGA Exchange, Inc. (“EDGA”), Cboe EDGX Exchange, Inc. (“EDGX” or “EDGX Options”), Cboe BZX Exchange, Inc. (“BZX” or “BZX Options”), and Cboe BYX Exchange, Inc. (“BYX” and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the “Cboe Affiliated Exchanges”). The Cboe Affiliated
The Exchange proposes to relocate current Chapter XII which governs margin requirements, as well as current Rule 21.25 which governs margin requirements specifically for Government security options, to proposed Chapter 10 in the shell Rulebook. The Exchange notes that in addition to relocating the margin requirement rules to proposed shell Chapter 10, the proposed rule change deletes the rules from the current Rulebook. The proposed rule change relocates the rules as follows:
The proposed
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.
As stated, the proposed rule change makes no substantive changes to the rules. The proposed rule change is merely intended to relocate the Exchange's rules to the shell Rulebook and update their numbers, paragraph structure, including number and lettering format, and cross-references to conform to the shell Rulebook as a whole in anticipation of the technology migration on October 7, 2019. It also changes one rule heading so as to prevent investor confusion that would result from having the same rule headings for multiple rules under a single chapter. As such, the proposed rule change is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest, by improving the way the Exchange's Rulebook is organized, making it easier to read, and, particularly, helping market participants better understand the rules of the Exchange, which will also result in less burdensome and more efficient regulatory compliance.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended as a competitive change, but rather, seeks to make non-substantive rule changes in relocating the rules and updating cross-references to shell rules in anticipation of the October 7, 2019 technology migration, as well as updating one rule heading as to prevent investor confusion that would result from having rules with the same headings under a single chapter. The Exchange also does not believe that the proposed rule change will impose any undue burden on competition because the relocated rule text is exactly the same as the Exchange's current rules, all of which have all been previously filed with the Commission.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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 paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 8, 2019, NYSE Arca, Inc. (“NYSE Arca” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the Shares under NYSE Arca Rule 8.600-E, which governs the listing and trading of Managed Funds Shares on the Exchange. The Fund is a series of the Franklin Templeton ETF Trust (“Trust”).
According to the Exchange, the Fund's portfolio will not meet the generic listing requirements of Commentary .01(e) to NYSE Arca Rule 8.600-E, which requires that, on both an initial and a continuing basis, no more than 20% of the assets in the Fund's portfolio may be invested in OTC derivatives (calculated as the aggregate gross notional value of the OTC derivatives). The Exchange states that the aggregate gross notional value of the Fund's investments in OTC derivatives is expected to exceed this limit. The Exchange states that, other than Commentary .01(e) to Rule 8.600-E, the Shares will meet all other requirements of Rule 8.600-E.
According to the Exchange, under normal market conditions,
The Fund may invest in the following derivatives: (1) Futures contracts on U.S. and foreign equity, interest rate/bond and commodity indices; (2) U.S. and foreign equity and commodity-linked total return swaps; and (3) currency forward contracts. The Fund may hold its commodity-linked derivative instruments indirectly through a wholly-owned subsidiary established in the Cayman Islands (“Subsidiary”). The Subsidiary will only invest in commodity-linked total return swaps and futures on commodity indices and will also hold any necessary cash or cash equivalents as collateral. No more than 25% of the Fund's total assets may be invested in the Subsidiary.
The Fund may hold cash and cash equivalents.
The Fund may hold U.S. and foreign bonds (including convertible bonds), debentures and non-cash equivalent U.S. government securities (other than debt securities with variable interest rates, as referenced below).
The Fund may hold U.S. and foreign exchange-traded common stock, preferred stock (including convertible preferred stock), rights and warrants of U.S. and foreign companies.
The Fund may engage in short sales in securities and financial instruments in which the Fund may invest, including short sales “against the box.”
While the Fund, under normal market conditions, will invest at least 80% of its assets in the securities and financial instruments described above, the Fund may invest its remaining assets in other assets and financial instruments, as described below.
The Fund may invest in ETFs.
The Fund may invest in U.S. and foreign corporate debt.
The Fund may invest in foreign governmental and supranational debt securities.
The Fund may invest in U.S. and foreign exchange-listed and non-exchange-traded “Depositary Receipts”.
The Fund may invest in the following debt securities with variable interest rates: Floating rate, adjustable rate and inverse floating rate debt securities.
The Fund and the Subsidiary will not invest in securities or other financial instruments that have not been described in this proposed rule change.
The Fund's investments, including derivatives, will be consistent with the Fund's investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
Commentary .01(e) to Rule 8.600-E requires that an actively managed fund whose shares are generically listed must not invest more than 20% of its assets (calculated as the aggregate gross notional value of the OTC derivatives) in OTC derivatives on both an initial and a continuing basis.
The Exchange states that, based on the Fund's investment strategies, the Fund's exposure to foreign currency forward transactions and U.S. and foreign equity and commodity-linked total return swaps (which swaps will be traded OTC) is expected to exceed 20% of the Fund's assets.
The Exchange states the proposed exception to Commentary .01(e) to Rule 8.600-E would be consistent with other funds that the Commission has approved for listing and trading on an exchange.
After careful review, the Commission finds that the proposed rule change is consistent with the Act and rules and regulations thereunder applicable to a national securities exchange.
As noted above, the Exchange proposes that the aggregate gross notional value of the Fund's investments in OTC derivatives may exceed the 20% limit in Commentary .01(e) to NYSE Arca Rule 8.600-E. The Exchange believes that this exception is generally consistent with previous filings for the listing of ETFs approved by the Commission.
The Commission also believes that the proposal is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. Trading in the Shares will be halted if the circuit-breaker parameters in NYSE Arca Rule 7.12-E have been reached. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Moreover, trading in the Shares will be subject to NYSE Arca Rule 8.600-E(d)(2)(D), which sets forth circumstances under which Shares may be halted.
The Exchange states that the Adviser is not registered as a broker-dealer but is affiliated with a broker-dealer and has implemented and will maintain a fire wall with respect to that broker-dealer affiliate regarding access to information concerning the composition of and/or changes to the Fund's portfolio. Further, the Commission notes that the Reporting Authority that provides the Disclosed Portfolio must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material, non-public information regarding the actual components of the portfolio.
The Commission also finds that the proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
Quotation and last-sale information for portfolio holdings of the Fund that are U.S. exchange-listed, including common stocks, preferred stocks, warrants, rights, ETFs, and U.S. exchange-traded Depositary Receipts will be available via the CTA high speed line. Quotation and last sale information for such U.S. exchange-listed securities, as well as U.S. and foreign exchange-traded futures will be available from the exchanges on which they are listed and from major market data vendors. Quotation information for cash equivalents, bonds, debentures, swaps, foreign governmental and supranational debt securities, U.S. Government securities, debt securities with variable interest rates and U.S. and foreign corporate debt may be obtained from brokers and dealers who make markets in such securities or through nationally recognized pricing services through subscription agreements. The U.S. dollar value of foreign securities, instruments and currencies can be derived by using foreign currency exchange rate quotations obtained from nationally recognized pricing services. Price information for non-exchange-traded Depositary Receipts is available from major market data vendors.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange represents that:
(1) Other than Commentary .01(e) to Rule 8.600-E, the Shares will meet all other requirements of Rule 8.600-E.
(2) A minimum of 100,000 Shares will be outstanding at the commencement of trading on the Exchange.
(3) Trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, and these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
(4) The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, certain exchange-listed equity securities, certain futures, and certain exchange-traded options with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading such securities and financial instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's Trade Reporting and Compliance Engine.
(5) Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Specifically, the Information Bulletin will discuss: (a) The procedures for purchases and redemptions of Shares in creation units (and that Shares are not individually redeemable); (b) NYSE Arca Rule 9.2-E(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (c) the risks involved in trading the Shares during the Early and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (d) how information regarding the PIV and the Disclosed Portfolio is disseminated; (e) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(6) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(7) For initial and continued listing, the Fund will be in compliance with Rule 10A-3 under the Act.
(8) The Fund's investments, including derivatives, will be consistent with the Fund's investment objective and will not be used to enhance leverage. That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
The Exchange represents that all statements and representations made in the filing regarding: (1) The description of the portfolio holdings or reference assets; (2) limitations on portfolio holdings or reference assets; or (3) the applicability of Exchange listing rules specified in the rule filing constitute continued listing requirements for listing the Shares on the Exchange. In addition, the Exchange represents that the issuer must notify the Exchange of any failure by the Fund to comply with the continued listing requirements and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with Section 6(b)(5) of the Act
It is therefore ordered, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend the Solicitation Auction Mechanism (“SAM” or “SAM Auction”). 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.
In 2016, the Exchange's parent company, Cboe Global Markets, Inc. (formerly named CBOE Holdings, Inc.) (“Cboe Global”), which is also the parent company of Cboe C2 Exchange, Inc. (“C2”), acquired Cboe EDGA Exchange, Inc. (“EDGA”), Cboe EDGX Exchange, Inc. (“EDGX” or “EDGX Options”), Cboe BZX Exchange, Inc. (“BZX” or “BZX Options”), and Cboe BYX Exchange, Inc. (“BYX” and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the “Cboe Affiliated Exchanges”). The Cboe Affiliated Exchanges are working to align certain system functionality, retaining only intended differences between the Cboe Affiliated Exchanges, in the context of a technology migration. Cboe Options intends to migrate its trading platform to the same system used by the Cboe Affiliated Exchanges, which the Exchange expects to complete on October 7, 2019. Cboe Options believes offering similar functionality to the extent practicable will reduce potential confusion for market participants.
In connection with this technology migration, the Exchange has a shell Rulebook that resides alongside its current Rulebook, which shell Rulebook will contain the Rules that will be in place upon completion of the Cboe Options technology migration. The Exchange proposes to delete Rule 6.74B in the current Rulebook and add the provisions regarding SAM Auctions for simple orders, as proposed to be modified in this rule filing, to Rule 5.39 in the shell Rulebook.
The proposed rule change moves the introductory paragraph of current Rule 6.74B to the introductory paragraph of proposed Rule 5.39 in the shell Rulebook and adds to the introductory paragraph
Proposed Rule 5.39(a) lists the SAM Auction eligibility requirements:
• The proposed rule change moves the requirement that the Agency Order must be in any class of options the Exchange designates as eligible for SAM Auctions from current Rule 6.74B(a)(1) to proposed Rule 5.39(a)(1).
• The proposed rule change moves the requirement that the Initiating TPH mark an Agency Order for SAM Auction processing from current Rule 6.74B(b)(1)(A) to proposed Rule 5.39(a)(2).
• The proposed rule change moves the requirement that the Agency Order must be for at least the minimum size designated by the Exchange (which may not be less than 500 standard option contracts or 5,000 mini-option contracts) from current Rule 6.74B(a)(1) to proposed Rule 5.39(a)(3). Proposed Rule 5.39(a)(3) also states the Solicited Order must be for (or must total, if the Solicited Order is comprised of multiple solicited orders) the same size as the Agency Order. While not explicitly stated in current Rule 6.74B, this proposed provision clarifies current functionality and is consistent with the current Rules.
The proposed rule change deletes the requirement that the Initiating TPH must designate each of the Agency Order and Solicited Order as AON from current Rule 6.74B(a)(2). The Exchange's new system has been designed to automatically handle any orders submitted into a SAM Auction (using the appropriate messaging) as all-or-none, so the Initiating TPH will no longer be required to add any specific AON designations to the Agency Order or Solicited Order.
• The proposed rule change moves the requirement that the price of the Agency Order and the Solicited Order must be in an increment the Exchange determines on a class basis, which may be no smaller than $0.01 from current Rule 6.74B(a)(3) to proposed Rule 5.39(a)(4). The proposed rule change makes no changes to the permissible minimum increments in SAM Auctions.
• Proposed Rule 5.39(a)(5) states the Initiating TPH may not designate an Agency Order or Solicited Order as Post Only. A Post Only order is an order the System ranks and executes pursuant to proposed Rule 5.32, subjects to the Price Adjust process pursuant to Rule 5.32, or cancels or rejects (including if it is not subject to the Price Adjust process and locks or crosses a Protected Quotation of another exchange), as applicable (in accordance with User instructions), except the order or quote may not remove liquidity from the Book or route away to another Exchange. The Exchange does not currently offer Post Only order functionality, but will as of the technology migration.
• Proposed Rule 5.39(a)(6) states an Initiating TPH may only submit an Agency Order to a SAM Auction after the market open. This is consistent with current functionality, as executions cannot occur prior to the opening of trading. The proposed rule change clarifies this in the Rule.
• Proposed Rule 5.39(a)(7) states an Initiating TPH may not submit an Agency Order if the NBBO is crossed (unless the Agency Order is a SAM Intermarket Sweep Order (“SAM ISO”) (see discussion below)). This is consistent with current functionality and ISO orders, as well as linkage rules, and the proposed rule change clarifies this in the Rule. The Exchange believes it is appropriate to not permit a SAM Auction to be initiated if the NBBO is crossed, as a crossed NBBO may indicate price uncertainty within the market. The Exchange believes this may prevent executions at potentially erroneous prices.
The proposed rule change also explicitly states that all of the eligibility requirements in proposed paragraph (a) must be met for a SAM Auction to be initiated, and that the System rejects or cancels both an Agency Order and Solicited Order submitted to a SAM Auction that do not meet the conditions in proposed paragraph (a). This is consistent with current functionality and the concept of eligibility requirements, and merely adds this detail the Rules.
Proposed Rule 5.39(b) lists the requirements related to the price at which the Solicited Order must stop the Agency Order:
• The proposed rule change moves the requirement that the stop price for a buy (sell) Agency Order must be at or better than the then-current national best offer (“NBO”) (national best bid (“NBB”)) from current Rule 6.74B(a)(2) and (b)(1)(A) to proposed Rule 5.39(b)(1). The current rule also requires the stop price to be at or better than the same side NBBO. While the proposed rule change does not impose that restriction, it requires the execution price to be at or better than the Initial NBBO, and thus it has the same ultimate effect.
• Proposed rule 5.39(b)(2) states if the Agency Order is to buy (sell), the stop price must be at least one minimum increment better than the Exchange best bid (offer) (“BBO”), unless the Agency Order is a Priority Customer order and the resting order is a non-Priority Customer order, in which case the stop price must be at or better than the Exchange best bid (offer). Current Rule 6.74B is silent regarding whether the stop price must be at or better than the same-side Exchange best bid or offer; however, the execution price must be at or better than the Exchange best bid or offer, and the proposed stop price requirement is consistent with the provision, which merely applies this protection at the initiation of the SAM Auction. The Exchange believes this condition protects orders on the same side as the Agency Order resting on the Book, including Priority Customer orders. By permitting a Priority Customer Agency Order to be entered at the same price as a resting non-Priority Customer order, the proposed rule change also protects Priority Customer orders submitted into a SAM Auction. The proposed rule change is consistent with general customer priority principles.
• If the Agency Order is to buy (sell) and the Exchange best offer (bid) represents (a) a Priority Customer order on the Book, the stop price must be at least one minimum increment better than the Exchange best offer (bid); or (b) a quote or order that is not a Priority Customer order on the Book, the stop price must be at or better than the Exchange best offer (bid). Current Rule 6.74B is silent regarding whether the stop price must be at or better than the opposite-side Exchange best bid or offer; however, the execution price may not be at the same price as priority customer orders resting on the book on the opposite side of the Agency Order (unless the priority customer orders execute against the Agency Order), and the proposed stop price requirement is consistent with the provision, which merely applies this protection at the initiation of the SAM Auction. The Exchange believes this condition protects orders on the opposite side of the Agency Order resting on the Book, including Priority Customer orders.
• Proposed Rule 5.39(b)(4) states if the Initiating TPH submits a SAM sweep order to a SAM Auction, the stop price, SAM responses, and executions are permitted at a price inferior to the Initial NBBO. A “SAM sweep order” or “SAM ISO” is the submission of two orders for crossing in a SAM Auction without regard for better-priced Protected Quotes (as defined in Rule 5.65) because the submitting TPH routed an intermarket sweep order (“ISO”) simultaneously with the routing of the SAM ISO to execute against the full displayed size of any Protected Quote that is better than the stop price and has swept all interest in the Book with a price better than the stop price. Any execution(s) resulting from these sweeps accrue to the SAM Agency Order. Current Rule 6.74B is silent on whether ISOs are permitted with respect to SAM Auctions. However, the proposed definition of a SAM ISO is consistent with linkage rules.
The proposed rule change also explicitly states that the System rejects or cancels both an Agency Order and Solicited Order submitted to a SAM Auction that do not meet these conditions. This is consistent with current functionality and the concept of price conditions, and merely adds this detail the Rules.
Proposed Rule 5.39(c) describes the SAM Auction process, which commences upon receipt of an Agency Order that meets the conditions in
• Proposed Rule 5.39(c)(1) states that one or more SAM Auctions in the same series may occur at the same time. To the extent there is more than one SAM Auction in a series underway at a time, the SAM Auctions conclude sequentially based on the exact time each SAM Auction commenced, unless terminated early pursuant to proposed paragraph (d). At the time each SAM Auction concludes, the System allocates the Agency Order pursuant to proposed paragraph (e) and takes into account all SAM Auction responses and unrelated orders in place at the exact time of conclusion. In the event there are multiple SAM Auctions underway that are each terminated early pursuant to proposed paragraph (d), the System processes the SAM Auctions sequentially based on the exact time each SAM Auction commenced.
The Exchange notes it is also possible for various types of auctions (such as an AIM Auction or a complex order auction (“COA”)) today to occur concurrently in the same series, and at the end of each auction, it is possible for interest resting in the Book to trade against any of the auctioned orders in the series. While these auctions may be occurring at the same time, they will be processed in the order in which they are terminated (similar to how the System processes SAM Auctions as discussed above). In other words, suppose there is an AIM Auction, a SAM Auction, and a COA all occurring in the same series, which began and will terminate in that order, and each of which last 100 milliseconds. While it is possible for all three auctions to terminate nearly simultaneously, the System will still process them in the order in which they terminate. When the AIM Auction terminates, the System will process it in accordance with Rule 6.74A in the current Rulebook (Rule 5.37 in the shell Rulebook), and the auctioned order may trade against any resting interest (in addition to the contra-side order and responses submitted to that AIM Auction, which may only trade against the order auctioned in that AIM pursuant to Rule 6.74A (Rule 5.37 in the shell Rulebook). The System will then process the SAM Auction when it terminates, and the auctioned order may trade against any resting interest that did not execute against the AIM order (in addition to the contra-side order and responses submitted to that SAM Auction, which may only trade against the order auctioned in that SAM pursuant to current Rule 6.74B (proposed Rule 5.39)). Finally, the System will then process the COA Auction when it terminates, and the COA order may leg into the Book and trade against any resting interest that did not execute against the AIM order or SAM order (in addition to any interest resting on the complex order book and COA responses pursuant to current Rule 6.53C in the current Rulebook (which the Exchange intends to move to Rule 5.33 in the shell Rulebook)).
• The proposed rule change moves the provision regarding the SAM Auction notification message (currently referred to as a request for responses message) from current Rule 6.74B(b)(1)(B) to proposed Rule 5.39(c)(2). The proposed provision specifies that the message will detail the Capacity of the Agency Order, an Auction ID, and the option series, in addition to the price, side, and size, of the Agency Order, which message is sent to all TPHs that elect to receive SAM Auction notification messages. This is consistent with the current auction message that is disseminated; the proposed rule change adds these details to the rule. The proposed rule change also adds that SAM Auction notification messages are not included in the disseminated BBO or OPRA, which is also consistent with current functionality.
• The proposed rule change moves the provision regarding the length of the SAM Auction period from current Rule 6.74B(b)(1)(C) to proposed Rule 5.39(c)(3). The proposed rule change makes no changes to the current range of permitted lengths of SAM Auction periods.
• The proposed rule change clarifies in proposed Rule 5.39(c)(4) that the Initiating TPH may not modify or cancel an Agency Order or Solicited Order after submission to a SAM Auction. This is consistent with current functionality, and the proposed rule change merely adds this detail to the Rules.
Proposed Rule 5.39(c)(5) describes the provisions related to SAM responses:
• The proposed rule change moves the provision that states a SAM response must specify size and side from current Rule 6.74B(b)(1)(C) to proposed Rule 5.39(c)(5). The proposed rule change deletes the requirement that a SAM response include a price, and instead permits a SAM response to specify a limit price or be treated as market. This provides Users with more flexibility regarding the price at which it is willing to trade against an Agency Order. The proposed rule change adds that a SAM response must also specify an Auction ID, and that a SAM response may only participate in the AIM Auction with the Auction ID specified in the response. While not specified in current Rule 6.74B, this is consistent with current functionality, and the proposed rule change adds this detail to the Rules. The Exchange proposes to include this language given the above proposal that permits concurrent SAM Auctions in the same series.
Current Rule 6.74B(b)(1)(C) permits all Trading Permit Holders may submit responses to a SAM request for responses (“RFR”), except that responses may not be entered for the account of an options market-maker from another options exchange. The proposed rule change permits all Users (including Market-Makers from another options exchange)
• The proposed rule change moves the provision that states the minimum price increment for SAM response is the same as the one the Exchange determines for a class (pursuant to proposed Rule 5.39(a)(4)), and the System rejects a SAM response that is not in the applicable minimum increment from current Rule 6.74B(b)(1)(E) to proposed Rule 5.39(c)(5)(A).
• Proposed Rule 5.39(c)(5)(B) states SAM buy (sell) responses are capped at the Exchange best offer (bid), or one minimum increment better than the Exchange best offer (bid) if it is represented by a Priority Customer on the Book (unless the Agency Order is a SAM ISO) that exists at the conclusion of the SAM Auction. The System will execute SAM responses, if possible, at the most aggressive permissible price not outside the BBO at the conclusion of the SAM Auction or the Initial NBBO. The proposed rule change ensures the execution price of a response will not cross the Initial NBBO in accordance with linkage rules.
• Proposed Rule 5.39(c)(5)(C) states a User may submit multiple SAM responses at the same or multiple prices to a SAM Auction. This is consistent with current functionality. Current Rule 6.74B contains no restriction on how many responses a User may submit; the proposed rule change merely makes this explicit in the Rules. The proposed rule change also states for purposes of a SAM Auction, the System aggregates all of a User's orders and quotes on the Book and SAM responses for the same EFID at the same price. This (combined with the proposed size cap described below) will prevent a User from submitting multiple orders, quotes, or responses at the same price to obtain a larger pro-rata share of the Agency Order.
• Proposed Rule 5.39(c)(5)(D) states the System caps the size of a SAM response, or the aggregate size of a User's orders and quotes on the Book and SAM responses for the same EFID at the same price, at the size of the Agency Order (
• Proposed Rule 5.39(c)(5)(E) states SAM responses must be on the opposite side of the market as the Agency Order, and the System rejects a SAM response on the same side of the market as the Agency Order. This is consistent with current functionality, and the proposed rule change merely adds this detail to the rules. Additionally, the Exchange believes this is reasonable given that the purpose of a SAM response is to trade against the Agency Order in the SAM Auction into which the SAM response was submitted.
• The proposed rule change moves the provision that says SAM responses are not visible to SAM Auction participants or disseminated to OPRA from current Rule 6.74B(b)(1)(D) to proposed Rule 5.39(c)(5)(F).
• The proposed rule change moves the provision that says a User may modify or cancel its SAM responses during a SAM Auction from current Rule 6.74B(b)(1)(G) to proposed Rule 5.39(c)(5)(G).
Current Rule 6.74B(b)(2) states a SAM Auction at the sooner of Rule 6.74A(b)(2)(A) through (F), which are the provisions that describe when an AIM Auction concludes. The Exchange recently amended the events that may cause an AIM Auction to conclude, so the proposed rule change similarly amends the events that may cause a SAM Auction to conclude to be the same as the events that may cause an AIM Auction to conclude (and adds them to proposed Rule 5.39). Therefore, proposed Rule 5.39(d) states a SAM Auction concludes at the earliest to occur of the following times:
• The end of the SAM Auction period;
• upon receipt by the System of a Priority Customer order on the same side of the market with a price the same as or better than the stop price that would post to the Book;
• upon receipt by the System of an unrelated order or quote that is not a Priority Customer order on the same side of the market as the Agency Order that would cause the stop price to be outside of the BBO;
• the market close (consistent with current functionality and merely added to the Rules); and
• any time the Exchange halts trading in the affected series, provided, however, that in such instance the SAM Auction concludes without execution (consistent with current Rule 6.74A(b)(2)(F), and the proposed rule change adds detail that a SAM Auction in such a case will conclude without execution, which is consistent with current functionality, as no executions may occur while a series is halted for trading).
The proposed rule change deletes the following events that currently cause a SAM Auction to conclude early:
• Upon receipt by the System of an unrelated order (in the same series as the Agency Order) that is marketable against either the BBO (when such quote is the NBBO) or the RFR responses;
• upon receipt by the System of an unrelated limit order (in the same series as the Agency Order and on the opposite side of the market as the Agency Order) that improves any RFR responses; and
• any time there is a quote lock on the Exchange pursuant to Rule 6.45(c) in the current Rulebook.
As discussed below, unrelated orders on the opposite side of the Agency Order received during the SAM Auction may execute against interest outside of the SAM Auction, and therefore, the Exchange will no longer terminate a SAM Auction due to the receipt of an order on the opposite side of the Agency Order. The proposed rule change to conclude a SAM Auction early upon receipt of certain orders on the same side as the Agency Order ensure that the execution price does not occur at the same price as a Priority Customer order on the Book or at a price worse on than a non-Priority Customer order on the Book. This is consistent with the requirements for the stop price described above. Additionally, the Exchange will not have quote lock functionality following the technology migration, and therefore proposes to delete that as an event that may cause a SAM Auction to terminate early.
An unrelated market or marketable limit order (against the BBO), including a Post Only Order, on the opposite side of the Agency Order received during the AIM Auction does not cause the SAM
The proposed rule change moves the provisions regarding the allocation of the Agency Order at the conclusion of the SAM Auction against the Solicited Order or contra-side interest (which includes orders and quotes resting in the Book and SAM responses) from current Rule 6.74B(b)(2) to proposed Rule 5.39(e). Executions at the conclusion of the SAM Auction will occur in the same manner as they do today, except the proposed rule change prioritizes Priority Customer AON orders over all non-Priority Customer contra-side interest (displayed Priority Customer orders will have priority over Priority Customer AON orders) in executions following SAM Auctions.
The proposed rule change adds detail regarding the priority of contra-side interest that executes against the Agency Order, which is consistent with the general priority rules in current Rule 6.45 in the current Rulebook (Rule 5.32 in the shell Rulebook), except for the AON provision noted above. The proposed rule change also explicitly states that the System cancels or rejects any unexecuted SAM responses (or unexecuted portions) at the conclusion of a SAM Auction. While the current rule does not state this, it is consistent with current functionality. Additionally, it is consistent with the provision (as described above) that Users submit responses to a specific auction to potentially execute against the Agency Order and the proposed provision that responses may only execute in the SAM Auction into which they are submitted. The proposed rule change also makes nonsubstantive changes to the allocation provisions, including to make the rule provision more plain English, to simplify the provisions, to delete any redundant language, and to conform language to corresponding rules of applicable Cboe Affiliated Exchanges. Unless otherwise specified in this rule filing, the proposed rule change makes no substantive changes to these provisions.
The proposed rule change moves current Rule 6.74B, Interpretations and Policies .02 and .03 to proposed Rule 5.39, Interpretations and Policies .01 and .02, respectively, making only nonsubstantive changes.
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.
The Exchange's SAM Auction as proposed will function in a substantially similar manner following the technology migration as it does today. The proposed rule change will benefit investors by providing continued consistency across the Exchange's (and the Cboe Affiliated Exchanges', as applicable) price improvement mechanisms. The general framework of the SAM Auction process as proposed to be amended (such as the eligibility requirements, the auction response period, the same-side stop price requirements, response requirements, and auction notification process) will continue to be substantively the same as the framework for the AIM price improvement auction the Exchange's current price improvement auction, as the Exchange recently amended.
The Exchange believes the proposed rule change to permit the Solicited Order to be comprised of multiple orders that total the size of the Agency Order may increase liquidity and opportunity for Agency Orders to participate in SAM Auctions, and therefore provide Agency Orders with additional opportunities for price improvement, which is consistent with the principles behind the SAM Auction. The Exchange believes that this will be beneficial to participants because allowing multiple contra-parties should foster competition for filling the contra-side order and thereby result in potentially better prices, as opposed to only allowing one contra-party and, thereby requiring that contra-party to do a larger size order which could result in a worse price for the trade. Another exchange permits the contra-side in a solicited auction mechanism to be comprised of multiple contra-parties.
The proposed rule that an Initiating TPH may not designate an Agency Order or Solicited Order as Post Only protects investors, because it provides transparency regarding functionality that will not be available for SAM. The Exchange believes this is appropriate, as the purpose of a Post Only order is to not execute upon entry and instead rest in the Book, while the purpose of submitting orders to a SAM Auction is to receive an execution following the
The proposed stop price requirements will benefit investors, as they will protect Priority Customer orders in the Book (as well as Agency Orders for Priority Customers). The current rule essentially enforces these price requirements at the conclusion of a SAM Auction; the proposed rule change merely applies this check at the initiation of a SAM Auction. The Exchange believes application of this price check at the initiation of a SAM Auction may result in the Agency Order executing at a better price, since the stop price must improve any same-side orders (with the exception of a Priority Customer Agency Order and a resting non-priority customer order described above). The proposed rule change is consistent with general customer priority principles.
As discussed above, the Exchange has proposed to allow SAM Auctions to occur concurrently with other SAM Auctions. Although SAM Auctions for Agency Orders will be allowed to overlap, the Exchange does not believe this raises any issues that are not addressed through the proposed rule change described above. For example, although overlapping, each SAM Auction will be started in a sequence and with a time that will determine its processing. Thus, even if there are two SAM Auctions that commence and conclude, at nearly the same time, each SAM Auction will have a distinct conclusion at which time the SAM Auction will be allocated. In turn, when the first Auction concludes, unrelated orders that then exist will be considered for participation in the SAM Auction. If unrelated orders are fully executed in such SAM Auction, then there will be no unrelated orders for consideration when the subsequent SAM Auction is processed (unless new unrelated order interest has arrived). If instead there is remaining unrelated order interest after the first SAM Auction has been allocated, then such unrelated order interest will be considered for allocation when the subsequent SAM Auction is processed. As another example, each SAM response is required to specifically identify the Auction for which it is targeted and if not fully executed will be cancelled back at the conclusion of the Auction. Thus, SAM responses will be specifically considered only in the specified SAM Auction. The Exchange does not believe that allowing multiple auctions to overlap for Agency Orders presents any unique issues that differ from functionality already in place on the Exchange or other exchanges. Pursuant to Rule 5.37(c)(1) in the shell Rulebook, multiple AIM Auctions for Agency Orders for 50 or more contracts may overlap. Additionally, other options exchanges permit other auctions to overlap.
The proposed rule change will also perfect the mechanism of a free and open market and a national market system, as it is consistent with linkage rules. Proposed Rule 5.39 does not permit Agency Orders to be submitted when the NBBO is crossed and requires Agency Order execution prices at the end of SAM Auctions to be at or between the Initial NBBO and the BBO at the conclusion of the SAM Auction. The proposed stop price requirements and the events to terminate a SAM Auction early further ensure execution prices at or better than the Initial NBBO and BBO. Additionally, the proposed SAM ISO order type (which is similar to current AIM ISO functionality) will provide TPHs with an efficient method to initiate a SAM Auction while preventing trade-throughs.
The proposed rule change to permit all Users (other than the Initiating TPH) to respond to SAM Auctions will benefit investors. Permitting all Users to submit responses to SAM Auctions may result in more Users having the opportunity to participate in executions at the conclusion of SAM Auctions. Additionally, it may increase liquidity in SAM Auctions, which may lead to more opportunities to price improvement. The Exchange believes the proposed rule change will remove impediments to and perfect the mechanism of a free and open market and a national market system, because other exchanges permit all market participants to respond to similar price improvement auctions.
The proposed SAM Auction response requirements are reasonable and promote a fair and orderly market and national market system, as they provide clarity regarding how they may respond to a SAM Auction. The proposed provisions regarding the aggregation of responses with other contra-side interest of the same User, and capping the size and price of that interest at the price and size of the Agency Order, will protect investors by preventing a User from submitting multiple orders, quotes, or responses at the same price to obtain a larger pro-rata share of the Agency Order. The proposed response provisions also ensure responses will be available for execution at prices at or better than the BBO at the conclusion of the SAM Auction, and the Initial NBBO, in accordance with linkage rules, as discussed above.
Unlike current Rule 6.74B, the Exchange will not conclude a SAM Auction early due to the receipt of an opposite side order. The Exchange believes this promotes just and equitable principles of trade, because these orders may have the opportunity to trade against the Agency Order following the conclusion of the SAM Auction, which execution must still be at or better than the Initial NBBO and BBO existing at the conclusion of the SAM Auction. The Exchange believes this will protect investors, because it will provide more time for price improvement, and the unrelated order will have the opportunity to trade against the Agency Order in the same manner as all other contra-side interest.
With respect to trading halts, as described herein, in the case of a trading halt on the Exchange in the affected series, the Auction will be cancelled without execution. Cancelling Auctions without execution in this circumstance is consistent with Exchange handling of trading halts in the context of continuous trading on the Exchange and promotes just and equitable principles of trade and, in general, protects investors and the public interest.
Agency Orders will execute against contra-side interest at the conclusion of a SAM Auction in the same manner as it does today, except that the proposed rule change will also provide priority to Priority Customer AON orders over all non-Priority Customer contra-side interest. Displayed Priority Customer orders will have priority over Priority Customer AON orders, SAM Auctions, which the Exchange believes encourages market participants, including Priority Customers, to display their best bids and offers, which may lead to enhanced liquidity and tighter markets. Prioritizing displayed interest over nondisplayed interest is consistent with the Exchange's current allocation and priority rules, which have been
While other exchange rules do not discuss how AON orders are prioritizes at the conclusion of similar solicitation auction mechanisms, the Commission has previously considered this issue. The Commission has stated that not protecting AON public customer order on the book while permitting the agency order and solicited order to execute would disadvantage the public customer order.
The Exchange believes the proposed rule changes that add detail to the Rules, which are consistent with current functionality, will remove impediments to and perfect the mechanism of a free and open market and protect investors, as these changes provide transparency in the Rules regarding SAM Auctions. Additionally, the proposed rule change is substantially the same as the rule of another exchange.
The proposed rule change is also consistent with Section 11(a)(1) of the Act
The “Effect vs. Execute” exemption permits an exchange member, subject to certain conditions, to effect transactions for covered accounts by arranging for an unaffiliated member to execute transactions on the exchange. To comply with Rule 11a2-2(T)'s conditions, a member: (i) Must transmit the order from off the exchange floor; (ii) may not participate in the execution of the transaction once it has been transmitted to the member performing the execution;
In the context of automated trading systems, the Commission has found that the off-floor transmission requirement is met if a covered account order is transmitted from off the floor directly to the Exchange by electronic means.
The second condition of Rule 11a2-2(T) requires that neither a member nor an associated person of such member participate in the execution of its order. The Exchange represents that, upon submission to the SAM Auction, an order or SAM response will be executed automatically pursuant to the rules set forth for SAM Auctions. In particular, execution of an order (including the Agency and the Solicited Order) or a SAM response sent to the mechanism depends not on the TPH entering the order or response, but rather on what other orders and responses are present and the priority of those orders and responses. Thus, at no time following the submission of an order or response is a TPH or associated person of such TPH able to acquire control or influence over the result or timing of order or response execution.
Rule 11a2-2(T)'s third condition requires that the order be executed by an exchange member who is unaffiliated with the member initiating the order. The Commission has stated that the requirement is satisfied when automated exchange facilities, such as the SAM Auction, are used, as long as the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange.
A TPH (not acting in a market-maker capacity) could submit an order for a covered account from off of the Exchange's trading floor to an unaffiliated Floor Broker for submission for execution in the SAM Auction from the Exchange's trading floor and satisfy the effect-versus-execute exemption (assuming the other conditions are satisfied).
Rule 11a2-2(T)'s fourth condition requires that, in the case of a transaction effected for an account with respect to which the initiating member or an associated person thereof exercises investment discretion, neither the initiating member nor any associated person thereof may retain any compensation in connection with effecting the transaction, unless the person authorized to transact business for the account has expressly provided otherwise by written contract referring to Section 11(a) of the Act and Rule 11a2-2(T) thereunder.
Therefore, the Exchange believes that the instant proposal is consistent with Rule 11a2-2(T), and that therefore the exception should apply in this case. Therefore, the Exchange believes the proposed rule change is consistent with Section 11(a) of the Act and the Rules thereunder.
The proposed rule change is generally intended to amend certain system functionality currently offered by Cboe Options in order to provide a consistent technology offering for the Cboe Affiliated Exchanges. A consistent technology offering, in turn, will simplify the technology implementation, changes and maintenance by Users of the Exchange that are also participants on Cboe Affiliated Exchanges. This will provide Users with greater harmonization of price improvement auction mechanisms available among the Cboe Affiliated Exchanges.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe the proposed rule change will impose any burden on intramarket competition, as the proposed changes to the Exchange's SAM Auction will apply to all orders submitted to a SAM Auction in the same manner. SAM Auctions will continue to be voluntary for TPHs to use, and are available to all TPHs. Additionally, the ability to respond to SAM Auctions will not be available to all Users (except the Initiating TPH, which is consistent with the requirement that the contra-side order be a solicitation rather than a facilitation). The proposed rule change to provide Priority Customer AON orders with priority over all non-Priority Customer contra-side interest protects additional Priority Customer orders and will ensure that a Priority Customer AON order resting on the Book at the stop price is not disadvantaged.
The Exchange does not believe the proposed rule change will impose any burden on intermarket competition, because the general framework and primary features of the Exchange's current SAM Auction are not changing, and will continue to protect orders,
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend Options 3 at Section 4, “Acceptance of Quotes and Orders,” adopt a new Section 5, “Entry and Display of Single-Leg Orders,” Section 7, “Types of Order,” at Supplementary Material .03 and Section 22 titled “Limitations on Orders.” The Exchange proposes to amend Options 3, Section 15, “Simple Order Risk Protections.”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 3 at Section 4, “Acceptance of Quotes and Orders,” adopt a new Section 5, “Entry and Display of Single-Leg Orders,” Section 7, “Types of Order,” at Supplementary Material .03 and Section 22 titled “Limitations on Orders.” The Exchange proposes to amend Options 3, Section 15, “Simple Order Risk Protections.” Each rule change will be discussed in greater detail below.
Currently, Options 3, Section 4 is titled “Acceptance of Quotes or Orders.” The Exchange proposes to retitle Options 3, Section 4 as “Entry and Display of Quotes.” The Exchange proposes to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes. These requirements reflect the current System operation today. The Exchange proposes to memorialize the various requirements for the submission of quotes into the System for greater transparency. The Exchange proposes to provide at new Options 3, Section 4(b), “Quotes are subject to the following requirements and conditions:”. The Exchange proposes to add at Options 3, Section 4(b)(1) that “Market Makers may generate and submit option quotations.” Current Options 2, Section 5 makes clear that Market Makers may submit quotes.
The Exchange proposes a provision regarding firm quote within proposed Options 3, Section 4(b)(5):
Firm Quote. Where quotes in options on another market or markets are subject to relief from the firm quote requirement set forth in the Rule 602 of Regulation NMS under the Exchange Act orders and quotes will receive an automatic execution at or better than the NBBO based on the best bid or offer in markets whose quotes are not subject to such relief. Such determination may be made by way of notification from another market that its quotes are not firm or are unreliable; administrative message from the Option Price Reporting Authority (“OPRA”); quotes received from another market designated as “not firm” using the appropriate indicator; and/or telephonic or electronic inquiry to, and verification from, another market that its quotes are not firm. The Exchange shall maintain a record of each instance in which another exchange's quotes are excluded from the Exchange's calculation of NBBO, and shall notify such other exchange that its quotes have been so excluded. Where quotes in options on another market or markets previously subject to relief from the firm quote requirement set forth in the Quote Rule are no longer subject to such relief, such quotations will be included in the calculation of NBBO for such options. Such determination may be made by way of notification from another market that its quotes are firm; administrative message from OPRA; and/or telephonic or electronic inquiry to, and verification from, another market that its quotes are firm.
Similarly, the Exchange proposes to provide the following at proposed new Options 3, Section 4(b)(6):
Today, quotations may not be executed against at prices that trade-through an away market as provided for in the Options Order Protection and Locked/Crossed Market Plan which is described within Options 5. Also, quotations may not lock or cross an away market. By stating this limitation in the rule, Market Makers will have greater clarity as to this limitation. Further, the Exchange is making clear that a quote that would cause a locked or crossed market violation or would cause a trade-through violation will be re-priced. The Exchange would display the quote at one minimum price variation (“MPV”) above (for offers) or below (for bids) the national best price or the quote would be immediately cancelled if requested by the Member. Repricing quotes is consistent with the Act because the Exchange is not permitted to lock or cross an away market's quote or order. The Exchange reprices the quotes one MPV inferior to cause the displayed price to reflect the available market on the Exchange.
Finally, the Exchange proposes at Options 3, Section 4(b)(7) to provide, “Quotes submitted to the System are subject to the following: Minimum increments provided for in Options 3, Section 3 and risk protections provided for in Options 3, Section 15.” If the Market Maker does not submit a quotation compliant with Options 3, Section 3, the quote will not be accepted by the System. The Exchange is noting herein the manner in which a quote may be rejected by the System to provide market participants with expectations as to the interplay among the various Exchange Rules. Specifically, if the Market Maker does not submit a quotation compliant with Options 3, Section 3, the quote will not be accepted by the System because market participants are required to abide by Options 3, Section 3 which describes the increments with which options series are to be quoted. Options 3, Section 15 provides a list of all protections applicable to quotes that may be rejected. The Exchange believes that this rule will provide Members with requirements and conditions for submitting quotations and provide transparency as to limitations that cause a quote to be rejected.
The Exchange proposes to provide at Options 3, Section 4(c), “Quotes will be displayed in the System as described in Options 3, Section 23.” Options 3, Section 23, titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange. This list represents the available data feeds and the content of those data feeds which are offered today by the Exchange.
As discussed in more detail below, the Exchange proposes to relocate current Options 3, Section 4(b)
The amendment to Options 3, Section 4 to create a list of all the requirements and conditions for submitting quotes on the Exchange within one rule is consistent with the Act because it will provide greater transparency to market participants of the applicable requirements. Further, this proposal will make the current rule clear and understandable for market participants thereby protecting investors and the general public. The Exchange notes that while some of these requirements appear in other rules, for ease of reference the requirements are located within a single rule with this proposal. The proposal reflects the Exchange's current practice with respect to quoting requirements. This proposal will conform this Rule to other Nasdaq affiliated markets filing similar rules.
Similar to Options 3, Section 4, which describes requirements for quotes, the Exchange proposes to adopt a new Options 3, Section 5, “Entry and Display of Single-Leg Orders” and describe the current requirements and conditions for entering orders. The Exchange notes that the requirements provided for within this rule represent the current practice. The purpose of Options 3, Section 5 is to memorialize this information within a single rule.
The Exchange proposes to state within new Options 3, Section 5(a), “Members can enter orders into the System, subject to the following requirements and conditions:”. The Exchange proposes within new Options 3, Section 5(a)(1), “Members shall be permitted to transmit to the System multiple orders at a single as well as multiple price levels.” The Exchange's new rule text at Options 3, Section 5(a) proposes to make clear that multiple orders may be transmitted to the System as single or multiple price levels. This is the case today. The Exchange proposes to memorialize the manner in which orders may be submitted to the
The Exchange proposes at new Options 3, Section 5(a)(3), “The System shall time-stamp an order which shall determine the time ranking of the order for purposes of processing the order.” Further, all orders are time-stamped to determine the time ranking of the order for purposes of processing the order within the System. This is also the case today and the Exchange is adding this detail to its rules to describe the time-stamp.
The Exchange proposes to add at new Options 3, Section 5(a)(4), “Orders submitted to the System are subject to the following: minimum increments provided for in Options 3, Section 3, risk protections provided for in Options 3, Section 15, and the restrictions of any order type as provided for in Options 3, Section 7. Orders may execute at multiple prices.” All orders must adhere to other rule requirements such as minimum increments, risk protection rules and order types. Similar to the rule text for quotes, orders are currently subject the minimum increment requirements in Options 3, Section 3 and also the risk protections for orders which are listed within current Options 3, Section 15. This rule provides a list of other requirements which may impact the execution of an order. Finally, orders may execute at multiple prices.
The Exchange proposes to add to new Options 3, Section 5(a)(5) the following, “Nullification by Mutual Agreement. Trades may be nullified if all parties participating in the trade agree to the nullification. In such case, one party must notify the Exchange and the Exchange promptly will disseminate the nullification to OPRA. It is considered conduct inconsistent with just and equitable principles of trade for a party to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder.” The rule text of new Options 3, Section 5(a)(5) is relocated from Options 3, Section 4(b) because it related to orders. The Exchange proposes to caption proposed Options 3, Section 5(a)(5) as “Nullification by Mutual Agreement” and add the following sentence to this provision, “It is considered conduct inconsistent with just and equitable principles of trade for a party to use the mutual adjustment process to circumvent any applicable Exchange rule, the Act or any of the rules and regulations thereunder.” The Exchange believes that it is consistent with the Act to permit parties to agree to a nullification provided the nullification does not violate other exchange rules. The Exchange notes that parties may not agree to a mutual agreement for purposes that would cause another rule to be violated. The Exchange believes that it is consistent with the Act and protection of investors and general public to make clear the expected behavior with respect to nullifications.
The rule text at proposed Options 3, Section 5(b) is relocated from Options 3, Section 15(a). The Exchange notes that this NBBO Protection applies to orders and therefore is being discussed within proposed Options 3, Section 5, which applies to all market participants. In contrast, Options 3, Section 4, which applies to quotes entered by Market Makers, describes the Firm Quote protections and the interplay of NBBO with respect to quotes. Trade-Through is described in both Options 3, Sections 4 and 5. The Exchange proposes to change the word “rejected” to “cancelled” within new Options 3, Section 5(b) because an order may be accepted by the System and then immediately cancelled. New Options 3, Section 5(c) seeks to define the Exchange's best bid and offer as the “BBO.” The Exchange provides, “The System automatically executes eligible orders using the Exchange's displayed best bid and offer (“BBO”).”
Similar to Options 3, Section 4(b)(6), the Exchange proposes to note at new Options 3, Section 5(d),
Trade-Through Compliance and Locked or Crossed Markets. An order will not be executed at a price that trades through another market or displayed at a price that would lock or cross another market. An order that is designated by the Member as routable will be routed in compliance with applicable Trade-Through and Locked and Crossed Markets restrictions. Orders that are not automatically executed will be handled as provided in Supplementary Material .02 to Options 5, Section 2; provided that Members may specify that a Non-Customer order should instead be cancelled automatically by the System at the time of receipt.
Finally, the Exchange proposes to add rule text at new Options 3, Section 5(e), similar to Options 3, Section 4(c) which states, “Orders will be displayed in the System as described in Options 3, Section 23.”
The Exchange's proposal to adopt a new Options 3, Section 5, “Entry and Display of Orders” and describe the current requirements and conditions for entering orders, similar to proposed changes to Options 3, Section 4 for quotes is consistent with the Act because it will provide transparency as to manner in which orders may be submitted to the System. The Exchange's new rule reflects the current requirements for submitting orders into the System. Similar to proposed Options 3, Section 4, the Exchange proposes to memorialize requirements and limitations within one rule for ease of reference.
The Exchange proposes to amend Supplementary Material .03(c) to Options 3, Section 7 to add the following sentence to Specialized Quote Feed (“SQF”), “Market Makers may only enter interest into SQF in their assigned options series.” The Exchange notes that today Market Makers may utilize SQF to quote only in their assigned options series as provided for in Options 2, Section 3, Appointment of Market Makers. Adding this information to the SQF protocol is consistent with the Act because the Exchange desires to make clear the manner in which Market Makers may submit quotes through the protocol. Market Makers are obligated to provide liquidity on MRX in the options series to which they are assigned, which liquidity benefits all market participants. This amendment is similar to language currently within Phlx Rule 1080(a)(i)(B).
The Exchange proposes to delete the first sentence introductory sentence of Options 3, Section 15 which provides, “Incoming orders that are executable against orders and quotes in the System will be executed automatically by the System subject to the following:” and relocate the rule text to Options 3, Section 5 as described herein as well as Section 15(a)(1) and (a)(2), into proposed new Options 3, Section 5(b) and renumber Options 3, Section 15(b) as new “a.” The Exchange proposes to relocate current Options 3, Section 15(b)(1)(C) to Options 3, Section 15(b)(2)(B). Current Options 3, Section 15(b)(1)(D) will be re-lettered as “C”. Options 3, Section 15(b)(1) provides for single-leg order risk protections. The Exchange proposes to relocate the Size Limitation protection to Options 3, Section 15(b)(2) because this section applies to order and quote risk protections. Size Limitation protection applies to both orders and quotes and is therefore properly placed within this section. The Exchange proposes to add the words “or quote” to the description to make clear that this protection applies to both orders and quotes. The Exchange believes that relocating this rule and adding “or quotes” is consistent with the Act because the Exchange will make clear that the Size Limitation risk protection would apply to all interest on the Exchange.
The Exchange proposes to amend Options 3, Section 22 to retitle the Section from “Limitations on Orders” to “Limitations on Order Entry.” The Exchange believes that this title is more appropriate for these rules.
The Exchange proposes to amend Options 3, Section 22(b) to amend the title of the section from “Principal Transactions” to “Limitations on Principal Transactions.” This rule provides for the exposure of orders entered on the Exchange. Specifically, with respect to orders entered when a Member is acting as agent and principal on an order, the order must be exposed for one second prior to execution to allow an opportunity for price improvement. The Exchange has filed for certain functionalities which are exceptions to the general standard of one second exposure. These functionalities have provisions which describe the manner in which orders can be entered into the Facilitation Mechanism,
The Exchange proposes to relocate Supplementary Material .01 to Options 3, Section 22 to new Section 22(b)(i) and state “This Rule” instead of “Options 3, Section 22(d).” The Exchange notes that the references to “d” should refer to “b” and those cross-references are being updated.
The Exchange proposes to amend the title of Options 3, Section 22(c), from “Solicitation Orders” to “Limitation on Solicitation Orders.” The Exchange proposes to add exceptions for
The Exchange proposes to re-letter current “d” as “e” as the Exchange proposes new rule text at proposed Options 3, Section 22(d) which provides, “Prior to or after submitting an order to MRX, a Member cannot inform another Member or any other third party of any of the terms of the order for purposes of violating this Rule.” Similar rule text is contained in The Nasdaq Options Market LLC (“NOM”) Rules.
It will be a violation of Options 3, Section 22(e) for an Electronic Access Member to cause the execution of an order it represents as agent on the Exchange by orders it solicited from Members and non-Member broker-dealers to transact with such orders, whether such solicited orders are entered into the System directly by the Electronic Access Member or by the solicited party (either directly or through another Member), if the Member fails to expose orders on the Exchange as required by Options 3, Section 22(e).
The Exchange proposes to update the rule citations in Supplementary Material .01 to Options 3, Section 22 to refer to paragraph “b” instead of “d”. The Exchange proposes to update the rule numbers for the remainder of the Rule and also update the cross-reference in Supplementary Material .04 to Options 3, Section 22.
The Exchange proposes to make clear with this Rule that Members may not gain by failing to expose orders submitted on an agency basis. The Exchange is promoting transparency of orders to prevent Members from seeking price discovery and potentially preventing price improvement, which may result from exposing an order. The Exchange's proposal to amend Options 3, Section 22 will conform this Rule to other Nasdaq affiliated markets filing similar rules.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange's proposal to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes are consistent with the Act. The Exchange is memorializing its current practice by reflecting the various requirements and limitations for quote entry in one rule for ease of reference and clarity. The Exchange is also proposing to conform this rule to similar rules across other Nasdaq affiliated exchanges. Making clear the manner in which Market Makers may generate and submit option quotations will provide these market participants with clear guidance within the rules. The Exchange notes that other rules already limit the use of quotations on the Exchange. Options 2, Section 5 makes clear that Market Makers may submit quotes.
The Exchange's proposal to add a provision regarding Firm Quote within new Options 3, Section 4(b)(5) will bring greater transparency to the limitations that Market Makers have today with respect to firm quote. MRX's Options 2, Section 5(d) describes firm quote for purposes of Market Maker quote submission. The Exchange is proposing to add rule text to provide context as to this restriction for submitting quotes. The proposed rule text makes clear the manner in which Firm Quote relief is applied. The Exchange believes it is consistent with the Act to provide greater detail as to the current obligations for Market Makers with respect to firm quote. The addition rule text is consistent with the Act because the Exchange is adding detail regarding the method in which orders which are firm or locked and crossed will be handled in the System. The notifications for Firm Quote are made clear with the proposed rule text. The Exchange believes that it is consistent with the Act to specify when quotes are firm and the handling of such quotes by the System for the protection of investors and the general public. The clarity is designed to promote just and equitable principles of trade by notifying all participants engaged in market making of potential outcomes. Further, the Exchange's proposal to add more detail at proposed new Options 3, Section 4(b)(6) regarding trade-through and locked and crossed markets is consistent with the Act. Today, quotations may not be executed against at prices that trade-through an away market. Also, quotations may not lock or cross an away market. By stating this limitation in the rule, Members will have greater clarity as to this limitation. The repricing of quotations is consistent with the Act because repricing prevents the Exchange from disseminating a price which locks or crosses another market. The Exchange's proposal to note that quotes are subject to minimum increments provided for in Options 3, Section 3 and risk protections provided for in Options 3, Section 15 is consistent with the Act because this rule brings greater transparency to these requirements which are already noted in the aforementioned rules. Options 2, Section 5(b)(1) similarly requires a Market Maker to quote in the minimum increments specified in Options 3, Section 3. Options 3, Section 15, titled “Simple Order Risk Protections” provides a list of all protections applicable to quotes that may cause an order to be rejected. The Exchange believes that this rule will provide Market Makers with requirements and conditions for submitting quotations and provide transparency as to limitations that cause a quote to be rejected.
The Exchange's proposal to make clear that quotes will be displayed in the System as described in Options 3, Section 23 is intended to bring greater transparency as to the data available on the Exchange. Options 3, Section 23, titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange.
The Exchange proposes to retitle Options 3, Section 5 as “Entry and Display of Single-Leg Orders” to describe the current requirements and conditions for entering orders, similar to proposed changes to Options 3, Section 5 for quotes is consistent with the Act because it will provide transparency as to manner in which orders may be submitted to the System. The Exchange's new rule text memorializes the current requirements for submitting orders into the System. Similar to proposed Options 3, Section 4, the Exchange proposes to memorialize requirements and limitations within one rule for ease of reference.
The Exchange's new rule text at Options 3, Section 5(a) proposes to make clear that multiple orders may be transmitted to the System as single or multiple price levels to add greater transparency to the Exchange's rules. The Exchange proposes to memorialize the manner in which orders may be submitted to the System to add more detail to its rules. For example, the time the System begins accepting orders, information concerning the time-stamp, which determines the time ranking of the order, as well as restrictions to order entry. Orders submitted to the System are subject to minimum increments specified in Options 3, Section 3 risk protections provided for in Options 3, Section 15, and the restrictions of any order type as provided for in Options 3, Section 7. The Exchange believes that listing the requirements and limitations is consistent with the Act because it will provide Members with the information necessary to process orders on MRX. In addition, noting that parties may not agree to a mutual agreement for purposes that would cause another rule to be violated is consistent with the Act because it provides transparency to Members that certain behavior would cause a rule violation. The Exchange believes that this provision protects investors and the public interest because it specifically prohibits market manipulation within propose new rule. The Exchange's proposal to define both the Exchange's best bid and offer as the “BBO” is consistent with the Act because it provides context to the usage of these terms in the Rulebook. The Exchange notes, within Options 3, Section 7, the orders are displayed and non-displayed.
Further, the Exchange's proposal to add more detail at proposed new Options 3, Section 5(d) regarding trade-through and locked and crossed markets is consistent with the Act. Today, orders may not be executed against at prices that trade-through an away market. Also, orders may not lock or cross an away market. Routable orders must comply with Trade-Through and Locked and Crossed Markets restrictions. By stating this limitation in the rule, Members will have greater clarity as to this limitation. The rule also seeks to aggregate information relating to trading -through so as to provide Members with clear guidelines for submitting orders.
The Exchange's proposal to make clear that orders will be displayed in the System as described in Options 3, Section 23 is intended to bring greater transparency as to the data available on the Exchange. Options 3, Section 23 titled “Data Fees and Trade Information” provides for the available feeds that Members may access on the Exchange.
The Exchange's proposal to amend Supplementary Material .03(c) to Options 3, Section 7 to make clear that Market Makers may only enter interest into SQF in their assigned options series is consistent with the Act. Options 2, Section 3, Appointment of Market Makers, describes the manner in which Market Makers are appointed in options series. This sentence simply provides that SQF may only be utilized for quoting in assigned options series.
The Exchange's proposal to relocate Options 3, Section 15(a)
The Exchange's proposal to amend Options 3, Section 22 to list all the exceptions to the exposure requirement is consistent with the Act because this rule change will bring greater clarity to the Rulebook. The Exchange is adding rule text currently contained in a NOM rule to describe the required period that orders are to be exposed.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange's proposal to add a new section (b) to Options 3, Section 4 to describe the current requirements and conditions for submitting quotes does not impose an undue burden on competition because the Exchange is memorializing its current practice by reflecting the various requirements and limitations in one rule for ease of
The Exchange's proposed new Options 3, Section 5 describes the requirements and conditions pursuant to which Members can enter orders into the System. The Exchange's proposal does not impose an undue burden on competition because it applies uniformly to all Members. This rule memorializes the manner in which orders may be submitted to the System and provides transparency as to manner in which orders may be submitted to the System. The Exchange is also proposing to conform this rule to similar rules across other Nasdaq affiliated exchanges.
The Exchange's proposal to amend Supplementary Material .03(c) to Options 3, Section 7 to make clear that Market Makers may only enter interest into SQF in their assigned options series does not impose an undue burden on competition, rather it makes clear that SQF may only be utilized for quoting in assigned options series. This rule is applicable to all Market Makers.
The Exchange's proposal to relocate Options 3, Section 15(a) into proposed new Options 3, Section 5(b) does not impose an undue burden on competition because this rule text relates to orders, which topic is described within new Options 3, Section 5. Relocating the Size Limitation protection to another section of the rule to make clear it applies to quotes and orders will bring greater transparency to this rule.
The Exchange's proposal to amend Options 3, Section 22 to list all the exceptions to the exposure requirement does not impose an undue burden on competition because this rule change will bring greater clarity to the Rulebook. The Exchange's proposal to relocate rule text to create topic headings and discuss each topic discretely will bring greater clarity to this rule text. The Exchange's proposal to add a new Options 3, Section (c) will make clear the type of behavior that would cause a Member to violate Options 3, Section 22 when disclosing information to another Member or any other third party with respect to the terms of the order.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes a rule change relating to the First Trust Low Duration Opportunities ETF (formerly known as the First Trust Low Duration Mortgage Opportunities ETF) (the “Fund”) of First Trust Exchange-Traded Fund IV (the “Trust”), the shares of which have been approved by the Commission for listing and trading under Nasdaq Rule 5735 (“Managed Fund Shares”). The shares of the Fund are collectively referred to herein as the “Shares.”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Commission has approved the listing and trading of Shares under Nasdaq Rule 5735, which governs the listing and trading of Managed Fund Shares on the Exchange.
The Fund is an actively-managed exchange-traded fund (“ETF”). The Shares are offered by the Trust, which was established as a Massachusetts business trust on September 15, 2010. The Trust, which is registered with the Commission as an investment company under the Investment Company Act of 1940 (the “1940 Act”), has filed a registration statement on Form N-1A (“Registration Statement”) relating to the Fund with the Commission.
The purpose of this proposed rule change is to modify certain provisions set forth in the Prior Notice that (1) under normal market conditions, (a) require the Fund to invest at least 80% of its net assets in “Mortgage-Related Investments” and (b) limit the Fund's investments in certain debt securities, money market funds and other cash equivalents, and cash (in the aggregate) to 20% of its net assets; (2) pertain to the Fund's ability to invest in securitized products; and (3) pertain to the Fund's ability to invest in derivative instruments.
The Prior Notice stated that under normal market conditions, the Fund would seek to achieve its investment objectives by investing at least 80% of its net assets (including investment borrowings) in the mortgage-related debt securities and other mortgage-related instruments described therein (collectively referred to as “Mortgage-Related Investments”) (the “Investment Requirement”). Further, as indicated in the Prior Notice, the Mortgage-Related Investments in which the Fund is permitted to invest may be, but are not required to be, issued and/or guaranteed by Government Entities.
Under the heading “Other Investments”, the Prior Notice stated, among other things, that the Fund may invest up to 20% of its net assets in short-term debt securities, money market funds and other cash equivalents, or it may hold cash (the “Short-Term/Cash Provision”). In this
In addition to the Short-Term/Cash Provision, under the heading “Other Investments”, the Prior Notice also stated that the Fund may, in addition to its investments in Mortgage-Related Investments issued or guaranteed by Government Entities and in Short-Term Government Securities, invest up to 20% of its net assets in other direct obligations of the U.S. government and in other securities issued or guaranteed by Government Entities.
As described in the Prior Notice under the heading “Principal Investments”, the Fund may invest in mortgage dollar rolls
The Exchange does not believe that the proposed changes relating to the Investment Requirement, the Short-Term/Cash Provision and the Fund's ability to invest in Non-Mortgage Government Entity Securities raise concerns. Rather, the Exchange believes that such proposed changes, by expanding the Fund's ability to invest in Short-Term/Cash Investments and Non-Mortgage Government Entity Securities
To provide the Fund with additional flexibility in seeking exposure to the securitized product marketplace, the Exchange is proposing that, going forward, the Fund would be permitted to invest up to 5% of its net assets in asset-backed securities (other than Mortgage-Related Investments) that are not Government Securities (such asset-backed securities are referred to as “ABS”). Currently, as described in the Prior Notice, the Fund is required to limit its investments in Mortgage-Related Investments that are not Government Securities to 20% of its net assets (the “20% Non-Government Limit”). Going forward, the Exchange is proposing that the 20% Non-Government Limit would be modified to provide that the Fund may invest up to 20% of its net assets, in the aggregate, in (a) Mortgage-Related Investments that are not Government Securities and (b) ABS; however, the Fund's investments in ABS would not exceed 5% of the Fund's net assets.
The Exchange does not believe that the proposed changes raise concerns given that they would not increase the percentage of the Fund's net assets restricted by the 20% Non-Government Limit. Rather, a small portion of the Fund's assets could be allocated to ABS in order to give the Fund more diversified exposure to the securitized product marketplace, thereby potentially mitigating risk and permitting the Fund to benefit from relative value opportunities within the securitized product marketplace.
Under the heading “Other Investments”, the Prior Notice provided that under normal market conditions, the Fund may invest up to 20% of the value of its net assets in exchange-listed options on U.S. Treasury securities, exchange-listed options on U.S. Treasury futures contracts and exchange-listed U.S. Treasury futures contracts (the “Derivatives Provision”).
On each business day, before commencement of trading of Shares in the Regular Market Session on the Exchange, the Fund would continue to disclose on its website the Disclosed Portfolio (as defined in Nasdaq Rule 5735(c)(2)) held by the Fund that will form the basis for the Fund's calculation of net asset value (“NAV”) at the end of the business day in compliance with Nasdaq Rule 5735(c)(2). The Fund's disclosure of derivative positions in the Disclosed Portfolio would continue to include information that market participants can use to value these positions intraday.
Intraday executable price information for the Short-Term/Cash Investments, Non-Mortgage Government Entity Securities, ABS, other fixed income securities, exchange-traded equity securities, and exchange-traded and OTC derivatives held by the Fund would be available from major broker-dealer firms and/or major market data vendors. Additionally, the Trade Reporting and Compliance Engine (“TRACE”) of the Financial Industry Regulatory Authority (“FINRA”) would continue to be a source of price information for the Mortgage-Related Investments held by the Fund. For exchange-traded assets, including listed derivatives, intraday price information would continue to be available directly from the applicable listing venues. Intraday price information for the fixed income securities held by the Fund would also continue to be generally available through subscription services which can be accessed by Authorized Participants (as defined in the Prior Notice) and other investors. Registered open-end management investment companies (other than ETFs) would continue to be generally priced once each business day and such prices would continue to be available through the applicable fund's website or major market data vendors.
The Exchange represents that trading in the Shares would be subject to the existing trading surveillances, administered by both Nasdaq and also FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, or the Exchange, or both, would communicate as needed, and may obtain trading information, regarding trading in the Shares and the exchange-listed instruments held by the Fund with other markets and other entities that are members of ISG.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio or reference assets, (b) limitations on portfolio holdings or reference assets, (c) dissemination and availability of the reference asset or intraday indicative values, or (d) the applicability of Exchange listing rules shall constitute continued listing requirements for listing the Shares on the Exchange. In addition, the issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under the Nasdaq 5800 Series.
The Adviser represents that there would be no change to the Fund's investment objectives. Except as provided herein, all representations made in the Prior Notice regarding (a) the description of the portfolio or reference assets, (b) limitations on portfolio holdings or reference assets, (c) dissemination and availability of the reference asset or intraday indicative values, or (d) the applicability of Exchange listing rules (collectively, “Prior Notice Continued Listing Representations”) would remain unchanged. Except for the Fixed Income GLS, the Fund and the Shares would comply with the requirements applicable to Managed Fund Shares under Nasdaq Rule 5735.
Nasdaq believes that the proposal is consistent with Section 6(b) of the Act in general and Section 6(b)(5) of the Act, in particular, in that it is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, and to remove impediments to and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. The purpose of the proposed rule change is to modify certain provisions included in the Prior Notice pertaining to (1) the Investment Requirement, Short-Term/Cash Investments and Non-Mortgage Government Entity Securities; (2) the Fund's ability to invest in securitized products; and (3) the Fund's ability to invest in derivative instruments. Except as provided herein, the Prior Notice Continued Listing Representations would remain unchanged. Except for the Fixed Income GLS, the Fund and the Shares would comply with the requirements applicable to Managed Fund Shares under Nasdaq Rule 5735.
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares would continue to be listed and traded on the Exchange pursuant to Nasdaq Rule 5735. The Exchange represents that trading in the Shares would continue to be subject to the existing trading surveillances, administered by both Nasdaq and also FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. FINRA, on behalf of the Exchange, or the Exchange, or both, would communicate as needed, and may obtain trading information, regarding trading in the Shares and the exchange-listed instruments held by the Fund with other markets and other entities that are members of ISG. The Exchange may also obtain information regarding trading in the Shares and the exchange-listed instruments held by the Fund from markets and other entities with which the Exchange has in place a comprehensive surveillance sharing agreement. Moreover, FINRA, on behalf of the Exchange, would be able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's TRACE.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Adviser represents that the primary purpose of the proposed changes is to provide it with greater flexibility in meeting the Fund's investment objectives by modifying certain provisions in the Prior Notice.
With respect to the proposed changes relating to the Investment Requirement, the Short-Term/Cash Provision and Non-Mortgage Government Entity Securities, the Exchange does not believe that such changes raise concerns. Rather, the Exchange believes that the proposed changes, by expanding the Fund's ability to invest in Short-Term/Cash Investments and Non-Mortgage Government Entity Securities (and therefore, its ability to invest more conservatively), would enhance the Fund's overall credit and liquidity profile, permit it to be more defensive in nature in times of heightened market volatility, and facilitate its ability to manage its intended low duration mandate. In this regard, the Exchange notes that Short-Term/Cash Investments are generally short-term, liquid and of high credit quality,
With respect to the proposed changes to permit the Fund to invest up to 5% of its net assets in ABS, the Exchange does not believe that such changes raise concerns given that they would not increase the percentage of the Fund's net assets restricted by the 20% Non-Government Limit. Rather, a small portion of the Fund's assets could be allocated to ABS in order to give the Fund more diversified exposure to the securitized product marketplace, thereby potentially mitigating risk and permitting the Fund to benefit from relative value opportunities within the securitized product marketplace. Further, taking into account the proposed changes, the 20% Non-Government Limit would be consistent with the fixed income generic listing provisions of Nasdaq Rule 5735(b)(1)(B)(v), as recently modified.
With respect to the proposed changes relating to the Derivatives Provision, the Exchange does not believe that such changes raise concerns since expanding the Fund's ability to utilize derivatives is expected to enhance the Fund's ability to target, manage and mitigate risk and would be consistent with the parameters of the Derivatives GLS. Further, as stated in the Prior Notice, the Fund's investments in derivative instruments would be consistent with the Fund's investment objectives and the 1940 Act and would not be used to seek to achieve a multiple or inverse multiple of an index.
Based on the foregoing, the Exchange does not believe that the proposed changes would adversely affect investors or Exchange trading.
In addition, a large amount of information would continue to be publicly available regarding the Fund
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 the additional flexibility to be afforded to the Adviser under the proposed rule change is intended to enhance its ability to meet the Fund's investment objectives, to the benefit of investors. In addition, consistent with the Prior Notice, NAV per Share would continue to be calculated daily, and NAV and the Disclosed Portfolio would continue to be made available to all market participants at the same time. Further, investors would continue to have ready access to information regarding the Fund's holdings, the Intraday Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
For the above reasons, Nasdaq believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change would provide the Adviser with additional flexibility, thereby helping the Fund to achieve its investment objectives. As such, it is expected that the Fund may become a more attractive investment product in the marketplace and, therefore, that the proposed rule change would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to move the Rules in Chapter XVIII, which governs Exchange arbitrations, of the currently effective Rulebook (“current Rulebook”) to proposed Chapter 14 of the shell structure for the Exchange's Rulebook that will become effective upon the migration of the Exchange's trading platform to the same system used by the Cboe Affiliated Exchanges (as defined below) (“shell Rulebook”). 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.
In 2016, the Exchange's parent company, Cboe Global Markets, Inc. (formerly named CBOE Holdings, Inc.) (“Cboe Global”), which is also the parent company of Cboe C2 Exchange, Inc. (“C2”), acquired Cboe EDGA Exchange, Inc. (“EDGA”), Cboe EDGX Exchange, Inc. (“EDGX” or “EDGX Options”), Cboe BZX Exchange, Inc. (“BZX” or “BZX Options”), and Cboe BYX Exchange, Inc. (“BYX” and, together with Cboe Options, C2, EDGX, EDGA, and BZX, the “Cboe Affiliated Exchanges”). The Cboe Affiliated Exchanges are working to align certain system functionality, retaining only intended differences, between the Cboe Affiliated Exchanges, in the context of a technology migration. Cboe Options intends to migrate its trading platform to the same system used by the Cboe Affiliated Exchanges, which the Exchange expects to complete on October 7, 2019. In connection with this technology migration, the Exchange has a shell Rulebook that resides alongside its current Rulebook, which shell Rulebook will contain the Rules that will be in place upon completion of the Cboe Options technology migration.
The Exchange proposes to relocate current Chapter XVIII which governs arbitrations, to proposed Chapter 14 in the shell Rulebook. The Exchange notes that in addition to relocating the arbitration rules to proposed shell Chapter 14, the proposed rule change deletes the rules from the current Rulebook. The proposed rule change relocates the rules as follows:
The proposed changes are of a non-substantive nature and will not amend the relocated rules other than to update their numbers, conform paragraph structure and number/lettering format to that of the shell Rulebook, and make cross-reference changes to shell rules.
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.
As stated, the proposed rule change makes no substantive changes to the rules. The proposed rule change is merely intended to relocate the Exchange's rules to the shell Rulebook and update their numbers, paragraph structure, including number and lettering format, and cross-references to conform to the shell Rulebook as a whole in anticipation of the technology migration on October 7, 2019. As such, the proposed rule change is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest, by improving the way the Exchange's Rulebook is organized, making it easier to read, and, particularly, helping market participants better understand the rules of the Exchange, which will also result in less burdensome and more efficient regulatory compliance.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended as a competitive change, but rather, seeks to make non-substantive rule changes in relocating the rules and updating cross-references to shell rules in anticipation of the October 7, 2019 technology migration. The Exchange also does not believe that the proposed rule change will impose any undue burden on competition because the relocated rule text is exactly the same as the Exchange's current rules, all of which have all been previously filed with the Commission.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under 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.
All submissions should refer to File Number
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Mississippi (FEMA-4429-DR), dated 09/20/2019.
Issued on 09/20/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 09/20/2019, applications for disaster loans may be filed at the address listed above or other locally announced locations. The following areas have been determined to be adversely affected by the disaster:
The interest rates are:
The number assigned to this disaster for physical damage is 16135B and for economic injury is 161360.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Alaska, dated 10/01/2019.
Issued on 10/01/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations. The following areas have been determined to be adversely affected by the disaster:
The number assigned to this disaster for physical damage is 16143 5 and for economic injury is 16144 0.
The State which received an EIDL Declaration # is Alaska.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of South Dakota (FEMA-4463-DR), dated 09/23/2019.
Issued on 09/23/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 09/23/2019, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 161396 and for economic injury is 161400.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than December 6, 2019. Individuals can obtain copies of the collection instruments by writing to the above email address.
II. SSA submitted the information collection below to OMB for clearance. Your comments regarding this information collection would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than November 6, 2019. Individuals can obtain copies of the OMB clearance package by writing to
Department of State
Notice of the thirteenth CAFTA-DR Environmental Affairs Council meeting and request for comments.
The Department of State and the Office of the United States Trade Representative are providing notice that the parties to the Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-DR) intend to hold the thirteenth meeting of the Environmental Affairs Council (the Council) established under Chapter 17 (Environment) of that agreement in Miami, Florida, United States on November 13 and 14, 2019.
The public session of the Council will be held on November 14, 2019, from 10:00 a.m. to 1:00 p.m. Please contact Sarah Flores and Katy Sater for the location of this meeting. We request comments and suggestions in writing no later than October 18, 2019.
Written comments or suggestions should be submitted to both: (1) Sarah Flores, U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Environmental Quality and Transboundary Issues by email to
(2) Katy Sater, Director for Environment and Natural Resources, Office of the United States Trade Representative by email to
If you have access to the internet you can view and comment on this notice by going to:
Sarah Flores, (202) 647-0156, or Katy Sater, (202) 395-9522
On November 13, the Council will meet in a closed government-to-government session to (1) review implementation of the environment chapter and discuss how parties are meeting their environment chapter obligations; (2) highlight environmental enforcement and achievements in the past year and share related lessons learned and best practices; (3) review ongoing work under the environmental cooperation program; and (4) receive a report from the CAFTA-DR Secretariat for Environmental Matters on the status of the public submissions process.
On November 14, the Council invites all interested persons to attend a public session on Chapter 17 implementation, beginning at 10:00 a.m. in Miami, Florida. At the session, the Council will welcome questions, input, and information about challenges and achievements in implementation of the Chapter obligations and the related Environmental Cooperation Agreement (ECA). If you would like to attend the public session, please notify Sarah Flores and Katy Sater at the email addresses listed under the heading
The Department of State and Office of the United States Trade Representative also invite written comments or suggestions regarding topics to be discussed at the Council meeting to be submitted no later than October 18, 2019. When preparing comments, we encourage submitters to refer to Chapter 17 (Environment) of the CAFTA-DR and the CAFTA-DR Environmental Cooperation Agreement
Article 17.5 of the CAFTA-DR establishes an Environmental Affairs
In preparing comments, we encourage submitters to refer to:
• Chapter 17 of the CAFTA-DR and
• The ECA
These documents are available at:
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Where the Truth Lies: The Art of Qiu Ying,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at the Los Angeles County Museum of Art, Los Angeles, California, from on or about February 9, 2020, until on or about May 17, 2020, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Elliot Chiu, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Federal Aviation Administration (FAA), DOT.
Notice.
The Federal Aviation Administration is requesting public comment on a request by Coastal Carolina Regional Airport, to release of land (7.071 acres) from federal obligations.
Comments must be received on or before November 6, 2019.
Comments on this notice may be mailed or delivered in triplicate to the FAA at the following address:
Memphis Airports District Office, Attn: Phillip J. Braden, Manager, 2600 Thousand Oaks Boulevard, Suite 2250, Memphis, TN 38118.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Andrew Shorter, Airport Director, Coastal Carolina Regional Airport at the following address: 200 Terminal Drive, New Bern, NC 28562.
Phillip J. Braden, Manager, Federal Aviation Administration, Memphis Airports District Office, 2600, Thousand Oaks Boulevard, Suite 2250, Memphis, TN 38118-2482; telephone: (901) 322-8181. The application may be reviewed in person at this same location, by appointment.
The FAA proposes to rule and invites public comment on the request to release property for disposal at Coastal Carolina Regional Airport, 200 Terminal Dr, New Bern, NC 28562, under the provisions of 49 U.S.C. 47107(h)(2). The FAA determined that the request to release property at Coastal Carolina Regional Airport (EWN) submitted by the Sponsor meets the procedural requirements of the Federal Aviation Administration and the release of these properties does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this notice.
The request consists of the following: The Coastal Carolina Regional Airport and North Carolina Department of Transportation are proposing the release of airport property totaling 7.071 acres. The land requested for release is the right of way of Terminal Drive and Airline Drive, two access roads link the airport to Williams Road and Airport Road. Terminal Drive provides the only route to access the commercial terminal at Coastal Carolina Regional Airport. It is a circular/loop road that currently operates in a one-way, counter clockwise direction. It is anticipated that the upcoming Highway 70 improvement project will significantly increase “cut-through” traffic on Terminal Drive. For safety and efficiency reasons, it is critical to alter the traffic flow, allowing this non-airport traffic to proceed without having to pass directly through the airport. Therefore, the North Carolina Department of Transportation (NCDOT) has designed a traffic circle that will allow the eastern portion of Terminal Drive to be converted to a two-way thoroughfare. This request will release this property from federal obligations. This action is taken under the provisions of 49 U.S.C. 47107(h)(2).
Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the request, notice and other documents germane to the request in person at the Coastal Carolina Regional Airport.
Federal Aviation Administration (FAA), DOT.
Request for public comments.
Notice is being given that the FAA is considering a request from the Town of Barnstable, MA to change the land use from Aeronautical to Non Aeronautical for 25.88 Acres at Barnstable Municipal Airport. The land use change will allow the redevelopment of a retail center on land that is not needed for aviation purposes. The revenue generated by the lease of airport land for the retail center will be placed into the airport's operation and maintenance fund.
Comments must be received on or before November 6, 2019.
You may send comments using any of the following methods:
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 1200 District Avenue, Burlington, Massachusetts, 01803. Telephone: 781-238-7618.
Federal Aviation Administration (FAA), DOT.
Request for public comments.
Notice is being given that the FAA is considering a request from the City of Waterville, ME to change the land use from Aeronautical to Non Aeronautical for 28.46 acres. The land use change will allow the development of a solar farm on land that is not needed for aeronautical purposes. The revenue generated by the lease of airport land for the solar farm will be placed into the airport's operation and maintenance fund.
Comments must be received on or before November 6, 2019.
You may send comments using any of the following methods:
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•
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 1200 District Avenue, Burlington, Massachusetts, 01803. Telephone: 781-238-7618.
Federal Aviation Administration (FAA), DOT.
Notice of request to release airport property.
The FAA proposes to rule and invite public comment on the release of land at the San Marcos Regional Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21).
Comments must be received on or before November 6, 2019.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. Ben Guttery, Manager, Federal Aviation Administration, Southwest Region, Airports Division, Texas Airports District Office, ASW-650, 10101 Hillwood Parkway, Fort Worth, Texas 76177.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Mr. Steve Parker, Assistant City Manager, at the following address: 630 E. Hopkins, San Marcos, Texas 78666.
Mr. Todd Hebert, Program Manager, Federal Aviation Administration, Texas Airports District Office, ASW-650, 10101 Hillwood Parkway, Fort Worth, TX 76177, Telephone: (817) 222-5614, email:
The request to release property may be reviewed in person at this same location.
The FAA invites public comment on the request to release property at the San Marcos Regional Airport under the provisions of the AIR 21.
City of San Marcos requests the release of 19.16 acres of non-aeronautical airport property. The property is located on the west side of the airport, along the future development of FM 110. The property to be released will used as roadway ROW for the construction of FM 110. FM 110 will provide improved access to the airport from IH 35 and will include a new entrance to the airport. The value of the improvements will offset the appraised value of the land. Any person
In addition, any person may, upon request, inspect the application, notice and other documents relevant to the application in person at the San Marcos Regional Airport, telephone number (512) 216-6042.
Federal Aviation Administration (FAA), DOT.
Request for public comments.
Notice is being given that the FAA is considering a request from the Connecticut Airport Authority (CAA) to swap 1.12 acres of airport land, which is part of the entrance road to the airport, and receive 14.55 acres of land from CTDOT. This project will realign the entrance roadway to allow CAA to move forward with the planned Ground Transportation Center. The entrance roadway will be owned and operated by the CTDOT.
Comments must be received on or before November 6, 2019.
You may send comments using any of the following methods:
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 1200 District Avenue, Burlington, Massachusetts 01803. Telephone: 781-238-7618.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 28, 2019.
Send comments identified by docket number FAA-2019-0744 using any of the following methods:
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Brent Hart (202) 267-4034, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Docket No.: FAA-2019-0744.
Petitioner: Southern Utah University.
Section(s) of 14 CFR Affected: § 141.38.
Description of Relief Sought: To allow Southern Utah University (SUU) to operate SUU's aviation program under 14 CFR part 141 training at Cedar City Regional Airport (KCDC) during a construction project if performance requirements are met under current aircraft weight, temperature, and wind conditions for the time of the operation.
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
Interested persons are invited to submit comments on or before December 6, 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:
This record also serves as a valuable resource for railroad supervisors and FRA and State inspectors monitoring regulatory compliance.
Additionally, section 215.301 requires railroads and private car owners to stencil or otherwise display identification marks on freight cars. FRA uses the identification marks to determine the railroads affected, the number and type of cars involved, the commodities being carried, and the territorial and speed limits within which the cars will be operated. FRA reviews this information to determine if the freight car is safe to operate and if the operation qualifies for dedicated service and is excluded from the requirements of part 215. Railroads use the required information to provide identification and control so that dedicated cars remain in the prescribed service.
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 and request for comments.
The Maritime Administration (MARAD) invites public comments on our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. This collection of information is used to gather information on tanker operators who agree to contribute, either by direct charter to the Department of Defense or to other participants tanker capacity as requested by the Maritime Administrator at such times and such amounts as determined to be necessary to meet the essential needs of DOD for the transportation of petroleum and petroleum products in bulk by sea. The Voluntary Tanker Agreement is a voluntary emergency preparedness agreement. We are required to publish this notice in the
Comments must be submitted on or before December 6, 2019.
You may submit comments identified by Docket No. MARAD-2019-0157 through one of the following methods:
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Ram Nagendran, 202-366-8584, Office of Sealift Support, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC, 20590, Email:
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice and request for comments.
The Maritime Administration (MARAD) invites public comments on our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The information collection is necessary for MARAD to determine that a particular vessel is owned and controlled by United States citizens and is eligible to receive a fishery endorsement to its documentation. We are required to publish this notice in the
Comments must be submitted on or before December 6, 2019.
You may submit comments identified by Docket No. MARAD-2019-0156 through one of the following methods:
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Michael C. Pucci, (202) 366-5167, Division of Maritime Programs, Maritime Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, Email:
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.49.
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice and request for comments.
The Maritime Administration (MARAD) invites public comments on our intention to request the Office of Management and Budget (OMB) approval of a new information collection. The information to be collected are applications for grants to be used to support DOT's work with State, local, Tribal, and private partners to guide investments that stimulate economic growth, improve the condition of transportation infrastructure, and enable the efficient and safe movement of people and goods. We are required to publish this notice in the
Comments must be submitted on or before December 6, 2019.
You may submit comments identified by Docket No. MARAD-2019-0155 through one of the following methods:
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Robert Bouchard, 202-366-5076, Office of Infrastructure Development and Congestion Mitigation, Maritime Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, Email:
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.49.
By Order of the Maritime Administrator.
Office of the Secretary of Transportation, US Department of Transportation.
Updated guidelines.
The U.S. Department of Transportation (DOT) is issuing updated guidelines to implement section 515 of the Treasury and General Government Appropriations Act for FY 2001. The Office of Management and Budget (OMB) has issued Government-wide guidelines under Section 515 which direct each Federal agency to establish and implement written procedures to ensure and maximize the quality, utility, objectivity and integrity of the information that they disseminate. OMB has directed each agency to update its guidelines in accordance with the requirements of OMB Memorandum M-19-15.
Comments are due November 6, 2019.
You may send comments, identified by DOT-OST-2019-0135, by any of the following methods:
• Follow the instructions for sending comments on
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Daniel Morgan, Chief Data Officer, OST, Department of Transportation at 202-366-9201 or by email at
Pursuant to Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554), and consistent with the Office of Management and Budget's (OMB) “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies,” and OMB Memorandum M-19-15, “Improving Implementation of the Information Quality Act,” the Department is revising its Information Dissemination Quality Guidelines (Guidelines). These guidelines were originally issued in 2002. The Department's Guidelines apply to a wide variety of its information dissemination activities to meet basic information quality standards. The Guidelines provide a framework under which the Department allows affected persons an opportunity to seek and obtain correction of information maintained and disseminated by the Department that does not comply with these guidelines.
The written procedures established within DOT's guidelines apply to the following organization components of the Department: The Office of the Secretary, the Federal Aviation Administration, the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, the Federal Transit Administration, the Maritime Administration, the National Highway Traffic Safety Administration, the Pipeline and Hazardous Materials Safety Administration, and the Saint Lawrence Seaway Development Corporation.
The updated guidelines are available on the Department's website at
Consistent with The Office of Management and Budget's (OMB) Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies implementing Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554) and the requirements outlined in OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act, the U.S. Department of Transportation (henceforth DOT or Department) is updating guidelines explaining how the Department will ensure the quality of disseminated information. This document also explains how affected persons may seek and obtain corrections of information that does not comply with these Information Quality guidelines.
These Guidelines were originally published on October 1, 2002 and were updated on October 1, 2019.
These Guidelines are effective October 1, 2019.
Daniel Morgan, Assistant Chief Information Officer for Data Services/Chief Data Officer,
The Department of Transportation (DOT) is updating guidelines originally released in 2002 to implement Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554). The Office of Management and Budget (OMB) previously issued guidelines under Section 515 which direct Federal agencies subject to the Paperwork Reduction Act (44 U.S.C. Chapter 35) to establish and implement written guidelines to ensure and maximize the quality, utility, objectivity and integrity of the information that they disseminate. These updated 2019 DOT guidelines apply to a wide variety of substantive information dissemination activities to meet basic information quality standards set forth by Section 515. Under Section 515, the Department is responsible for carrying out the OMB information quality guidelines as well as for implementing its own guidelines that are set forth in this document. Consequently, when this document refers to “the guidelines,” it should be taken to refer to the OMB guidelines, as applied to DOT programs and activities,
The purpose of these 2019 DOT guidelines is to provide a framework for DOT's compliance with the OMB guidelines, and to provide affected persons an opportunity to seek and obtain correction of information maintained and disseminated by DOT that does not comply with these guidelines. DOT has designated the Departmental Chief Information Officer (CIO) as the senior official responsible for DOT compliance with these guidelines. Administrators of DOT's Operating Administrations (OAs) are also responsible for ensuring proper implementation of these Departmental guidelines. The CIO is responsible for the Office of the Secretary's compliance.
In implementing these guidelines, the Department acknowledges that ensuring the quality of information is an important management objective that takes its place concurrently with other Departmental objectives, such as ensuring the success of agency missions, observing budget and resource priorities and restraints, and providing useful information to the public.
These guidelines were updated in 2019 to reflect current procedures and compliance with OMB's Memorandum M-19-15. Implementation updates from that memorandum are footnoted where they are addressed in this update.
These guidelines apply to the Office of the Secretary of Transportation (OST) and to the following DOT OAs.
DOT OAs may adopt further guidance, consistent with these guidelines, to address the specifics of their programs and information products.
These guidelines apply to certain information (including both statistical and non-statistical data, as well as computer software (including code) as defined in 48 CFR 27.401 and 48 CFR 2.101 and in accordance with the Federal Source Code Policy). These guidelines apply to information disseminated by DOT on or after October 1, 2002, regardless of when the information was first disseminated. Maintenance of information on DOT websites or paper files does not, in itself, subject information disseminated before this date to the guidelines. However, information that the Department maintains in a way that is readily available to the public and that continues to play a significant, active role in Department program or in private sector decisions is subject to the guidelines. These guidelines apply to information dissemination in all media (printed, electronic, or in other form). When the Department has performed analysis using a specialized set of computer code, the computer code used to process it should be made available to the public for further analysis, if consistent with applicable law and policy.
The standards of these guidelines apply only to information that DOT generates. However, these guidelines serve as recommendations for information that external sources provide to DOT, if the external parties seek to have the Department rely upon or disseminate this information or the Department decides to do so. When using non-government sources to create influential information (as defined below) that is communicated to the public, DOT will include sufficient information on the characteristics of the data and analysis, including its scope, generation protocols, and any other information necessary to allow the public to reproduce that source's conclusions.
The OMB guidelines and subsequent Information Quality Bulletin for Peer Review define “influential information” as information that the agency reasonably can determine “will have or does have a clear and substantial impact on important public policies or important private sector decisions.” This definition applies only to scientific, financial, or statistical information. DOT defines “scientific information” as in the Information Quality Bulletin for Peer Review (excerpted below) and notes that DOT considers financial and statistical information to be types of scientific information.
“The term “scientific information” means factual inputs, data, models, analyses, technical information, or scientific assessments based on the behavioral and social sciences, public health and medical sciences, life and earth sciences, engineering, or physical sciences. This includes any communication or representation of knowledge such as facts or data, in any medium or form, including textual, numerical, graphic, cartographic, narrative, or audiovisual forms. This definition includes information that an agency disseminates from a web page, but does not include the provision of hyperlinks to information that others disseminate. This definition does not include opinions, where the agency's presentation makes clear that what is being offered is someone's opinion rather than fact or the agency's views.”
Note that the definition above applies to information itself, not to decisions that the information may support. The guidelines assign to DOT the task of defining “influential information” in ways appropriate to the agency and its various programs.
At DOT, influential information may be used to support rulemakings, regulatory actions, and analysis or other purposes. Every decision DOT makes based on disseminated information is important to someone. That does not mean that disseminated information used for each decision is influential, as the term is used in the guidelines.
In rulemakings, influential information is scientific, financial, or statistical information that can reasonably be regarded as being one of the major factors in the resolution of one or more key issues in a significant rulemaking, as that term is defined in Executive Order 12866. DOT's interpretation of influential information reflects the “clear and substantial impact” language in the OMB guidelines language. The reference to key issues on significant rules reflects the “important” public policy language of the guidelines.
In non-rulemaking contexts, DOT considers two factors in determining whether information is influential.
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When DOT substantially changes information that it disseminates, such as through a change in information collected under the Paperwork Reduction Act (PRA), DOT will re-evaluate the information disseminated to determine whether it is influential. DOT reserves the right to designate other information as influential provided the information is scientific, financial, or statistical, although Components should not designate information products or types of information as influential without consultation with the Department Chief Information Officer.
DOT is prioritizing increased access to the data and analytic frameworks (
Nature and Legal Effect
These guidelines are policy views of DOT. They are not intended to be, and should not be construed as, legally binding regulations or mandates. These guidelines are intended only to improve the internal management of DOT and do not create any right or benefit, substantive or procedural, enforceable at law or equity, by any party against the United States, its agencies (including DOT or any Component), officers, or employees, or any person.
This guidance is not legally binding in its own right and will not be relied upon by the Department as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this guidance is voluntary only and nonconformity will not affect rights and obligations under existing statutes and regulations.
The following information is not subject to these guidelines:
• Distribution of information that is intended to be limited to government employees, agency contractors or grantees;
• Distribution of information that is intended to be limited to intra- or inter- agency use or sharing of government information; responses to requests under FOIA, Privacy Act, the Federal Advisory Committee Act or other similar laws;
• Predisclosure Notification to Submitters of Confidential Commercial Information (49 CFR 7.29);
• Distribution limited to correspondence with individuals or persons (regardless of medium,
• Archival records disseminated by Federal agency libraries, websites, or similar Federal data repositories; (
• Public filings, such as material filed by DOT or non-DOT parties in DOT dockets or by DOT in other agencies' dockets. For example, a study filed in the DOT docket by a commenter on a proposed rule does not become subject to these guidelines simply because it has been filed there. However, if the Department chooses to rely on the study in the rulemaking or another information product, the study would become subject to these guidelines because of the Department's use of it;
• Contents of the National Transportation Library that are not products of DOT-funded research or DOT-funded data collections.
• Information intended to be limited to subpoenas and adjudicatory processes. These processes would include:
1. Court or administrative litigation (
2. Administrative enforcement proceedings conducted by the Department;
3. Civil rights and personnel complaints and reviews conducted by the Department (
4. Debarment and suspension matters, 49 CFR part 29 (Federal-aid contracts) and 48 CFR part 9 (direct contracts);
5. Merit System Protection Board matters (Sections 7511, 7543, and 70701 of Title 5, United States Code);
6. Locomotive engineer certification matters, 49 CFR part 240, subpart E-Dispute Resolution procedures;
• Hyperlinks to information that others disseminate (as well as paper-based information from other sources referenced but not adopted or endorsed by DOT);
• Views or opinions, where the presenter makes it clear that what is being offered is someone's opinion rather than fact or the Department's views;
• Information presented to Congress as part of the legislative or oversight processes (
• Press releases and other information of an ephemeral nature, advising the public of an event or activity of a finite duration—regardless of medium. Information products referenced in such releases may be subject to the guidelines, however (
• Procedural, operational, policy, and internal manuals prepared for the management and operations of DOT that are not primarily intended for public dissemination. This includes personnel notices such as vacancy announcements.
DOT has traditionally utilized standards, policies, and other operational guidelines to ensure the quality of all its disseminated information. Incorporating these guidelines further reinforces DOT's commitment of meeting higher standards of quality prior to disseminating information to the public. The Department has made implementation of these guidelines a part of its performance plan, including performance goals and standards.
To ensure compliance with these guidelines, each DOT Component is responsible for appointing a data quality official who will serve as the liaison for implementing these guidelines within its organization.
OMB's guidelines define “quality” as an encompassing term comprising utility, objectivity, and integrity. Therefore, the guidelines sometimes refer to these statutory terms, collectively, as “quality.” At a minimum, a basic standard of quality is established for all DOT information prior to its dissemination. In addition, repeatedly or continuously disseminated information is reviewed on a regular basis to ensure all information is current and complies with these guidelines. Specifically, DOT will set the following standards at levels appropriate to the nature and timeliness of substantive information to be disseminated.
DOT Components will assess the usefulness of the information to be disseminated to the public. The originating office will continuously monitor the information needs and develop new sources or revise existing methods, models, and information products where appropriate.
DOT's policy is to disseminate information in machine-readable and open formats, to the greatest extent possible, such that the information that can be easily consumed by a wide external audience. DOT's Data Management Policy (DOT Order 1351.34) outlines requirements for interoperability and standardization of data and information.
DOT's policy is to provide the public with sufficient documentation about each dataset released to allow data users to determine the fitness of the data for the purpose for which third parties may consider using it.
DOT Components will ensure disseminated information is accurate, clear, complete, and unbiased in substance and presentation, and presented in a proper context. The originating office will use reliable data sources and sound analytical techniques. Quality control procedures will be included when data is created or processed. To the extent possible and consistent with confidentiality protections, the originating office will identify the source of disseminated information so that the public can assess whether the information is objective. The 2012 version of DOT's Scientific Integrity Policy,
“The Department is dedicated to preserving the integrity of the research it conducts and funds. It will not tolerate misconduct in the performance of these activities nor in the application of these activities to decision-making. Political appointees at DOT should never suppress or
DOT employees are prohibited from any behavior that attempts to inappropriately alter the scientific process or to suppress, fabricate, or falsify scientific findings.
The Department follows a policy of determining, in consultation as appropriate with relevant scientific and technical communities, when it is useful and practicable to apply reproducibility standards to original and supporting data. In making such determinations, the Department will be guided by commonly accepted scientific, financial or statistical standards, as applicable. The Department's Scientific Integrity Policy guides its scientific research. With respect to analytic results, the Department's policies favor sufficient transparency about methods to allow independent reanalysis by qualified members of the public. In situations where public access will not occur (
In OMB's guidelines, one of the aspects of ensuring objectivity concerns the use of peer review. For information products to which peer review is relevant, OMB's guidelines create a rebuttable presumption that the information meets the OMB guidelines' objectivity standards if the data and analytic results have been subject to formal, independent, external peer review. Anyone seeking to rebut this presumption (
With respect to influential scientific information disseminated by the DOT Components regarding analysis of risks to human health, safety, and the environment, DOT Components will adopt, with respect to the analysis in question, quality principles of the Safe Drinking Water Act of 1996 (42 U.S.C. 300g-1(b)(3)(A) & (B), except where the agency adapts these principles to fit the needs and character of the analysis. These principles are as follows:
• Use the best available science and supporting studies conducted in accordance with sound and objective scientific practices, including peer-reviewed studies where available.
• Use data collected by accepted methods or best available methods, in accordance with all applicable standards (if the reliability of the method and the nature of the decision justifies the use of the data), and document methods used in metadata which accompanies disseminated datasets.
• In the dissemination of influential scientific information about risks, ensure that the presentation of information is comprehensive, informative, and understandable, and that influential information is accompanied by a clear explanation of underlying assumptions. In a document made available to the public, specify, to the extent practicable:
1. Each population addressed by any estimate of applicable effects.
2. The expected risk or central estimate of risk for the specific populations affected.
3. Each appropriate upper bound or lower-bound estimate of risk.
4. Each significant uncertainty identified in the process of the risk assessment and studies that would assist in reducing the uncertainty.
5. Any additional studies, including peer-reviewed studies, known to the agency that support, are directly relevant to, or fail to support the findings of the assessment and the methodology used to reconcile inconsistencies in the scientific data.
In 2019, DOT revisited the parameters for identifying and disseminating influential information. DOT will provide guidance for determining the amount and type of pre-dissemination review necessary, specific types of information that are influential and a rigorous process for determining whether types of information not specifically listed in the guidelines qualify as influential.
Prior to dissemination, all influential information produced by the DOT shall be peer reviewed by subject matter experts (may be either internal or external to DOT, or both) that have not participated in the preparation of the influential information being reviewed. When using scientific information, including third-party data or models, to support their policies, DOT will comply with the requirements of OMB's Information Quality Bulletin for Peer Review. DOT will ensure reviewers are asked to evaluate the objectivity of the underlying data and the sensitivity of conclusions to analytic assumptions. Furthermore, when influential information that has been peer-reviewed changes significantly, DOT will conduct a second peer review.
DOT's policy is to ensure that information is protected from unauthorized access, corruption or revision (
• DOT Order 1351.18, Departmental Privacy Risk Management Policy
• DOT Order 1351.37, Departmental Cybersecurity Policy
DOT's policy is to ensure that all disseminated information (including electronic and web-based media) is accessible to all persons. DOT Components will comply with relevant Departmental policies that ensure the accessibility of disseminated information, including but not limited to DOT Order 1351.23, Electronic and Information Technology (EIT) Accessibility Policy.
When DOT makes available information originally collected by another agency, the contributing agency is responsible for the quality of the information they contribute, and DOT will clearly communicate that responsibility.
DOT's policy is to provide the public with sufficient documentation about each dataset to allow data users to determine fitness for purpose. DOT will, when applicable, safeguard privacy and
DOT will:
• Consider potential for using existing data sources from inside and outside the agency for statistical and research purposes, while protecting privacy and confidentiality.
• Solicit comments about downstream uses from statistical, research, and evaluation agencies/offices when designing or improving data collection systems.
• Coordinate with the Senior Agency Official for Privacy if considering secondary analysis that involves PII.
• Develop procedures for clearly documenting the quality of administrative data that have the potential to be used for statistical purposes.
DOT's Data Management Policy (DOT Order 1351.34) also provides detailed information regarding re-use of data and information.
The Bureau of Transportation Statistics (BTS) provides additional guidance for statistical information. Under 49 U.S.C. 6302(b)(3)(B), the BTS Director is required to:
• Continually improve surveys and data collection methods of the Department to improve the accuracy and utility of transportation statistics;
• Encourage the standardization of data, data collection methods, and data management and storage technologies for data collected by the Bureau; the operating administrations of the Department (OAs); State and local governments; metropolitan planning organizations; and private sector entities;
• Build and disseminate the transportation layer of the National Spatial Data Infrastructure. . . including by coordinating the development of transportation geospatial data standards, compiling intermodal geospatial data, and collecting geospatial data that is not being collected by other entities;
• Issue guidelines for the collection of information by the Department that the BTS Director determines necessary to develop transportation statistics and carry out modeling, economic assessment, and program assessment activities to ensure that such information is accurate, reliable, relevant, uniform, and in a form that permits systematic analysis by the Department;
• Review and report to the Secretary on the sources and reliability of the statistics proposed by the heads of the OAs of the Department to measure outputs and outcomes as required by the Government Performance and Results Act of 1993 (Pub. L. 103-62; 107 Stat. 285); and at the request of the Secretary, any other data collected or statistical information published by the heads of the OAs of the Department; and
• Ensure that the statistics published under [49 U.S.C. 6302] are readily accessible to the public, consistent with applicable security constraints and confidentiality interests.
BTS has published a Statistical Standards Manual,
As one of the 13 principal federal statistical agencies, BTS adheres to all Statistical Policy Directives of the Office of Management and Budget (OMB). These directives are published at
DOT's policy is to conduct a pre-dissemination review on all information it disseminates on or after October 1, 2002. During this review, each DOT organization shall conduct subject matter expert (internal or external, or both) peer reviews and other review mechanisms to ensure the quality of all disseminated information. The costs and benefits of using a higher quality standard or a more extensive review process will be considered in deciding the appropriate level of review and documentation. With respect to information collection requirements covered by the PRA, the Department will ensure that these requirements are consistent with the guidelines and will so state in the PRA submission to OMB. The main components of DOT's pre-dissemination review policy are:
• Allow adequate time for reviews, consistent with the level of standards required for the type of information to be disseminated. Consult with other stakeholders who have a substantial interest in the proposed dissemination of the information.
• Verify compliance with these guidelines (
• With respect to information a DOT organization believes to be influential, maintain internal records of what additional standards will be applied to ensure its quality.
• Ensure that the entire information product fulfills the intentions stated and that the conclusions are consistent with the evidence;
• Indicate origin of data (when including data from an external source); and
• Ensure that each program office can provide additional data or metadata on the subject matter of any covered information it disseminates.
You may request the correction of information from the Department, but not all requests for correction fall under these Guidelines. For instance:
• The DOT maintains certain information about individuals in its systems of records that those individuals may know or suspect is inaccurate, irrelevant, untimely, or incomplete. In such cases, the Privacy Act permits those individuals to request that the DOT correct or amend the information. To learn more about your rights under the Privacy Act, please visit:
• The DOT maintains information in support of its basic agency operations that relevant parties may have an opportunity to correct. In such cases, individual DOT programs may develop their own review and redress procedures that are not subject to these Guidelines. To learn more about such programs, please visit the website of the relevant DOT OA.
To request correction of information that is subject to these Guidelines, follow the procedures below.
You may request that the Department correct information disseminated after October 1, 2002. Information originally disseminated
You may make a request for correction of information or request for reconsideration by emailing
We will post incoming requests for correction, requests for reconsideration and DOT organizational responses on the Federal Dockets Management System.
You should be aware that the Department is not required to change, or in any way alter, the content or status of information simply based on the receipt of a request for correction. Nor does the receipt of a request, or consideration by the Department, result in staying or changing any action of the Department. The receipt of a request for correction likewise does not affect the finality of any decision of a DOT Component.
You should:
• Include a statement that you are submitting a request for correction of information under DOT's Information Dissemination Quality Guidelines.
• Include your name, mailing address, email address, telephone number and organizational affiliation, if any.
• Describe how the information in question affects you (
• Clearly identify the report, dataset, or other document that contains the information you want the Department to correct. Please include identifying characteristics such as title, date, and how information was accessed.
• Not rely solely on general statements that allege some type of error. You should specify, in detail, why you believe the information in question is inconsistent with the Department's and/or OMB's information quality guidelines (
• Include any documents and/or evidence you believe is relevant to your request (
• Specify what corrections you wish for DOT to make to the information and why the recommended corrections would make the information more consistent with DOT's and/or OMB's information quality guidelines.
Once the appropriate data quality official has received your request for correction of information s/he will review your request and answer the following questions to determine if your request for correction is valid:
1. Did DOT (as opposed to some other person or organization) disseminate the information you are requesting to be corrected?
2. Is the information about which you are requesting a correction from DOT covered by these Guidelines (see Section 4)?
3. Is your request frivolous or not germane to the substance of the information in question?
4. Has DOT responded previously to a request that is the same or substantively very similar? (Note: This does not mean that the Department would automatically reject a second or subsequent information correction request concerning the same information product. If one party made a request concerning one aspect of the information product, and a second party made a request concerning a different aspect of the same product, the two requesters are seeking correction on different grounds and it could be appropriate for the Department to consider both).
5. With respect to information in a final rule, final environmental impact statement, or other final document on which there was an opportunity for public comment or participation with respect to the compliance of the information with these guidelines, could interested persons have requested the correction of the information at the proposed stage?
If the DOT organization determines that the answer to 1,2, or 3 is “no” or that the answer to Question 4, 5, or 6 is “yes,” DOT has the discretion to reject your request without responding to it on its merits.
If DOT rejects your request, the DOT OA will send a written response explaining why. Normally, the DOT OA will send this response within 60 calendar days of receiving your request. The DOT OA will file this response in the Federal Docket Management System. If the DOT organization does not reject your request, it will consider the request on its merits. DOT will not opine on the requestor's or DOT's policy position. DOT's response will contain a point-by-point response to any data quality arguments contained in the request for correction and will refer to a peer review that directly considered the issue being raised, if available. Prior to the release to the requestor, DOT will share a draft response with OMB for assessment of compliance with the above norms.
As the requester, you bear the burden of proof with respect to the necessity for correction as well as with respect to the type of correction you seek.
If DOT considers your request on its merits (that is, does not reject it for one of the reasons stated above), DOT will make the determination whether information subject to the DOT information quality guidelines complies with the guidelines. In doing so, the Department will consider whether the information or the request for correction is stale. If DOT did not disseminate this information recently (
The DOT provides a response directly to the requestor. This response will normally be issued within 60 calendar days of receiving the request. If the response will take significantly longer, DOT will inform the requester that more time is required and indicate the reason why and an estimated decision date. DOT will not take more than 120 days to respond without first seeking the concurrence of the requester.
Information in rulemakings and other documents concerning which public participation and comment are sought are subject to these guidelines. However, the Department may respond to requests for correction concerning such information through a different process than we use for other types of information. When the Department seeks public comment on a document and the information in it (
The Department would consider making an earlier response, if doing so (1) would not delay the issuance of the final action in the matter; and (2) the Department determined that there would be an unusually lengthy delay before the final document would be issued or the requester had persuaded the Department that there was a reasonable likelihood that the requester would suffer actual harm if the correction were not made before the final action was issued.
Once again, the DOT organization will place its response in the Federal Dockets Management System. As noted above, a DOT Component may reject a request for correction with respect to information in a final document if there was an opportunity for public comment or participation with respect to the compliance of information to these guidelines and interested persons could have requested the correction of the information at the proposed stage.
You may request reconsideration under this section if you have requested a correction of information under these guidelines, and you are not satisfied with the DOT organization's response. You should request reconsideration within 30 days of the date you received the DOT Component's decision on your original request for correction.
You should send your request in the same manner, and to the same address, as provided above.
DOT will assign an official or establish a reconsideration panel to determine if additional corrective action is needed, and will issue a written response to the requestor stating the reasons for the decision. DOT will share a draft response of the appeal with OMB prior to release to the requestor for assessment of compliance with the above norms. To protect the integrity of the appeals process, DOT will ensure that individuals reviewing and responding to the appeals request were not involved in the review and initial response to the request for correction.
This guidance is non-regulatory and is not intended to constitute a set of legally binding requirements. However, DOT may be unable to process requests that omit one or more of the requested elements. DOT will attempt to contact and work with requesters to obtain additional information when warranted.
The Department maintains records of all corrections and appeals requests. These records may contain contact information provided by you as authorized by Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001
The Departmental Office of the Chief Information Officer will provide annual reports to OMB, including the number and nature of complaints received concerning agency compliance as well as how complaints were resolved.
DOT has adopted the definitions of terms set forth in The Office of Management and Budget's Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies. The following information explains further the way that DOT uses some of these terms.
For example, suppose that DOT first issued a study in 1999. The study is relied upon in a 2000 DOT organization publication, and the DOT organization makes the publication available on its website. This study is not subject to these guidelines or to the request for correction process just because it is “archived” in an available paper publication or website. However, if DOT
Alcohol and Tobacco Tax and Trade Bureau (TTB); Treasury.
Notice and request for comments.
As part of our continuing effort to reduce paperwork and respondent burden, and as required by the Paperwork Reduction Act of 1995, we invite comments on the continuing information collection listed below in this notice.
We must receive your written comments on or before December 6, 2019.
As described below, you may send comments on the information collection described below using the “Regulations.gov” online comment form for this document, or you may send written comments via U.S. mail or hand delivery. We no longer accept public comments via email or fax.
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You must reference the information collection's title or recordkeeping requirement number, and OMB control number in your comment.
You may view copies of this document, the information collection described in it, and all comments received in response to this document within Docket No. TTB-2019-0001 at
Michael Hoover, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; 202-453-1039, ext. 135; or
The Department of the Treasury and its Alcohol and Tobacco Tax and Trade Bureau (TTB), as part of their continuing effort to reduce paperwork and respondent burden, invite the general public and other Federal agencies to comment on the continuing information collection described below in this notice, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments submitted in response to this notice will be included or summarized in our request for Office of Management and Budget (OMB) approval of the relevant information collection. All comments are part of the public record and subject to disclosure. Please do not include any confidential or inappropriate material in your comments.
We invite comments on: (a) Whether this information collection is necessary for the proper performance of the agency's functions, including whether the information has practical utility; (b) the accuracy of the agency's estimate of the information collection's burden; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the information collection's burden on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide the requested information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information has a valid OMB control number.
Currently, we are seeking comments on the following recordkeeping requirement:
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Veterans Health Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Health Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden, and it includes the actual data collection instrument.
Comments must be submitted on or before November 6, 2019.
Submit written comments on the collection of information through
Danny S. Green, Office of Quality, Performance and Risk (OQPR), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 421-1354 or email
44 U.S.C. 3501-21.
VA seeks to update OMB collection 2900-0823 to implement the Veterans Community Care Program by updating the title of VA forms and any associated statutory citations to be consistent with the new program and the MISSION Act, and by updating burden hours to account for estimated increased use of community care under the new program.
This collection of information is required to properly adjudicate and implement the requirements of the MISSION Act.
a. VA Form 10-10143 will collect Veteran information on whether covered Veterans would elect to receive authorized care under the VCCP if certain conditions are met, as required by 38 U.S.C. 1703(d)(3). This form also will allow a covered Veteran to specify a particular non-VA entity or provider.
b. VA Form 10-10143a will collect other health insurance information from covered Veterans who elect to participate in the VCCP, as required by 38 U.S.C. 1705A. This information also is required by 38 U.S.C. 1703(j), which requires VA to recover or collect reasonable charges for community care that is furnished from a health care plan contract described in 38 U.S.C. 1729.
c. VA Form 10-10143b will collect health records of covered Veterans from non-VA health care entities and providers for care authorized under the VCCP, as required by 38 U.S.C. 1703(a)(2)(A), which requires VA to establish a mechanism to receive medical records from non-VA providers. A copy of all medical and dental records (including but not limited to images, test results, and notes or other records of what care was provided and why) related to a Veteran's care provided under the VCCP must be submitted to VA, including any claims for payment for the furnishing of such care.
d. VA Form 10-10143c will collect information from non-VA entities and providers concerning relevant credentials and licenses as required for such entities or providers to furnish care and services generally. This information is authorized by section 133 of the MISSION Act, which requires VA to establish competency standards for non-VA providers, as well as 38 U.S.C. 1703C(a)(1), which requires VA to establish certain standards of quality for furnishing care and services (including through non-VA providers).
e. VA Form 10-10143e will collect secondary authorization requests from non-VA entities and providers to furnish care and services in addition to or supporting the original authorization for care. This information is required by 38 U.S.C. 1703(a)(3), which establishes that a covered Veteran may only receive care or services under the VCCP upon VA's authorization of such care or services.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
Veterans Health Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before December 6, 2019.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 615-9241.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
The VA-FSC Vendor File Request Form, VA Form 10091, was previously created to streamline the data required to establish a vendor record from multiple sources into a single form. The VA now seeks a routine three-year extension of the previous OMB PRA clearance for this form. VA Form 10091 will be used throughout the VA to gather essential payment data from vendors (commercial, individuals, Veterans, employees, etc.) to establish or update vendor records in order to process electronic payments through the ACH network to the vendor's financial institution.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before November 6, 2019.
Submit written comments on the collection of information through
Danny S. Green, (202) 421-1354 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The
By direction of the Secretary.