Agricultural Marketing Service
Natural Resources Conservation Service
Rural Utilities Service
Economic Development Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
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National Park Service
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Drug Enforcement Administration
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Labor Statistics Bureau
National Endowment for the Humanities
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Pipeline and Hazardous Materials Safety Administration
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Agricultural Marketing Service, USDA.
Final rule.
This final rule amends the National List of Allowed and Prohibited Substances (National List) section of the United States Department of Agriculture's (USDA's) organic regulations to implement recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB). This rule adds elemental sulfur for use as a molluscicide in organic crop production, adds polyoxin D zinc salt to control fungal diseases in organic crop production, and reclassifies magnesium chloride from an allowed synthetic to an allowed nonsynthetic ingredient in organic handling.
This final rule is effective November 22, 2019.
Valerie Frances, Standards Division, National Organic Program. Telephone: (202) 720-3252.
On December 21, 2000, the Secretary established the National List within part 205 of the USDA organic regulations (7 CFR 205.600 through 205.607). The National List identifies the synthetic substance allowances and nonsynthetic substance prohibitions in organic farming. The National List also identifies synthetic and nonsynthetic nonagricultural substances, and nonorganic agricultural substances that may be used in organic handling.
The Organic Foods Production Act of 1990, as amended (7 U.S.C. 6501-6522) (OFPA), and § 205.105 of the USDA organic regulations specifically prohibit the use of any synthetic substance in organic production and handling unless the synthetic substance is on the National List. Section 205.105 also requires that any nonorganic agricultural and any nonagricultural substance used in organic handling be on the National List. Under the authority of OFPA, the National List can be amended by the Secretary based on recommendations developed by the NOSB. Since the final rule establishing the National Organic Program (NOP) became effective on October 21, 2002, USDA's Agricultural Marketing Service (AMS) has published multiple rules amending the National List.
This final rule amends the National List to implement NOSB recommendations on three amendments to the National List that were submitted to the Secretary on April 27, 2018. The amendments in this final rule are discussed in the section on Overview of Amendments below.
The following provides an overview of the amendments to designated sections of the National List regulations. The background information on each substance and the basis for the NOSB recommendation were addressed in the proposed rule (84 FR 4377) and are not included in this final rule. Table 1 summarizes the final changes to the National List based on these NOSB recommendations.
The NOSB evaluated each substance by applying the OFPA substance evaluation criteria to determine if the substance is compatible with organic production and handling (7 U.S.C. 6517(c) and 6518(m)). For each substance, AMS reviewed the recommendation submitted to the Secretary to determine if the OFPA evaluation criteria had been appropriately applied and whether the addition to or amendment of the National List would not supersede other federal regulations. Our review determined that the substances described in this final rule meet these conditions. Therefore, AMS accepted each NOSB recommendation and initiated this rulemaking.
AMS received thirteen comments on the proposed rule. After considering the received comments, AMS has determined that the addition of elemental sulfur and polyoxin D zinc salt to the National List for organic crop production and the reclassification of magnesium chloride from an allowed synthetic to an allowed nonsynthetic ingredient in organic handling will be finalized without change. Section E of this final rule provides an overview of the public comments and AMS's response to these comments.
This final rule adds two substances to § 205.601, synthetic substances allowed for use in organic crop production.
The final rule amends the National List to add elemental sulfur to § 205.601(h) for use as a molluscicide
This permits the use of elemental sulfur-based bait, providing an additional tool to organic producers to control slugs and snails when other required preventive measures have failed to provide sufficient control (§ 205.206(e)). Elemental sulfur is also on the National List for use in organic crop production as an insecticide (including mite control) in § 205.601(e); as plant disease control in § 205.601(i); as a plant or soil amendment in § 205.601(j); and in organic livestock production for treatment of livestock and livestock housing in § 205.603(b)(2).
The USDA organic regulations require organic crop producers to describe practices to prevent and control pests in their organic system plan (OSP) (§ 205.201(a)(1)). In addition, producers must use preventive practices and physical and mechanical means to control pests before using an allowed synthetic substance, such as elemental sulfur. Finally, producers need to describe the conditions under which elemental sulfur may be used for slug and snail control in their OSP (§ 205.206(e)). Certifying agents must ensure that producers comply with these requirements.
The final rule amends the National List to add polyoxin D zinc salt to control fungal diseases at § 205.601(i). Table 3 illustrates the final rule change.
This permits the use of polyoxin D zinc salt in organic crop production. The USDA organic regulations require organic crop producers to describe practices to prevent and control crop diseases in their organic system plan (OSP) (§ 205.201(a)(1)). In addition, producers must use preventive practices and management practices, or nonsynthetic substances to suppress the spread of plant disease before using an allowed synthetic, such as polyoxin D zinc salt. Finally, producers need to describe the conditions under which polyoxin D zinc salt may be used for disease control in their OSP (§ 205.206(e)). Certifying agents must ensure that producers comply with these requirements.
This final rule reclassifies magnesium chloride from an allowed synthetic ingredient in § 205.605(b) to an allowed nonsynthetic ingredient in § 205.605(a).
This final rule reclassifies magnesium chloride as a nonsynthetic substance that may be used in organic handling. It also removes the annotation that magnesium chloride must be “derived from sea water.” Table 4 illustrates the final rule change.
The primary uses of magnesium chloride in organic food processing are as a firming agent in tofu processing and as a source of the essential mineral magnesium in organic infant formula. Magnesium chloride is the simple salt of the halogen chlorine and the alkaline earth metal magnesium. Magnesium chloride can be derived from terminal lake brines, subsurface brine deposits, and mined mineral deposits, as well as seawater.
Organic handlers who use magnesium chloride must ensure that the product is a nonsynthetic, compliant form of this substance prior to use. Certifying agents must also verify that the magnesium chloride used is compliant with the nonsynthetic classification. Information about the source of the magnesium chloride and its manufacturing process could provide sufficient details to determine compliance.
On January 17, 2018, a Notice was published in the
The OFPA authorizes the Secretary to make amendments to the National List based on recommendations developed by the NOSB. Sections 6518(k) and 6518(n) of the OFPA authorize the NOSB to develop recommendations for submission to the Secretary to amend the National List and establish a process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. Section 205.607 of the USDA organic regulations permits any person to petition to add or remove a substance from the National List. The current petition procedures for amending the National List published in the
This final rule falls within a category of regulatory actions that the Office of Management and Budget (OMB) has designated as not a significant regulatory action under Executive Order 12866. Consequently, this action does not trigger the requirements contained in Executive Order 13771.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
The Small Business Administration (SBA) sets size criteria for each industry described in the North American Industry Classification System (NAICS) to delineate which operations qualify as small businesses.
AMS has considered the economic impact of this final rulemaking on small agricultural entities. Data collected by the USDA National Agricultural Statistics Service (NASS) and the NOP indicate most of the certified organic production operations in the U.S. would be considered small entities. According to the 2017 Census of Agriculture, 18,166 organic farms in the U.S. reported sales of organic products and total farm gate sales in excess of $7.2 billion.
According to the NOP's Organic Integrity Database, there are 18,137 certified handlers in the U.S.
The USDA has approximately 78 accredited certifying agents who provide organic certification services to producers and handlers. The certifying agent that reports the most certified operations, nearly 3,500, would need to charge approximately $4,200 in certification fees in order to exceed the SBA's small business threshold of $15 million. The costs for certification generally range from $500 to $3,500, depending on the complexity of the operation. Therefore, AMS expects that most of the accredited certifying agents would qualify as small entities under the SBA criteria.
The economic impact on entities affected by this rule would not be significant. The effect of this rule would allow the use of additional and widely available substances in organic crop or livestock production and organic handling. This action would increase regulatory flexibility and would give small entities more tools to use in day-to-day operations. AMS concludes that the economic impact of this addition, if any, would be minimal and beneficial to small agricultural service firms. Accordingly, USDA certifies that this rule would not have a significant economic impact on a substantial number of small entities.
Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This final rule is not intended to have a retroactive effect. Accordingly, to prevent duplicative regulation, states and local jurisdictions are preempted under the OFPA from creating programs of accreditation for private persons or state officials who want to become certifying agents of organic farms or handling operations. A governing state official would have to apply to USDA to be accredited as a certifying agent, as described in section 6514(b) of the OFPA. States are also preempted under sections 6503 through 6507 of the OFPA from creating certification programs to certify organic farms or handling operations unless the state programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA.
Pursuant to section 6507(b)(2) of the OFPA, a state organic certification program that has been approved by the Secretary may, under certain circumstances, contain additional requirements for the production and handling of agricultural products organically produced in the state and for the certification of organic farm and handling operations located within the state. Such additional requirements must (a) further the purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.
In addition, pursuant to section 6519(c)(6) of the OFPA, this final rule would not supersede or alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, respectively, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301
No additional collection or recordkeeping requirements are imposed on the public by this final rule.
This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on tribal governments and will not have significant tribal implications.
Pursuant to the Congressional Review Act (5 U.S.C. 801
During a 60-day comment period that closed on April 16, 2019, AMS received 13 comments on proposed rule AMS-NOP-18-0051. Two of these comments incorrectly discussed amendments not related to this proposed rule and therefore are not discussed. Of the remaining 11 comments, 3 were from trade or farmers' associations, 1 was from a membership-based advocacy group, 1 was from an accredited certifying agent, and 6 were from unaffiliated commenters. The received comments can be viewed at
Organic crop producers must describe their management practices to prevent specific pest infestations and plant diseases, and the specific conditions under which the use of the allowed synthetic materials may be necessary in their OSP (§§ 205.201(a)(1) and 205.206(e)). The USDA organic regulations require that the producer first use mechanical or physical methods or nonsynthetic materials to control pests and plant diseases. When these are not sufficient, organic producers may use synthetic materials that are listed as allowed on § 205.601 and specified in their OSP. In addition, nonsynthetic and allowed synthetic materials must be used as specified on their material safety data sheet (MSDS) and product label. Certifying agents must ensure that the preventive mechanical and physical practices and the nonsynthetic materials along with the conditions for when synthetic material use is necessary are all described in the producer's OSP. Certifying agents must also verify that the preventive mechanical and physical practices and the nonsynthetic materials to address the target problems were implemented prior to the use of the synthetic material (§ 205.206(e)).
AMS received nine public comments regarding the proposed addition of elemental sulfur to § 205.601 as an allowed synthetic substance for use in crop production. Five of these comments supported the proposed addition, while four of the comments opposed it.
The comments supporting the proposed use of elemental sulfur cited the substance's proven effectiveness as a molluscicide. Several commenters argued that the proposed use of elemental sulfur is essential to organic agriculture because typical organic farming practices (
Commenters opposed to the use of elemental sulfur as a molluscicide stated that the substance can be harmful to farmworkers and that overuse could lead to acidification of soil and water. Several commenters noted that most elemental sulfur production is a byproduct of oil and natural gas refining. One commenter also had concerns that using elemental sulfur to control slugs and snails could inadvertently harm beneficial organisms.
AMS disagrees with comments opposed to the use of elemental sulfur in organic crop production as a molluscicide. Elemental sulfur was assessed according to the OFPA criteria (7 U.S.C. 6518(m)). AMS determined that elemental sulfur used as a molluscicide meets the OFPA evaluation criteria, when used as labeled. There is a long history of review and managed allowance of elemental sulfur for a variety of uses in organic crop production. Organic producers must maintain or improve soil and water quality (§ 205.200). Further, organic producers must first use mechanical or physical methods or nonsynthetic materials to control pests and plant diseases. When these are not sufficient, organic producers may use an allowed synthetic, such as sulfur, under the conditions described in their OSP (§ 205.206(e)). Any use of nonsynthetic or allowed synthetic materials must be as specified on the material safety data sheets (MSDS) and product labels to prevent injury to humans, animals, plants, and nontarget and beneficial insects, and detrimental impacts on soil health and air or water quality. Producers should monitor their soil pH and health with appropriate soil tests as needed, or as requested by a certifying agent. The requirements in the USDA organic regulations and the application instructions on the MSDS and product labels support the use of sulfur as a molluscicide in a manner that is safe for human health and the environment.
AMS received nine public comments regarding the addition of polyoxin D zinc salt to § 205.601 for plant disease control. Three of the comments supported the proposed addition of this substance, and six opposed its addition.
Comments in support of the proposed addition of polyoxin D zinc salt referenced the material's effectiveness at controlling plant pathogenic fungi, as well as the material's unique mode of action. It does not kill fungi, but instead prevents growth. Commenters argued that polyoxin D zinc salt is needed in organic agriculture as an alternative form of plant disease control and cited the material's history of safe use in foreign and domestic conventional agriculture. Additionally, two commenters noted that concerns regarding possible harmful impacts on soil-borne fungi and beneficial insects caused by or resulting from the use of polyoxin D zinc salt were adequately addressed by the technical reports and petitions reviewed by the NOSB.
Comments opposed to the use of polyoxin D zinc salt cited an EPA report that noted moderate toxicity to freshwater invertebrates. A commenter stated that there are alternative products and practices other than polyoxin D zinc salt available for plant disease control. A commenter raised concern that the broad-spectrum mode of action of polyoxin D zinc salt may harm beneficial soil-borne fungi and insects such as pollinators. The same commenter also was also concerned that the material may degrade slowly and accumulate in soil.
AMS disagrees with comments opposed to the use of polyoxin D zinc salt in organic crop production. As stated in the 2017 technical report, polyoxin D zinc salt prevents the growth of fungi rather than destroying them. In addition, studies on macro-invertebrates, including pollinators and earthworms, indicated no or little toxic effects. While the soil half-life from aerobic microbial metabolism could be upwards to 15.9 days, photolytic degradation from sunlight was observed as soon as 1.6 days in spring conditions, and generally within 2-3 days, especially in alkaline soil. Consequently, polyoxin D zinc salt has not been found to accumulate or persist in soil. Polyoxin D zinc salt was assessed according to the OFPA criteria (7 U.S.C. 6518(m)). AMS determined that the use of polyoxin D zinc salt for plant disease control meets the OFPA evaluation criteria.
In addition, like all synthetic materials allowed for use in organic agricultural production per § 205.601, organic crop producers must describe their management practices to prevent specific pest infestations and plant diseases, and the specific conditions under which the use of polyoxin D zinc salt may be necessary in their OSP (§§ 205.201(a)(1) and 205.206(e)). The USDA organic regulations require that the producer first use mechanical or physical methods or nonsynthetic materials to control pests and plant diseases. When these are not sufficient, organic producers may use polyoxin D salt as described in their OSP. Nonsynthetic and allowed synthetic materials must be use as specified on their material safety data sheet (MSDS) and product label to prevent injury to humans, animals, plants, and nontarget and beneficial insects, and detrimental impacts on soil health and air or water quality. Producers should monitor their soil pH and health with appropriate soil tests as needed, or as requested by a certifying agent.
AMS received eight public comments regarding the proposed reclassification of magnesium chloride as a nonsynthetic allowed for use in processed organic products. Commenters broadly supported the proposed reclassification, stating that many nonsynthetic forms of magnesium chloride are commercially available. One commenter was opposed to the reclassification of magnesium chloride; however, no substantive reason for the opposition was given.
Two commenters who supported reclassifying magnesium chloride as a nonsynthetic for use in handling also raised concerns that this reclassification would allow its use in organic crop production without restriction. They cautioned against future rulemaking allowing the use of magnesium chloride in crop production, citing concerns that chloride can accumulate in the soil and that this would allow the application of magnesium as an instantly available micronutrient, which are contrary to organic production practices. Both commenters requested that AMS ask the NOSB to consider prohibiting the use of nonsynthetic forms of magnesium chloride in organic crop production by listing it on § 205.602.
AMS disagrees with commenters that allowing nonsynthetic magnesium chloride for organic handling affects use of magnesium chloride in organic crop and livestock production. Nonsynthetic forms of magnesium chloride have always been allowed for organic crop and livestock production because magnesium chloride is not specifically prohibited at either § 205.602 or § 205.604. Furthermore, this final rule does not alter the definition of the terms “synthetic,” “nonsynthetic (natural),” or “chemical change” in the USDA organic regulations (§ 205.2). Commenters who are concerned about the allowance of nonsynthetic forms of magnesium chloride in organic crop or livestock production can petition the NOSB to consider prohibiting at § 205.602 or § 205.604.
This final rule reflects recommendations submitted by the NOSB to the Secretary to add two substances to the National List and to reclassify one substance on the National List.
Administrative practice and procedure, Agriculture, Archives and records, Crops, Imports, Labeling, National List, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205, subpart G is amended as follows:
7 U.S.C. 6501-6522.
(h) As slug or snail bait.
(1) Ferric phosphate (CAS # 10045-86-0).
(2) Elemental sulfur.
(i) * * *
(11) Polyoxin D zinc salt.
The addition reads as follows:
(a) * * *
Magnesium chloride.
Agricultural Marketing Service; Farm Service Agency; Grain Inspection, Packers, and Stockyards Administration; USDA.
Final rule; correcting amendments.
The Agricultural Marketing Service is making correcting amendments pertaining to a final rule that appeared in the
Effective October 23, 2019.
Dawana J. Clark, Legislative and Regulatory Review Staff, Office of the Administrator, AMS, USDA; Telephone: (202) 720-7540, Fax: (202) 690-3767, or Email:
In FR Doc. 2019-18201 appearing on page 45644 in the
In an instruction amending § 201.108-1, the section number read in error (§ 201.180-1). When amending paragraph (b) in § 202.2, we neglected to replace “GIPSA” with “AMS.” In amending § 203.7, we cited incorrect language to be changed. And finally, in the amendment to § 203.14, we incorrectly cited § 203.114.
This correcting amendment rule amends 9 CFR 201.108-1, 202.2, 203.7, and 203.14 as intended in the final rule published August 30, 2019, at 84 FR 45644.
Confidential business information, Reporting and recordkeeping requirements, Stockyards, Surety bonds, Trade practices.
Administrative practice and procedure, Stockyards.
Reporting and recordkeeping requirements, Stockyards.
Accordingly, 9 CFR parts 201, 202, and 203 are amended by making the following correcting amendments:
7 U.S.C. 181-229c.
7 U.S.C. 181-229c.
7 U.S.C. 2.22 and 2.81.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain The Boeing Company Model 747-400 and 747-400F series airplanes. This AD was prompted by an evaluation that determined fatigue cracks could develop in the underwing longerons. This AD requires repetitive inspections of the underwing longerons and certain fuselage skins for any crack, and applicable on-condition actions. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective November 27, 2019.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 27, 2019.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
You may examine the AD docket on the internet at
Eric Lin, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3523; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-400 and 747-400F series airplanes. The NPRM published in the
The FAA is issuing this AD to address cracks in the underwing longerons, which could result in fuel leakage into the pressurized fuselage and increase the risk of a fire, and to address cracks in the adjacent fuselage skin, which could result in rapid decompression. Either condition could adversely affect the structural integrity of the airplane.
The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comments received. Boeing and United Airlines indicated concurrence with the NPRM.
The FAA reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule as proposed, except for minor editorial changes. The FAA has determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
The FAA reviewed Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019. This service information describes procedures for repetitive detailed inspections and ultrasonic inspections of the underwing longerons and the adjacent fuselage skin, and ultrasonic and surface high frequency eddy current (HFEC) inspections of certain fuselage skins, on the left and right sides of the airplane, for any crack, and applicable on-condition actions. On-condition actions include repair.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 20 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 27, 2019.
None.
This AD applies to The Boeing Company Model 747-400 and 747-400F series airplanes, certificated in any category, as identified in Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019.
Air Transport Association (ATA) of America Code 53, Fuselage.
This AD was prompted by an evaluation that determined fatigue cracks could develop in the underwing longerons. The FAA is issuing this AD to address cracks in the underwing longerons, which could result in fuel leakage into the pressurized fuselage and increase the risk of a fire, and to address cracks in the adjacent fuselage skin, which could result in rapid decompression. Either condition could adversely affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019.
Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 747-53A2900, dated April 11, 2019, which is referred to in Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019.
(1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019, uses the phrase “the original issue date of Requirements Bulletin 747-53A2900 RB,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019, specifies contacting Boeing for repair instructions: This AD requires doing the repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Eric Lin, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3523; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin 747-53A2900 RB, dated April 11, 2019.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2011-18-15, which applied to certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. AD 2011-18-15 required initial and repetitive torque checks of the bolt preload; detailed inspection of the barrel nuts and cradle for cracking, pitting, and corrosion if the bolt preload is correct; and replacement of certain hardware if necessary. This AD continues to require those actions. This AD also requires new inspections and replacement of certain hardware, which would terminate the repetitive torque checks and inspections; and removes airplanes from the applicability. This AD was prompted by in-service reports of cracked barrel nuts found at the front spar locations of the wing-to-fuselage attachment joints, and a loose washer in the barrel nut assembly. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective November 27, 2019.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 27, 2019.
For service information identified in this final rule, contact De Havilland Aircraft of Canada Ltd., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; phone: 416-375-4000; fax: 416-375-4539; email:
You may examine the AD docket on the internet at
Andrea Jimenez, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516-228-7330; fax: 516-794-5531; email:
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2011-24R1, dated January 21, 2019 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. You may examine the MCAI in the AD docket on the internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2011-18-15, Amendment 39-16797 (76 FR 54093, August 31, 2011) (“AD 2011-18-15”). AD 2011-18-15 applied to certain De Havilland Aircraft of Canada Limited Model DHC-8-400 series airplanes. The NPRM published in the
The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.
The FAA has revised this final rule to identify the legal name of the manufacturer as published in the most recent type certificate data sheet (TCDS) for the affected airplane models.
The FAA has revised paragraph (n) of this AD to refer to De Havilland Aircraft of Canada Limited (the current TCDS holder) as the appropriate contact for the referenced repair drawing.
The FAA reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed, with the changes described previously and minor editorial changes. The FAA has determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
The FAA also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
Bombardier has issued the following service information.
• Service Bulletin A84-57-25, Revision A, dated July 16, 2018. This service information describes procedures for initial and repetitive torque checks of the bolt preload, detailed inspection of the barrel nuts and cradle for cracking, pitting, and corrosion if the bolt preload is correct, and replacement of hardware if necessary.
• Service Bulletin 84-57-26, Revision C, dated July 16, 2018. This service information describes procedures for a visual inspection of the saddle washer and retainer for any damage (cracks) and corrosion, and replacement of the existing wing front spar barrel nuts, bolts, and preload indicating washers.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 54 airplanes of U.S. registry.
The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data that would enable us to provide cost estimates for the on-condition repairs specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
The FAA determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 27, 2019.
This AD replaces AD 2011-18-15, Amendment 39-16797 (76 FR 54093, August 31, 2011) (“AD 2011-18-15”).
This AD applies to De Havilland Aircraft of Canada Limited Model DHC-8-400, -401, and -402 airplanes, certificated in any category, serial numbers 4001 through 4437 inclusive.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by in-service reports of cracked barrel nuts found at the front spar locations of the wing-to-fuselage attachment joints, and a loose washer in the barrel nut assembly. The FAA is issuing this AD to address cracked barrel nuts and a loose washer in the barrel nut assembly, which could result in failure of the barrel nuts, compromising the structural integrity of the wing-to-fuselage attachments, and possible separation of the wing from the airplane during flight.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2011-18-15, with revised service information. At the applicable time specified in paragraph (g)(1) or (2) of this AD: Do a torque check to determine if the bolt preload is correct, and if the preload is correct, before further flight, do a detailed inspection of each barrel nut and cradle for cracking, pitting or corrosion, in accordance with paragraph 3.B., part A, of the Accomplishment Instructions of Bombardier Alert Service Bulletin A84-57-25, dated July 20, 2011; or Bombardier Service Bulletin A84-57-25, Revision A, dated July 16, 2018. After the effective date of this AD, only Bombardier Service Bulletin A84-57-25, Revision A, dated July 16, 2018, may be used. Repeat the torque check and, as applicable, the inspection thereafter at intervals not to exceed 2,000 flight hours or 12 months, whichever occurs first.
(1) For airplanes that have accumulated 1,900 or more total flight hours as of September 15, 2011 (the effective date of AD 2011-18-15), or for which it has been 12 months or more since the date of issuance of the original Canadian airworthiness certificate or the date of issuance of the original Canadian export certificate of airworthiness as of September 15, 2011: Within 100 flight hours or 10 days after September 15, 2011, whichever occurs first.
(2) For airplanes that have accumulated less than 1,900 total flight hours as of September 15, 2011 (the effective date of AD 2011-18-15), and for which it has been less than 12 months since the date of issuance of the original Canadian airworthiness certificate or the date of issuance of the original Canadian export certificate of airworthiness as of September 15, 2011: Prior to the accumulation of 2,000 total flight hours or within 12 months since the date of issuance of the original Canadian standard airworthiness certificate or the date of issuance of the original Canadian export certificate of airworthiness, whichever occurs first.
This paragraph restates the requirements of paragraph (h) of AD 2011-18-15, with revised service information. If any bolt preload is found to be incorrect (
This paragraph restates the requirements of paragraph (i) of AD 2011-18-15, with revised service information. If any crack, pitting, or corrosion of the barrel nut or cradle is found
Within 12,000 flight hours or 72 months after the effective date of this AD, whichever occurs first: Do a visual inspection of the saddle washer and retainer for any damage (cracks) or corrosion; and replace the wing front spar barrel nuts, bolts, and preload indicating washers; in accordance with paragraph 3.B. of the Accomplishment Instructions of Bombardier Service Bulletin 84-57-26, Revision C, dated July 16, 2018.
If any damage (cracks) or corrosion is found during any inspection required by paragraph (j) of this AD: Before further flight, accomplish corrective actions in accordance with the procedures specified in paragraph (p)(2) of this AD.
Accomplishment of the applicable actions required by paragraphs (j) and (k) of this AD, at all four barrel nut locations, terminates the repetitive torque checks and detailed inspections of paragraph (g) of this AD.
As of the effective date of this AD, no person may install, on any airplane, a barrel nut having part number DSC228-16.
This paragraph restates the requirements of paragraph (k) of AD 2011-18-15, with revised compliance language. Special flight permits, as described in 14 CFR 21.197 and 21.199, may be issued to operate the airplane to a location where the requirements of this AD can be accomplished, but concurrence by the Manager, New York ACO Branch, FAA, is required before issuance of the special flight permit. Before using any approved special flight permits, notify your principal maintenance inspector (PMI) or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office (FSDO). Operators must request a repair drawing from Bombardier, Inc., or De Havilland Aircraft of Canada Limited, which provides recommendations for a one-time special flight permit. After the effective date of this AD, only De Havilland Aircraft of Canada Limited may provide the repair drawing. The repair drawing will be applicable to the operator's aircraft serial number only. Special flight permits may be permitted provided that the conditions specified in paragraphs (n)(1) through (5) of this AD are met.
(1) Only one barrel nut out of four is cracked, one cradle is cracked, or one washer is loose; all other strut (wing front spar) bolt locations must be free of damage.
(2) The airplane must operate with reduced airspeed not to exceed 180 KIAS (knots indicated air speed). No passengers and no cargo are onboard.
(3) The airplane must not operate in known or forecast turbulence, other than light turbulence.
(4) The airplane descent rate on landing flare-out is not to exceed 5 feet per second.
(5) Heavy braking or hard turning of the airplane upon landing is to be avoided if possible.
(1) This paragraph restates the provisions of paragraph (j) of AD 2011-18-15, with revised formatting and updated service information. This paragraph provides credit for torque checks, initial inspections, and replacements required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (o)(1)(i) through (v) of this AD, which is not incorporated by reference in this AD. The repetitive torque checks, and as applicable, the inspections required by paragraph (g) of this AD must be continued at the time specified.
(i) Bombardier Alert Service Bulletin A84-57-19, dated February 1, 2008.
(ii) Bombardier Alert Service Bulletin A84-57-19, Revision A, dated February 6, 2008.
(iii) Bombardier Alert Service Bulletin A84-57-19, Revision B, dated March 6, 2008.
(iv) Bombardier Alert Service Bulletin A84-57-19, Revision C, dated August 20, 2008.
(v) Bombardier Alert Service Bulletin A84-57-19, Revision D, dated August 12, 2011.
(2) This paragraph provides credit for the actions required by paragraphs (h) through (k) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (o)(2)(i) through (iii) of this AD. This service information is not incorporated by reference in this AD.
(i) Bombardier Service Bulletin 84-57-26, dated March 21, 2013.
(ii) Bombardier Service Bulletin 84-57-26, Revision A, dated July 18, 2014.
(iii) Bombardier Service Bulletin 84-57-26, Revision B, dated February 26, 2015.
(3) This paragraph provides credit for the actions required by paragraphs (h) and (i) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (o)(3)(i) and (ii) of this AD.
(i) Bombardier Alert Service Bulletin A84-57-25, dated July 20, 2011, which was incorporated by reference in AD 2011-18-15.
(ii) Bombardier Service Bulletin A84-57-25, Revision A, dated July 16, 2018, which is incorporated by reference in this AD.
(1)
(2)
(3) AMOCs approved previously for AD 2011-18-15 are approved as AMOCs for the corresponding provisions of this AD.
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2011-24R1, dated January 21, 2019, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Andrea Jimenez, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 516-228-7330; fax: 516-794-5531; email:
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (r)(4) and (5) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on November 27, 2019.
(i) Bombardier Service Bulletin A84-57-25, Revision A, dated July 16, 2018.
(ii) Bombardier Service Bulletin 84-57-26, Revision C, dated July 16, 2018.
(4) For service information identified in this AD, contact De Havilland Aircraft of Canada Ltd., Q-Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; phone: 416-375-4000; fax:
(5) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Consumer Product Safety Commission.
Direct final rule.
The U.S. Consumer Product Safety Commission (CPSC) previously published consumer product safety standards for non-full-size baby cribs (NFS cribs) and play yards under section 104 of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The standards incorporated by reference the ASTM voluntary standard for NFS cribs and play yards, with modifications. ASTM recently revised the voluntary standard for NFS cribs and play yards. The CPSIA provides a process for when a voluntary standards organization updates a standard that the Commission incorporated by reference in a section 104 rule. Consistent with that process, this direct final rule revises the mandatory standards for NFS cribs and play yards to incorporate by reference the updated version of the ASTM standard.
The rule is effective on January 20, 2020, unless CPSC receives a significant adverse comment by November 22, 2019. If CPSC receives such a comment, it will publish a notice in the
You may submit comments, identified by Docket No. CPSC-2019-0025, by any of the following methods:
Justin Jirgl, Compliance Officer, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; email:
Section 104 of the CPSIA (Pub. L. 110-314, 122 Stat. 3016) requires the Commission to assess the effectiveness of voluntary standards for durable infant or toddler products
Under this authority, the Commission adopted mandatory standards for NFS cribs and play yards in 16 CFR parts 1220 and 1221, respectively. The Commission defines NFS cribs and play yards in 16 CFR 1220.1(c). In general, a NFS crib is “a bed that is designed to provide sleeping accommodations for an infant” that meets specified dimensions.
“any person that—(A) manufactures, distributes in commerce, or contracts to sell cribs; (B) based on the person's occupation, holds itself out as having knowledge of skill peculiar to cribs, including child care facilities and family child care homes; (C) is in the business of contracting to sell or resell, lease, sublet, or otherwise place cribs in the stream of commerce; or (D) owns or operates a place of accommodation affecting commerce (as defined in section 4 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2203) applied without regard
Congress effectively limited this expanded application of crib standards to only initial 104 rules for cribs when it amended the CPSIA in 2011. The amendment added section 104(c)(3), which addresses revisions to crib standards, and allows the expanded application stated in section 104(c)(1) and (2) to apply to revisions to crib standards only in certain circumstances. 15 U.S.C. 2056a(c)(3); Public Law 112-28, 125 Stat. 273 (Aug. 12, 2011).
The Commission's standard for NFS cribs initially incorporated by reference ASTM F406-10a, with modifications. 75 FR 81766 (Dec. 28, 2010). When ASTM later updated its standard, issuing ASTM F406-17, the Commission updated the mandatory standard to incorporate by reference this revised edition, with modifications. 83 FR 26206 (June 6, 2018). The mandatory standard for NFS cribs does not apply to play yards, and excludes the provisions in ASTM F406 that only relate to play yards.
The Commission's standard for play yards initially incorporated by reference ASTM F406-12a, with modifications. 77 FR 52220 (Aug. 29, 2012). When ASTM later updated its standard, issuing ASTM F406-13, the Commission updated the mandatory standard to incorporate by reference this revised edition, with modifications. 78 FR 50328 (Aug. 19, 2013). The mandatory standard for play yards does not apply to NFS cribs, and excludes the provisions in ASTM F406 that only relate to NFS cribs.
The CPSIA specifies the process for when a voluntary standards organization revises a standard that the Commission incorporated by reference in a section 104 rule. First, the voluntary standards organization must notify the Commission of the revision. Once the Commission receives this notification, “the revised voluntary standard shall be considered to be a consumer product safety standard issued by the Commission under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the date on which the organization notifies the Commission (or such later date specified by the Commission in the
As noted above, section 104(c) of the CPSIA includes unique provisions for rules regarding cribs. Under sections 104(c)(1) and (2), standards the Commission adopts for cribs under section 104(b) of the CPSIA apply to more parties than are ordinarily subject to section 104 rules.
ASTM notified the Commission on July 24, 2019 that it had updated the NFS cribs and play yards standard, issuing ASTM F406-19.
In addition, the Commission is not making the determination that applying the revised standard for NFS cribs to additional parties is “necessary to protect against an unreasonable risk to health or safety.” Therefore, the revised mandatory standard for NFS cribs will apply to parties that manufacture or import cribs, and not the additional parties listed in section 104(c)(1) and (2) of the CPSIA.
The ASTM standard for NFS cribs and play yards includes performance requirements and test methods, as well as requirements for warning labels and instructional literature, to address hazards to children associated with NFS cribs and play yards.
As described below, the revisions in ASTM F406-19 regarding NFS cribs provide additional detail and clarity, and are neutral on safety, as compared to 16 CFR part 1220. Similarly, the revisions in ASTM F406-19 regarding play yards provide revised and additional requirements that improve the safety of play yards or are neutral on safety, as compared to 16 CFR part 1221. For this reason, the Commission concludes that the revised standard for NFS cribs maintains the level of safety that the existing regulation provides, and the revised standard for play yards, overall, improves the level of safety that the existing regulation provides. Because the Commission declines to determine that the revised standard “does not improve the safety” of NFS cribs or play yards, the revised ASTM standard will become CPSC's new standards for these products.
The following sections discuss the revised portions of the ASTM standard and compare them with the existing requirements in 16 CFR parts 1220 and 1221.
The existing mandatory standard for NFS cribs requires compliance with ASTM F406-17, with modifications to exclude several sections of ASTM F406-17 from the mandatory standard. The excluded sections (which address scissoring, shearing, and pinching; bassinet and cradle accessories; and other requirements) are only relevant to play yards. The revised mandatory standard in 16 CFR part 1220 excludes the same requirements.
The only substantive difference between the requirements for NFS cribs in ASTM F406-19 and ASTM F406-17 is that ASTM F406-19 includes a revised toehold provision in the construction and finishing requirements for NFS cribs (section 6.6.3). ASTM F406-19 also includes an editorial revision (section 6.9
Section 6.6.3 prohibits the ends and sides of NFS cribs from having surfaces that can serve as toeholds for a child inside the crib, and specifies the dimensions and location of prohibited toeholds. This requirement aims to reduce the risk of children climbing out of NFS cribs by reducing the surfaces children can use as a foothold to boost themselves over the rail of a crib. In ASTM F406-17, this provision specified the upper height limit of prohibited toeholds, but did not specify a lower bound; ASTM F406-19 adds a lower bound of 1 inch. CPSC staff believes that this lower bound is reasonable in light of the lower bound for toeholds specified in the standard for full-size baby cribs, and because it will provide greater clarity for test laboratories to conduct consistent testing for this requirement. Staff believes that this revision is neutral on safety, when compared to the existing standard in 16 CFR part 1220.
The existing mandatory standard for play yards requires compliance with ASTM F406-13, with modifications. The modifications exclude from the mandatory standard the sections of ASTM F406-13 that address requirements for NFS cribs. In addition, the mandatory standard modifies section 9.4.2.10 of the voluntary standard. Section 9.4.2.10 requires a warning on products with a separate mattress that is not permanently fixed in place to state: “Use ONLY mattress/pad provided by manufacturer,” along with the minimum length, width, and thickness of the mattress. The mandatory standard specifies that play yards that meet the criteria in section 9.4.2.10 must bear only the warning statement (not the permissible mattress dimensions). The revised mandatory standard in 16 CFR part 1221 includes the same exclusions and modifications.
The substantive differences between the requirements for play yards in ASTM F406-19 and ASTM F406-13 are as follows:
• Revised and additional requirements to ensure that provisions regarding entrapment in accessories to play yards address cantilevered accessories;
• clarification of where to place a stability testing device;
• a modified mattress vertical displacement test, and an accompanying definition for “mattress support surface”; and
• an alternate on-product warning label for cribs intended for use in child care facilities.
In addition, ASTM F406-19 includes a new “secondary test” to perform if any corner or location does not meet the standard using the primary test. The secondary test applies the same force in the same manner as the primary test, and uses the same criteria for passing (less than 5.25 inch displacement), but measures displacement from different points. While the primary test measures displacement from “the reference point on the clamp relative to the fixed reference point,” the secondary test measures displacement from “the bottom surface of the mattress just beneath the clamp attachment and the mattress support surface.” As the rationale in Note 17 in the standard explains, although the primary test works well for products with a tubular floor support structure, it does not work as well for “products that sit directly on the floor and do not have a tubular floor support structure.” The secondary test addresses these products. CPSC staff believes that the secondary test is neutral on safety, when compared to the existing standard in 16 CFR part 1221.
Related to the revisions to mattress vertical displacement testing, ASTM F406-19 also includes a new definition and note. Section 3.1.15 of ASTM F406-19 defines “mattress support surface,” which is relevant to the secondary test described above. Section 7.9.1.2, Note 7 explains the rationale for elements of the mattress vertical displacement test, including the displacement limit, which approximately corresponds with a 6-month old child's head for purposes of assessing entrapment hazards. CPSC staff believes that these revisions are neutral on safety, when compared to the existing standard in 16 CFR part 1221.
In this notice, the Commission is updating the version of the ASTM standard incorporated by reference in 16 CFR parts 1220 and 1221 to reflect the revised standard that takes effect by operation of law under the CPSIA. The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, the APA provides an exception to this when an agency “for good cause finds” that notice and comment is “impracticable, unnecessary, or contrary to the public interest.”
When the Commission updates a reference to an ASTM standard that the Commission has incorporated by reference into a rule under section 104 of the CPSIA, notice and the opportunity to comment is unnecessary. This is because, under the terms of the CPSIA, such an update automatically becomes CPSC's mandatory standard, unless the Commission takes action to prevent it. 15 U.S.C. 2056a(b)(4)(B). With respect to ASTM F406-19, the Commission is not taking action to prevent it from becoming the new mandatory standard for NFS cribs and play yards. Therefore, the revised ASTM standard will become CPSC's standard by operation of law. Public comments would not influence the substantive changes to the standard or the effect of the revised standard under section 104 of the CPSIA. Therefore, notice and comment are unnecessary.
The purpose of this direct final rule is to update the edition of the standard the regulations reference, so that they accurately reflect the standard in effect under the statute. The Administrative Conference of the United States (ACUS) recommends that agencies use direct final rulemaking when the “unnecessary” prong of the good cause exemption in the APA applies. 60 FR 43108, 43111 (Aug. 18, 1995). With a direct final rule, the rule takes effect on the stated effective date, unless the agency receives an adverse comment within a specified time. This allows the agency to expedite noncontroversial rules, while still allowing for public comment.
Unless CPSC receives a significant adverse comment within 30 days of this notice, the rule will become effective on January 20, 2020. Consistent with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without change.”
If the Commission receives a significant adverse comment, it will publish a notice withdrawing this direct final rule before the effective date. Depending on the comment and other relevant considerations, the Commission may address the adverse comment in a subsequent direct final rule, or publish a notice of proposed rulemaking, providing an opportunity for public comments.
Sections 1220.2 and 1221.2 of the direct final rule incorporate by reference ASTM F406-19. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. These regulations require the preamble to a final rule to summarize the material and discuss the ways in which the material the agency incorporates by reference is reasonably available to interested parties, and how interested parties can obtain the material. 1 CFR 51.5(b).
In accordance with the OFR regulations,
The Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089) requires manufacturers of products that are subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, to certify that the product complies with all applicable CPSC requirements. 15 U.S.C. 2063(a). For children's products, the manufacturer must base this certification on tests of a sufficient number of samples by a third party conformity assessment body accredited by CPSC to test according to the applicable requirements.
Because NFS cribs and play yards are children's products, a CPSC-accepted third party conformity assessment body must test samples of these products. These products also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA,
As discussed above, an accredited third party conformity assessment body must test children's products that are subject to a children's product safety rule for compliance with the applicable rule. 15 U.S.C. 2063(a)(2). The Commission must publish a notice of requirements (NOR) for third party conformity assessment bodies to obtain accreditation to assess conformity with a children's product safety rule.
As the CPSA requires, the Commission published NORs for accreditation of third party conformity assessment bodies for testing NFS cribs and play yards. 15 U.S.C. 2063(a)(3)(B)(ii), (vi); 78 FR 15836 (Mar. 12, 2013) (adopting 16 CFR 1112.15(b)(6) and (7), codifying NORs for NFS cribs and play yards, respectively). The NORs provided the criteria and process for CPSC to accept accreditation of third party conformity assessment bodies for testing NFS cribs to 16 CFR part 1220 and play yards to 16 CFR part 1221. The NORs are listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies” in 16 CFR part 1112.
The revised provisions in ASTM F406-19 do not require any significant
The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) requires agencies to consider the potential economic impact of a proposed and final rule on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies when an agency is required to publish notice of a rulemaking.
The current mandatory standards for NFS cribs and play yards include requirements for labeling and instructional literature that constitute a “collection of information,” as defined in the Paperwork Reduction Act (PRA; 44 U.S.C. 3501-3521). The revised mandatory standards do not substantively alter these requirements. The Commission took the steps required by the PRA for information collections when it adopted 16 CFR parts 1220 and 1221, including obtaining approval and a control number. Because the information collection is unchanged, the revision does not affect the information collection requirements or approval related to the standard.
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.”
Pursuant to the CRA, OIRA designated this rule as not a “major rule,” as defined in 5 U.S.C. 804(2). In addition, to comply with the CRA, CPSC's Office of the General Counsel will submit the required information to each House of Congress and the Comptroller General.
CPSC's regulations list categories of agency actions that “normally have little or no potential for affecting the human environment.” 16 CFR 1021.5(c). Such actions qualify as “categorical exclusions” under the National Environmental Policy Act (42 U.S.C. 4321-4370m-12), which do not require an environmental assessment or environmental impact statement. One categorical exclusion listed in CPSC's regulations is for rules or safety standards that “provide design or performance requirements for products.” 16 CFR 1021.5(c)(1). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.
Under the CPSA, no state or political subdivision of a state may establish or continue in effect a requirement dealing with the same risk of injury as a Federal consumer product safety standard under the CPSA unless the state requirement is identical to the Federal standard. 15 U.S.C. 2075(a). However, states or political subdivisions of states may apply to CPSC for an exemption, allowing them to establish or continue such a requirement if the state requirement “provides a significantly higher degree of protection from [the] risk of injury” and “does not unduly burden interstate commerce.”
Section 104 of the CPSIA refers to the rules issued under that section as “consumer product safety standards,” and states that a revised standard “is considered a consumer product safety standard issued by the Commission under section 9” of the CPSA. 15 U.S.C. 2056a(b)(1), (b)(4)(B). Accordingly, consumer product safety standards that the Commission creates or revises under CPSIA section 104 preempt state and local requirements in accordance with the preemption provisions in the CPSA.
When a voluntary standards organization revises a standard that the Commission adopted as a mandatory standard under section 104 of the CPSIA, the revised standard automatically becomes the new mandatory standard effective 180 days after the Commission receives notification. 15 U.S.C. 2056a(b)(4)(B). The Commission may prevent this automatic effective date by either publishing notice of a later effective date, or rejecting the revision.
The Commission is taking neither of those actions with respect to the standards for NFS cribs and play yards. The Commission believes that the statutory effective date is reasonable because it provides sufficient time for firms to make necessary modifications within the usual timeframe provided for children's product rules. ASTM approved ASTM F406-19 on March 15, 2019 and published it in May 2019, more than 6 months before the statutory effective date. Juvenile product manufacturers are accustomed to adjusting to new voluntary standards within this timeframe because it is consistent with other CPSIA section 104 rules, which generally provide 6-month effective dates, and the Juvenile Products Manufacturers Association typically allows 6 months for products in its certification program to shift to a new standard. Therefore, ASTM F406-19 automatically will take effect as the new mandatory standard for NFS cribs and play yards on January 20, 2020, 180 days after the Commission received notice of the revision on July 24, 2019.
As a direct final rule, unless the Commission receives a significant adverse comment within 30 days of this notice and publishes a notice withdrawing this rule by the effective date, the rule will become effective on January 20, 2020.
Consumer protection, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, Safety, and Toys.
Consumer protection, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, Safety, and Toys.
For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II as follows:
Sec. 104, Pub. L. 110-314, 122 Stat. 3016 (15 U.S.C. 2056a); Sec. 3, Pub. L. 112-28, 125 Stat. 273.
(a) Except as provided in paragraph (b) of this section, each non-full-size baby crib shall comply with all applicable provisions of ASTM F406-19,
(b) Comply with the ASTM F406-19 standard with the following exclusions:
(1) Do not comply with sections 5.6.2 through 5.6.2.4 of ASTM F406-19.
(2) Do not comply with section 5.16.2 of ASTM F406-19.
(3) Do not comply with sections 5.19 through 5.19.2.2 of ASTM F406-19.
(4) Do not comply with section 7,
(5) Do not comply with sections 8.11 through 8.11.2.4 of ASTM F406-19.
(6) Do not comply with sections 8.12 through 8.12.2.2 of ASTM F406-19.
(7) Do not comply with sections 8.14 through 8.14.2 of ASTM F406-19.
(8) Do not comply with sections 8.15 through 8.15.3.3 of ASTM F406-19.
(9) Do not comply with section 8.16 through 8.16.3 of ASTM F406-19.
(10) Do not comply with sections 8.28 through 8.28.3.2 of ASTM F406-19.
(11) Do not comply with sections 8.29 through 8.29.3 of ASTM F406-19.
(12) Do not comply with sections 8.30 through 8.30.5 of ASTM F406-19.
(13) Do not comply with sections 8.31 through 8.31.9 of ASTM F406-19.
(14) Do not comply with sections 9.3.2 through 9.3.2.4 of ASTM F406-19.
Sec. 104, Pub. L. 110-314, 122 Stat. 3016 (15 U.S.C. 2056a).
This part establishes a consumer product safety standard for play yards manufactured or imported on or after January 20, 2020.
(a) Except as provided in paragraph (b) of this section, each play yard must comply with all applicable provisions of ASTM F406-19,
(b) Comply with the ASTM F406-19 standard with the following exclusions:
(1) Do not comply with section 5.17 of ASTM F406-19.
(2) Do not comply with section 5.20 of ASTM F406-19.
(3) Do not comply with section 6,
(4) Do not comply with sections 8.1 through 8.10.5 of ASTM F406-19.
(5) Instead of complying with section 9.4.2.10 of ASTM F406-19, comply only with the following:
(i) 9.4.2.10 For products that have a separate mattress that is not permanently fixed in place: Use ONLY mattress/pad provided by manufacturer.
(ii) [Reserved]
(6) Do not comply with section 10.1.1.1 of ASTM F406-19.
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the Montana regulatory program (the Montana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Montana proposed revisions and additions to the Montana statute, known as the Montana Code Annotated (MCA) about permit application requirements, coal prospecting requirements, annual reporting requirements for coal permittees, and lawsuits related to damages to water supplies. Montana also proposed to revise its regulations, the Administrative Rules of Montana (ARM), to incorporate changes about a new short form coal prospecting permit process.
The effective date is November 22, 2019.
Jeffrey Fleischman, Chief, Denver Field Division, Telephone: (307) 261-6550. Email address:
Section 503(a) of the Act permits a state to assume primacy for the regulation of surface coal mining and
By letter dated August 20, 2013, Montana sent OSMRE a proposed amendment to its regulatory program (Administrative Record Document ID No. OSM-2013-0009-0002) under SMCRA (30 U.S.C. 1201
We announced receipt of the proposed amendment in the October 25, 2013,
Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.
Montana proposed minor wording, editorial, punctuation, grammatical, citation, and cross-reference changes to the following previously approved rules and statutes. No substantive changes to the text of these regulations were proposed. Because these changes are minor, we find that they will not make Montana's statute or regulations inconsistent with Federal statute or regulations, less stringent than SMCRA, or less effective than the corresponding Federal regulations. The specific, minor changes are as follows:
• MCA 82-4-227(8), related to the applicant violator system; minor editorial change; counterpart Federal provision found at SMCRA 515(b)(12) (30 U.S.C. 1265(b)(12);
• MCA 82-4-237(1), (1)(a), (1)(b), (1)(c), (2), and (3), related to the operator filing annual reports; minor changes to statute with no Federal counterpart;
• ARM 17.24.1002(3), related to information and monthly reports; minor citation and cross-reference modifications; no Federal counterpart;
• ARM 17.24.1003(1), related to renewal and transfer of permits; minor changes to regulation with no Federal counterpart;
• ARM 17.24.1005(2)(d), related to drill holes; minor grammatical corrections; counterpart Federal regulations are found at 30 CFR 816.13, 816.14, and 816.15; and
• ARM 17.24.1016(3), related to bond requirements for drilling operations; minor changes to regulation with no Federal counterpart.
Montana proposed revisions to the following statutes or regulations containing language that is in accordance with and no less stringent than SMCRA. In addition, Montana's proposed revisions are no less effective than the corresponding sections of the Federal regulations. We are therefore approving the following changes:
• MCA 82-4-222(1)(k), (1)(l), (2), (2)(l), (2)(m), and (8),
• MCA 82-4-226(1), (2), (7), (7)(b)(i), (7)(b)(ii), and (8),
• MCA 82-4-253(3)(d),
• ARM 17.24.1001(1)(b), (1)(c), (2), (2)(h)(iii)(F), (2)(q), and (7), related to permit requirements; [30 CFR 772.12 and 772.13]; and
• ARM 17.24.1019,
The changes to MCA 82-4-222 are associated with general requirements that must be met upon submittal of a permit application to conduct coal mining. Montana's statute contains language that corresponds to SMCRA section 507(b) (30 U.S.C. 1257(b)) and the Federal regulations at 30 CFR 773.6, 779.24, 779.25, 783.24, and 783.25. The new language does not render Montana's statute less stringent than SMCRA nor less effective than the Federal regulations.
The change at MCA 82-4-222(1)(k) concerns the number of copies of geologic cross sections that must be submitted for a permit application. Montana proposes to change the number from “two copies each of two sets” to “two sets.” The counterpart SMCRA section 507(b)(14) (30 U.S.C. 1257(b)(14)) and the regulations at 30 CFR 779.25(a) and 783.25(a) do not specify the number of copies required, merely stating that the application shall include cross sections, maps, and plans showing elevations and locations of test borings and core samplings.
The change at MCA 82-4-222(1)(l) pertains to the type of newspaper that the permittee may use to give public notification of a permit application, significant permit revision, or permit renewal. Montana is changing the type of newspaper from a daily newspaper to any newspaper; however, the requirement that the notification must be published in the newspaper once a week for four consecutive weeks is unchanged. SMCRA sections 507(b)(6) and 513 (30 U.S.C. 1257(b)(6) and 30 U.S.C. 1263, respectively), and Federal regulations at 30 CFR 773.6 state that the notification must be published once per week for four weeks, but does not specify whether the newspaper must be published daily. Additionally, Montana is adding language that clarifies that the applicant must provide this public notification in a newspaper that is published in the locality of the proposed operation and that it will be published again within the State if an initial announcement was published outside of Montana. Federal requirements also mandate that publication in a local newspaper of general circulation in the locality of the proposed mining operation must occur.
The change to MCA 82-4-222(2) outlines the requirement that a prospective permit applicant must submit maps as part of the permit
Montana's modification to MCA 82-4-222(2)(l) concerns the requirement for a permit application to include information on pre-mining vegetation. Montana is proposing to eliminate references to “varieties” of plants and replace these references to “species” of plants and trees. In botanical nomenclature, variety is a taxonomic rank below species. In practice, it may be difficult and unnecessary to inventory existing vegetation at this level of specificity. Providing vegetation species information, including abundance per acre and general distribution, provides the regulatory authority with sufficient information to characterize the premining vegetation community composition and structure. Montana is also deleting language indicating that the required vegetation information will include, but not be limited to, grasses, shrubs, legumes, forbs, and trees. The revised provision is interpreted as requiring descriptions of all vegetation life forms without such enumeration.
The counterpart Federal regulations at 30 CFR 779.19 and 783.19 employ the terms “vegetative types” and “plant communities” and also grant the regulatory authority discretion on whether to require information on these topics in an application. Although there is no specific statutory basis to refer to, SMCRA section 515(b)(19) (30 U.S.C. 1265(b)(19)) requires that a permanent vegetative cover of the same seasonal variety native to the area must be established on reclaimed lands with limited exceptions. Implicit in provision is a requirement to collect information on pre-mining vegetation. OSMRE finds that this minor modification to MCA 82-4-222(2)(l) should have no effect on the implementation of this law because sufficient pre-mining vegetation information will be collected and provided in the permit application. This information, along with soils, climate, and land use information, will assist the regulatory authority in assessing the appropriateness of proposed revegetation plans and in predicting the potential for reestablishing vegetation upon final reclamation.
The change to MCA 82-4-222(2)(m) pertains to the certification and notarization of maps that are submitted as part of a permitting application. Montana is removing the language that previously stipulated the wording of professional certifications, and now simply requires certification by a professional engineer or professional land surveyor licensed as provided by Title 37, Chapter 67 of the MCA. SMCRA section 507(b)(14) (30 U.S.C. 1257(b)(14)) requires maps to be certified by a professional engineer or a professional geologist with assistance from experts in related fields, such as land surveying and landscape architecture. There are no implementing Federal regulations that specify the language to be included in certifications of these professionals.
The change to MCA 82-4-222(8) pertains to the public availability of a permit application, significant revision, or permit renewal. Specifically, Montana is adding language to the existing statute to allow this information to be made available at any accessible public office or facility approved by the regulatory authority. Previously, the public review file was required to be held by the clerk and recorder at the courthouse of the county where a major portion of the mining is to occur. Montana's change adds flexibility to the provision, while ensuring permit applications are publicly available at appropriate locations approved by the Montana Department of Environmental Quality (DEQ). SMCRA section 507(e) (30 U.S.C. 1257(e)) affords similar flexibility, providing that the application be publicly available either through the recorder at the courthouse of the county or an appropriate public office approved by the regulatory authority where the mining is to occur.
Montana is amending MCA 82-4-226 to modify coal-prospecting procedures to allow for a new type of prospecting permit when the prospecting is conducted to determine the location, quantity, and quality of coal that is outside an area designated as unsuitable, does not remove more than 250 tons of coal, and does not substantially disturb the land surface. The effect of the modifications to Montana's coal prospecting statute causes the process to have three tiers of prospecting regulation, rather than the existing two tiers.
The first tier is submittal of a notice of intent (NOI) to gather baseline data, identify access routes, locate drill hole locations and other relevant information outside an area designated as unsuitable for coal mining. Coal removal is not authorized under an NOI in Montana. The new second tier is referred to as the short form prospecting permit, which would be used for prospecting outside of areas designated as unsuitable for mining and where prospecting is conducted to determine the location, quantity, or quality of coal, but would not be used to authorize removal of more than 250 tons. The third tier is Montana's existing prospecting permit process, which the State will continue to follow in instances when prospecting activities will substantially disturb the land surface, remove more than 250 tons of coal, or be conducted within an area designated as unsuitable for coal mining. The performance standards about coal prospecting are codified in ARM Title 17, Chapter 24, Subchapter 10, and many of these standards are also being revised under this rulemaking. All prospecting activities discussed here are to occur outside of a valid coal mining permit area. When prospecting activities occur within a valid mining permit, those activities are appropriately regulated under the mining permit and a separate NOI or prospecting permit is unnecessary.
Montana is modifying MCA 82-4-226(1) to clarify that the standard prospecting permit requirements identified therein do not apply to activities conducted under either an NOI or the new short form permit processes. These exclusions clarify the distinction between the requirements for prospecting activities that will involve more significant land disturbances and therefore require a standard long form permit process and the requirements for prospecting activities that involve less significant surface disturbances and will therefore require either a short form permit or NOI.
Changes to subsection 7(a) further clarify that coal prospecting, which is not conducted on lands designated as unsuitable for mining, is not conducted to determine the characteristics of a coal deposit, and does not remove more than 250 tons of coal, requires an NOI rather than a prospecting permit. Montana's NOI process allows access to lands to gather baseline data or for planning purposes where very little surface disturbance is anticipated. A prospector may then apply for either a short or long form prospecting permit to remove coal and characterize the coal seam. Language deleted from existing subsection (7)(a) removes the ability to conduct prospecting to determine the location, quality, or quantity of a mineral deposit under an NOI. This type of activity now requires a short form prospecting permit.
The new short form prospecting permit process is outlined in subsections 7(b) and (8). The short form permit process applies to coal prospecting that is conducted to determine the characteristics of a coal deposit, does not significantly disturb the land surface, does not remove more than 250 tons of coal, and is conducted in an area that is not designated as unsuitable for coal mining. The addition of this section causes Montana to go from a two-tiered process to a more comprehensive, three-tiered process related to coal prospecting, as discussed above. Montana's short form prospecting permit is applicable to activities that would be regulated under an NOI under the approved Montana program.
Drilling operations, associated disposal pits, and groundwater monitoring wells will not be considered “substantial surface disturbance” for the purpose of this part and may be regulated under the short form permit process. Comparison of this proposed statutory basis for a definition of “substantially disturb” to the Federal definition located in 30 CFR 701.5 does not yield any conflicts that would render the Montana revisions less effective than the Federal regulations. The Federal definition of “substantially disturb” at 30 CFR 701.5 does not explicitly include or mention disturbance caused by exploration drilling or water monitoring well installation. The Federal definition indicates that substantial disturbance involves removal of more than 250 tons of coal, the same criterion that would invoke a more involved permitting process under the Montana program. Montana's use of the term “associated disposal pits” refers to drilling mud pits that constitute a disturbance less than that of the drilling pad, generally about one quarter to one half of an acre.
New section MCA 82-4-226(8) specifies the requirements for the new short form permits, including application contents, DEQ review and decision timeframes and procedures, public notification and comment procedures, and the approval processes. Short form permits must include specific contact information, a narrative description of the proposed area or a map of the area showing drill hole locations, occupied dwellings, roads, topography, hydrologic features, and pipelines. The application must also include documentation of the legal right to prospect, a statement of the period of intended prospecting, and a description of methods for prospecting and for reclaiming disturbances.
Under new subsection (8)(b), the DEQ will notify the applicant whether the application is complete and preliminarily acceptable within 10 working days of receipt. New subsection (8)(c) provides the applicant five working days to respond to any identified deficiencies. New subsection (8)(d) provides that when DEQ notifies the applicant that the application is complete, it will also indicate the required bond amount. New subsection (8)(e) indicates that after receipt of the completeness determination, the applicant will publish an advertisement in a newspaper of general circulation in the locality of the proposed prospecting activity describing the application and identifying where the public may review its contents and how to submit comments. The public is allowed 10 days from the date of publication to submit comments. Under new subsection (8)(f), the DEQ will issue its decision to accept or reject the application within five days of the close of the public comment period if no comments were received and within 10 days if comments are received. DEQ may identify necessary changes to the bond amount at that time.
New subsection (8)(g) indicates that short form permits are subject to subsections (3) through (6). This clarifies the exemption in subsection (1), which otherwise might be interpreted as excluding both NOI and short form prospecting permits from all requirements of subsections (1) through (6). Subsections (3) through (6) include requirements, such as performance bonds, a one-year renewable permit term, filing of progress reports, and other required, relevant information, which exceed the requirements for this type of exploration under Federal statute and regulation and the Montana program.
MCA 82-4-226(8) sets out substantively more requirements for the short form permitting process than the Federal counterpart provisions, which regulate this type of exploration activity under an NOI. Montana's short form prospecting requirements are no less stringent than SMCRA and no less effective than the implementing regulations. Specifically, OSMRE finds that the changes to MCA section 82-4-226 are no less stringent than SMCRA section 512 (30 U.S.C. 1262) and no less effective than the Federal regulations governing coal exploration at 30 CFR part 772.
Montana is amending its statute to make clear that coal mine operators are liable for replacing water supplies that have been diminished, interrupted, or contaminated by mining, regardless of whether surface or underground mining methods are employed. Although MCA 82-4-253 clearly applies to surface and underground mining operations, previous wording at subsection (3)(d) appeared to apply only to surface mines. This change clarifies the scope of the existing statute, which is consistent with and no less stringent than SMCRA and no less effective than the Federal regulations.
Montana passed Senate Bill 286 to allow for a new type of coal prospecting permit, which caused Montana to have three tiers of prospecting processes depending on the specific conditions of the operation. ARM section 17.24.1001 formerly pertained to the only level of prospecting permit requirements in Montana, and is now being amended to acknowledge the addition of the short form permit process. Prospecting conducted under an NOI is not considered a permit and is not subject to ARM 17.24.1001.
Montana's change at ARM 17.24.1001(1)(b) adds language indicating that prospecting permit requirements apply where activities will be conducted to determine the location, quality, or quantity of the mineral using drilling methods. Drilling operations conducted to characterize the coal seam that remove less than 250 tons of coal and occur outside an area designated as unsuitable for mining would be subject to the short form permit requirements. This revision acknowledges that the short form is still a permit under Montana's program and that if drilling operations remove more than 250 tons of coal they would be regulated under the standard permit process. There are no Federal provisions that describe standards for prospecting or exploration operations analogous to Montana's program. SMCRA and the regulations promulgated thereunder regulate exploration operations that remove less than 250 tons of coal from lands outside those areas designated as unsuitable for mining under NOI requirements. These types of operations carry a lesser regulatory burden in terms of reporting, mapping, and bonding. Furthermore, exploration operations that remove more than 250 tons of coal or occur within lands designated unsuitable for mining under an exploration permit analogous to Montana's existing long form prospecting permit are regulated pursuant to SMCRA and the regulations promulgated thereunder. The Montana program applies prospecting permit
The modification at ARM 17.24.1001(2) adds an exception to the listed permit requirements for drilling operations, which are subject to the short form permit requirements under MCA 82-4-226(8). This change clarifies the distinction between the standard prospecting permit and the new short form prospecting permit under MCA 82-4-226(8).
Montana's change at ARM 17.24.1001(2)(h)(iii)(F) is an editorial correction that fixes a reference to fish and wildlife habitat and species information that must be provided in maps.
The modification to ARM 17.24.1001(2)(q) corrects a reference to public notification requirements that must be satisfied upon submittal of a coal prospecting permit. This regulation now correctly refers the reader to ARM 17.24.303(1)(x), which concerns the filing of a newspaper advertisement and proof of publication.
Montana's existing ARM 17.24.1001(7) concerns the transfer of coal prospecting activities to a mining permit when such activities become part of a mining operation. Montana correctly incorporates reference to ARM 17.24.1019, which is the new short form permitting process, and also corrects a previously inaccurate cross-reference to ARM 17.24.308(1)(b) for mine permit operations plans.
Montana is incorporating a short form permitting process for coal prospecting operations that are outside an area designated unsuitable for mining, do not remove more than 250 tons of coal, and do not substantially disturb the natural land surface. Montana's short form prospecting permit covers the types of activities that the Federal statute and regulations would capture under an NOI. Specifically, the Federal regulations at 30 CFR 772.11 dictate that the analogous requirements apply outside of a mining permit area. Although Montana's provision does not indicate that it applies only outside of a mining permit area, exploration activities within a valid mining permit would be regulated under the mining permit. The Montana DEQ does not intend to require a short form exploration permit within mining permit areas.
The content requirements for short form permits are primarily codified under Montana's statute at MCA 82-4-226(8). New regulation language at ARM 17.24.1019 reiterates the types of activities are regulated under the short form, stipulates that the short form must be filed with the DEQ on a provided form, and that the application must be reviewed and approved prior to the initiation of operations.
Montana will apply all parts of ARM 17.24 subchapter 10, except ARM 17.24.1001(1), (2), and (4) through (6), 17.24.1006(2), and (3)(b) and (c), 17.24.1007, 17.24.1009, 17.24.1014, and 17.24.1018, to short form prospecting permits. These are the standard long form permitting and NOI requirements, which appropriately do not apply to short form prospecting operations.
All the Montana proposed statute and regulation changes listed above contain language that is no less stringent than and no less effective than SMCRA and the corresponding Federal regulations. Furthermore, Montana's changes are not inconsistent with SMCRA and other provisions of the Federal regulations. Consequently, we are approving the amendments.
Montana's proposed revisions to the following rules contain language that has no Federal counterpart, but also is no less stringent than SMCRA and is no less effective than the Federal regulations. We are therefore approving these changes.
Montana is changing ARM 17.24.1018,
Changes to ARM 17.24.1018(2) clarify that the existing regulation pertains only to NOIs and that NOIs must meet the requirements of ARM 17.24.1018(3) and (4). The change to ARM 17.24.1018(4) replaces “permit” with “notice of intent” because this section now only applies to NOIs. Changes to ARM 17.24.1018(5) delete the reference to prospecting permit requirements at ARM 17.24.1001(2)(a) through (i), and (2)(l) through (n) and replace these references with NOI requirements for maps specifying base layers, topography, hydrologic features, surface ownership, roads and access routes, locations of proposed monitoring facilities, and locations of pipelines and occupied dwellings. The Federal program does not delineate a tier of exploration, which involves only planning and monitoring activities without authority to construct roads or remove coal to characterize the seam. It is therefore not possible to compare the two programs in this regard. However, Montana's new language is similar to the mapping requirements for Federal NOIs under 30 CFR 772.11(b)(3) with the exception that drill holes and trenches and proposed roads would not be authorized under an NOI in Montana and as such are not included within the NOI map requirements.
Changes to ARM 17.24.1018(6) specify that the requirements of that part pertain only to the extent that the requirements are applicable to the proposed prospecting operation. Coal removal is not authorized under an NOI in Montana; therefore, surface disturbances would include only activities such as access road development or installation of monitoring equipment. The existing provision includes multiple cross references, which apply to operations involving coal removal or activities on protected lands. Because such activities would not be authorized under an NOI, Montana's revisions clarify that only the referenced provisions which are applicable to the proposed prospecting operation would be applied.
Changes to ARM 17.24.1018(7) are editorial in nature and clarify that when an applicant submits an NOI, the DEQ has 30 days to review and notify the person whether the NOI meets all applicable requirements.
Changes to ARM 17.24.1018(8) clarify that the requirement to have a copy of the NOI on-site pertains to all NOIs rather than only those that substantially disturb the land surface.
Changes to ARM 17.24.1018(9) update the list of prospecting permit requirements that do not apply to activities conducted under an NOI. These changes are appropriate due to the distinction between the types of activities authorized under NOIs and
Because there are no Federal counterpart regulations to this portion of Montana's rules and because the use of the NOI process before issuing a prospecting permit is not inconsistent with provisions of the Federal program, OSMRE finds Montana's proposed changes to ARM 17.24.1018 to be no less effective than the Federal program.
We asked for public comments on the amendment (Administrative Record Document ID No. OSM-2013-0009-0001), but did not receive any.
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Montana program. On August 28, 2013, we requested comments on Montana's amendment (Administrative Record Document ID No. OSM-2013-0009-0007).
We received one response letter dated October 25, 2013, from the Mine Safety and Health Administration (MSHA) stating that they had no comment (Administrative Record Document ID No. OSM-2013-0009-0008).
We also received an email from the National Park Service (NPS) on October 23, 2013, stating that they had no comment on the amendment (Administrative Record Document ID No. OSM-2013-0009-0009).
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On August 28, 2013, we requested comments on Montana's amendment from the SHPO and the ACHP (Administrative Record Document ID No. OSM-2013-0009-0007), but neither responded to our request.
Based on the above findings, we approve Montana's August 20, 2013, amendment. To implement this decision, we are amending the Federal regulations at 30 CFR part 926, which codify decisions concerning the Montana program. In accordance with the Administrative Procedure Act (5 U.S.C. 500
This rule would not effect a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.
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, 1992, the approval of state program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
State program amendments are not regulatory actions under Executive Order 13771 because they are exempt from review under Executive Order 12866.
The Department of the Interior has reviewed this rule as required by Section 3 of Executive Order 12988. The Department determined that this
This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132 because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Montana program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind, as set forth in Sections 2 and 3 of the Executive Order and with the principles of cooperative federalism, as set forth in SMCRA.
The Department of the Interior strives to strengthen its government-to-government relationship with Tribes though a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal
Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not a significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.
This rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action does not address environmental health or safety risks disproportionately affecting children.
Consistent with Sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the Department of the Interior Departmental Manual, part 516, Section 13.5(A), State program amendments are not major Federal actions within the meaning of Section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
Section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 3701
This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to OMB under the Paperwork Reduction Act (44 U.S.C. 3501
This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.
This rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local or Tribal governments or the private sector. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
Intergovernmental relations, surface mining, underground mining.
For the reasons set out in the preamble, 30 CFR part 926 is amended as set forth below:
30 U.S.C. 1201
Office of Surface Mining Reclamation and Enforcement, Interior.
Final rule; approval of amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving an amendment to the Virginia regulatory program (the Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment revises the Virginia Coal Surface Mining Reclamation Regulations (the State regulations). The changes involve adding a provision to Virginia Administrative Code (VAC) to require Virginia to enter permit information into the Federal Applicant Violator System (AVS) and add a provision to the Virginia program to specify that the final compliance review conducted prior to permit issuance must occur no more than five business days before issuance.
The effective date is November 22, 2019.
Mr. Roger Calhoun, Field Office Director, Charleston Field Office. Telephone: (304) 347-7158. Email:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the requirements of this Act and consistent with the Federal regulations.
By letter dated April 29, 2016 (Administrative Record No. VA 2033) Virginia sent an amendment to its program under SMCRA (30 U.S.C. 1201
We announced receipt of the proposed amendment in the March 31, 2017,
Virginia submitted this program amendment to ensure consistency of Virginia and Federal regulations with respect to the AVS. The submission included changes to Title 4 of the VAC that includes the entry of permit information into the AVS upon receipt and review of an administratively complete application and to conduct a final compliance review prior to permit issuance no more than five business days before permit issuance. (Administrative Record No. VA 2033).
We are approving the amendment. Our specific findings concerning Virginia's amendment under SMCRA and the Federal regulations at 30 CFR 773.8 and 773.12 and the substantive changes to Virginia's Review of Permit Applications are described below.
Additionally, in relationship to
The amendment to subsection (a)(3) of 4 VAC-25-130-773.15 adds the requirement that all permit information that must be reviewed by the regulatory authority must also be entered into the AVS. The addition of this requirement renders the Virginia program no less effective than its Federal counterpart at
The addition of the requirement that the final compliance review take place no more than five business days before permit issuance renders subsection (e) of 4 VAC-25-130-773.15 no less effective than its Federal counterpart at 30 CFR 773.12(c). The amendment to subsection (e) is therefore approved.
We asked for public comments on the amendment and did not receive any.
On May 9, 2016, pursuant to 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the Virginia program (Administrative Record No. 2034). No Federal agency comments were received.
Under 30 CFR 732.17(h)(11)(ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251
Based on the above findings, we are approving Virginia's amendment that was submitted on April 29, 2016 (Administrative Record No. VA 2033). To implement this decision, we are amending the Federal regulations, at 30 CFR part 946, which codify decisions concerning the Virginia program. In accordance with the Administrative Procedure Act (5 U.S.C. 500
This rule would not effect a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on the analysis of the corresponding Federal regulations.
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 program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
State program amendments are not regulatory actions under Executive Order 13771 because they are exempt from review under Executive Order 12866.
The Department of the Interior has reviewed this rule as required by Section 3(a) of Executive Order 12988. The Department has determined that this
This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132 because it does not have “substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Virginia program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in Section 2 and 3 of the Executive Order and with the principles of cooperative federalism, as set forth in SMCRA.
The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognitions of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Tribes or on the distribution of power and responsibilities between the Federal government and Tribes. Therefore, consultation under the Department's tribal consultation policy is not required. The basis for this determination is that our decision is on the Virginia program, which does not include Tribal lands or regulation of activities on Tribal lands. Tribal lands are regulated independently under the applicable, approved Federal program.
Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the
This rule is not subject to Executive Order 13405 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action does not address environmental health or safety risks disproportionately affecting children.
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d) respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5 (A), state program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act. (42 U.S.C. 4332(2)(C)).
Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 3701
This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to OMB under the Paperwork Reduction Act (44 U.S.C. 3507
This rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.
This rule will not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
Intergovernmental relations, Surface mining, Underground mining.
For the reasons set out in the preamble, 30 CFR part 946 is amended as set forth below:
30 U.S.C. 1201
Coast Guard, DHS.
Final rule.
The Coast Guard is changing the operating schedule that governs the Northwestern Pacific (SMART) railroad bridge across the Petaluma River, mile 12.4, at Haystack Landing (Petaluma), CA. The change is necessary to help coordinate vessel passage with commuter rail traffic. The schedule change would require vessels to provide a 30-minute advance notification for drawspan openings.
This rule is effective November 22, 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 Carl T. Hausner, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516; email
On March 27, 2019, the Coast Guard published a notice of proposed rule making (NPRM) entitled “Drawbridge Operation Regulation; Petaluma River, Haystack Landing (Petaluma), CA” in the
On March 2, 2018, the Coast Guard published a temporary deviation from the operating schedule entitled “Drawbridge Operation Regulation; Petaluma River, Haystack Landing (Petaluma), CA” in the
The draw shall open on signal from 6 a.m. to 11 p.m. if at least 2-hours notice is given to the drawtender. At all other times, the draw shall be maintained in the fully opened position, except for the passage of trains or maintenance.
Five comments were received in response to the first test deviation. Four of the five comments submitted addressed the 2-hour advance notificiation. The commenters stated that the lengthly advance notification would be a burden on waterway users.
On August 13, 2018, the Coast Guard published a second temporary deviation from the operating schedule entitled “Drawbridge Operation Regulation; Petaluma River, Haystack Landing (Petaluma), CA” in the
The draw shall open on signal from 6 a.m. to 11 p.m. if at least 30 minutes notice is given to the drawtender. At all other times, the draw shall be maintained in the fully opened position, except for the passage of trains or maintenance.
Two comments were received in response to the second test deviation. The first comment was directed at future navigation on the Petaluma River and did not address the efficiency of the 30-minute notice and the second comment was unrelated to the test deviation.
The Coast Guard is issuing this rule under authority 33 U.S.C. 499. The Northwestern Pacific (SMART) railroad bridge across the Petaluma River, mile 12.4, at Haystack Landing (Petaluma), CA is a single leaf bascule bridge which provides 3.6 feet of vertical navigational clearance at Mean High Water in the closed-to-navigation position and unlimited vertical clearance in the fully opened position. IAW 33 CFR 117.187(a); The draw of the Northwestern Pacific (SMART) railroad bridge, mile 12.4, at Haystack Landing (Petaluma), shall be maintained in the fully open position, except for the crossing of trains or for maintenance. When the draw is closed and visibility is from the drawtender's station is less than one mile up or down the channel, the drawtender shall sound two long blasts every minute. When the draw is reopened, the drawthender shall sound three short blasts.
On October 22, 2015, SMART requested the Coast Guard consider changing the operating schedule due to the commencement of commuter rail service on a previously rarely used rail line. Due to an increase in communter rail traffic, SMART requested the drawspan remain in the closed-to-navigation position during commute hours to avoid unnecessary bridge openings and that vessels provide an advance notification to the bridge tender for an opening during these hours. Two test deviations were conducted to determine if the proposed operation regulation change would meet the reasonable needs of navigation while benefiting land traffic. It was determined that a 30-minute advance notification would meet the reasonable needs of navigation while benefiting commuter rail traffic. The Petaluma River supports commercial and recreational traffic. Currently 32 commuter trains cross the bridge each day. Commercial waterway traffic on the river has decreased in the last year due to an upstream tug and barge company moving their base of operation down river, east of the bridge.
The preceding NPRM the Coast Guard issued provided a comment period of 90 days and no comments were received. The Final Rule would require the bridge to open on signal for vessels from 3 a.m. to 11 p.m. when a 30-minute notification is given to the drawtender. At all other times the bridge would be maintained in the open-to-navigation postion except for the crossing of trains or for maintenance. This Final Rule would meet the reasonable needs of navigation while benefiting commuter rail transportation and would reduce wear and tear on the drawspan. In a related matter, SMART also owns the
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protesters.
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, it 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 ability that vessels can still transit the bridge given advanced notice.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the bridge 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 calls 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 rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The Coast Guard received no comments on this this section. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. The Coast Guard received no comments on this section.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, U.S. Coast Guard Environmental Planning Policy COMDTINST 5090.1 (series) and U.S. Coast Guard Environmental Planning Implementation Procedures (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). We 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 promulgates the operating regulations or procedures for drawbridges. 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.
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(a) The draw of the SMART Blackpoint railroad bridge, mile 0.8 at Blackpoint, shall be maintained in the fully open position, except for the crossing of trains or for maintenance. When the draw is closed and visibility from the drawtender's station is less than one mile up or down the channel, the drawtender shall sound two long blasts every minute. When the draw is reopened, the drawtender shall sound three short blasts.
(b) The draw of the SMART Haystack Landing railroad bridge, mile 12.4 at Petaluma, shall open on signal from 3 a.m. to 11 p.m. if at least 30 minutes notice is given to the drawtender. At all other times, the draw shall be maintained in the fully open position, except for the crossing of trains or for maintenance. When the draw is closed and visibility from the drawtender's station is less than one mile up or down the channel, the drawtender shall sound two long blasts every minute. When the draw is reopened, the drawtender shall sound three short blasts.
(c) The draw of the Petaluma highway bridge at “D” Street, mile 13.7, at Petaluma, shall open on signal if at least four hours notice is given for openings from 6 a.m. to 6 p.m., and if at least 24 hours notice is given for openings from 6 p.m. to 6 a.m.
Coast Guard, DHS.
Notice of temporary deviation from drawbridge regulation; modification.
The Coast Guard has modified a temporary deviation from the operating schedule that governs the Florida East Coast Railway (FECR) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, Florida. This modified deviation extends the period the bridge may operate under the test deviation to the drawbridge operation schedule. This modification will allow for ongoing negotiations between the railroad and maritime stakeholders as the parties discuss a final rule that reasonably meets the needs of both modes of transportation.
This deviation is effective without actual notice from October 23, 2019 through 11:59 p.m. on December 31, 2019. For the purposes of enforcement, actual notice will be used from 12:01 a.m. on October 19, 2019, through October 23, 2019.
The docket for this deviation, USCG-2019-0714, is available at
If you have questions on this modified test deviation, call or email LT Samuel Rodriguez-Gonzalez, U.S. Coast Guard, Sector Miami Waterways Management Division; telephone 305-535-4307, email
The Florida East Coast Railway (FECR) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, Florida is a single-leaf bascule railroad bridge with a 4 foot vertical clearance at mean high water in the closed position. The normal operating schedule for the bridge is found in 33 CFR 117.313(c). Navigation on the waterway is commercial and recreational.
On August 21, 2019, the Coast Guard published a temporary test deviation entitled “Drawbridge Operation Regulation; New River, Fort Lauderdale, FL” in the
This extension of time is necessary to accommodate ongoing negotiations between interested parties to discuss a Final Rule that reasonably meets the needs of both the railroad and maritime industries.
The draw shall operate as follows from 12:01 a.m. on October 19, 2019, to 11:59 p.m. on December 31, 2019:
(1) The bridge shall be constantly tended.
(2) The bridge tender will utilize a VHF-FM radio to communicate on channels 9 and 16 and may be contacted by telephone at 305-889-5572.
(3) Signs will be posted displaying VHF radio contact information and telephone numbers for the bridge tender and dispatch. A countdown clock giving notice of time remaining before bridge closure shall remain at the bridge site and must be visible for maritime traffic.
(4) A bridge log will be maintained including, at a minimum, bridge opening and closing times.
(5) When the draw is in the fully open position, green lights will be displayed to indicate that vessels may pass.
(6) When a train approaches, the lights go to flashing red then the draw lowers and locks.
(7) After the train has cleared the bridge, the draw opens and the lights return to green.
(8) The bridge shall not be closed more than 60 minutes combined in each consecutive 120-minute block of time beginning at 12:01 a.m. each day. At no time will the bridge be closed to navigation for more than 60 consecutive minutes of time.
(9) The bridge shall remain open to maritime traffic when trains are not crossing.
Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters on the Kanawha River from mile marker (MM) 60.8 to MM 61.3. The safety zone is needed to protect personnel, vessels, and the marine environment from hazards created by repair work on several large power lines crossing the river. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Sector Ohio Valley or a designated representative.
This rule is effective without actual notice from October 23, 2019 until through November 23, 2019. For the purposes of enforcement, actual notice will be used from October 19, 2019 until October 23, 2019. This rule will be enforced from 9 a.m. through 3 p.m. on Mondays through Saturdays, and from 7 a.m. through 11 p.m. on Sundays from October 19, 2019 through November 23, 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 MST3 Wesley Cornelius, MSU Huntington, U.S. Coast Guard; 304-733-0198,
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish the safety zone by October 19, 2019 and lack sufficient time to request public comments and respond to those comments before the zone must be established.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with the power line crossing on October 19 through November 23, 2019, will be a safety concern for anyone on the Kanawha River from mile marker (MM) 60.8 to MM 61.3. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the power line are being replaced.
This rule establishes a safety zone from 9 a.m. through 3 p.m. on Mondays through Saturdays, and from 7 a.m. through 11 p.m. on Sundays from October 19, 2019 through November 23, 2019. The safety zone covers all navigable waters from MM 60.8 to MM 61.3 on the Kanawha River. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters for the duration of the power line crossing is being repaired. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Persons and vessels permitted to enter the safety zone must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size and location of the safety zone. This rule involves a safety zone lasting for less than a month and covering the limited area of less than two miles. In addition, vessel traffic will be able to reach out to the safety boat on scene to coordinate safe passage through the safety zone which will impact one-half mile stretch of the Kanawha River. The Coast Guard will publish a Local Notice to Mariners (LNMs), and issue a Broadcast Notice to Mariners (BNMs) via VHF-FM marine channel 16 about the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting from October 19, 2019 through November 23, 2019 that will limit access of the Kanawha River from MM 60.8 to MM 61.3. It is categorically excluded from further review under paragraph L60(d) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (waters), Reporting and recordkeeping requirements, security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(2) Persons and vessels permitted to enter the safety zone must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.
(c)
(d)
(e)
Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
The effective date of each community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Adrienne L. Sheldon, PE, CFM, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW, Washington, DC 20472, (202) 212-3966.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.
Flood insurance, Floodplains.
Accordingly, 44 CFR part 64 is amended as follows:
42 U.S.C. 4001
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by vessels using pot gear in the Western Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2019 Pacific cod total allowable catch apportioned to vessels using pot gear in the Western Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), October 20, 2019, through 2400 hours, A.l.t., December 31, 2019.
Obren Davis, 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 vessels using pot gear in the Western Regulatory Area of the GOA is 1,980 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 vessels using pot gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,970 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 vessels using pot gear in the Western Regulatory Area of the GOA. While this closure is effective the maximum
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 vessels using pot gear in the Western 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 17, 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).
The FAA proposes to supersede airworthiness directive (AD) 2018-07-16 which applies to all Austro Engine GmbH model E4 and E4P diesel piston engines. AD 2018-07-16 requires initial and repetitive replacement of the waste gate controller and the control rod circlip. Since the FAA issued AD 2018-07-16, Austro Engine GmbH developed a modification of the waste gate control-rod fail-safe bridge and spring-loaded circlip that terminates the need for repetitive replacement of the waste gate controller and the control rod circlip. This proposed AD would retain the requirements of AD 2018-07-16 and requires engine modification by installing a waste gate control-rod fail-safe bridge and new spring-loaded circlip that terminates the initial and repetitive replacement requirements of AD 2018-07-16. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by December 9, 2019.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A-2700 Weiner Neustadt, Austria; phone: +43 2622 23000; fax: +43 2622 23000-2711; internet:
You may examine the AD docket on the internet at
Barbara Caufield, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7146; fax: 781-238-7199; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
The FAA will post all comments received, without change, to
The FAA issued AD 2018-07-16, Amendment 39-19247 (83 FR 15733, April 12, 2018), (“AD 2018-07-16”), for all Austro Engine GmbH model E4 and E4P diesel piston engines. AD 2018-07-16 requires initial and repetive replacement of the waste gate controller and the control rod circlip. AD 2018-07-16 resulted from reports of broken or disconnected turbocharger waste gate control rods on some engines. The FAA issued AD 2018-07-16 to prevent failure of the turbocharger waste gate control rod.
Since the FAA issued AD 2018-07-16, Austro Engine GmbH developed a modification of the waste gate control-rod by adding a fail-safe bridge and spring-loaded circlip. Also since the FAA issued AD 2018-07-16, the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD 2018-0125, dated June 6, 2018, (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:
Occurrences were reported where, on some engines, turbocharger waste gate control rods were found broken and/or disconnected. Investigation results indicate that these failures were due to insufficient fatigue life or improper handling of the waste gate control rod and improper installation of the non-spring-loaded circlip.
These conditions, if not corrected, could lead to improper operation of the waste gate with consequent engine power loss, possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, Austro Engine designed a new spring loaded circlip and published MSB-E4-022 (later revised), introducing a life limit for the affected waste gate controllers and circlips. Consequently, EASA issued AD 2017-0250, requiring implementation of those life limits, and prohibiting reinstallation of non-spring-loaded circlips.
Since that AD was issued, Austro Engine developed a modification, which allows replacing the waste gate controller and the circlip on condition, and issued the MSB accordingly.
For the reason stated above, this AD retains the requirements of EASA AD 2017-0250, which is superseded, and requires an engine modification by installing a waste-gate control-rod fail-safe bridge and a new circlip, which cancels the life limitations.
You may obtain further information by examining the MCAI in the AD docket on the internet at
The FAA reviewed Austro Engine Mandatory Service Bulletin (MSB) No. MSB-E4-022, Rev. No. 3, April 16, 2018. The MSB describes procedures for initial and repetitive replacement of the waste gate controller and the control rod circlip. The MSB also describes procedures for the installation of the waste gate control-rod fail-safe bridge and new spring-loaded circlip as terminating action for the initial and repetitive replacement procedures of the MSB. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA is proposing this AD because it evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all the requirements of AD 2018-07-16. This proposed AD would also require engine modification by installing the waste gate control rod fail-safe bridge and new spring-loaded circlip as terminating action for the initial and repetitive replacement requirements of this proposed AD.
The FAA estimates that this proposed AD affects 211 engines installed on airplanes of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by December 9, 2019.
This AD replaces AD 2018-07-16, Amendment 39-19247 (83 FR 15733, April 12, 2018).
This AD applies to all Austro Engine GmbH model E4 and E4P diesel piston engines.
Joint Aircraft System Component (JASC) Code 8560, Reciprocating Engine Supercharger.
This AD was prompted by reports of broken or disconnected turbocharger waste gate control rods on some engines. The FAA
Comply with this AD within the compliance times specified, unless already done.
(1) Within the compliance times identified in Table 1 to paragraph (g)(1) of this AD, and thereafter at intervals not to exceed 250 flight hours (FHs), replace the waste gate controller and control rod circlip in accordance with the Accomplishment/Instructions, Paragraph 2.1, Initial Action or Repetitive Action, of Austro Engine Mandatory Service Bulletin (MSB) No. MSB-E4-022, Rev. No. 3, dated April 16, 2018.
(2) Within 200 FH or six months, whichever occurs first after the effective date of this AD, modify the engine by installing a waste gate control rod fail-safe bridge and a new spring-loaded circlip in accordance with the Accomplishment/Instructions, Paragraph 2.1, Terminating Action, of Austro Engine GmbH MSB No. MSB-E4-022, Rev. No. 3, dated April 16, 2018.
Modification of an engine by installing a waste gate control rod fail-safe bridge and a new spring-loaded circlip, in accordance with the Accomplishment/Instructions, Paragraph 2.1, Terminating Action, of Austro Engine MSB No. MSB-E4-022, Rev. No. 3, dated April 16, 2018, is terminating action for the initial and repetitive replacement requirements of paragraph (g)(1) of this AD for that engine.
For the purpose of this AD, a Group 1 engine is an Austro Engine GmbH model E4-A engine, or an Austro Engine GmbH model E4-B or E4-C engine installed on a DA 42 M-NG airplane with external containers. A Group 2 engine is any other Austro Engine GmbH model E4 and E4P engine.
You may take credit for initial and repetitive replacements of the waste gate controller and control rod circlip required by paragraph (g)(1) of this AD if you performed this action before the effective date of this AD using Austro Engine MSB No. MSB-E4-022, Rev. No. 2, dated November 27, 2017, or earlier versions.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l)(1) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Barbara Caufield, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7146; fax: 781-238-7199; email:
(2) Refer to European Union Aviation Safety Agency (EASA) AD 2018-0125, dated June 6, 2018, for more information. You may examine the EASA AD in the AD docket on the internet at
(3) For service information identified in this AD, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A-2700 Weiner Neustadt, Austria; phone: +43 2622 23000; fax: +43 2622 23000-2711; internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2019-12-05, which applies to certain CFM International S.A. (CFM) CFM56-5B, CFM56-5C, and CFM56-7B model turbofan engines with a certain rotating air high-pressure turbine (HPT) front seal. AD 2019-12-05 requires replacement of the affected rotating air HPT front seal with a part eligible for
The FAA must receive comments on this proposed AD by December 9, 2019.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH, 45125; phone: 877-432-3272; fax: 877-432-3329; email:
You may examine the AD docket on the internet at
Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
The FAA will post all comments received, without change, to
The FAA issued AD 2019-12-05, Amendment 39-19660 (84 FR 28717, June 20, 2019), (“AD 2019-12-05”), for all CFM CFM56-5B, CFM56-5C, and CFM56-7B model turbofan engines with a certain rotating air HPT front seal. AD 2019-12-05 requires replacement of the affected rotating air HPT front seal with a part eligible for installation. AD 2019-12-05 resulted from cracks found in the rotating air HPT front seal. The FAA issued AD 2019-12-05 to prevent failure of the rotating air HPT front seal.
The actions required by AD 2019-12-05 are interim and only address the highest risk engines with an affected rotating air HPT front seal that have a specified number of cycles since being reconfigured. The FAA now proposes to supersede AD 2019-12-05 to require removal and replacement of the rotating air HPT front seals installed on all CFM CFM56-5B, CFM56-5C, and CFM56-7B model turbofan engines, including engines that have fewer cycles since being reconfigured.
The FAA reviewed CFM Service Bulletin (SB) CFM56-5B S/B 72-1074, Revision 01, dated December 5, 2018; CFM SB CFM56-5C S/B 72-0794, Revision 01, dated January 2, 2019; and CFM SB CFM56-7B S/B 72-1042, Revision 01, dated January 2, 2019. CFM SB CFM56-5B S/B 72-1074, Revision 01, describes procedures for replacement of the affected rotating air HPT front seal on CFM CFM56-5B model turbofan engines. CFM SB CFM56-5C S/B 72-0794, Revision 01, describes procedures for replacement of the affected rotating air HPT front seal on CFM CFM56-5C model turbofan engines. CFM SB CFM56-7B S/B 72-1042, Revision 01, describes procedures for replacement of the affected rotating air HPT front seal on CFM CFM56-7B model turbofan engines.
The FAA is proposing this AD because it evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain all requirements of AD 2019-12-05. This proposed AD would add CFM CFM56-5B, CFM56-5C, and CFM56-7B model turbofan engines to the applicability.
The FAA estimates that this proposed AD affects four engines installed on airplanes of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Will not affect intrastate aviation in Alaska, and
(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this AD action by December 9, 2019.
This AD replaces AD 2019-12-05, Amendment 39-19660 (84 FR 28717, June 20, 2019).
This AD applies to:
(1) CFM International S.A. (CFM) CFM56-5B1, -5B2, -5B4, -5B5, -5B6, -5B7, -5B1/P, -5B2/P, -5B3/P, -5B4/P, -5B5/P, -5B6/P, -5B7/P, -5B8/P, -5B9/P, -5B3/P1, -5B4/P1, -5B1/2P, -5B2/2P, -5B3/2P, -5B4/2P, -5B6/2P, -5B9/2P, -5B3/2P1, -5B4/2P1, -7B20, -7B22, -7B24, -7B26, -7B27, -7B22/B1, -7B24/B1, -7B26/B1, -7B26/B2, -7B27/B1, -7B27/B3, -7B20/2, -7B22/2, -7B24/2, -7B26/2, -7B27/2, -7B27A model turbofan engines with a:
(i) Rotating air high-pressure turbine (HPT) front seal:
(A) With part number (P/N) 1795M36P01 or P/N 1795M36P02 and serial numbers (S/Ns) GWNDN949 through GWNSE969 or S/Ns GWN000CE through GWN0990L, not including S/Ns GWN08ND7, GWN0923A, GWN0971E, GWN098A1, GWN098W6, GWN098W8, GWN098WA, and GWN0990G, installed;
(B) that has been removed from the original HPT disk and re-assembled to a different HPT disk.
(ii) [Reserved]
(2) CFM CFM56-5C2, -5C2/4, -5C2/F, -5C2/F4, -5C2/G, -5C2/G4, -5C2/P, -5C3/F, -5C3/F4, -5C3/G, -5C3/G4, -5C3/P, -5C4, -5C4/1, -5C4/P, -5C4/1P model turbofan engines with a:
(i) Rotating air HPT front seal:
(A) With P/N 1795M36P01 or P/N 1795M36P02 and S/Ns GWNDN949 through GWNSE969 or S/Ns GWN000CE through GWN0990L, not including S/Ns GWN08ND7, GWN0923A, GWN0971E, GWN098A1, GWN098W6, GWN098W8, GWN098WA, and GWN0990G, installed;
(B) that has been removed from the original HPT disk and re-assembled to a different HPT disk.
(ii) [Reserved]
Joint Aircraft System Component (JASC) Code 7250, Turbine Section.
This AD was prompted by cracks found in the rotating air HPT front seal. The FAA is issuing this AD to prevent failure of the rotating air HPT front seal. The unsafe condition, if not addressed, could result in the uncontained release of the rotating air HPT front seal, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For all affected CFM CFM56-5B and CFM56-7B model turbofan engines:
(i) If, on July 5, 2019 (the effective date of AD 2019-12-05), the rotating air HPT front seal has 7,000 cycles or greater since being reconfigured, remove the part from service within 50 cycles after July 5, 2019 (the effective date of AD 2019-12-05), or before further flight, whichever occurs later, and replace with a part eligible for installation.
(ii) If, on July 5, 2019 (the effective date of 2019-12-05), the rotating air HPT front seal has between 6,001 and 6,999 cycles, inclusive, since being reconfigured, remove the part from service within 500 cycles after July 5, 2019 (the effective date of AD 2019-12-05), but not to exceed 7,050 cycles since being reconfigured, or before further flight, whichever occurs later, and replace with a part eligible for installation.
(iii) For all remaining CFM56-5B and CFM56-7B model turbofan engines, remove the rotating air HPT front seal from service before accumulating 6,500 cycles since being reconfigured, or within 50 cycles after the effective date of this AD, whichever occurs later.
(2) For all affected CFM CFM56-5C model turbofan engines:
(i) If, on July 5, 2019 (the effective date of AD 2019-12-05), the rotating air HPT front seal has 4,250 cycles or greater since being reconfigured, remove the part from service within 25 cycles after July 5, 2019 (the effective date of AD 2019-12-05), within 1,500 cycles since the last fluorescent penetrant inspection (FPI) of the rotating air HPT front seal, or before further flight after the effective date of this AD, whichever occurs later, and replace with a part eligible for installation.
(ii) If, on July 5, 2019 (the effective date of AD 2019-12-05), the rotating air HPT front seal has between 3,751 and 4,249 cycles, inclusive, since being reconfigured, remove the part from service within 250 cycles after July 5, 2019 (the effective date of AD 2019-12-05), before accumulating 4,275 cycles since being reconfigured, within 1,500 cycles since the last FPI of the rotating air HPT front seal, or before further flight after the effective date of this AD, whichever occurs later, and replace with a part eligible for installation.
(iii) For all remaining CFM CFM56-5C model turbofan engines, remove the rotating
For the purpose of this AD, “reconfigured” occurs when a rotating air HPT front seal has been removed from the original HPT disk and re-assembled to a different HPT disk.
After the effective date of this AD, do not assemble any rotating air HPT front seal with greater than 0 cycles since new onto a HPT disk unless it is the same S/N HPT disk on which it has previously been assembled.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k)(1) of this AD. You may email your request to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email:
(2) For service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email:
Drug Enforcement Administration, Department of Justice.
Notice of proposed rulemaking.
The Drug Enforcement Administration (DEA) proposes to revise existing regulations that manage the quotas for controlled substances and the list I chemicals, ephedrine, pseudoephedrine, and phenylpropanolamine, held by DEA-registered manufacturers. This rule is being proposed to: Define the types of quotas, update the method to abandon quota, clarify the current language to ensure that both manufacturers and distributors are required to obtain certification of a buyer's quota, reduce overall inventories, formalize the existing practice of use-specific subcategories for individual manufacturing and procurement quotas, and modify existing deadlines to fix/issue quotas. The DEA is also amending certain regulations to implement updates to the Controlled Substances Act made by the Substance Use-Disorder Prevention that Promotes Opioid Recovery Treatment for Patients and Communities Act. The DEA emphasizes that all of these revisions and amendments would apply to both bulk and dosage-form manufacturers, as well as importers of the list I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine. The changes are necessary to reduce the potential for diversion, and would align regulations with current manufacturing business practices.
Written comments must be postmarked, and electronic comments must be sent, on or before December 23, 2019.
All comments concerning collection of information under the Paperwork Reduction Act must be submitted to the Office of Management and Budget (OMB) on or before December 23, 2019.
To ensure proper handling of comments, please reference “RIN-1117-AB49/Docket No. DEA-455” on all correspondence, including any attachments.
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•
All comments concerning collections of information under the Paperwork Reduction Act must be submitted to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for DOJ, Washington, DC 20503. Please state that your comment refers to RIN 1117-AB49/Docket No. DEA-455.
Scott A. Brinks, Regulatory Drafting & Policy Section, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.
Please note that all comments received are considered part of the public record. They will, unless reasonable cause is given, be made available by DEA for public inspection online at
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place
If you want to submit confidential business information as part of your comment, but do not want it to be posted online or made available in the public docket, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted online or made available in the public docket.
Personal identifying information and confidential business information identified and located as set forth above will be redacted and the comment, in redacted form, will be posted online and placed in the DEA's public docket file. Please note that the Freedom of Information Act applies to all comments received. If you wish to inspect the agency's public docket file in person by appointment, please see the
Through this Notice of Proposed Rulemaking (NPRM), the DEA is proposing to add new sections to the regulations that would introduce and define the types of quotas for controlled substances in schedules I and II and the list I chemicals
• Aggregate production quota (APQ) (for controlled substances);
• Assessment of Annual Needs (AAN) (for listed chemicals);
• Individual Manufacturing Quota (for controlled substances and listed chemicals);
• Procurement Quota (for controlled substances and listed chemicals); and
• Import Quota (for listed chemicals).
Also, the DEA is proposing a change in the regulations to stay up to date with modern technology. The proposed change would involve formalizing the current practice of filing to abandon quota with the United Nations (UN) Reporting and Quota Section in the online Quota Management System.
In accordance with the Substance Use-Disorder Prevention that Promotes Opioid Recovery Treatment for Patients and Communities Act (hereinafter “the SUPPORT Act”),
The DEA is proposing to change the regulations to provide that both manufacturers and distributors selling to a manufacturer would be required to obtain certification of the buyer's quota when an order is placed. This change would be implemented by changing the words “importer,” “manufacturer,” and “bulk manufacturer” to “registrant.”
The DEA proposes to revise the regulations to reduce the allowable individual inventory held by both bulk and dosage-form manufacturers of controlled substances in schedules I and II and list I chemicals, which would decrease the risk of diversion while ensuring the needs of the United States are met. The proposed amendments are:
• Decrease the inventory allowance issued by the DEA for individual manufacturing quotas to 30 percent;
• Decrease the inventory allowance issued by the DEA for procurement quotas to 30 percent;
• Suspend quota issued by the DEA if a registrant's inventory exceeds 45 percent of the registrant's estimated net disposal; and
• Grant request of additional quota by registrant if inventory is less than 20 percent of the registrant's estimated net disposal.
The DEA is proposing the addition of use-specific subcategories for individual manufacturing and procurement quotas to formalize the current, on-going practice of the use of these subcategories by registrants. The use-specific subcategories are:
• Quota for Commercial Sales;
• Quota for Transfer;
• Quota for Product Development;
• Quota for Replacement; and
• Quota for Packaging/Repackaging and Labeling/Relabeling.
With this NPRM, the DEA proposes to change the deadlines for fixing or establishing the different types of quotas to allow more time for processing and communicating with applicants and to make the regulations consistent with the SUPPORT Act. The proposed changes are as follows:
• Deadline to establish the APQ and the AAN: Change to September 1.
• Deadline to issue procurement quota, import quota, and individual manufacturing quota: Change to December 1.
• Deadline to adjust individual manufacturing quota: Change to July 1.
The Controlled Substances Act (CSA) authorizes the Administrator of the DEA (by delegation from the Attorney General) to promulgate rules and regulations that he deems necessary and appropriate for the efficient execution of his functions under subchapter I (Control and Enforcement) and subchapter II (Import and Export) of the Act, 21 U.S.C. 871(b) and 958(f). Subchapter I includes provisions which require the Administrator to establish the APQ for each basic class of controlled substance listed in schedules I and II and the AAN for the list I chemicals to be manufactured in the United States each calendar year to provide for the estimated medical,
On October 24, 2018, Congress made revisions to the CSA through the SUPPORT Act. These revisions will be noted and included in these proposed regulations, where applicable. Through this Act, the Administrator, by way of delegation from the Attorney General, may now set quota in terms of the pharmaceutical dosage-form.
There are six key provisions in this proposed rule, five of which are anticipated to have benefits and costs. As explained below, some of these provisions are mandated by Congress under recent legislation, and some others are being proposed pursuant to the DEA's general rulemaking authority under the CSA. The anticipated effect of each provision is summarized in this section. The following discussion is only a summary; for a complete analysis of the benefits and costs of each provision, see the Regulatory Analysis section.
These provisions of the proposed rule will codify two existing DEA practices. It will formally define the different types of quota issued by the DEA for schedules I and II controlled substances and list I chemicals. It will also formalize the current reporting practice for a registrant to abandon quota in the DEA's online Quota Management System. The formal definition of quota types will have no practical impact on registrants, and formalizing the procedure to abandon quota is simply a codification of existing DEA practice. While these proposed provisions will have no economic costs or benefits, the DEA believes there are benefits to accurately codifying existing practices. These proposed provisions are expected to enhance clarity, certainty, and efficiency.
The SUPPORT Act gives the DEA discretionary authority to establish quotas in terms of pharmaceutical dosage-form. The DEA's current practice is to establish quotas necessary for the manufacture of finished dosage-forms in terms of kilograms, and manufacturers then determine how to allocate those kilograms to different Food and Drug Administration (FDA) approved dosage-forms. While the SUPPORT Act gives the DEA the authority to establish quotas in terms of pharmaceutical dosage-form, the DEA will continue to use its current process of establishing quota in terms of kilograms, for the time being. While it is impossible to know all the circumstances in which this authority would be used, it is the DEA's current intention that any implementation of dosage-form quotas will be rare occurrences in response to specific events, and will coexist alongside kilogram quotas. The DEA recognizes that dosage-form manufacturers are in the best position to understand the demand for their products, in dosage-form. However, if the DEA were to reallocate a manufacturer's quota to prevent diversion or alleviate shortages based on specific dosage-form, or to prevent an overproduction, the DEA would make this adjustment for a manufacturer that is producing those specific FDA-approved dosage-forms, and who therefore is able to shift production with minimal disruption or delay. Therefore, this provision of the proposed rule will have minimal impact.
The SUPPORT Act also requires the DEA to estimate the amount of diversion when establishing quota for a “covered controlled substance” (fentanyl, oxycodone, hydrocodone, oxymorphone, or hydromorphone) using all reliable information, including information from HHS. This requirement will expand upon the DEA's current practice, as it has considered the amount of diversion when establishing quotas for covered controlled substances when data has been made available. Therefore, considering additional reliable information gathered from outside the agency to estimate the amount of diversion will result in minimal additional cost. Also included in these SUPPORT Act updates are extending the DEA's deadline to fix individual manufacturing quotas for schedules I and II controlled substances from October to December, which will also have minimal impact on registrants or the DEA.
This provision requires that manufacturers purchasing their active pharmaceutical ingredients (API) from distributors, as well as other manufacturers, first certify in writing that quantities ordered do not exceed the requesting manufacturer's quota for the year. Current regulations stipulate that only entities registered as “importer,” “manufacturer,” or “bulk manufacturer” must certify quota before a purchase.
This new requirement that manufacturers produce and submit certification of quota to be reviewed by the distributor will impose costs on both manufacturers and distributors. The DEA estimates the cost of this provision to be $35,241 per year ($23,494 of which is incurred by manufacturers while the remaining $11,747 is incurred by distributors).
This provision has one key benefit: It is expected to reduce the potential for the diversion of schedules I and II controlled substances and list I chemicals by lowering the inventory allowance from one year to the next year from 50% to 30%. Practically speaking, this equates to a reduction from half of a year's sales supply allowed to be held as inventory to nearly four months. Since regulations governing inventory allowances were first implemented, the number of firms manufacturing controlled substances and list I chemicals has grown. For example, the DEA records show that the number of registered manufacturers grew by 17.3 percent from 330 to 387 during the period of 2008 to 2018. Because of this expansion of suppliers, the lower inventory allowance authorized per firm is not expected to increase the likelihood of drug shortages. Generally, there are now more manufacturers that can increase production to meet demand if one or more manufacturers were to have production issues.
Regarding costs, the DEA believes a reduction of inventory allowance to 30%, with flexibility to produce up to 45% at any given point in a year, would have minimal impact on registrants while continuing to provide adequate inventory for registrants to respond to fluctuations in demand in pharmaceutical markets. Over a ten year period from 2008 to 2017, as reported to
See the Regulatory Analysis section for a complete discussion of the impact of this provision.
The benefit of the formalization of subcategories is in the alignment of regulatory language with current DEA practice, which removes any ambiguity that may be perceived by regulated entities. Because these subcategories are already in use, through voluntary and cooperative efforts between registrants and DEA, the DEA believes this provision will have no economic impact on registrants or the DEA.
By updating the deadlines for establishing and publishing the APQ, AAN, procurement, import, individual manufacturing, and adjusted individual manufacturing quotas, registrants are expected to benefit from having the regulations accurately reflect realistic deadlines. This will allow registrants to plan their production year appropriately and remove any uncertainty related to these publication dates. The DEA estimates there would be no cost associated with this provision.
Section 306 of the CSA
DEA-registered manufacturers apply for individual manufacturing, import, or procurement quotas based on their manufacturing activities and projected needs. Manufacturing activities authorized under a manufacturer registration include dosage-form manufacturing (both commercial and product development), manufacturing of other substances, as well as packaging, labeling, repackaging, or relabeling efforts. Projected needs may include product development for new suppliers or new process requirements, increased commercial sales, estimated improved market share based on new customers, purchase orders in hand, or the launch of new FDA-approved drug products. Registrants can include any other factor they want DEA to consider when evaluating their applications for quota.
An individual manufacturing quota represents the maximum quantity of a schedule I or II controlled substance or list I chemical a manufacturer is authorized to manufacture in a calendar year.
Any manufacturer assigned an individual manufacturing quota for a schedule I or II controlled substance or list I chemical may at any time abandon their right to manufacture all or any part of such quota pursuant to 21 CFR 1303.27 and 1315.27. Currently, to abandon all or part of an individual manufacturing quota for a schedule I or II controlled substance, a manufacturer files a written notice with the Drug & Chemical Evaluation Section. To abandon any part of an individual manufacturing quota for a list I chemical, a manufacturer would file a written notice with the UN Reporting & Quota Section of DEA.
A DEA-registered manufacturer who procures a schedule I or II controlled substance or list I chemical for the purpose of conducting non-bulk manufacturing activities such as dosage-form manufacturing, product development, packaging, labeling, repackaging or relabeling, or transfer, must apply
Under the current regulations, when a person with a procurement quota orders a quantity of a basic class of a schedule I or II controlled substance or a list I chemical, they have to certify that the quantity ordered does not exceed their unused and available procurement quota for that current calendar year. This certification is required only if purchasing from a manufacturer. Because of the wording of the regulations, many registrants do not have to certify their purchases. Outsourcing facilities are an example of this. An “outsourcing facility” is defined as a facility at one geographic location or address that is engaged in compounding sterile drugs, either with or without prescriptions for identified individual patients, that elects to register with the FDA and complies with the statutory requirements in section 503B of the Federal Food, Drug, and Cosmetic Act.
DEA-registered importers that import list I chemicals must apply for and receive an import quota. 21 CFR 1315.34(a). An import quota represents the maximum amount of a list I chemical an importer may bring into the United States during the calendar year. Importers of list I chemicals may apply for import quota only.
While the Administrator of DEA, as delegated by the Attorney General, has always been required
The DEA's mandate by the CSA is to provide for the estimated medical, scientific, research, and industrial needs of the United States, for lawful export requirements, and for the establishment and maintenance of reserve stocks, while preventing the diversion of controlled substances and list I chemicals. The current regulations
The 2017 National Survey on Drug Use and Health from the Substance Abuse and Mental Health Services Administration (SAMHSA) reported that about 6.6% (18 million) of people ages 12 or older misused prescription psychotherapeutic drugs (pain relievers, tranquilizers, stimulants and sedatives) in the past year and 4.1% (11 million) misused pain relievers (
According to the 2014 National Drug Threat Assessment Summary from the DEA, between 2009 and 2013 there was a 222% increase in the total U.S. drug seizures for oxycodone, hydrocodone and hydromorphone.
The purpose of the inventory allowance is to provide for efficiency and flexibility in managing the sale and distribution of schedule I and II controlled substances and list I chemicals so that the manufacturer can meet the actual or reasonably estimated demand for the schedule I and II controlled substances and list I chemicals. Under the current inventory allowance issued with the quota is intended to: 1. Provide saleable material for approximately four months of sales (net disposal) into the next calendar year while the manufacturer begins new production in the next calendar year; 2. Manage an unexpected uptick in sales during the calendar year; and 3. Address incidents limiting manufacturing or supply such as natural disasters or labor strikes. Manufacturers are encouraged to apply for adjustments to their quota at any time during the calendar year with appropriate documented supporting justification.
The mission of the DEA is to prevent diversion of controlled substances and list I chemicals while still providing sufficient availability for the legitimate medical, scientific, research, and industrial needs of the United States. The DEA is committed to ensuring the availability of controlled substances in schedules I and II and list I chemicals to manufacturers to meet the legitimate medical, scientific, research, and industrial needs of the United States. However, the DEA must strike an appropriate balance between ensuring the availability of drug products containing controlled substances in schedules I and II and list I chemicals to meet these needs, and the risk to the public health and safety. The DEA has observed an increase in the production of many controlled substances over the years, including those substances requiring quotas. The changes in the industry, including the increase in the number of manufacturers, has led to accumulations of inventory.
When the current regulations were promulgated, there were only one or two bulk-manufacturing suppliers and finished dosage-form manufacturers for each controlled substance. Each manufacturer needed enough material to ensure the safe and continuous coverage of the market place for legitimate patient needs and a significant amount of inventory (50%) to handle potential market fluctuations in case the other manufacturer had an emergency or other disruptive situation. However, the number of generic dosage-form manufacturers entering the marketplace has grown significantly, especially since the enactment of the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Amendments). When the DEA considers each manufacturer's portion of the market, the amount of inventory each manufacturer needs to hold in reserve to ensure legitimate medical needs are met, due to other manufacturers' potential production disruptions, is
Administering the quota provisions of the CSA is becoming more complex as registrants increasingly engage in product development efforts and subcontract various aspects of the manufacturing process to other DEA-registered manufacturers, thus moving away from single source production of pharmaceutical drug products. A key objective of the quota system is to track how much of a controlled substance or list I chemical is available so the DEA can fulfill its mandate of ensuring that there is sufficient material to meet the estimated medical, scientific, research, and industrial needs of the United States, for lawful exports, and for the establishment and maintenance of reserve stocks. The large number of manufacturing registrants that move material from one manufacturer to another presents a growing challenge in that multiple quotas have to be issued for the various stages of manufacturing, while at the same time, avoiding “double counting” the legitimate needs as the material moves from registrant to registrant which would artificially increase the APQ.
Under current regulations (established nearly 50 years ago), the DEA is unduly burdened by unreasonable deadlines for establishing and granting quotas. Since the establishment of the original deadlines, the number of manufacturers has more than tripled and the number of requests for quota has increased 560 percent, yet the deadlines have remained the same. Because there have been no accommodations made for the substantial increases in both manufacturers and quota requests, the DEA is required to work within challenging parameters in order to meet the current deadlines. Under current regulations, the DEA is required to publish the APQ and the AAN by May 1.
In 2016, the DEA issued 548 initial individual manufacturing quotas, 1,083 initial procurement quotas, 33 import quotas, and adjusted 250 individual manufacturing quotas. Under the current regulations, the DEA is required to issue individual manufacturing, procurement, and import quotas by July 1
The DEA proposes adding sections 21 CFR 1303.03 and 1315.06 to introduce and define the types of quotas in the current quota system. The DEA proposes creating 21 CFR 1303.03 to define the three types of quota for schedule I and II controlled substances: APQ, individual manufacturing quotas, and procurement quotas. The DEA would use the creation of 21 CFR 1315.06 to define the four types of quotas available for list I chemicals: AAN, individual manufacturing quotas, procurement quotas and import quotas.
As previously stated, the regulations were written many years ago before DEA had the advanced, modern technology that we know today. As the years have passed, DEA has turned to managing many aspects of the quota system online. To abandon any or all parts of the individual manufacturing quota for schedule I and II controlled substances, the DEA is proposing that 21 CFR 1303.27 be updated to require that the manufacturer must now submit a quota application with the UN Reporting and Quota Section in the online Quota Management System, instead of a written notice submitted to the Drug and Chemical Evaluation Section. For list I chemicals, 21 CFR 1315.27 would be updated to mandate that a manufacturer also file in the online Quota Management System, as the regulations were previously updated
Pursuant to the SUPPORT Act, the Administrator of the DEA (by delegation from the Attorney General) now has the authority to establish APQ, individual manufacturing quotas and procurement quotas in terms of pharmaceutical dosage-forms, if he determines it will assist in avoiding the overproduction, shortages, or diversion of a controlled substance. The SUPPORT Act does not require the DEA to grant quotas in terms of dosage-form, it just grants the authority to do so, if it will be helpful. This authorization will be added to DEA's regulations using 21 CFR 1303.11(a), 1303.12(a) and 1303.21(a). The SUPPORT Act also revised the CSA by changing the dates to fix the individual manufacturing quota from “on or before October 1” to “on or before December 1.” DEA will be revising 21 CFR 1303.21(a) and 1315.21 to keep the dates for fixing individual manufacturing quotas in accordance with the statute.
As a result of the SUPPORT Act, the CSA has also been amended to require the Administrator to estimate the amount of diversion of a “covered controlled substance” in the United States when establishing quotas for that covered controlled substance and make appropriate reductions. Furthermore, when estimating diversion, information deemed reliable by the Administrator, in consultation with the Secretary of
Regarding certification of procurement quota, this proposed rule would clarify the current language in 21 CFR 1303.12(f) and 1315.32(h) and ensure that both manufacturers and distributors are required to obtain certification of a buyer's quota for the requested schedule I and II controlled substances, as well as list I chemicals when the buyer is a manufacturer.
In the 2000s, DEA began to notice a subset of manufacturers reporting purchases and distributions of schedule II controlled substances, even though they were not granted procurement quota. The DEA determined that this subset of manufacturers was conducting packaging/repackaging and labeling/relabeling activities. These activities constitute manufacturing as the term is defined in the CSA,
In order to ensure the system is closed, the DEA manages the quota process by providing each manufacturer a letter stating the quantity of controlled substance(s) and/or list I chemical(s) the manufacturer may obtain during a calendar year. This letter provides legal documentation that the manufacturer is authorized to obtain a specified quantity of the controlled substance(s) and/or list I chemical(s). The CSA and the DEA's implementing regulations require proof of quota when transferring controlled substances and list I chemicals between manufacturers. When the CSA and DEA's regulations were first drafted, neither contemplated that distributors would be used to move controlled substances and list I chemicals between manufacturers.
When distributors provided schedule II controlled substances to this subset of manufacturers without verification of the manufacturers' quota authorization, it circumvented the quota process of verifying quota to the supplier. This prevents the DEA from performing its oversight responsibilities and leads to unauthorized distribution of drug products. These unauthorized distributions are only noted as sales, which artificially inflates the estimation of legitimate medical need, a heavily weighted factor in the setting and revising of the APQ. By requiring that all manufacturers provide a certification of quota before receiving any quantity of controlled substance or list I chemical, DEA is better able to maintain the closed distribution system.
The DEA proposes to revise 21 CFR 1303.24 and 1315.24 to reduce the overall inventory held by DEA-registered bulk and dosage-form manufacturers. These revisions are necessary, in light of the increasingly complex controlled substances manufacturing business practices, to reduce the potential for the diversion of schedule I and II controlled substances and list I chemicals.
The DEA has noticed inventory fluctuation changes at various stages of the manufacturing process for certain schedule II controlled substances and changes in market conditions. The market conditions have changed from being a vertically integrated manufacturing practice to a horizontal manufacturing structure, which includes an increased number of manufacturers and demand for lower cost generic drug products containing controlled substances. This proposed rule would address the need to reduce the overall inventory allowance for each individual manufacturer.
The proposed revisions are as follows:
• 21 CFR 1303.24(a)—decreases the inventory allowance issued by DEA for individual manufacturing quotas from 50 to 30 percent for schedules I and II controlled substances;
• 21 CFR 1303.24(b)—establishes an inventory allowance issued by DEA for procurement quotas of 30 percent for schedules I and II controlled substances;
• 21 CFR 1303.24(c)—suspends quota issued by DEA if inventory exceeds 45 percent of the registrant's estimated net disposal for schedules I and II controlled substances;
• 21 CFR 1303.24(d)—grants request of additional quota by registrant if inventory is less than 20 percent of the registrant's estimated net disposal for schedules I and II controlled substances;
• 21 CFR 1315.24(a)—decreases the inventory allowance issued by DEA for individual manufacturing quotas from 50 to 30 percent for the list I chemicals;
• 21 CFR 1315.24(b)—decreases the inventory allowance issued by DEA for procurement quotas from 50 to 30 percent for the list I chemicals;
• 21 CFR 1315.24(c)—suspends quota issued by DEA if inventory exceeds 45 percent of the registrant's estimated net disposal for the list I chemicals; and
• 21 CFR 1315.24(d)—grants request of additional quota by registrant if inventory is less than 20 percent of the registrant's estimated net disposal for the list I chemicals.
Lowering all manufacturers to a 30 percent inventory allowance will allow the DEA to better manage individual quotas based on fluctuations in market shares from the entrance of the new manufacturers. The decrease in inventory will prevent excess accumulation of drug product or bulk API by the manufacturers who lose market share, lowering the risk of diversion. By reducing the percentage of the inventory allowance from 50 percent to 30 percent, the DEA will be able to prevent the manufacture of unnecessary quantities of controlled substances and list I chemicals, while still ensuring adequate availability for the legitimate medical, scientific, research, and industrial needs of the United States, thereby decreasing the overall risk of diversion to illicit purposes.
The DEA understands that manufacturers of controlled substances and list I chemicals need to maintain an additional inventory in case of market fluctuations while balancing the risks of public health and safety, but believes that a 50 percent inventory allowance is too large. An inventory allowance of 50 percent is half of a year's sales supply
The DEA believes that a decrease to a 30 percent inventory allowance is necessary because it reflects nearly four months of sales supply (net disposal) for each manufacturer, which allows for market fluctuations among all manufacturers of that class without disruption to patients. Under this proposed rule, manufacturers would continue to receive manufacturing and procurement quotas sufficient to meet their manufacturing and inventory requirements to sustain the domestic demand for controlled substances and list I chemicals within the United States. DEA invites comment on whether the proposed reductions will lead to shortages or delays in drug supply.
The complexity of current business practices is multifactorial and includes increased specialization in the manufacturing process itself, the development of niche markets for specifically formulated drug products, a change from vertically integrated manufacturing practices to a much more horizontal manufacturing structure, and the increasing numbers of manufacturers receiving FDA approval to market generic products. Due to this evolution of complexity in the pharmaceutical industry and the inflexible nature of the regulations by which the DEA must calculate inventory allowances for manufacturers of controlled substances and list I chemicals, the current inventory allowances provide an opportunity for the disproportionate accumulation of controlled substance for United States needs. These proposed revisions would rectify a situation where the DEA's ability under the statute and regulations to strike an appropriate balance between ensuring the availability of controlled substances and list I chemicals to patients and reducing the risk to public health and safety is compromised. DEA invites comment, including studies, data, or other evidence, as to whether the reductions will result in less diversion.
The DEA proposes formalizing the addition of use-specific subcategories by adding 21 CFR 1303.04 and 1315.07. As a practical matter, the DEA acknowledges that the subcategories proposed within this rule are already in use through voluntary and cooperative efforts of the DEA registrants.
This proposed rule would codify DEA's current utilization of subcategories while facilitating the issuance of individual manufacturing quotas. The formalization of subcategories also provides benefits to the registrant, by allowing for a more detailed level of communication with the DEA as to why a registrant requires specific controlled substances and list I chemicals and how those substances will be utilized.
Additionally, as the number of manufacturers continues to increase and industry practices and specializations change, the ability to methodically track movements of material between registrants at all stages of manufacturing becomes more critical. The specification of quota subcategories improves the efficiency of the application and reporting process for DEA-registered manufacturers.
Use-specific quota subcategories reflect the manufacturing activity of the applying DEA registrant and have facilitated the issuance of manufacturing and procurement quotas and provided a more accurate calculation of the APQs for the United States. These subcategories are: (1) Quota for Commercial Sales; (2) Quota for Transfer; (3) Quota for Product Development; (4) Quota for Replacement; and (5) Quota for Packaging/Repackaging and Labeling/Relabeling. The specification of subcategories for manufacturing and procurement quotas enhances the DEA's ability to administer and manage the APQs and individual manufacturing, importation, and procurement quotas consistent with Congress' intent that the DEA monitor and track controlled substances and list I chemicals as they move through a closed system of distribution. Additionally, as the number of manufacturers continues to increase and industry practices and specializations continue to evolve, the DEA's ability to track movement of material between registrants at all stages of manufacturing is critical.
By amending sections 21 CFR 1303.12(b), 1303.22, 1315.22, and 1315.32(a), the DEA proposes to revise the procedure for applying for both manufacturing and procurement quotas. Through adding new sections 21 CFR 1303.04(d) and 1315.07(d), the DEA proposes to revise the application process for a request of replacement quota for schedules I and II controlled substances to include either a completed DEA Order Form, or Form for Inventory Surrendered, (Form DEA-222 and DEA-41, respectively) to justify a replacement quota application.
The new subcategories for quota are as follows:
1.
2.
3.
4.
Replacement quota is granted on a case-by-case basis. The merit of the request is determined by the specifics of the registrant's justification and situation. The DEA reviews the submitted DEA Form 41 or DEA Form 222 documenting the destruction of the controlled substance and evaluates the justification for the destruction to determine if replacement quota is the appropriate course of action and whether or not the destroyed material is required to meet the legitimate demand of the market. Replacement quota is also considered in setting the APQ and the AAN.
5.
Assigning quota to specific subcategories allows the DEA to indicate how much of a registrant's quota may be used to receive bulk material, in-process, or finished dosage units, as well as how much may be used for product development, commercial production, or the launching of new products. Additionally, registrants are prevented from using their quota for a purpose other than that originally intended and justified to DEA.
The DEA is proposing to revise 21 CFR 1303.11(c), and 1315.11(c) to change the deadlines for the establishment of the APQ and the AAN. This modification will allow a more reasonable amount of time for processing and responding to applications for quota. The DEA also proposes to revise 21 CFR 1303.23(c) and 1315.23(c) to modify the existing deadlines for adjusting the individual manufacturing quotas, allowing more time for reviewing applications for adjustment of individual manufacturing quotas and responding to each applicant. Along with the deadline change for individual manufacturing quotas, the DEA proposes to revise 21 CFR 1303.12(c), 1315.32(f), and 1315.34(f), which would change the deadlines for the establishment of procurement quotas for both schedules I and II controlled substances and list I chemicals, as well as the deadline for import quota of list I chemicals. The proposed changes to the import quota and the procurement quotas are necessary to stay in accordance with the deadline for individual manufacturing quota, as they are all published at the same time when the DEA establishes the APQ and AAN.
The DEA continues to collect various data to administer the United States quota system. Moving the deadlines previously established would allow the DEA to obtain additional relevant data from multiple Federal and state agencies, which would enable better analysis of legitimate demand, strengthening the DEA's ability to allocate quota to the appropriate manufacturers of these substances. These revisions would allow DEA sufficient time to compile and consider all requests for quota in order to ensure that each manufacturer is provided with an adequate amount of quota for their legitimate production needs, while also ensuring that quotas are not unwarranted, which increases the risk of diversion.
The proposed changes are as follows:
• Establishment of the APQ and the AAN: Change from May 1 to September 1.
• Deadline to issue procurement quota: Change from July 1 to December 1.
• Deadline to issue import quota: Change from July 1 to December 1.
• Deadline to adjust individual manufacturing quota: Change from March 1 to July 1.
This rule has been developed in accordance with the principles of Executive Orders 12866 and 13563. Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, public health and safety, and environmental advantages, distributive impacts, and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866. The Executive Order classifies a “significant regulatory action” requiring review by the Office of Management and Budget (OMB) as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
While this proposed rule is not economically significant, it is a significant regulatory action under Executive Order 12866, section 3(f) subjecting it to review by OMB. The DEA analyzed the economic impact of each provision of this proposed rule and estimated the annual cost to be $35,241. Certain provisions are estimated to also have benefits; however, the DEA does not have a basis to estimate those benefits due to many unknowns. Because of this, the benefits of this proposed rule are discussed qualitatively. The rule contains clarification of regulatory language and the codification of existing DEA and registrant practices regarding subcategories for quotas, certification of procurement quota, and additional considerations for revisions to APQs. The results of the analysis of each provision are as follows:
These provisions simply codify existing DEA practices, and will result in no economic impact on registrants or the DEA. The formal definition of quota types will have no practical impact on registrants, and formalizing the procedure to abandon quota is simply a codification of DEA's current procedure. While these proposed provisions will have no economic costs or benefits, DEA believes there are benefits to accurately codifying existing practices. These proposed provisions are expected to enhance clarity, certainty, and efficiency.
As indicated above, the SUPPORT Act gives the DEA discretionary authority to establish quotas in terms of pharmaceutical dosage-form. At the present time, the DEA is not deviating from its current practice of establishing quotas necessary for the manufacture of finished dosage-forms in terms of kilograms, and allowing manufacturers to determine how to best allocate those kilograms to different FDA-approved dosage-forms. While the SUPPORT Act gives DEA the authority to establish quotas in terms of pharmaceutical dosage-form, the DEA will continue to use its current process of establishing quota in terms of kilograms, for the time being. While it is impossible to know all the circumstances in which this authority would be used, it is the DEA's current intention that any implementation of dosage-form quotas will be the exception rather than the rule, and will coexist alongside kilogram quotas. The DEA recognizes that dosage-form manufacturers are in the best position to understand the demand for their products, in dosage-form. Because, at the present time, the DEA is likely to use this authority sparingly, and only adjust quotas for manufacturers producing the dosage-form, the DEA anticipates that this provision of the proposed rule will have minimal impact.
The SUPPORT Act also requires the DEA to estimate the amount of diversion when establishing quota for a covered controlled substance using all reliable information, including information from HHS and other agencies. The DEA has considered information and data regarding the amount of diversion for covered controlled substances when applicable during the process of determining the APQ. This function is a regular part of DEA's operations. Therefore, considering additional reliable information gathered from outside the agency to estimate the amount of diversion will result in minimal additional cost.
The SUPPORT Act updates also extend the DEA's deadline to fix individual manufacturing quotas for schedules I and II controlled substances from October to December, and formally define the phrase “covered controlled substance” to include fentanyl, oxycodone, hydrocodone, oxymorphone, or hydromorphone. The deadline extension will have minimal impact on registrants, as the DEA currently does not meet the October deadline. This extension will align the regulations with reality for registrants
While the benefits of the SUPPORT Act updates were not quantified due to many unknowns, it is possible to discuss some of these benefits in qualitative terms. With these conforming revisions related to the SUPPORT Act, DEA has the ability to respond to adverse market conditions with increased speed and flexibility in order to minimize public harm. Dosage-form quotas would be used by the DEA to alleviate the rare occurrence of a drug shortage in the market by targeting the specific dosage-forms that are in short supply instead of simply increasing the total amount of kilograms of a drug to be produced, resulting in a benefit to the public. Another benefit is that updating the deadlines for setting individual manufacturing quotas so they reflect DEA's current practice removes regulatory uncertainty for manufacturers. Regulations that realistically reflect current DEA and industry practice will benefit the planning processes of current and future market participants. Therefore, the DEA believes the benefits of these conforming revisions related to the SUPPORT Act outweigh their minimal costs.
The proposed rule would require that all DEA registrants supplying schedules I and II controlled substances and list I chemicals to DEA manufacturers obtain certification of the manufacturer's quota before completing the transaction. In practice, this certification may be any written declaration issued by manufacturers to distributors. This provision prevents manufacturers from purchasing their API or finished dosage-forms from distributors without quota verification as currently required when manufacturers request API or finished dosage-forms from other manufacturers. Current regulations stipulate that only entities registered as “importer,” “manufacturer,” or “bulk manufacturer” must certify
In order to estimate the cost of this provision, the DEA utilized internal data tracking the sale of schedules I and II controlled substances and list I chemicals from distributors to manufacturers during the three year period of January 1, 2015 to December 31, 2017. DEA's analysis revealed that over this three year period, distributors filled an average of 3,000 orders to manufacturers per year. Using Bureau of Labor Statistics (BLS) wage data for Compliance Officers, the type of registrant employee that would be tasked with certifying quota, the DEA estimated the labor cost of quota certification to distributors and manufacturers. Based on its knowledge of registrant business operations, DEA estimates a manufacturer compliance officer requires 10 minutes to draft a quota certification letter after placing a purchase request to a distributor, while the distributor compliance officer requires five minutes to review and verify the manufacturer's certification letter. This results in a combined labor burden of 15 minutes (0.25 hours). Multiplying the loaded median hourly wage rate for compliance officers by 0.25 and applying that to the estimated 3,000 certification letters per year yields a total yearly labor cost of $35,241 ($23,494 of which is incurred by manufacturers while the remaining $11,747 is incurred by distributors).
The proposed rule would reduce the inventory allowance for manufacturers of controlled substances and list I chemicals from 50 percent to 30 percent of the registrant's estimated net disposal. The 30 percent inventory allowance would be for the purposes of determining the quota for the coming year and to allow inventory at the beginning of a manufacturer's new quota year. Manufacturers may exceed the 30 percent inventory allowance during the year. If at any time during the year, the inventory of a basic class held by a manufacturer exceeds 45 percent of estimated net disposal, the quota for that class is automatically suspended and would remain suspended until inventory is less than 40 percent of the estimated net disposal. Practically speaking, the inventory allowance equates to a reduction from half of a year's sales supply (50 percent) allowed to be held as inventory to nearly four months (30 percent). Additionally, the 45 percent maximum inventory during the year would give manufacturers the flexibility to have inventory equal to nearly six months of sales supply in order to account for any unplanned fluctuations in demand or timing in orders for their product throughout the year.
DEA expects this reduction in allowance will result in minimal to no economic impact on affected registrants as the following data show. From 2008 to 2017, as reported to the U.N., end-of-year combined average inventory balances for holders of both manufacturing and procurement quotas of internationally controlled narcotics ranged from 32 percent to 46 percent, for a 10-year average of 39 percent. This average is a result of the bulk manufacturing quotas, which by regulation have a 50 percent inventory allowance, and procurement quota inventories, which are not explicitly stated in the regulations, but are held to a range of 30-50 percent based on specific risk factors, including increased documentation of misuse and abuse discovered by various components within HHS and the Department of Justice (DOJ). The reduction of inventory allowance to 30 percent, with flexibility to produce up to 45 percent at any given point in a year, is not anticipated to impact the current operations of registrants, given that over a 10-year period, the average year-end inventories for manufacturers was 39 percent.
Registrants also routinely request adjustments to their quota throughout the year due to fluctuations in market conditions. This is a normal part of a manufacturer's business operations. The DEA quickly responds to these requests within six to eight weeks, ensuring legitimate business is not disrupted, and will continue to do so once this rule is promulgated. For example, in 2017 (the last year in which data are available), the DEA processed 1,752 initial quota applications and 2,299 requests for adjustment to quota.
For these reasons, the DEA believes a reduction of inventory allowance to 30 percent would have minimal impact on registrants while continuing to provide adequate inventory for registrants to respond to fluctuations in demand in pharmaceutical markets. However, DEA invites public comment on its assumption that the market supply of controlled substances and list I chemicals will not be impacted by the reduction in inventory allowance.
This provision of the proposed rule is a codification of existing voluntary and cooperative efforts between registrants and the DEA that have been in place since 2001 and allows a more accurate calculation of APQs for the United States. The establishment of subcategories of (1) Quota for Commercial Sales; (2) Quota for Transfer; (3) Quota for Product Development; (4) Quota for Replacement; and (5) Quota for Packaging/Repackaging and Labeling/Relabeling are already being utilized by
The proposed rule would modify the deadlines for establishing and publishing the APQ, AAN, procurement quota, and manufacturing quotas and any adjustments to manufacturing quotas. The current publishing deadlines for the establishment of the APQ and the AAN of May 1, and the issuing of individual procurement, manufacturing and import quotas of July 1 are frequently missed by the DEA due to the expansion of the market and the increase in the number of manufacturers and importers since that deadline was implemented almost 50 years ago. Applications for import and procurement quota are due April 1, giving the DEA only 30 days before the May 1 deadline for publication of the APQ and AAN. Given that the DEA has historically missed these deadlines, since it must take adequate time to provide a thorough and careful assessment of each application, both the DEA and industry have already become accustomed to a delayed publishing schedule. Therefore, this provision is expected to have minimal economic impact as it simply aligns the regulatory deadlines with the current business practices of the DEA and industry.
DEA invites public comment on the preceding discussion of the potential impact of this proposed rule.
Executive Order 13771 was issued on January 30, 2017, and published in the
This rulemaking meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
This rulemaking does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.
This rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities between the Federal Government and Indian tribes.
In accordance with the Regulatory Flexibility Act (RFA), the DEA evaluated the impact of this rule on small entities. The DEA's evaluation of economic impact by size category indicates that the rule will not, if promulgated, have a significant economic impact on a substantial number of these small entities.
The RFA requires agencies to analyze options for regulatory relief of small entities unless it can certify that the rule will not have a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. The DEA evaluated the impact of this rule on small entities and discussions of its findings are below.
As discussed in the “Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs)” section above, this proposed rule has six key components as described below.
This provision simply codifies existing DEA practices, and will result in no economic impact on registrants or the DEA. The formal definition of quota types will have no practical impact on registrants, and formalizing the procedure to abandon quota is simply a codification of DEA's current procedure. Therefore, this proposed provision will have no costs.
While the SUPPORT Act gives the DEA the authority to establish quotas in terms of pharmaceutical dosage-form, the DEA will continue to use its current process of establishing quota in terms of kilograms. Therefore, this provision of the proposed rule will have no impact.
Additionally, the SUPPORT Act defines the phrase “covered controlled substance” to include fentanyl, oxycodone, hydrocodone, oxymorphone, and hydromorphone and requires the DEA to estimate the amount of diversion when establishing quota for covered controlled substances by consulting with the Secretary of HHS and considering reliable information on the rates of overdose deaths and abuse and overall public health impact in the U.S. that is determined to be reliable. The DEA has considered the amount of diversion when establishing quotas when data has been available, and this is a regular part of DEA's operations. Therefore, considering additional reliable information gathered from outside the agency to estimate the amount of diversion will result in minimal additional cost.
The SUPPORT Act updates also extend the DEA's deadline to fix individual manufacturing quotas for schedules I and II controlled substances from October to December. The deadline extension will have minimal impact on registrants, as the DEA currently does not meet the October deadline. This extension will align the regulations with reality for registrants. Therefore, these provisions will have minimal impact on registrants or the DEA.
The proposed rule would require that all DEA registrants supplying schedules I and II controlled substances and list I chemicals to DEA manufacturers to obtain certification of the manufacturer's quota before completing the transaction. In practice, this certification must be a written
In order to estimate the cost of this provision, the DEA utilized internal data tracking the sale of schedules I and II controlled substances and list I chemicals from distributors to manufacturers during the three year period of January 1, 2015 to December 31, 2017. DEA's analysis revealed that over this three year period, distributors filled an average of 3,000 orders to manufacturers per year. Using BLS wage data for Compliance Officers, the type of registrant employee that would be tasked with certifying quota, the DEA estimated the labor cost of quota certification to distributors and manufacturers. Based on its knowledge of registrant business operations, DEA estimates a manufacturer compliance officer requires 10 minutes to draft a quota certification letter after placing a purchase request to a distributor, while the distributor compliance officer requires five minutes to review and verify the manufacturer's certification letter. This results in a combined labor burden of 15 minutes (0.25 hours). Multiplying the loaded median hourly wage rate for compliance officers by 0.25 and applying that to the estimated 3,000 certification letters per year yields a total yearly labor cost of $35,241 ($23,494 of which is incurred by manufacturers while the remaining $11,747 is incurred by distributors).
The proposed rule would reduce the inventory allowance for manufacturers of controlled substances and list I chemicals from 50 percent to 30 percent of the registrant's estimated net disposal. The 30 percent inventory allowance would be for the purposes of determining the quota for the coming year and to allow inventory at the beginning of a manufacturer's new quota year. Manufacturers may exceed the 30 percent inventory allowance during the year. If at any time during the year, the inventory of a basic class held by a manufacturer exceeds 45 percent of estimated net disposal, the quota for that class is automatically suspended and would remain suspended until inventory is less than 40 percent of the estimated net disposal. Practically speaking, the inventory allowance equates to a reduction from half of a year's sales supply (50 percent) allowed to be held as inventory to nearly four months (30 percent). Additionally, the 45 percent maximum inventory during the year would give manufacturers the flexibility to have inventory equal to nearly six months of sales supply in order to account for any unplanned fluctuations in demand or timing in orders for their product throughout the year.
DEA expects this reduction in allowance will result in minimal to no economic impact on affected registrants as the following data show. From 2008 to 2017, as reported to the U.N., end-of-year combined average inventory balances for holders of both manufacturing and procurement quotas of internationally controlled narcotics ranged from 32 percent to 46 percent, for a 10-year average of 39 percent. This average is a result of the bulk manufacturing quotas, which by regulation have a 50 percent inventory allowance, and procurement quota inventories, which are not explicitly stated in the regulations, but are held to a range of 30-50 percent based on specific risk factors, including increased documentation of misuse and abuse discovered by various components within HHS and DOJ. For example, the DEA currently sets the inventory allowance for fentanyl, hydrocodone, hydromorphone, and oxycodone procurement quotas at 30 percent for FDA-approved dosage-forms. The reduction of inventory allowance to 30 percent, with flexibility to produce up to 45 percent at any given point in a year, is not anticipated to impact the current operations of registrants, given that over a 10-year period, the very upper range of year-end inventories for manufacturers was 46 percent.
Registrants also routinely request adjustments to their quota throughout the year due to fluctuations in market conditions. This is a normal part of a manufacturer's business operations. The DEA quickly responds to these requests within six to eight weeks, ensuring legitimate business is not disrupted, and will continue to do so once this rule is promulgated. For example, in 2017 (the last year for which data are available), the DEA processed 1,752 initial quota applications and 2,299 requests for adjustment to quota.
For these reasons, the DEA believes a reduction of inventory allowance to 30 percent would have minimal impact on registrants while continuing to provide adequate inventory for registrants to respond to fluctuations in demand in pharmaceutical markets. However, DEA invites public comment on its assumption that the market supply of controlled substances and list I chemicals will not be impacted by the reduction in inventory allowance.
This provision of the proposed rule is a codification of existing voluntary and cooperative efforts between registrants and the DEA that have been in place since 2001 and allows a more accurate calculation of APQs for the United States. The establishment of subcategories of (1) Quota for Commercial Sales; (2) Quota for Transfer; (3) Quota for Product Development; (4) Quota for Replacement; and (5) Quota for Packaging/Repackaging and Labeling/Relabeling are already being utilized by the DEA with full cooperation from all registrants, therefore this provision simply updates 21 CFR 1303.03, 1303.04, 1315.06, and 1315.07 to reflect current DEA procedure for the establishment of quota. Therefore, this provision of the proposed rule will have no economic impact on registrants or the DEA.
The proposed rule would modify the deadlines for establishing and publishing the APQ, AAN and procurement and manufacturing quotas and any adjustments to manufacturing quotas. The current publishing deadlines for the establishment of the APQ and the AAN of May 1, and the issuing of individual procurement, manufacturing and import quotas of July 1 are frequently missed by the DEA due to the expansion of the market and the increase in the number of manufacturers and importers since that deadline was implemented almost 50 years ago. Applications for import and procurement quota are due April 1, giving the DEA only 30 days before the May 1 deadline for publication of the APQ and AAN. Given that the DEA has historically missed these deadlines since it must take adequate time to provide a thorough and careful assessment of each application, both the DEA and industry have already become accustomed to a delayed publishing schedule. Therefore, this provision is expected to have minimal economic impact as it simply aligns the regulatory deadlines with the current business practices of the DEA and industry.
In summary, only the Procurement Quota Certification requirement imposes a cost, $23,494 to all manufacturers combined and $11,747 to all distributors combined for a grand total cost of $35,241.
This proposed rule has the potential to affect entities registered with the DEA as manufacturers, distributors and importers of controlled substances and list I chemicals. Based on a review of respective representative North American Industry Classification System (NAICS) codes for manufacturers,
The U.S. Small Business Administration (SBA) considers a size standard as the largest that a concern can be and still qualify as a small business for Federal Government programs. For the most part, size standards are the average annual receipts or the average employment of a firm. The SBA Size Standards for the two industries are 1,250 employees for Pharmaceutical Preparation Manufacturing and 250 employees for Drugs and Druggists' Sundries Merchant Wholesalers.
Comparing the SBA size standards to the U.S. Census Bureau, Statistics of U.S. Businesses (SUSB) detailed data on establishment size by NAICS code for each affected industry, the DEA estimates the following number of small entities (and percent of establishments that are small entities) by industry:
The table below summarizes the calculation for the estimated number of small entities (establishments) above.
Because DEA registrants frequently hold more than one registration for separate locations, many registrations may be held by one entity. The DEA estimates the number of affected entities by multiplying the number of DEA registrations in each business activity by its “firm-to-establishment” ratio in order to find the total amount of entities. The firm-to-establishment ratio is calculated by dividing the number of firms in each industry NAICS code by the total number of establishments found in the third and fourth columns of the previous table.
After accounting for how many DEA registered entities are affected by each provision, DEA applied the estimated percentage of establishments that are small entities to each respective business activity in order to estimate the number of affected small entities. The DEA estimates that of the 550 affected entities 515 are small entities: 159 distributors, 334 manufacturers and 22 importers. In summary, the percentages of small entities affected are as follows:
The table below summarizes the estimated number of small entities, number of affected small entities, and the percentage of small entities affected.
As described above, if promulgated this proposed rule is estimated to cost $23,494 to all manufacturers combined and $11,747 to all distributors or an average cost of $70 ($23,494/334) per affected manufacturer and $71 ($11,747/166) per distributor. The DEA generally uses 30 percent as a “substantial” number of affected small entities. The analysis reveals that a non-substantial amount (2.8 percent) of small distributor entities will be affected, while a substantial amount (38.6 percent) of small manufacturing entities will be affected by this proposed rule. The DEA generally considers impacts that are greater than 3 percent of yearly revenue to be a “significant economic impact” on an entity. The DEA compared the compliance cost of $70 and $71 to the average annual receipts of manufacturers and distributors/imports, respectively, for each size range.
The table below summarizes the analysis.
The DEA examined the economic impact of the proposed rule for each affected industry for various size ranges. Based on the analysis above, and because of these facts, the DEA believes this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.
This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed subject to the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532.
Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), this action would revise existing information collections 1117-0006, 1117-0008, and 1117-0047, and create one new information collection. The DEA is proposing to amend its regulations for establishing quotas for United States companies manufacturing schedules I and II controlled substances and ephedrine, pseudoephedrine, and phenylpropanolamine, and for procurement quota certification and recordkeeping requirements. The DEA has submitted these collection requests to the Office of Management and Budget (OMB) for review and approval.
1.
The DEA is proposing to formally implement the use of subcategories to facilitate the issuance of manufacturing quotas and provide a more accurate calculation of the aggregate production quotas for the United States. The DEA proposes the addition of the following five subcategories for quota: (1) Quota for Commercial Sales; (2) Quota for Transfer; (3) Quota for Product Development; (4) Quota for Replacement; and (5) Quota for Packaging/Repackaging and Labeling/Relabeling. All types of quota could be requested using the same application and format registrants are accustomed to using, in an online form. Manufacturers of schedules I and II controlled substances and list I chemicals would continue to receive manufacturing and procurement quotas appropriate to their manufacturing and inventory requirements, and the DEA would retain greater control over the amount of these controlled substances and listed chemicals produced, thereby reducing the amount of inventories at risk of diversion.
The DEA estimates the following number of respondents and burden associated with reporting:
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The DEA is proposing to formally implement the use of subcategories to facilitate the issuance of procurement quotas and provide a more accurate calculation of the aggregate production quotas for the United States. The DEA proposes the addition of the following five subcategories for quota: (1) Quota for Commercial Sales; (2) Quota for Transfer; (3) Quota for Product Development; (4) Quota for Replacement; and (5) Quota for Packaging/Repackaging and Labeling/Relabeling. All types of quota could be requested using the same application and format registrants are accustomed to using, in an online form. Manufacturers of schedules I and II controlled substances and list I chemicals would continue to receive manufacturing and procurement quotas appropriate to their manufacturing and inventory requirements, and the DEA would retain greater control over the amount of these controlled substances and listed chemicals produced, thereby reducing the amount of inventories at risk of diversion.
The DEA estimates the following number of respondents and burden associated with reporting:
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The DEA is proposing to formally implement the use of subcategories to facilitate the issuance of import quotas and provide a more accurate calculation of the assessment of annual needs for the United States. The DEA proposes the addition of the following five subcategories for quota: (1) Quota for Commercial Sales; (2) Quota for Transfer; (3) Quota for Product Development; (4) Quota for Replacement; and (5) Quota for Packaging/Repackaging and Labeling/Relabeling. All types of quota could be requested using the same application and format registrants are accustomed to using, in an online form. Importers of list I chemicals would continue to receive import quotas appropriate to their manufacturing and inventory requirements, and the DEA would retain greater control over the amount of these listed chemicals produced, thereby reducing the amount of inventories at risk of diversion.
The DEA estimates the following number of respondents and burden associated with reporting:.
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This proposed rule would require all DEA registrants supplying schedules I and II controlled substances or list I chemicals to DEA manufacturers to obtain certification of the manufacturer's procurement quota before completing the transaction. This provision would prevent manufacturers from purchasing active pharmaceutical ingredients from distributors, rather than other manufacturers, without including a quota certification. Current DEA regulations stipulate only that orders to entities registered as importers, manufacturers, or bulk manufacturers must include quota certifications.
The DEA estimates that distributors fill an average of 3,000 orders to manufacturers per year, which under
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The DEA is soliciting comment on the following issues related to these information collections:
• The need for the information collection and its usefulness in carrying out the proper functions of the DEA.
• The accuracy of the DEA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Written comments and suggestions from the public and affected entities concerning the proposed collections of information are encouraged. Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for DOJ, Washington, DC 20503. Please state that your comments refer to RIN 1117-AB49/Docket No. DEA-455. All comments must be submitted to OMB on or before December 23, 2019. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.
This proposed rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Administrative practice and procedure, Drug traffic control.
Administrative practice and procedure, Chemicals, Drug traffic control, Imports, Reporting and recordkeeping requirements.
For the reasons set forth above, the DEA proposes to amend 21 CFR parts 1303 and 1315 as follows:
21 U.S.C. 821, 826, 871(b).
The three types of quotas are:
(a) Aggregate production quotas, which establish the total quantity of each basic class of schedules I and II controlled substances that may be produced by all manufacturers in a calendar year.
(b) Individual manufacturing quotas, which establish the maximum quantity of each basic class of schedules I and II controlled substances that a registered manufacturer may manufacture during a calendar year. This type of quota is only issued to DEA-registered bulk manufacturers.
(c) Procurement quotas, which establish the maximum quantity of each basic class of schedules I and II controlled substances that a registered manufacturer may procure during a calendar year for the purpose of manufacturing into dosage-forms or other substances.
The five subcategories of manufacturing and procurement quotas are:
(a)
(b)
(c)
(d)
(e)
(a) In establishing any quota under the sections in this part for a covered controlled substance, the Administrator shall estimate the amount of diversion of the covered controlled substance that occurs in the United States.
(b) In estimating diversion under the sections in this part, the Administrator—
(1) Shall consider information the Administrator, in consultation with the Secretary of Health and Human Services, determines reliable on rates of overdose deaths and abuse and overall public health impact related to the covered controlled substance in the United States; and
(2) May take into consideration whatever other sources of information the Administrator determines reliable.
(c) After estimating the amount of diversion of a covered controlled substance, the Administrator shall make appropriate quota reductions, as determined by the Administrator, from the quota the Administrator would have otherwise established had such diversion not been considered.
(d) For purposes of this part, the term “covered controlled substances” refers to fentanyl, oxycodone, hydrocodone, oxymorphone, and hydromorphone.
The additions read as follows:
(a) * * * The Administrator may establish an aggregate production quota in terms of pharmaceutical dosage-forms prepared from or containing the schedule I or II controlled substance, if he determines it will assist in avoiding the overproduction, shortages, or diversion of a controlled substance.
(d) For any year for which the approved aggregate production quota for a covered controlled substance, as defined in § 1303.05(d), is higher than the approved aggregate production quota for the covered controlled substance for the previous year, the Administrator, in consultation with the Secretary of Health and Human Services, shall include in the final order an explanation of why the public health benefits of increasing the quota clearly outweigh the consequences of having an increased volume of the covered controlled substance available for sale, and potential diversion, in the United States.
The addition and revision read as follows:
(a) * * * The Administrator may establish a procurement quota in terms of pharmaceutical dosage-forms prepared from or containing the schedule I or II controlled substance, if he determines it will assist in avoiding the overproduction, shortages, or diversion of a controlled substance.
(b) Any person who is registered to manufacture controlled substances listed in any schedule and who desires to use during the next calendar year any basic class of controlled substances listed in schedule I or II (except raw opium being imported by the registrant pursuant to an import permit) for purposes of manufacturing, shall apply on DEA Form 250 for procurement quota and shall state separately for each subcategory, as defined in 21 CFR 1303.04, each quantity of such basic class. * * *
The addition reads as follows:
(a) * * * The Administrator may establish an individual manufacturing quota in terms of pharmaceutical dosage-forms prepared from or containing the schedule I or II controlled substance, if he determines it will assist in avoiding the overproduction, shortages, or diversion of a controlled substance. * * *
Any person who is registered to manufacture any basic class of controlled substance listed in schedule I or II and who desires to manufacture a quantity of such class shall apply on DEA Form 189 for a manufacturing quota and shall state separately for each subcategory, as defined in 21 CFR 1303.04, each quantity of suchclass. * * *
(a) For the purpose of determining individual manufacturing quotas pursuant to § 1303.23, each registered manufacturer shall be allowed as part of such quota an amount sufficient to maintain an inventory equal to:
(1) For current manufacturers, 30 percent of his average estimated net disposal for the current calendar year and the last preceding calendar year; or
(2) For new manufacturers, 30 percent of his reasonably estimated net disposal for the next calendar year as determined by the Administrator.
(b) For the purpose of determining procurement quotas pursuant to § 1303.12, each registered manufacturer shall be allowed as part of such quota an amount sufficient to maintain an inventory:
(1) For current manufacturers, 30 percent of his average estimated net
(2) For new manufacturers, 30 percent of his reasonably estimated net disposal for the next calendar year as determined by the Administrator.
(c) During each calendar year, each registered manufacturer shall be allowed to maintain an inventory of a basic class not exceeding 45 percent of his estimated net disposal of that class for that year, as determined at the time his quota for that year was determined. At any time the inventory of a basic class held by a manufacturer exceeds 45 percent of his estimated net disposal, his quota for that class is automatically suspended and shall remain suspended until his inventory is less than 40 percent of his estimated net disposal. The Administrator may, upon application and for good cause shown, permit a manufacturer whose quota is, or is likely to be, suspended pursuant to this paragraph (c) to continue manufacturing and to accumulate an inventory in excess of 45 percent of his estimated net disposal, upon such conditions and within such limitations as the Administrator may find necessary or desirable.
(d) If, during a calendar year, a registrant has manufactured the entire quantity of a basic class allocated to him under an individual manufacturing quota, and his inventory of that class is less than 20 percent of his estimated net disposal of that class for that year, the Administrator may, upon application pursuant to § 1303.25, increase the quota of such registrant sufficiently to allow restoration of the inventory to 30 percent of the estimated net disposal for that year.
Any manufacturer assigned an individual manufacturing quota for any basic class of controlled substance listed in schedule I or II pursuant to § 1303.23 may at any time abandon his right to manufacture all or any part of such quota by filing a notice of such abandonment with the UN Reporting and Quota Section, Diversion Control Division, Drug Enforcement Administration in the online Quota Management System. * * *
21 U.S.C. 802, 821, 826, 871(b), 952.
(a) Assessment of annual needs, which establishes the total quantity of ephedrine, pseudoephedrine, and phenylpropanolamine necessary to be manufactured and imported by all manufacturers and importers in a calendar year.
(b) Individual manufacturing quotas, which establish the maximum quantity of ephedrine, pseudoephedrine, and phenylpropanolamine that a registered manufacturer may manufacture during a calendar year. This type of quota is only issued to DEA-registered bulk manufacturers.
(c) Procurement quotas, which establish the maximum quantity of ephedrine, pseudoephedrine, and phenylpropanolamine that a registered manufacturer may procure during a calendar year for the purpose of manufacturing into dosage-forms or other substances.
(d) Import quotas, which establish the maximum quantity of ephedrine, pseudoephedrine, and phenylpropanolamine that a registered importer may import during the calendar year for distribution to their DEA-registered customers.
(a) Quota for Commercial Sale is a quota for the amount of bulk active pharmaceutical ingredients (API) initially acquired by a registrant for the manufacture of ephedrine, pseudoephedrine, and phenylpropanolamine products and bulk API acquired by outsourcing facilities, manufacturers, etc. This type of quota shall only be used to support commercial manufacturing efforts and shall not be used to support other manufacturing efforts.
(b) Quota for Transfer is a quota for the amount of material moved from one registrant to another and does not include material captured under procurement quota for commercial sale. Examples include:
(1) Bulk API being transferred back to the original registrant after milling;
(2) Transfer of in-process material or finished dosage-forms for additional manufacturing efforts (coating, beading, encapsulation, and so forth) back to the preceding registrant; and
(3) Return of material after the specified manufacturing activity has been completed.
(c) Quota for Product Development is a quota for the amount of material needed for product development and validation manufacturing efforts. This quota is limited to that activity
(d) Quota for Replacement is a type of individual manufacturing quota or procurement quota that is granted to a registrant after the registrant disposes of material that was initially intended for commercial sale, but for some reason was unable to be marketed. This quota is separate and shall not count against a registrant's other issued quota. Replacement quota will be granted on a case by case basis. The merits of the request shall be determined by the registrant's justification. Replacement quota is intended to replace material from the current quota year and shall not be used to replace disposed samples, analytical samples, product development material or inventory acquired under previous quota years.
(e) Quota for Packaging/Repackaging and Labeling/Relabeling is quota for the amount of material moved to a registrant to undergo packaging and labeling activities. This quota is limited to that activity
Any person who is registered to manufacture ephedrine, pseudoephedrine, or phenylpropanolamine and who desires to manufacture a quantity of the chemical must apply on DEA Form 189 for a manufacturing quota for the quantity of the chemical and shall state separately for each subcategory, as defined in 21 CFR 1315.07, each quantity of such chemical. * * *
(a) For the purpose of determining individual manufacturing quotas pursuant to § 1315.23, each registered manufacturer shall be allowed as part of such quota an amount sufficient to maintain an inventory:
(1) For current manufacturers, 30 percent of his average estimated net disposal for the current calendar year and the last preceding calendar year; or
(2) For new manufacturers, 30 percent of his reasonably estimated net disposal for the next calendar year as determined by the Administrator.
(b) For the purpose of determining procurement quotas pursuant to § 1315.32, each registered manufacturer shall be allowed as part of such quota an amount sufficient to maintain an inventory:
(1) For current manufacturers, 30 percent of his average estimated net disposal for the current calendar year and the last preceding calendar year; or
(2) For new manufacturers, 30 percent of his reasonably estimated net disposal for the next calendar year as determined by the Administrator.
(c) During each calendar year, each registered manufacturer shall be allowed to maintain an inventory of a chemical not exceeding 45 percent of his estimated net disposal of that chemical for that year, as determined at the time his quota for that year was determined. At any time the inventory of a chemical held by a manufacturer exceeds 45 percent of his estimated net disposal, his quota for that chemical is automatically suspended and shall remain suspended until his inventory is less than 40 percent of his estimated net disposal. The Administrator may, upon application and for good cause shown, permit a manufacturer whose quota is, or is likely to be, suspended pursuant to this paragraph (c) to continue manufacturing and to accumulate an inventory in excess of 45 percent of his estimated net disposal, upon such conditions and within such limitations as the Administrator may find necessary or desirable.
(d) If, during a calendar year, a registrant has manufactured the entire quantity of a chemical allocated to him under an individual manufacturing quota, and his inventory of that chemical is less than 20 percent of his estimated net disposal of that class for that year, the Administrator may, upon application pursuant to § 1315.25, increase the quota of such registrant sufficiently to allow restoration of the inventory to 30 percent of the estimated net disposal for that year.
Any manufacturer assigned an individual manufacturing quota for a chemical pursuant to § 1315.23 may at any time abandon his right to manufacture all or any part of such quota by filing a notice of such abandonment with the UN Reporting and Quota Section, Diversion Control Division, Drug Enforcement Administration in the online Quota Management System. * * *
The revision reads as follows:
(a) Any person who is registered to manufacture ephedrine, pseudoephedrine, or phenylpropanolamine, or whose requirement of registration is waived pursuant to § 1309.24 of this chapter, and who desires to use during the next calendar year any ephedrine, pseudoephedrine, or phenylpropanolamine for purposes of manufacturing (including repackaging or relabeling), must apply on DEA Form 250 for a procurement quota for the chemical and shall state separately for each subcategory, as defined in 21 CFR 1315.07, each quantity of such chemical. * * *
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for certain waters of Spa Creek. This action is necessary to provide for the safety of life on these navigable waters of Spa Creek in Annapolis, MD, on December 31, 2019, during a fireworks display. This proposed rulemaking would prohibit persons and vessels from entering the safety zone unless authorized by the Captain of the Port Maryland-National Capital Region or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before November 22, 2019.
You may submit comments identified by docket number USCG-2019-0846 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Mr. Ron Houck, Sector Maryland-National Capital Region Waterways Management Division, U.S. Coast Guard; telephone 410-576-2674, email
Pyrotecnico, Inc., of New Castle, PA notified the Coast Guard that it will be conducting a public fireworks display from 11:59 p.m. on December 31, 2019, to 12:11 a.m. on January 1, 2020, sponsored by the City of Annapolis, MD. The fireworks are to be launched from a barge located in Spa Creek, approximately 600 feet southeast of Dock Street in Annapolis, MD. Hazards from the fireworks display includes accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The COTP has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within 400 feet of the fireworks barge.
The purpose of this rulemaking is to ensure the safety of vessels on the navigable waters within 400 feet of the fireworks barge on Spa Creek before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).
The COTP is proposing to establish a safety zone in Spa Creek from 11:00 p.m. on December 31, 2019, through 1:00 a.m. on January 1, 2020. The safety zone would cover all navigable waters within 400 feet of the fireworks barge in Spa Creek in approximate position latitude 38°58′32.48″ N, longitude 076°28′57.55″ W, located at Annapolis, MD. A “FIREWORKS—DANGER—STAY AWAY” sign would be posted on the port and starboard sides of the barge on-scene near the location. The duration and enforcement of the safety zone is intended to ensure the safety of vessels on these navigable waters before, during, and after the scheduled 11:59 p.m. fireworks display.
No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, duration, time-of-day and time-of-year of the safety zone. Although this safety zone would restrict the entire width of the waterway, it would impact a small designated area of Spa Creek for a total of two hours during the evening when vessel traffic is normally low. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security 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 involves a safety zone lasting a total of two hours that would prohibit entry within a small designated area of Spa Creek in Annapolis, MD. Normally such actions are categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(1)
(2)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's designated representative by telephone at 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio VHF-FM channel 16 (156.8 MHz).
(3) Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
(f)
Environmental Protection Agency (EPA).
Notification of public hearing and extension of comment period.
On October 9, 2019, the U.S. Environmental Protection Agency (EPA) published a document in the
The hearing will be held at the EPA WJC East Building, 1201 Constitution Avenue NW, Room 1153, Washington, DC 20004. The EPA's website for this rulemaking, which includes the proposal and information about the hearing, can be found at:
To register to speak at the hearing, please use the online registration form available at
Because this hearing is being held at a U.S. Government facility, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff to gain access to the meeting room. Please note that the REAL ID Act, passed by Congress in 2005, established new requirements for entering Federal facilities. For purposes of the REAL ID Act, the EPA will accept government-issued IDs, including driver's licenses, from the District of Columbia and all states and territories except from American Samoa. If your identification is issued by American Samoa, you must present an additional form of identification to enter the Federal building where the public hearing will be held. Acceptable alternative forms of identification include: Federal employee badges, passports, enhanced driver's licenses, and military identification cards. For additional information on the status of your state regarding REAL ID, go to:
Any objects brought into the building need to fit through the security screening system, such as a purse, laptop bag, or small backpack. Demonstrations will not be allowed on Federal property for security reasons.
On November 5, 2019, the EPA will post at
Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) or in hard copy form.
The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Commenters should notify Virginia Hunt if they will need specific equipment or if there are other special needs related to providing comments at the hearings. Verbatim transcripts of the hearings and written statements will be included in the docket for the rulemaking.
Please note that any updates made to any aspect of the hearing will be posted online at
The EPA will not provide audiovisual equipment. Commenters should notify Virginia Hunt when they pre-register to speak that they will require the service of a translator or special accommodations such as audio description. The EPA may not be able to arrange accommodations without advanced notice.
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) adopted a notice of proposed rulemaking that seeks comment on several proposals that will impact FY 2020 regulatory fees.
Submit comments on or before November 22, 2019; and reply comments on or before December 23, 2019.
You may submit comments, identified by MD Docket No. 19-105, by any of the following methods:
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process,
Roland Helvajian, Office of Managing Director at (202) 418-0444.
This is a summary of the Commission's Further Notice of Proposed Rulemaking (
1. In this
2. The Commission's goal in assessing International Bureau regulatory fees is to recover all of the costs associated with International Bureau regulatory activities and to distribute these costs fairly among fee payers. But not all beneficiaries of the International Bureau's regulatory activities currently pay regulatory fees, and some commenters argue that we should reexamine the allocations of FTEs within the bureau. We take this opportunity to seek comment on reforming our assessment of regulatory fees for International Bureau regulatees.
3.
4. We seek comment on whether we should or must assess regulatory fees on non-U.S. licensed space stations serving the United States under section 9, given that non-U.S. licensed space stations appear to benefit from the Commission's regulatory activities in much the same manner as U.S. licensed space stations.
5. We seek comment on whether assessing non-U.S. licensed space stations would promote regulatory parity among space station operators. Do any space station operators choose to seek licensing elsewhere as a means of arbitraging our current regulatory fee assessments? Is it fair or equitable to grant one class of space station operators a non-statutory exemption from fees that another class of similarly situated operators must pay? Commenters that advocate assessing regulatory fees on non-U.S. licensed space stations providing service in the United States should propose how the fees should be calculated and applied. Are there any corner cases, such as where the non-U.S. licensed space station operator accesses the U.S. market solely through one or more U.S.-
6. We note that the Commission previously reallocated four International Bureau FTEs as indirect for regulatory fee purposes to address the work that International Bureau FTEs conduct on market access requests by non-U.S. licensed space stations.
7.
8. We seek comment on two suggestions by commenters to further adjust our assessment of broadcaster regulatory fees.
9.
10. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules.
11. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
•
•
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to FCC, 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.
12.
13. An initial regulatory flexibility analysis (IRFA) is contained in this summary. Comments to the IRFA must be identified as responses to the IRFA and filed by the deadlines for comments on the
14. This document does not contain new or modified information collection requirements 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,
15. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
16. The
17. This action, including publication of proposed rules, is authorized under sections (4)(i) and (j), 9, 9A, and 303(r) of the Communications Act of 1934, as amended.
18. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for Television Broadcasting firms: Those having $38.5 million or less in annual receipts.
31. In assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
32. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.
33.
34. In assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.
35.
36.
37.
38.
39.
40.
41.
42. The U.S. Census Bureau defines Wired Telecommunications Carriers as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.
43. The U.S. Census Bureau defines Wireless Telecommunications Carriers (except satellite) as establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services.
44.
45. The U.S. Census defines Other Services Related to Advertising as comprising establishments primarily engaged in providing advertising services (except advertising agency services, public relations agency services, media buying agency services, media representative services, display advertising services, direct mail advertising services, advertising material distribution services, and marketing consulting services).
46. The U.S. Census defines Other Management Consulting Services as establishments primarily engaged in providing management consulting services (except administrative and general management consulting; human resources consulting; marketing consulting; or process, physical distribution, and logistics consulting). Establishments providing telecommunications or utilities management consulting services are included in this industry.
47. In addition to the data contained in the four (see above) U.S. Census NAICS code categories that provide definitions of what services and functions the Carrier and Non-Carrier RespOrgs provide, Somos, the trade association that monitors RespOrg activities, compiled data showing that as of July 1, 2016 there were 23 RespOrgs operational in Canada and 436 RespOrgs operational in the United States, for a total of 459 RespOrgs currently registered with Somos.
48. This
49. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
50. This
51. None.
52. Accordingly,
Federal Communications Commission.
Proposed rule; proposed auction procedures.
In this document, the Commission announces auctions of Priority Access Licenses for the 3550-3650 MHz Band, designated as Auction 105. This document proposes and seeks comment on competitive bidding procedures to be used for Auction 105.
Comments are due on or before October 28, 2019, and reply comments are due on or before November 12, 2019.
Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.
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 auction legal questions, Mary Lovejoy or Kelly Quinn in the Auctions Division of the Office of Economics and Analytics at (202) 418-0660. For general auction questions, the Auctions Hotline at (717) 338-2868. For Priority Access License questions, Jessica Quinley in the Wireless Telecommunications Bureau's Mobility Division at (202) 418-1991.
This is a summary of the Public Notice (
1. By the
2. Auction 105 will offer seven PALs in each county-based license area and counties shall be defined using the United States Census Bureau's data reflecting county legal boundaries and names valid through January 1, 2017. Each PAL consists of a 10-megahertz unpaired channel within the 3550-3650 MHz band. The auction will offer a total
3. A frequency coordinator called a Spectrum Access System (SAS) will assign the specific channel for a particular licensee on a dynamic basis. Individual PALs will not be identified by specific spectrum blocks. Although Priority Access Licensees may request a particular channel or frequency range from an SAS following the auction, bidders should be mindful that licensees are not guaranteed a particular assignment. Potential bidders should also understand that an SAS may dynamically reassign a PAL to a different channel as needed to accommodate a higher priority Incumbent Access user. An SAS will “assign geographically contiguous PALs held by the same Priority Access Licensee to the same channels in each geographic area” and “assign multiple channels held by the same Priority Access Licensee to contiguous frequencies within the same License Area,” to the extent feasible. However, an SAS may temporarily reassign individual PALs to non-contiguous channels to the extent necessary to protect incumbent users from harmful interference or, if necessary, to perform its required functions.
4. Each Priority Access Licensee must register its Citizens Broadband Radio Service Devices (CBSDs) with an SAS before operating those devices in the band. A CBSD registration includes its geographic location, antenna height, CBSD class, requested authorization status, FCC identification number, call sign, user contact information, air interface technology, unique manufacturer's serial number, sensing capabilities (if supported), and information on its deployment profile. An SAS relies on this information to coordinate access for Priority Access Licensees and General Authorized Access (GAA) users, and an SAS Administrator may charge Priority Access Licensees and GAA users a reasonable fee for its services.
5. The 3.5 GHz band (3550-3700 MHz) is governed by a three-tiered spectrum authorization framework. The three tiers of authorization are: Incumbent Access, Priority Access, and General Authorized Access (GAA). SASs will facilitate sharing among the three tiers of authorized users. Incumbent users receive protection from Priority Access Licensees and GAA users, while Priority Access Licensees receive protection from GAA users. The three-tiered structure is designed to accommodate a variety of commercial uses on a shared basis with incumbent federal and non-federal uses of the band. The Citizens Broadband Radio Service includes Priority Access Licensees and GAA users in the 3550-3650 MHz band and GAA users in the 3550-3700 MHz band (collectively, the 3.5 GHz band).
6. Incumbent users, which have the highest priority, include federal radiolocation users in the 3550-3650 MHz band and non-Federal grandfathered Fixed Satellite Service (FSS) earth stations in the 3600-3650 MHz band.
7. The 3550-3650 MHz band segment is allocated for use by Department of Defense (DoD) radar systems on a primary basis and by Federal non-military Radiolocation Service on a secondary basis. Federal aeronautical radionavigation (ground-based) stations may also be authorized on a primary basis in the 3500-3650 MHz band when accommodation in the 2700-2900 MHz band is not technically or economically feasible. Non-Federal licensees, including Priority Access Licensees, may not cause harmful interference to, or claim protection from federal stations in the aeronautical radionavigation (ground-based) and radiolocation services in the 3550-3650 MHz band. The National Telecommunications and Information Administration (NTIA) may approve frequency assignments for new and modified Federal stations at current or new locations.
8. In the 3550-3650 MHz band, non-Federal stations in the Radiolocation Service that were licensed or had pending applications prior to July 23, 2015 may operate on a secondary basis to the Citizens Broadband Radio Service until the end of the equipment's useful lifetime. FSS (space-to-Earth) earth station operations in the 3600-3650 MHz band may operate on a primary basis if the Commission authorized operation prior to or granted an application filed prior to July 23, 2015 and if the FSS licensee constructed the subject earth station(s) within 12 months of the initial authorization. Any new FSS (space-to-Earth) earth stations in the 3600-3650 MHz band assigned after July 23, 2015, are authorized on a secondary basis. Regardless of primary or secondary status, all non-Federal FSS (space-to-Earth) operations in the 3600-3650 MHz band are limited to international inter-continental systems and subject to case-by-case electromagnetic compatibility analysis.
9. GAA users may operate in the 3550-3700 MHz band, but are not guaranteed protection from interference. GAA users may operate on any frequencies not in use by Priority Access Licensees or Tier 1 licensees in the 3550-3650 MHz band. The GAA tier is licensed-by-rule to permit open, flexible access to the band for the widest possible group of potential users.
10. Each potential bidder is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the potential uses of a PAL that it may seek in Auction 105. In addition to the typical due diligence considerations that the Commission encourages of bidders in all auctions, the Commission calls particular attention in Auction 105 to the spectrum-sharing issues described above. Each applicant should closely follow releases from the Commission concerning these issues and consider carefully the technical and economic implications for commercial use of the 3550-3650 MHz band.
11. Consistent with most recent spectrum auctions, the Commission proposes to limit information available in Auction 105 in order to prevent the identification of bidders placing particular bids until after the bidding has closed. More specifically, the Commission proposes not to make public until after bidding has closed: (1) The licenses or license areas that an applicant selects for bidding in its auction application (FCC Form 175); (2) the amount of any upfront payment made by or on behalf of an applicant for Auction 105; (3) an applicant's bidding eligibility; and (4) any other bidding-related information that might reveal the identity of the bidder placing a bid.
12. Under these proposed limited information procedures (sometimes also referred to as anonymous bidding), information to be made public after each round of bidding in Auction 105 includes, for each county: the aggregate demand for licenses, the prices at the end of the last completed round, and the prices for the next round. The identities of bidders placing specific bids and the net bid amounts (reflecting bidding credits) would not be disclosed until after the close of bidding.
13. Bidders would have access to additional information related to their own bidding and bid eligibility. For example, bidders would be able to view their own level of eligibility, before and
14. After the close of bidding, bidders' county selections and the number of licenses selected for each county, upfront payment amounts, bidding eligibility, bids, and other bidding-related actions would be made publicly available.
15. The Commission seeks comment on the above details of the proposal for implementing limited information procedures, or anonymous bidding, in Auction 105. Commenters opposing the use of anonymous bidding in Auction 105 should explain their reasoning and propose alternative information rules.
16. The Commission administers its bidding credit programs to promote small business and rural service provider participation in auctions and in the provision of spectrum-based services. In 2018, the Commission determined that it would offer bidding credits in competitive bidding for PALS in the 3550-3650 MHz band auction to improve the ability of small businesses and rural service providers to attract the capital necessary to meaningfully acquire PALs. Specifically, the Commission adopted the gross revenue thresholds that define the eligibility tiers for the small business bidding credit, as revised by the
17. Consistent with the Commission's decision in the
18. For Auction 105, the Commission proposes a $25 million cap on the total amount of bidding credits that may be awarded to an eligible small business, and a $10 million cap on the total amount of bidding credits that may be awarded to an eligible rural service provider. These proposals are consistent with the Commission's recent decisions in Auctions 101, 102, and 103. As in those auctions, the Commission believes that the range of potential use cases suitable for spectrum in the 3550-3650 MHz band, combined with the relatively small geographic areas for PALs, may permit deployment of smaller scale networks with lower total costs. Moreover, past auction data suggests that the proposed caps will allow the substantial majority of eligible businesses in the auction to take advantage of the bidding credit program. In addition, to create parity in Auction 105 among eligible small businesses and rural service providers competing against each other in small markets, the Commission proposes a $10 million small markets cap on the overall amount of bidding credits that any winning small business bidder may apply to licenses won in counties located within any Partial Economic Area (PEA) with a population of 500,000 or less. These markets correspond to PEAs 118-416, excluding PEA 412 (Puerto Rico).
19. The Commission seeks comment on these proposed caps. Specifically, do the expected capital requirements associated with operating in the 3550-3650 MHz band, the potential number and value of PALs, past auction data, or any other considerations justify the proposed caps or a higher cap for either type of bidding credit? Commenters are encouraged to identify circumstances and characteristics of Auction 105 that should guide us in establishing bidding credit caps, and to provide specific, data-driven arguments in support of their proposals.
20. The Commission reminds applicants applying for designated entity bidding credits that they should take account of the requirements of the Commission's rules and implementing orders regarding de jure and de facto control of such applicants. These rules include a prohibition, which applies to all applicants (whether or not seeking bidding credits), against changes in ownership of the applicant that would constitute an assignment or transfer of control. Applicants should not expect to receive any opportunities to revise their ownership structure after the filing of their short- and long-form applications, including making revisions to their agreements or other arrangements with interest holders, lenders, or others in order to address potential concerns relating to compliance with the designated entity bidding credit requirements. This policy will help ensure compliance with the Commission's rules applicable to the award of bidding credits prior to the conduct of Auction 105, which will involve competing bids from those with and without bidding credits, and thus preserve the integrity of the auctions process. The Commission also believes that this will meet the objectives that the Commission must consider in awarding licenses through the competitive bidding process, including “the development and rapid deployment of new technologies, products, and services for the benefit of the public . . . without administrative or judicial delays” and “promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses.”
21. The Commission proposes to conduct Auction 105 using an ascending clock auction design, in which bidders indicate their demands for generic license blocks in specific geographic areas—in this case, counties. The Commission's proposed clock auction format would proceed in a series of rounds, with bidding being conducted simultaneously for all spectrum blocks in all counties available in the auction. During each bidding round, the Commission would announce a per-block price in each county, and qualified bidders would submit, for each county for which they wish to bid, the number of blocks they seek at the clock prices associated with the current round. Bidding rounds would be open for predetermined periods of time. Bidders would be subject to activity and eligibility rules
22. Under this proposal, in each county, the clock price for a generic license block would increase from round to round if bidders indicate total demand in that county that exceeds the number of blocks available. The bidding rounds would continue until, for all counties, the total number of blocks that bidders demand does not exceed the supply of available blocks. At that point, those bidders indicating demand for a block at the final price would be deemed winning bidders.
23. The clock auction design the Commission proposes for Auction 105 is similar in many respects to that used by the Commission for Auctions 1002 and 102, and that will be used for Auction 103, but it would differ in several important respects. First, no assignment phase will be held to assign frequency-specific licenses, as was done in previous auctions, because Priority Access Licensees will not be assigned frequency-specific licenses, but will be authorized to use frequencies associated with their PALs as dynamically assigned by SASs. Second, although the geographic licensing areas will be counties, the Commission seeks comment on a proposal to allow any bidder to elect to bid at a Cellular Market Area (CMA)-level for certain large CMAs rather than bidding separately for the counties within the CMA. The Commission seeks comment on bid incrementing and processing procedures to accommodate CMA-level bidding. These approaches could permit greater flexibility for bidders seeking to serve areas larger than a county. Third, the Commission proposes to modify the bidding activity rules that were used in prior clock auctions to provide a safeguard against a bidder losing bidding eligibility under certain circumstances.
24. The Commission directs the Office of Economics and Analytics (OEA), in conjunction with the Wireless Telecommunications Bureau (Bureau), to prepare and release, concurrent with the Auction 105 Comment Public Notice, a technical guide that provides mathematical details and algorithms of the proposed auction design.
25. According to the
26.
27.
28. Since the benefits to bidders of being able to bid for an aggregation of counties, rather than having to bid for the counties separately, would likely be greatest for large metropolitan areas, the Commission proposes that CMA-level bidding, subject to the conditions and procedures specified, be permitted only for the top CMAs that include more than one county. For purposes of Auction 105, we have used the 1992 CMA markets, adjusted for changes to county boundaries since that time. Where the benefits of bidding for an aggregation of counties are likely to be less significant, the Commission proposes to maintain procedures for county-level bidding only. Accordingly, the Commission proposes to allow a bidder to elect CMA-level bidding for the 172 CMAs that are classified as Metropolitan Statistical Areas (MSAs) and that incorporate multiple counties. Not including the Gulf of Mexico, 305 CMAs are classified as MSAs (Metropolitan Statistical Areas). Of these, 133 encompass a single county. Each of the remaining 172 MSAs comprises multiple counties. A bidder that does not elect CMA-level bidding for a given CMA would be able to bid for any or all of the counties in the CMA individually. A bidder would only be able to bid for all other counties—those in CMAs classified as Rural Service Areas (RSAs) and single-county MSAs—on a county-by-county basis.
29. Under this proposal to permit CMA-level bidding, a bidder would be permitted to elect CMA-level bidding for a given CMA only if it has selected all the counties in that CMA on its Form 175. Further, its initial eligibility must be sufficient to bid for at least one block within the CMA (
30. We clarify that under this proposal, prices will would be determined on a county-by-county basis, consistent with the basic clock mechanism. Prices in a particular county would depend upon whether the aggregate demand for blocks in that county exceeds the supply, regardless of whether the demand comes from bidders bidding on a CMA level, on a county level, or both.
31. We seek comment on this proposal for CMA-level bidding generally. In particular, we ask for comment on the proposal to make eligible for CMA-level bidding the multi-county CMAs that are classified as MSAs, to require a bidder to make an irrevocable election to bid at the CMA level or the county level, and on the specific implementation procedures we propose. We seek comment on how this proposal, including the proposed implementation procedures described below, would affect auction participation by bidders that seek licenses for individual counties. We also seek comment on whether there are modifications that should be made to our proposal for CMA-level bidding that would assist auction participation by smaller entities interested in county-sized licenses.
32. Under the proposed clock auction format, Auction 105 would consist of sequential bidding rounds, each
33. The Commission will conduct Auction 105 over the internet. Bidders will upload bids in a specified file format for processing by the FCC auction bidding system.
34. Under this proposal, OEA would retain the discretion to adjust the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. Such adjustments may include changes in the amount of time for bidding rounds, the amount of time between rounds, or the number of rounds per day, and would depend upon bidding activity and other factors. The Commission seeks comment on this proposal. Commenters should address the role of the bidding schedule in managing the pace of the auction and should specifically discuss the tradeoffs in managing auction pace by bidding schedule changes, by changing the activity requirement percentage or bid increment parameters, or by using other means.
35. The Commission proposes a simultaneous stopping rule for Auction 105, under which all blocks in all counties would remain available for bidding until the bidding stops in every county. Specifically, the Commission proposes that bidding close for all blocks after the first round in which there is no excess demand in any county. Excess demand is calculated as the difference between the number of blocks of aggregate demand (from both county-level and CMA-level bids) and supply (equal to 7 blocks in all counties). Consequently, under this approach, it is not possible to determine in advance how long Auction 105 would last. The Commission seeks comment on the proposed simultaneous stopping rule.
36. For Auction 105, the Commission proposes that, at any time before or during the bidding process, OEA, in conjunction with the Bureau, may delay, suspend, or cancel bidding in Auction 105 in the event of a natural disaster, technical obstacle, network interruption, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such a case, OEA would notify participants of any such delay, suspension, or cancellation by public notice and/or through the FCC auction bidding system's announcement function. If the bidding is delayed or suspended, OEA, in its sole discretion, may elect to resume the auction starting from the beginning of the current round or from some previous round, or it may cancel the auction in its entirety. The Commission emphasizes that OEA and the Bureau would exercise this authority solely at their discretion. The Commission seeks comment on this proposal.
37. In keeping with the Commission's usual practice in spectrum license auctions, the Commission proposes that applicants be required to submit upfront payments as a prerequisite to becoming qualified to bid. As described below, the upfront payment is a refundable deposit made by an applicant to establish its eligibility to bid on licenses. Upfront payments protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of bidding. With these considerations in mind, the Commission proposes upfront payments based on $0.01 per MHz-pop, with a minimum of $500 per county. The results of these calculations will be rounded using the Commission's standard rounding procedures for auctions: Results above $10,000 are rounded to the nearest $1,000; results below $10,000 but above $1,000 are rounded to the nearest $100; and results below $1,000 are rounded to the nearest $10. The proposed upfront payments equal approximately half the proposed minimum opening bids, which are established as described in section IV.H.1 of the Auction 105 Comment Public Notice. The Commission seeks comment on these upfront payment amounts, which are specified in the Attachment A files of the Auction 105 Comment Public Notice.
38. The Commission further proposes that the amount of the upfront payment submitted by a bidder would determine its initial bidding eligibility in bidding units, which are a measure of bidder eligibility and bidding activity. The Commission proposes to assign each block in a given county a specific number of bidding units, equal to one bidding unit per $10 of the upfront payment listed in Attachment A. The number of bidding units for one block in a given county is fixed, since it is based on the MHz-pops in the block, and does not change during the auction as prices change. To the extent that bidders wish to bid on multiple generic blocks simultaneously, whether within the same county or in different counties, they would need to ensure that their upfront payment provides enough eligibility to cover multiple blocks.
39. Under the proposed approach, a bidder's upfront payment would not be attributed to blocks in a specific county or counties. A bidder may place bids on multiple blocks in counties that it selected for bidding in its FCC Form 175, provided that the total number of bidding units associated with those blocks does not exceed its eligibility-based limit for the round. A bidder cannot increase its eligibility during the auction; it can only maintain its eligibility or decrease its eligibility. Thus, in calculating its upfront payment amount, and hence its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid in any single round and submit an upfront payment amount covering that total number of bidding units. The Commission seeks comment on these proposals.
40. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. For this clock auction, a bidder's activity in a round for purposes of the activity rule would be the sum of the bidding units associated with the bidder's demands as applied by the auction system during bid processing. Bidders are required to be active on a specific percentage (
41. The Commission proposes to require that bidders maintain a fixed, high level of activity in each round of Auction 105 in order to maintain bidding eligibility. Specifically, the Commission proposes to require that bidders be active on between 90% and 100% of their bidding eligibility in all clock rounds. Thus, the activity rule would be satisfied when a bidder has bidding activity on blocks with bidding units that total 90% to 100% of its current eligibility in the round. If the activity rule is met, then the bidder's
42. Because a bidder's eligibility for the next round is calculated based on the bidder's demands as applied by the auction system during bid processing, a bidder's eligibility may be reduced even if the bidder submitted bids with activity that exceeds the required activity for the round. This may occur, for example, if the bidder bids to reduce its demand in county A by two blocks (with 10 bidding units each) and bids to increase its demand by one block (with 20 bidding units) in county B. If the bidder's demand can only be reduced by one block in county A (because there is only one block of excess demand), the increase in county B cannot be applied, and absent other bidding activity the bidder's eligibility would be reduced. To help a bidder avoid having its eligibility reduced as a result of submitted bids that could not be accepted during bid processing, the Commission proposes to allow a bidder to submit bids with associated bidding activity greater than its current bidding eligibility. For example, under this proposal, and depending upon the bidder's overall bidding eligibility and the activity limit percentage, a bidder could submit an “additional” bid or bids that would be considered (in price point order with its other bids) and applied as available eligibility permits during the bid processing. However, under the proposed procedures, the bidder's activity as applied by the auction system during bid processing would not exceed the bidder's current bidding eligibility. That is, a bidder may submit bids with associated bidding units exceeding 100% of its current bidding eligibility, but its processed activity may never exceed its eligibility.
43. Specifically, the Commission proposes that after Round 1 a bidder may submit bids with bidding units totaling up to an
44. Under the proposed procedures, OEA would retain the discretion to change the activity requirement percentage and the activity limit percentage during the auction. The bidding system would announce any such changes in advance of the round in which they would take effect, giving bidders adequate notice to adjust their bidding strategies.
45. The Commission invites comment on this proposal and, in particular, on using an activity upper limit to address the potential for loss of bidding eligibility under some circumstances. We also encourage commenters to address specifically whether to set the activity requirement percentage between 90% and 100% and whether to set the activity limit percentage between 100% and 140%. Further, the Commission seeks comment on where to set these percentages initially. The Commission also seeks comment on the relationship between the proposed activity rules and the ability of bidders to switch their demands across counties. The Commission encourages any commenters that oppose the proposed ranges for the activity requirement percentage and the activity limit percentage to explain their reasons with specificity.
46. The Commission points out that under the proposed clock auction format, bidders are required to indicate their demands in every round, even if their demands at the new round's prices are unchanged from the previous round. Missing bids—bids that are not reconfirmed—are treated by the auction bidding system as requests to reduce to a quantity of zero blocks for the county or CMA (if the bidder is bidding at the CMA level). If these requests are applied, or applied partially, a bidder's bidding activity, and hence its bidding eligibility for the next round, may be reduced. A CMA-level bid may be applied partially with respect to the number of blocks specified in the bid, not for fewer than the full number of counties in the CMA.
47. For Auction 105, the Commission does not propose to provide for activity rule waivers to preserve a bidder's eligibility. The Commission notes that its proposal to permit a bidder to submit bids with bidding activity greater than its eligibility, within the precise limits set forth above, would address some of the circumstances under which a bidder risks losing bidding eligibility and otherwise could wish to use a bidding activity waiver, while minimizing any potential adverse impacts on bidder incentives to bid sincerely and on the price setting mechanism of the clock auction. This approach not to allow waivers is consistent with the ascending clock auction procedures used in Auction 1002 and 102 and with the procedures adopted for Auction 103. The clock auction relies on precisely identifying the point at which demand decreases to equal supply to determine winning bidders and final prices. Allowing waivers would create uncertainty with respect to the exact level of bidder demand and interfere with the basic clock price-setting and winner determination mechanism. Moreover, uncertainty about the level of demand would affect the way bidders' requests to reduce demand are processed by the bidding system, as addressed below. The Commission seeks comment on this approach.
48. As part of the pre-bidding process for each auction, the Commission seeks comment on the use of a minimum opening bid amount and/or reserve price, as mandated by Section 309(j) of the Communications Act of 1934, as amended.
49. The Commission proposes to establish minimum opening bid amounts for Auction 105. The bidding system will not accept bids lower than these amounts. Based on the Commission's experience in past auctions, setting minimum opening bid amounts judiciously is an effective tool for accelerating the competitive bidding process. In the first bidding round of Auction 105, a bidder would indicate how many generic license blocks in a county (or CMA, if applicable) it demands at the minimum opening bid price. For Auction 105, the Commission proposes to establish initial clock prices, or minimum opening bids, by county, as set forth in the following paragraph. For CMA-level bids, the Commission proposes minimum
50. For Auction 105, the Commission proposes to calculate minimum opening bid amounts using a formula based on bandwidth and license area population, which is similar to the Commission's approach in many previous spectrum auctions. The Commission proposes to use a calculation based on $0.02 per MHz-pop, with a minimum of $1,000. The Commission seeks comment on these minimum opening bid amounts, which are specified in the Attachment A files. If commenters believe that these minimum opening bid amounts would result in unsold licenses, are not reasonable amounts, or should instead operate as reserve prices, they should explain their reasoning and propose an alternative approach. Commenters should support their claims with valuation analyses and suggested amounts or formulas for reserve prices or minimum opening bids.
51. In establishing minimum opening bid amounts, the Commission particularly seeks comment on factors that could reasonably affect bidders' valuation of the spectrum, including the type of service offered, market size, population covered by the proposed facility, and any other relevant factors.
52. Commenters may also wish to address the general role of minimum opening bids in managing the pace of the auction. For example, commenters could compare using minimum opening bids—
53. Under the proposed clock auction format for Auction 105, after bidding in the first round and before each subsequent round, the FCC auction bidding system would announce the start-of-round price and the clock price for the upcoming round—that is, the lowest price and the highest price at which bidders can specify the number of blocks they demand during the round. As long as aggregate demand for blocks in the county exceeds the supply of blocks, the start-of-round price would be equal to the clock price from the prior round. If demand equaled supply at a price in a previous round, then the start-of-round price for the next round would be equal to the price at which demand equaled supply. If demand was less than supply in the previous round, then the start-of-round price for the next round would not increase.
54. The Commission proposes to set the clock price for blocks in a specific county for a round by adding a percentage increment, which may be county-specific, to the start-of-round price. For example, if the start-of-round price for a block in a given county is $10,000, and the percentage increment is 20%, then the clock price for the round will be $12,000. The Commission further proposes that the total dollar amount of the increment (the difference between the clock price and the start-of-round price) would not exceed a certain amount. The Commission proposes that this cap on the increment initially be set at $10 million, and proposes to retain the discretion to adjust this cap as rounds continue.
55. Under the proposed procedures, the percentage increment for a county would depend upon whether the county is in a CMA for which CMA-level bids are allowed.
56.
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58. Under this proposal, the bidding system would set the clock price for counties subject to CMA-level bidding using an algorithm. The algorithm would first consider the extent of variation in excess demand across the counties in the CMA. If the variation does not exceed a given basic threshold, the increment percentage for all counties in the CMA would be set equal to the basic increment percentage. Then the clock price would be determined by adding the basic increment percentage to the start-of-round price for each county in the CMA, as it would be for counties not subject to CMA-level bidding.
59. If instead the algorithm shows that the extent of variation in aggregate demand across the counties in a CMA exceeds the basic threshold, indicating that there is significantly more demand for blocks in some counties than others, the algorithm would calculate an increment percentage for each county based on how aggregate demand in that county compares to aggregate demand in the other counties. The increment percentage for counties with relatively high demand would be greater than the increment percentage for counties with relatively low demand. The county-specific percentage increment calculated by the algorithm would then be added to the start-of-round price to determine the clock price for the county. The increment percentages would be no greater than a maximum, which the Commission proposes to set within a range of 5% to 20% and no less than a minimum, which the Commission proposes to set within a range of 2% to 20%. The Commission proposes to set the initial maximum increment percentage at 15%, and the
60. The specific algorithm proposed for calculating the increment percentage in counties subject to CMA-level bidding is set forth in the Auction 105 Technical Guide. The Commission seeks comment on these proposed procedures for setting the clock increment under various circumstances, including the variable pricing algorithm and the use of the algorithm with CMA-level bids. As an alternative to our proposal to use a variable price increment for counties subject to CMA-level bidding to help avoid creating excess supply, should we apply the basic increment to all counties? In particular, the Commission asks for feedback on the proposed 5% to 20% range for the basic increment percentage, with an initial basic increment percentage of 10%. The Commission also asks for specific feedback on the proposed 2% to 20% range for the minimum increment percentage, with an initial minimum increment percentage of 5%, and on the proposed 5% to 20% range for the maximum increment percentage, with an initial maximum increment percentage of 15%.
61. The Commission proposes generally to permit a bidder to make intra-round bids by indicating a point between the start-of-round price and the clock price at which its demand for blocks changes. In placing an intra-round bid, a bidder would indicate a specific price and a quantity of blocks it demands if the price for blocks should increase beyond that price.
62. The Commission also proposes an exception to this general rule. In the case of a CMA-level bid to reduce demand, the bid could only be made at the start-of-round price. This proposed exception would help to ensure that the price does not increase above the start-of-round price when there is excess supply (that is, unsold blocks), which may result from a CMA-level bid to reduce demand.
63. Intra-round bids would be optional; a bidder may choose to express its demands only at the clock prices. This proposal to permit intra-round bidding would allow the auction system to use relatively large increments, thereby speeding the auction, without running the risk that a jump in the clock price will overshoot the market clearing price—the point at which demand for blocks equals the available supply. The Commission seeks comment on the proposal to allow intra-round bids.
64. Under the ascending clock format the Commission proposes for Auction 105, a bidder would indicate in each round the number of blocks in each county and/or CMA (if bidding at a CMA level) that it demands at a given price. A bidder that wishes to change the quantity it demands (relative to its demands from the previous round as processed by the bidding system) would express its demands at the clock price or at an intra-round price. However, CMA-level bids to reduce demand must be made at the start-of-round price. A bidder that is willing to maintain the same demand in a county at the new clock price would bid for that quantity at the clock price, indicating that it is willing to pay up to that price, if need be, for the specified quantity. Bids to maintain demand would always be applied by the auction bidding system.
65. The Commission proposes bid processing procedures that the auction bidding system would use, after each bidding round, to process bids to change demand to determine the
66. Under the ascending clock auction format, the FCC auction bidding system will not allow a bidder to reduce the quantity of blocks it demands in an individual county if the reduction would result in aggregate demand falling below (or further below) the available supply of blocks in the county. Therefore, if a bidder bids to reduce the number of blocks that it holds as of the previous round, the FCC auction bidding system will treat the bid as a request to reduce demand that will be applied only if the “no excess supply” rule would be satisfied.
67. The Commission proposes a limited exception to the “no excess supply” rule for CMA-level bids only. Under this proposed modification, for CMA-level bids, if there is excess demand in at least one county of the CMA at the time a CMA-level bid to reduce demand is processed, then a reduction of one block would be applied even if that creates excess supply in other counties of the CMA. Once the first unit of a CMA-level bid to reduce demand has been applied, the “no excess supply” rule then would be in effect for any further reduction requested in that bidder's CMA-level bid that has not yet been applied. CMA-level bids to reduce demand would only be allowed at the lowest price associated with the round (the start-of-round price). The Commission notes that the price incrementing rules for CMAs for which CMA-level bidding is permitted make it more likely that aggregate demands would be equalized across the counties in the CMA, thus making it less likely that the “no excess supply” exception would be triggered.
68. Under the proposed bid processing procedures, a bid that involves a reduction from the bidder's previous demands could be applied partially—that is, reduced by fewer blocks than requested in the bid—if excess demand is insufficient to support the entire reduction. A bid to increase a bidder's demands could be applied partially if the total number of bidding units associated with the bidder's demand exceeds the bidder's bidding eligibility for the round.
69. The Commission proposes to process bids to change demand in order of price point after a round ends, where the price point represents the percentage of the bidding interval for the round. For example, if the start-of-round price is $5,000 and the clock price is $6,000, a price of $5,100 will correspond to the 10% price point, since it is 10% of the bidding interval between $5,000 and $6,000. Under this proposal, the FCC auction bidding system would process bids to change demand in ascending order of price point, first considering intra-round bids in order of price point and then bids at the clock price. The system would consider bids at the lowest price point across all counties and all CMAs subject to CMA-level bidding, then look at bids at the next price point in all areas, and so on. The Commission proposes that, if there are multiple bids at a single price point, the system will process bids in order of a bid-specific pseudo-random number. As it considers each submitted bid during bid processing, the FCC auction bidding system would determine the extent to which there is excess demand in each county at that point in the processing in order to determine whether a bidder's request to reduce demand can be applied. Likewise, the auction bidding system would evaluate the activity associated with the bidder's most recently determined demands at that point in the processing to determine whether a request to increase demand can be applied.
70. Because in any given round some bidders may request to increase
71. Therefore, under the proposed procedures, once a round closes, the auction system would process bids to change demand by first considering the bid submitted at the lowest price point and determining the maximum extent to which that bid can be applied given bidders' demands as determined at that point in the bid processing. If the bid can be applied (either in full or partially), the number of licenses the bidder holds at that point in the processing would be adjusted, and aggregate demand would be recalculated accordingly. If the bid cannot be applied in full, the unfulfilled bid, or portion thereof, would be held in a queue to be considered later during bid processing for that round. The FCC auction bidding system would then consider the bid submitted at the next highest price point, applying it in full, in part, or not at all, given the most recently determined demands of bidders. Any unfulfilled requests would again be held in the queue, and aggregate demand would again be recalculated. Every time a bid or part of a bid is applied, the unfulfilled bids held in the queue would be reconsidered, in the order of their original price points (and by pseudo-random number, in the case of tied price points). The auction bidding system would not carry over unfulfilled bid requests to the next round, however. The bidding system would advise bidders of the status of their bids when round results are released.
72. The Commission further proposes bid processing procedures that would determine, based on aggregate demand, the posted price for each county for the round that will serve as the start-of-round price for the next round. Under this proposal, the uniform price for all of the blocks in a county would increase from round to round as long as there is excess demand for blocks in the county but would not increase if aggregate demand does not exceed the available supply of blocks.
73. The Commission proposes that if, at the end of a round, the aggregate demand for blocks in the county (considering both county-level and CMA-level bids) exceeds the supply of blocks (7), the posted price would equal the clock price for the round. If a reduction in demand was applied during the round and caused demand in the county to equal (or fall below) supply, the posted price would be the price at which the reduction was applied. If aggregate demand is less than supply and no bid to reduce demand was applied for the county, then the posted price would equal the start-of-round price for the round. The range of acceptable bid amounts for the next round would be set by adding the percentage increment to the posted price.
74. When a county-level bid to reduce demand can be applied only partially, the uniform price for the county would stop increasing at that point, since the partial application of the bid would result in demand falling to equal supply. Hence, a bidder that makes a county-level bid to reduce demand that cannot be fully applied would not face a price for the remaining demand that is higher than its bid price. A bidder that makes a CMA-level bid to reduce demand that is partially applied may face a price for the remaining demand that is higher than its bid price for some of the counties. This is the case when some counties in the CMA still have excess demand, which will cause the prices in those counties to increase.
75. After the bids of the round have been processed, if the stopping rule has not been met, the FCC auction bidding system would announce clock prices to indicate a range of acceptable bids for the next round. Each bidder would be informed of its processed demand and the extent of excess demand for blocks in each county.
76. The Commission seeks comment on the proposals regarding bid processing for Auction 105.
77. Under the proposed clock auction format for Auction 105, bidders that are still expressing demand for a quantity of blocks in a county—either on an individual county basis or through a CMA-level bid—at the time the stopping rule is met would become the winning bidders of licenses corresponding to that number of blocks. The final price for a generic block in a county would be the posted price for the final round.
78. The FCC auction bidding system allows each bidder to remove any of the bids it placed in a round before the close of that round. By removing a bid placed within a round, a bidder effectively “unsubmits” the bid. Once a round closes, a bidder may no longer remove a bid.
79. Unlike an auction conducted using the Commission's standard simultaneous multiple-round auction format for bidding on frequency-specific licenses (as opposed to generic blocks), there are no provisionally winning bids in a clock auction. As a result, the concept of bid withdrawals does not apply to a clock auction. As proposed above, however, bidders in Auction 105 may request to reduce demand for generic blocks.
80. Any winning bidder that defaults or is disqualified after the close of an auction (
81.
82.
83. For winning county-level bids, the Commission proposes an additional default payment of 20% of the relevant bid. As noted in the
84. In case they are needed for post-auction administrative purposes, the bidding system will calculate individual per-license prices that are separate from a bidder's final auction payment, which is calculated on an aggregate basis. In calculating the per-license prices, the bidding system will apportion to individual licenses any capped bidding credit discounts, since a single amount may apply to multiple licenses.
85. The Commission intends to provide additional information on the bidding system and to offer demonstrations and other educational opportunities for applicants in Auction 105 to familiarize themselves with the FCC auction application system and the auction bidding system. For example, the Commission intends to release an online tutorial for Auction 105 that will help applicants understand the procedures to be followed in the filing of their auction short-form applications (FCC Form 175) for Auction 105 and in their use of the auction bidding system.
86.
87.
88.
89.
90. As noted above, Regulatory Flexibility Analyses were incorporated into the
91.
92. We do not expect that the processes and procedures proposed in this Public Notice will require small entities to hire attorneys, engineers, consultants, or other professionals for compliance or to participate in Auction 105 because of the information, resources, and guidance we make available to potential and actual participants. For example, we intend to release an online tutorial that will help applicants understand the procedures for filing the auction short-form application (FCC Form 175). We also intend to make information on the bidding system available and to offer demonstrations and other educational opportunities for applicants in Auction 105 to familiarize themselves with the FCC auction application system and the auction bidding system. By providing these resources as well as the resources discussed below, we expect small business entities that use the available resources to experience lower participation and compliance costs. Nevertheless, while we cannot quantify the cost of compliance with the proposed procedures, we do not believe that the costs of compliance will unduly burden small entities that choose to participate in the auction because the proposals for Auction 105 are similar in many respects to the procedures in recent auctions conducted or to be conducted by the Commission.
93.
94. The Commission has taken steps to minimize any economic impact of its auction procedures on small entities through, among other things, the many resources it provides potential auction participants. Small entities and other auction participants may seek clarification of or guidance on complying with competitive bidding rules and procedures, reporting requirements, and the FCC's auction bidding system. An FCC Auctions Hotline provides access to Commission staff for information about the auction process and procedures. The FCC Auctions Technical Support Hotline is another resource that provides technical assistance to applicants, including small entities, on issues such as access to or navigation within the electronic FCC Form 175 and use of the FCC's auction bidding system. Small entities may also use the web-based, interactive online tutorial produced by Commission staff to familiarize themselves with auction procedures, filing requirements, bidding procedures, and other matters related to an auction.
95. The Commission also makes various databases and other sources of information, including the Auctions program websites and copies of Commission decisions, available to the public without charge, providing a low-cost mechanism for small businesses to conduct research prior to and throughout the auction. Prior to and at the close of Auction 105, the Commission will post public notices on the Auction's website, which articulate the procedures and deadlines for the respective auction. The Commission makes this information easily accessible and without charge to benefit all Auction 105 applicants, including small entities, thereby lowering their administrative costs to comply with the Commission's competitive bidding rules.
96. Prior to the start of bidding in Auction 105, eligible bidders are given an opportunity to become familiar with auction procedures and the bidding system by participating in a mock auction. Further, the Commission intends to conduct Auction 105 electronically over the internet using its web-based auction system, which eliminates the need for bidders to be physically present in a specific location. These mechanisms are made available to facilitate participation in Auction 105 by all eligible bidders and may result in significant cost savings for small business entities who use these alternatives. Moreover, the adoption of bidding procedures in advance of the auction, consistent with statutory directive, is designed to ensure that the auction will be administered predictably and fairly for all participants, including small entities.
97. For Auction 105, the Commission proposes a $25 million cap on the total amount of bidding credits that may be awarded to an eligible small business and a $10 million cap on the total amount of bidding credits that may be awarded to a rural service provider. The Commission also proposes a $10 million cap on the overall amount of bidding
98. These proposed procedures for the conduct of Auction 105 constitute the more specific implementation of the competitive bidding rules contemplated by Parts 1 and 96 of the Commission's rules and the underlying rulemaking orders, including the
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100.
Advisory Committee on the Federal Rules of Civil Procedure, Judicial Conference of the United States.
Notice of cancellation of public hearing.
The following public hearing on proposed amendments to the Federal Rules of Civil Procedure has been canceled: Civil Rules Hearing on October 28, 2019, in Washington, DC.
Rebecca A. Womeldorf, Rules Committee Secretary, Rules Committee Staff, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
Announcements for this hearing were previously published in 84 FR 42951.
Natural Resources Conservation Service, USDA.
Notice of availability; request for comment.
The Natural Resources Conservation Service (NRCS) is giving this notice that it intends to issue a series of revised conservation practice standards in the National Handbook of Conservation Practices (NHCP), and NRCS is also giving the public an opportunity to provide comments on specified practice conservation standards in NHCP.
We will consider comments that we receive by November 22, 2019. Comments received after this date will be considered to the extent possible. Final versions of these new or revised conservation practice standards will be adopted after the close of the 30-day period and the consideration of all comments.
We invite you to submit comments on this notice. In your comments, include the volume, date, and page number of this issue of the
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NRCS will post all comments on
The copies of the proposed revised standards are available through
Mr. Bill Reck, (202) 720-4485; or
NRCS State Conservationists who choose to adopt these practices in their States will incorporate these practices into the respective electronic Field Office Technical Guide. These practices may be used in conservation systems that treat highly erodible land (HEL) or on land determined to be a wetland. Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 requires NRCS to make available for public review and comment all proposed revisions to conservation practice standards used to carry out HEL and wetland provisions of the law.
The amount of the proposed changes varies considerably for each of the conservation practice standards addressed in this notice. To fully understand the proposed changes, individuals are encouraged to compare these changes with each standard's current version, which can be found at
Rural Utilities Service, USDA.
Notice of availability of a Final Environmental Impact Statement.
Notice is hereby given that the Rural Utilities Service (RUS) has prepared a Final Environmental Impact Statement (EIS) to meet its responsibilities under the National Environmental Policy Act (NEPA) and the Code of Federal Regulations related to providing financial assistance to Dairyland Power Cooperative (DPC) for its share in the construction of a proposed 345-kilovolt (kV) transmission line and associated infrastructure connecting the Hickory Creek Substation in Dubuque County, Iowa, with the Cardinal Substation in the Town of Middle, Wisconsin (near Madison, Wisconsin). The Project also includes a new intermediate 345/138-kV substation near the Village of Montfort in either Grant County or Iowa County, Wisconsin. The total length of the 345-kV transmission lines associated with the proposed project will be approximately 100 to 125 miles, depending on the final route. DPC, along with the two other project participant utilities, American Transmission Company LLC, and ITC Midwest LLC (together the Utilities) have identified proposed and alternate segments and locations for transmission lines and associated facilities and for the intermediate substation. DPC is requesting RUS to provide financing for its portion of the proposed project.
Written comments on this Final EIS will be accepted no later than 30 days following the publication of the U.S. Environmental Protection Agency's notice of receipt of the Final EIS in the
A copy of the Final EIS may be viewed online at the following website:
A hard copy of the Final EIS is available for review at Dairyland Power Cooperative, 3521 East Avenue, South, La Crosse, WI 54602 and at 13 local libraries in the project area and the USFWS McGregor District Office in Prairie du Chien, WI which are listed below.
To obtain copies of the Final EIS or for further information, contact: Dennis Rankin, Environmental Protection Specialist, USDA, Rural Utilities Service, 1400 Independence Avenue SW, Room 2244, Stop 1571, Washington, DC 20250-1571, by phone at (202) 720-1953 or email
RUS is the lead agency for the federal environmental review with U.S. Fish and Wildlife Service (USFWS), U.S. Army Corps of Engineers (USACE), and the U.S. Environmental Protection Agency (USEPA) serving as cooperating agencies, and the National Park Service (NPS) as a participating agency.
The purpose of the proposed project is to: (1) Address reliability issues on the regional bulk transmission system, (2) alleviate congestion that occurs in certain parts of the transmission system and remove constraints that limit the delivery of power, (3) expand the access of the transmission system to additional resources, (4) increase the transfer capability of the electrical system between Iowa and Wisconsin, (5) reduce the losses in transferring power and increase the efficiency of the transmission system, and (6) respond to public policy objectives aimed at enhancing the nation's transmission system and to support the changing generation mix.
The Final EIS addresses the construction and operation of the proposed project, which, in addition to the 345-kV transmission line and associated infrastructure, includes the following facilities:
• At the existing Cardinal Substation in Dane County, Wisconsin: A new 345-kV terminal within the substation;
• At the proposed Hill Valley Substation near the Village of Montfort, Wisconsin: An approximately 22-acre facility with five 345-kV circuit breakers, one 345-kV shunt reactor, one 345-/138-kV autotransformer, three 138-kV circuit breakers, and a 345-kV and 138-kV terminals;
• At the existing Eden Substation near the village of Montfort, Wisconsin: Transmission line protective relaying upgrades to be compatible with new productive relays installed at the new Hill Valley Substation and replacement of conductors and switches to meet the Utilities' operating limits;
• Between the existing Eden Substation and the proposed Hill Valley Substation near the village of Montfort, Wisconsin: A rebuild of the approximately 1 mile Hill Valley to Eden 138-kV transmission line;
• At the existing Wyoming Valley Substation near Wyoming, Wisconsin: Installation of nine 16-foot ground rods to mitigate fault current contributions from the proposed project;
• At either the Lancaster or Hillman substation, depending on the final route, equipment installation to use the optical ground wire that would be part of the C-HC Project;
• Between the existing Cardinal Substation and the proposed Hill Valley Substation: A new 50- to 53-mile (depending on the final route) 345-kV transmission line;
• Between the proposed Hill Valley Substation and existing Hickory Creek Substation: A new 50- to 70-mile (depending on the final route) 345-kV transmission line;
• At the Mississippi River in Cassville, Wisconsin: A rebuild and possible relocation of the existing Mississippi River transmission line crossing to accommodate the new 345-kV transmission line and Dairyland's 161-kV transmission line, which would be capable of operating at 345-/345-kV but will initially be operated at 345-/161-kV;
○ depending on the final route and the Mississippi River crossing location:
• A new 161-kV terminal and transmission line protective relaying upgrades within the existing Nelson Dewey Substation in Cassville, Wisconsin;
• a replaced or reinforced structure within the Stoneman Substation in Cassville, Wisconsin;
• Multiple, partial, or complete rebuilds of existing 69-kV, 138-kV, and 161-kV transmission lines in Wisconsin that would be collocated with the new 345-kV line;
• At the existing Turkey River Substation in Clayton County, Iowa: One new 161-/69-kV transformer, three new 161-kV circuit breakers, and four new 69-kV circuit breakers;
• At the completion of the C-HC Project construction and energization at the Turkey River Substation, Dairyland would retire and decommission approximately 2.8 miles of the existing N-9 transmission line (69-kV); and
• At the existing Hickory Creek Substation in Dubuque County, Iowa: A new 345-kV terminal within the existing Hickory Creek Substation.
Among the alternatives addressed in the Final EIS is the No Action alternative, under which the proposed project would not be undertaken. Additional alternatives addressed in the Final EIS include six action alternatives connecting the Cardinal Substation in Wisconsin with the Hickory Creek Substation in Iowa. RUS has carefully studied public health and safety, environmental impacts, and engineering aspects of the proposed project.
RUS used input provided by government agencies, private organizations, and the public in the preparation of the Final EIS. RUS has considered all comments received on the Draft EIS and revised the EIS accordingly. Following the 30-day comment period for the Final EIS, RUS will prepare a Record of Decision (ROD). A Notice announcing the availability of the ROD will be published in the
In accordance with Section 106 of the National Historic Preservation Act and its implementing regulation, “Protection of Historic Properties” (36 CFR 800) and as part of its broad environmental review process, RUS must take into account the effect of the proposed project on historic properties. Pursuant to 36 CFR 800.2(d)(3), RUS is using its procedures for public involvement under NEPA to meet its responsibilities to solicit and consider the views of the public during Section 106 review. Any party wishing to participate more directly with RUS as a “consulting
The proposed project involves unavoidable impacts to wetlands and floodplains; this Notice of Availability also serves as a statement of no practicable alternatives to impacts on wetlands and floodplains, in accordance with Executive Orders 11990 and 11988, respectively (see Final EIS Sections 3.3 and 3.5).
Any final action by RUS related to the proposed project will be subject to, and contingent upon, compliance with all relevant Federal, State and local environmental laws and regulations, and completion of the environmental review requirements as prescribed in the RUS Environmental Policies and Procedures (7 CFR 1970).
Rural Utilities Service, USDA.
Notice: Extension of Comment Period for an Environmental Impact Statement.
The Rural Utilities Service (RUS), a Rural Development agency of the U.S. Department of Agriculture (USDA), has issued a Supplemental Draft Environmental Impact Statement (Supplemental Draft EIS) for Central Electric Power Cooperative's (Central Electric) proposed McClellanville Area 115-kV Transmission Project (Project) in South Carolina. In this document, RUS analyzes the environmental impacts associated with an anticipated decision request to approve or deny funding for Central Electric's proposed Project. The Supplement Draft EIS was prepared to address substantial changes to the proposed action and assesses new circumstances and information relevant to potential environmental impacts originally evaluated in the Draft Environmental Impact Statement (Draft EIS). RUS published a Notice of Intent and Availability on August 30, 2019, that provided a 60-day comment period, ending on the date announced in the U.S. Environmental Protection Agency's (USEPA) EIS receipt notice on October 22, 2019. RUS is extending the public comment period for the Draft EIS by an additional 30 days to November 21, 2019.
With this notice, RUS extends the public comment period to November 21, 2019. Comments submitted to RUS regarding the Supplemental Draft EIS prior to this announcement do not need to be resubmitted as a result of this extension to the comment period. The date(s) and time for a public meeting will be announced in local newspapers and published on the agency's website at:
The Supplemental Draft EIS and associated documents are available at the weblink provided in this Notice (
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For information on the proposed Project and the EIS process, please contact Ms. Lauren Rayburn, Environmental Scientist, Rural Utilities Service, 160 Zillicoa Street, Suite 2, Asheville, North Carolina 28801 or email to:
RUS is authorized to make loans and loan guarantees that finance the construction of electric distribution, transmission, and generation facilities, including system improvements and replacements required to furnish and improve electric service in rural areas, as well as demand side management, energy conservation programs, and on-grid and off-grid renewable energy systems. Central Electric is an electric transmission cooperative that provides transmission service from the bulk transmission system to South Carolina's 20 retail electric cooperatives. Berkeley Electric, a member distribution electric cooperative of Central Electric, was formed in 1940 to bring electric service to rural areas of coastal South Carolina. Berkeley Electric owns and operates more than 5,000 miles of distribution line serving more than 80,000 accounts in Berkeley, Charleston, and Dorchester counties.
The Supplemental Draft EIS considers three alternatives, encompassing three potential corridor locations with one corridor including two different alignments. The corridors range in length from 16 to 31 miles and encompasses parts of Berkeley, Georgetown and Charleston counties in South Carolina. The corridor locations propose to cross both public and private lands, including the Francis Marion National Forest, Santee Coastal Reserve, and other private and public lands used for conservation management purposes; all corridors are located entirely within the Gullah Geechee Cultural Heritage Corridor. The Supplemental Draft EIS analyzes the extent of Central's Electric's proposal with regard to the following: Water resources, biological resources, soils and geology, air quality and greenhouse gas emissions, cultural resources, recreation and land use, visual resources, socioeconomics,
Central Electric plans to request financial assistance for the proposed Project from RUS. Completing the EIS is one of RUS's requirements in processing a future application from Central Electric, along with other technical and financial considerations. In accordance with 40 CFR 1501.5(b) of the Council on Environmental Quality's (CEQ) Regulation for Implementing the Procedural Provisions of the National Environmental Policy Act (CEQ Regulations), RUS will serve as the lead agency in the preparation of the EIS. The U.S. Army Corps of Engineers and the U.S. Forest Service are participating as cooperating agencies. RUS has prepared a Supplemental Draft EIS to analyze the impacts of the respective federal actions and the proposed Project in accordance with the National Environmental Policy Act (NEPA), as amended, CEQ Regulations, RUS Environmental Policies and Procedures, and the U.S. Forest Service's National Environmental Policy Act procedures.
Because the proposed Project may involve action in floodplains or wetlands, this Notice also serves as a notice of proposed floodplain or wetland action. The Supplemental Draft EIS will include an assessment of effects to floodplains/wetlands and, if required, a statement of findings will be issued with the Final SEIS.
RUS has determined that its action regarding the proposed Project would be an undertaking subject to review under Section 106 of the National Historic Preservation Act (Section 106), and its implementing regulations, “Protection of Historic Properties.” As part of its broad environmental review process, RUS must consider the effect of the proposed Project on historic properties in accordance with Section 106. Pursuant to 36 CFR 800.2(d)(3), RUS is using its procedures for public involvement under NEPA to meet its responsibilities to solicit and consider the views of the public during Section 106 review. Accordingly, comments submitted in response to this Notice will inform RUS decision-making in its Section 106 review process. Any party wishing to participate more directly with RUS as a “consulting party” in Section 106 review may submit a written request to the RUS contact provided in this Notice.
Commission on Civil Rights.
Announcement of meetings.
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 New York Advisory Committee to the Commission will convene by conference call at 12:00 p.m. (EST) on: Friday, November 8, 2019; and at 12:00 p.m. (EST) on Friday November 22, 2019. The purpose of the meetings is to discuss progress on the report regarding Education Funding in New York, make edits, and approve the final report.
Friday, November 8, 2019 at 12:00 p.m. EST and Friday November 22, 2018 at 12:00 p.m. EST.
David Barreras, at
Interested members of the public may listen to the discussion by calling the following toll-free conference call-in number: 1-206-800-4892 and conference ID# 791290248. 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 1-800-977-8339 and providing the operator with the conference call-in number: 1-206-800-4892 and conference ID# 791290248.
Members of the public are invited to make statements during the open comment period of the meetings or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be mailed to the Midwest Regional Office, U.S. Commission on Civil Rights, 230 S Dearborn Street, Suite 2120, Chicago, IL 60604, faxed to (312) 353-8324, or emailed to David Barreras 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.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that certain uncoated paper (uncoated paper) from Brazil is being sold at less than normal value during the period of review (POR), March 1, 2017 through February 28, 2018.
Applicable October 23, 2019.
Christian Llinas, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4877.
On May 17, 2019, Commerce published the preliminary results of the administrative review of the antidumping duty order on uncoated paper from Brazil.
The product covered by this order is uncoated paper from Brazil. For a full description of the scope,
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum.
Based on a review of the record and of the comments received from interested parties, we have made certain changes to Suzano's margin calculation and recalculated Suzano's weighted-average dumping margin. For further discussion,
We determine that the following weighted-average dumping margin exists for the period March 1, 2017 through February 28, 2018.
Commerce shall determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
For entries of subject merchandise during the POR produced by Suzano for which they did not know their merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue liquidation instructions to CBP 15 days after publication of this notice.
The following cash deposit requirements will be effective upon publication of the notice of final results of this review for all shipments of uncoated paper from Brazil entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for companies subject to this review will be equal to the weighted-average dumping margins established in the final results of the review; (2) for merchandise exported by companies not covered in this review but covered in a prior segment of this proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review or the original investigation but the producer is, then the cash deposit rate will be the rate established for the most recently completed segment for the producer of the merchandise; (4) the cash deposit rate for all other producers or exporters will continue to be 27.11 percent, the all-others rate established in the less-than-fair-value investigation.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
Commerce is issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(5).
The Department of Commerce (Commerce) determines that imports of mattresses from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV).
Applicable October 23, 2019.
Stephen Bailey or Jonathan Hill, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0193 or (202) 482-3518, respectively.
The petitioners in this investigation are Corsicana Mattress Company, Elite Comfort Solutions, Future Foam Inc., FXI, Inc., Innocor, Inc., Kolcraft Enterprises Inc., Leggett & Platt, Incorporated, Serta Simmons Bedding, LLC, and Tempur Sealy International, Inc. (the petitioners). The mandatory respondents in this investigation are Healthcare Co., Ltd. (Healthcare), and Zinus Xiamen Inc.
The period of investigation (POI) is January 1, 2018 through June 30, 2018.
The products covered by this investigation are mattresses from China. For a full description of the scope of this investigation,
During the course of this investigation Commerce received scope comments from interested parties. Commerce issued a Preliminary Scope Decision Memorandum to address these comments and set aside a period of time for parties to address scope issues in case and rebuttal briefs.
In accordance with 735(a)(3) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.206, Commerce determines that critical circumstances exist with respect to imports of mattresses from all non-individually examined companies receiving a separate rate and the China-wide entity. For a full description of the methodology and results of Commerce's final affirmative critical circumstances analysis, see the Issues and Decision Memorandum at Comment 1, “Whether Commerce Should Adjust the Critical Circumstances Analysis.”
As provided in section 782(i) of the Act, Commerce verified the sales and factors of production data reported by Healthcare and Zinus, for use in our final determination.
In response to our invitation to comment on the
Commerce conducted this investigation in accordance with section 731 of the Act. Export price was calculated in accordance with section 772(a) of the Act. Constructed export price was calculated in accordance with section 772(b) of the Act. Because China is a non-market economy within the meaning of section 771(18) of the Act, normal value (NV) was calculated in accordance with section 773(c) of the Act. For a full description of the methodology underlying Commerce's determination, see the Preliminary Decision Memorandum; see also the Issues and Decision Memorandum.
Based on our analysis of the comments received and verification, we made certain changes to the
For the reasons explained in the
No parties commented on our decision in the
As explained in the
The final estimated weighted-average dumping margins are as follows:
We intend to disclose, to interested parties under Administrative Protective Order (APO), the calculations performed in connection with this final determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of final determination in the
As noted above, Commerce continues to find that critical circumstances exist with respect to imports of subject merchandise from the separate rate companies and the China-wide entity, but do not exist for Healthcare and Zinus. In accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of shipments of mattresses from China as described in Appendix I of this notice, from the separate rate companies and the China-wide entity that were entered, or withdrawn from warehouse, for consumption on or after March 6, 2019, which is 90 days before the publication of the
Further, pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 351.210(d), we will instruct CBP to require a cash deposit for estimated antidumping duties for such entries as follows: (1) For the exporter/producer combinations listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed for that combination in the table; (2) for all combinations of exporters/producers of subject merchandise not listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed in the table for the China-wide entity; and (3) for all non-Chinese exporters of subject merchandise not listed in the table above, the cash deposit rate is equal to the cash deposit rate applicable to the exporter/producer of subject merchandise combination (or the China-wide entity) that supplied that non-Chinese exporter.
These suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because the final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of subject mattresses, no later than 45 days after this final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated, and all cash deposited for antidumping duties will be refunded. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section.
In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to the parties subject to Administrative Protective Order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or, alternatively, conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.
This determination is issued and published pursuant to sections 735(d) and 777(i)(1) of the Act, and 19 CFR 351.210(c).
The products covered by this investigation are all types of youth and adult mattresses. The term “mattress” denotes an assembly of materials that at a minimum includes a “core,” which provides the main support system of the mattress, and may consist of innersprings, foam, other resilient filling, or a combination of these materials. Mattresses may also contain (1) “upholstery,” the material between the core and the top panel of the ticking on a single-sided mattress, or between the core and the top and bottom panel of the ticking on a double-sided mattress; and/or (2) “ticking,” the outermost layer of fabric or other material (
The scope of this investigation is restricted to only “adult mattresses” and “youth mattresses.” “Adult mattresses” have a width exceeding 35 inches, a length exceeding 72 inches, and a depth exceeding 3 inches on a nominal basis. Such mattresses are frequently described as “twin,” “extra-long twin,” “full,” “queen,” “king,” or “California king” mattresses. “Youth mattresses” have a width exceeding 27 inches, a length exceeding 51 inches, and a depth exceeding 1 inch (crib mattresses have a depth of 6 inches or less from edge to edge) on a nominal basis. Such mattresses are typically described as “crib,” “toddler,” or “youth” mattresses. All adult and youth mattresses are included regardless of actual size description.
The scope encompasses all types of “innerspring mattresses,” “non-innerspring mattresses,” and “hybrid mattresses.” “Innerspring mattresses” contain innersprings, a series of metal springs joined together in sizes that correspond to the dimensions of mattresses. Mattresses that contain innersprings are referred to as “innerspring mattresses” or “hybrid mattresses.” “Hybrid mattresses” contain two or more support systems as the core, such as layers of both memory foam and innerspring units.
“Non-innerspring mattresses” are those that do not contain any innerspring units. They are generally produced from foams (
Mattresses covered by the scope of this investigation may be imported independently, as part of furniture or furniture mechanisms (
Excluded from the scope of this investigation are “futon” mattresses. A “futon” is a bi-fold frame made of wood, metal, or plastic material, or any combination thereof, that functions as both seating furniture (such as a couch, love seat, or sofa) and a bed. A “futon mattress” is a tufted mattress, where the top covering is secured to the bottom with thread that goes completely through the mattress from the top through to the bottom, and it does not contain innersprings or foam. A futon mattress is both the bed and seating surface for the futon.
Also excluded from the scope are airbeds (including inflatable mattresses) and waterbeds, which consist of air- or liquid-filled bladders as the core or main support system of the mattress.
Also excluded is certain multifunctional furniture that is convertible from seating to sleeping, regardless of filler material or components, where that filler material or components are integrated into the design and construction of, and inseparable from, the furniture framing. Such furniture may, and without limitation, be commonly referred to as “convertible sofas,” “sofa beds,” “sofa chaise sleepers,” “futons,” “ottoman sleepers” or a like description.
Further, also excluded from the scope of this investigation are any products covered by the existing antidumping duty order on uncovered innerspring units.
Additionally, also excluded from the scope of this investigation are “mattress toppers.” A “mattress topper” is a removable bedding accessory that supplements a mattress by providing an additional layer that is placed on top of a mattress. Excluded mattress toppers have a height of four inches or less.
The products subject to this investigation are currently properly classifiable under Harmonized Tariff Schedule for the United States (HTSUS) subheadings: 9404.21.0010, 9404.21.0013, 9404.29.1005, 9404.29.1013, 9404.29.9085, and 9404.29.9087. Products subject to this investigation may also enter under HTSUS subheadings: 9404.21.0095, 9404.29.1095, 9404.29.9095, 9401.40.0000, and 9401.90.5081. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that exporters and/or producers subject to the administrative review of certain crystalline silicon photovoltaic products (solar products) from the People's Republic of China (China) received countervailable subsidies during the January 1, 2017 through December 31, 2017 period of review.
Applicable October 23, 2019.
Gene H. Calvert, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3586.
On April 16, 2019, Commerce published the
The merchandise covered by this order are modules, laminates and/or panels consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including building integrated materials. For purposes of this order, subject merchandise includes modules, laminates and/or panels assembled in China consisting of crystalline silicon photovoltaic cells produced in a customs territory other than China. For a complete description of the scope of this administrative review,
All issues raised by interested parties in their case and rebuttal briefs, and Commerce's analysis thereof, are addressed in the Issues and Decision Memorandum. These issues are identified in the Appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic System (ACCESS). ACCESS is available to registered users at
Commerce conducted this administrative review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (the Act). For each of the subsidy programs found to be countervailable, Commerce finds that there is a subsidy (
Based on the comments received from interested parties, Commerce made no changes to the net subsidy rates calculated for the companies subject to this administrative review.
The statute and Commerce's regulations do not directly address the establishment of rates to be applied to companies not selected for individual examination where Commerce limits its examination in an administrative review pursuant to section 777A(e)(2) of the Act. Commerce normally determines the rates for non-selected companies in administrative reviews in a manner that is consistent with section 705(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation. Section 705(c)(5)(A)(ii) of the Act provides that, if the countervailable subsidy rates established for all individually-examined exporters/producers are
In this review, the countervailable subsidy rates calculated for the three mandatory respondents (
All calculations in these final results are based on publicly-available information and are described in their entirety in the Preliminary Decision Memorandum.
Consistent with 19 CFR 351.212(b)(2), Commerce intends to issue assessment instructions to U.S. Customs and Border Protection (CBP) 15 days after the date of publication of these final results of review, to liquidate shipments of subject merchandise produced and/or exported by the companies listed above, entered, or withdrawn from warehouse, for consumption on or after January 1, 2017 through December 31, 2017, at the
In accordance with section 751(a)(1) of the Act, Commerce intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amounts shown for each of the respective companies listed above. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a reminder to parties subject to APO of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations of an APO is a sanctionable violation.
Commerce is issuing and publishing these final results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; Issuance of an Incidental Harassment Authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the Alaska Department of Transportation and Public Facilities (ADOT&PF) to incidentally harass, by Level A and Level B harassment, marine mammals during pile driving activities associated with the Auke Bay Ferry Terminal Modifications and Improvements Project in Juneau, Alaska.
This Authorization is effective from January 1, 2020 through December 31, 2019.
Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
On January 17, 2019, NMFS received a request from ADOT&PF for an IHA to take marine mammals incidental to pile driving activities at the Auke Bay Ferry Terminal in Juneau, Alaska. The application was deemed adequate and complete on April 1, 2019. ADOT&PF's request was for take of a small number of seven species of marine mammals by Level B harassment and Level A harassment. Neither ADOT&PF nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
ADOT&PF is planning to modify and improve the existing dolphin structures at the Auke Bay Ferry Terminal. There are currently three Alaska Marine Highway System ferry berths in Auke Bay. The planned project will involve the East Stern Berth facility, which was originally constructed in 2003 to accommodate new fast vehicle ferries. The East Stern Berth must be renovated to accommodate two new Alaska-class ferries, which will enter service in spring 2020. Four existing dolphins at the ferry terminal will be removed using a vibratory driver, and three breasting dolphins and two mooring dolphins will be installed using both vibratory and impact hammers. Vibratory pile removal and installation and impact pile installation would introduce underwater sounds at levels that may result in take, by Level A and Level B harassment, of marine mammals in Auke Bay.
During the 30-day public comment period, ADOT&PF notified NMFS that based on experiences docking the
In the original project plan, construction was scheduled to begin in November 2019 and continue through April 2020. Construction is now scheduled to occur over a two-month period between January and June 2020. Pile driving will be intermittent during this period, depending on weather, construction and mechanical delays, and logistical constraints. Pile installation and removal can occur at variable rates, from a few minutes to several hours per day. Vibratory pile installation and removal was previously estimated to occur over 27 non-consecutive days within the 6-month construction window, and impact installation was estimated to occur intermittently on 12 of those 27 days. With the updated project design, vibratory pile installation and removal is expected to occur on 14 non-consecutive days within the construction window, and impact installation is expected to occur intermittently on 10 of those 14 days.
The project occurs in Auke Bay, north of Juneau, Alaska. A detailed description of the area is provided in the
The original project design included the removal and replacement of four existing 5-pile dolphins and a single 1-pile dolphin with three 4-pile dolphins and two 3-pile dolphins. A total of 21 steel pipe piles were to be removed and 18 steel pipe piles were to be installed (Table 1). The updated design removes one existing 5-pile dolphin and installing three new 5-pile dolphins. A total of 15 steel pipe piles will be installed and 5 piles will be removed. Table 1 provides a comparison between the piles and duration of the original and updated designs.
Piles range in size from 20 to 30-inch (in) diameter. Piles will be installed vertically (plumb) and/or installed at an angle (battered). Piles will be advanced to refusal using a vibratory hammer and the final approximately 10 ft will be driven using an impact hammer so that the structural capacity of the pile embedment can be verified. The pile
In addition to the pile size and number changes described above, ADOT&PF now plans to use a drilled soil anchor to secure 12 of the piles to the glacial till layer to withstand uplift forces. Anchors will be installed within some of the pipe piles and drilled into dense glacial till below the elevation of the pile tip after the pile has been driven through the overlying sediment layer to refusal. An 8-in diameter steel pipe casing is inserted within the larger diameter production piles (24- or 30-in piles) and driven into the glacier till layer. A drill bit attached to a stem rod is then inserted into the steel pipe casing and a 6- to 8-in diameter hole is drilled into the soil with rotary and percussion drilling methods. The drilling work is contained within the steel pipe casing and the steel pipe pile. The typical depth of the drilled hole varies, but an anticipated depth of 30 ft or more is expected to be necessary. After drilling, a steel anchor rod is then grouted into the drilled hole and affixed to the top of the pile.
Underwater noise from soil anchor installation is anticipated to be low considering the double encasement surrounding the drill rod and the depth of the overlying sediments. The glacial till layer is overlain with 35 to 75 ft of sediments, and is expected to attenuate noise production from drilling and reduce noise propagation into the water column. Additionally, the casing used during drilling is inside the larger diameter pile, further reducing noise levels. The pile that the casing and drill will be lowered into will serve as a cofferdam and prevent drilling noise from propagating through the water column. Noise associated with the soil anchor drilling is anticipated to be contained nearly entirely within the piling and is not expected to reach or exceed the 120 decibel (dB) threshold for continuous noise sources (NMFS 2019). An air impact hammer may be used to install the soil anchor. These additional strikes are conservatively accounted for in the total estimated strikes per pile (400) for the outer production piles. Due to the low noise levels associated with the soil anchor drilling, drilling is not expected to result in harassment and is not discussed further.
Above-water work associated with the project will consist of the installation of two shore anchor struts above the high tide line. Additionally, there will be some improvement and retrofitting to the dock-attached stern fenders. Existing utilities, including electrical and sewer, will be replaced and improved. No in-water noise is anticipated in association with above-water and upland construction activities. Airborne sound is only expected to impact pinnipeds that are hauled out in the area where sound levels exceed in-air harassment thresholds. No pinniped haulouts exist in the project area and no harassment from airborne sound is expected to result from project activities. Therefore, above-water construction will not be discussed further in this document.
A notice of NMFS's proposal to issue an IHA to ADOT&PF was published in the
As described above, the design of the project has changed since publication of the
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 2 lists all species with expected potential for occurrence in Auke Bay and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Alaska and U.S. Pacific SARs. All values presented in Table 2 are the most recent available at the time of publication and are available in the 2017 SARs (Muto
All species that could potentially occur in the project area are included in Table 2. However, the spatial and temporal occurrence of gray whales and fin whales in the area is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Sightings of gray whales and fin whales are uncommon in the inland waters of southeast Alaska. These species are typically seen closer to the open waters of the Gulf of Alaska. Additionally, the timing of the project (November through April) coincides with the period when these species are expected to be further south in their respective breeding areas. Take of gray whales and fin whales was not requested and has not been authorized, and these species are not considered further in this document.
A detailed description of the of the species likely to be affected by the Auke Bay Ferry Terminal Modifications and Improvements project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
The effects of underwater noise from ADOT&PF's activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The
The main impact associated with ADOT&PF's activities would be temporarily elevated sound levels and the associated direct effects on marine mammals. The project would not result in permanent impacts to habitats used directly by marine mammals, such as haulout sites, but may have potential short-term impacts to food sources such as forage fish, and minor impacts to the immediate substrate during installation and removal of piles during the pile driving project. These potential effects are discussed in detail in the
This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use of the vibratory and impact pile hammers has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency species and phocids because predicted auditory injury zones are larger than for other hearing groups. Auditory injury is unlikely to occur for other groups. The required mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable.
As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
ADOT&PF's planned activity includes the use of continuous (vibratory pile driving and removal) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds are applicable.
These thresholds are provided in Table 3. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
The sound field in the project area is the existing background noise plus additional construction noise from the planned project. Marine mammals are expected to be affected via sound generated by the primary components of the project (
The project includes vibratory and impact pile installation of steel pipe piles and vibratory removal of steel pipe piles. Source levels of pile installation and removal activities are based on reviews of measurements of the same or similar types and dimensions of piles available in the literature, including past pile driving activities in Auke Bay. Source levels for each pile size and driving method are presented in Table 4. The source level for vibratory installation of 24-inch piles and vibratory removal of 24-inch and 20-inch piles are from measurements of 24-inch steel piles driven at Navy installations in Puget Sound, Washington (United States Navy 2015). As there are no measurements of source levels for these pile types in Alaska, we use the Navy's source levels as a proxy. The vibratory and impact source levels for 30-inch pile installation is from pile driving activities at the Auke Bay ferry terminal in November 2015 (Denes
Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth,
Absent site-specific acoustical monitoring with differing measured transmission loss, a practical spreading value of 15 is used as the transmission loss coefficient in the above formula. For vibratory and impact pile driving of 30-inch piles at the Auke Bay ferry terminal, Denes
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as pile drivers), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet (Table 6), and the resulting isopleths are reported below (Table 7).
In this section we provide the information about the presence, density, or group dynamics of marine mammals and describe how it is brought together with the information above to produce a quantitative take estimate. When available, peer-reviewed scientific publications were used to estimate marine mammal abundance in the project area. However, scientific surveys and resulting data such as population estimates, densities, and other quantitative information are lacking for most marine mammal populations and most areas of southeast Alaska, including Auke Bay. Therefore, AKDOT&PF gathered qualitative information from discussions with knowledgeable local people in the Auke Bay area, including biologists, the harbormaster, a tour operator, and other individuals familiar with marine mammals in the Auke Bay area.
Here we describe how the information provided above is brought together to produce a quantitative take estimate. Because reliable densities are not available, the applicant requests take based on the maximum number of animals that may occur in the harbor per day multiplied by the number of days of the activity.
Steller sea lions are common within Auke Bay but generally only occur in the area during winter. Most individuals that frequent Auke Bay haul out at Benjamin Island in Lynn Canal. The Auke Bay boating community observes Steller sea lions transiting between Auke Bay and Benjamin Island regularly during winter. Steller sea lions are not known to haul out on any beaches or structures within Auke Bay, but animals have been observed foraging within Auke Bay, and may rest in large raft groups in the water. Groups as large as 121 individuals have been observed in Auke Bay (Ridgway pers. observ.).
ADOT&PF estimates that one large group (121 individuals) may be exposed to project-related underwater noise daily on 14 days of pile installation and removal activities, for a total of 1,694 exposures. In the
The largest Level A harassment zone for otariid pinnipeds extends 18 m from the source (Table 6). ADOT&PF is planning to implement a minimum 20 m shutdown zone during all pile installation and removal activities (see
Harbor seals are commonly sighted in the waters of the inside passages throughout southeast Alaska. Seals occur year-round within the project area and are regularly sighted in Auke Bay, including Statter Harbor. NOAA aerial survey data indicate that groups ranging from 10 to 52 seals could be present within the project area during summer at haulouts on the western side of Coghlan Island, as well as on Battleship Island (Ridgway unpubl. data).
Harbor seals are known to haul out within the Level B harassment zones and may be exposed to noise levels in excess of the Level B harassment thresholds upon entering the water. ADOT&PF estimates up to 52 harbor seals could be exposed to elevated sound levels on each day of pile driving, for a total of 728 exposures.
The largest Level A harassment zone for phocid pinnipeds results from impact pile driving of 30-inch piles and extends 263 m from the source (Table 6). There are no haulouts located within the Level A harassment zone and although it is unlikely that harbor seals will enter this area without detection while pile driving activities are underway, it is possible that harbor seals may approach and enter the Level A harassment zone undetected. ADOT&PF estimated that up to 11 harbor seals may approach the site within 263 m of the source each day. Impact pile driving may occur on up to 10 days. For this reason, ADOT&PF has requested Level A take of 11 harbor seals daily on the 10 days of impact pile driving for a total of 110 takes by Level A harassment. The largest Level A harassment zone for phocid pinnipeds from vibratory pile driving extends 20 m from the source (Table 6). ADOT&PF is planning to implement a minimum 20 m shutdown zone during all pile installation and removal activities (see
Although there have been no systematic studies or observations of harbor porpoises specific to Auke Bay, there is the potential for them to occur within the project area. Abundance data for harbor porpoises in southeast Alaska were collected during 18 seasonal surveys spanning 22 years, from 1991 to 2012. During that study, a total of 398 harbor porpoises were observed in the northern inland waters of southeast Alaska, including Lynn Canal (Dahlheim
One pair of harbor porpoises per day could enter the Level B harassment zone for a total of 28 exposures. The largest Level A harassment zone results from impact driving of 30-inch piles, and extends 597 m from the source (Table 6). Impact pile driving may occur on up to 10 days (Table 1). ADOT&PF will implement a shutdown zone for harbor porpoises that encompasses the largest Level A harassment zone (see
Dall's porpoises are not expected to occur within Auke Bay because the shallow water habitat of the bay is atypical of areas where Dall's porpoises usually occur. However, Dall's porpoises may opportunistically inhabit nearshore habitat, especially in spring. Therefore, ADOT&PF estimated that one large pod of Dall's porpoise (15 individuals) may occur within the Level B harassment zone once per month in the months of March and April, for a total of 30 takes by Level B harassment.
ADOT&PF will implement shutdown zones for porpoises that encompass the largest Level A harassment zones for each pile driving activity (see
Killer whales are observed occasionally during summer throughout Lynn Canal but their presence in Auke Bay is unlikely. As a precaution, because Level B harassment zones extend beyond the more enclosed waters of Auke Bay, AKDOT&PF has estimated that one pod of killer whales (15 individuals) may enter the Level B harassment zone once over the course of the project for a total of 15 takes by Level B harassment.
ADOT&PF will implement shutdown zones that encompass the largest Level A harassment zones for killer whales during all pile driving activities. Killer whales are generally conspicuous and PSOs are expected to detect killer whales and implement a shutdown before the animals enter the Level A harassment zone. Therefore, takes by Level A harassment have not been authorized.
Use of Auke Bay by humpback whales is intermittent and irregular year-round. During winter, researchers have documented 1 to 19 individual humpback whales per month in waters close to the project area, including Lynn Canal (Moran
The largest Level A harassment zone for humpback whales extends 499 m from the source during impact installation of 30-inch piles (Table 6). Given the irregular and small presence of humpback whales in Auke Bay, along with the fact that PSOs are expected to detect humpback whales before they enter the Level A harassment zone and implement shutdowns to prevent take by Level A harassment, no Level A takes have been authorized.
Dedicated surveys for cetaceans in southeast Alaska found that minke whales were scattered throughout inland waters from Glacier Bay and Icy Strait to Clarence Strait, with small concentrations near the entrance of Glacier Bay. All sightings were of single minke whales, except for a single sighting of multiple minke whales. Surveys took place in spring, summer, and fall, and minke whales were present in low numbers in all seasons and years (Dahlheim
The Level A harassment zones for minke whales are the same as for humpback whales, and the shutdown protocols will be the same as well. Therefore, given the low occurrence of minke whales combined with the mitigation, takes by Level A harassment have not been authorized.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and
(2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In addition to the measures described later in this section, ADOT&PF must employ the following standard mitigation measures:
• Conduct briefings between construction supervisors and crews and the marine mammal monitoring team prior to the start of all pile driving activity, and when new personnel join the work, to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;
• For in-water heavy machinery work other than pile driving (
• Work may only occur during daylight hours, when visual monitoring of marine mammals can be conducted;
• For those marine mammals for which Level B harassment take has not been requested, in-water pile installation/removal must shut down immediately if such species are observed within or on a path towards the monitoring zone (
• If take reaches the authorized limit for an authorized species, pile installation/removal must be stopped as these species approach the Level B harassment zone to avoid additional take.
The following measures also apply to ADOT&PF's mitigation requirements:
Based on our evaluation of the applicant's proposed measures, NMFS has determined that the required mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the planned action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Monitoring must be conducted by NMFS-approved observers. Trained observers must be placed from the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. Observer training must be provided prior to project start, and shall include instruction on species identification (sufficient to distinguish the species in the project area), description and categorization of observed behaviors and interpretation of behaviors that may be construed as being reactions to the specified activity, proper completion of data forms, and other basic components of biological monitoring, including tracking of observed animals or groups of animals such that repeat sound exposures may be attributed to individuals (to the extent possible).
Monitoring must be conducted 30 minutes before, during, and 30 minutes after pile installation/removal activities. In addition, observers must record all incidents of marine mammal occurrence, regardless of distance from activity, and must document any behavioral reactions in concert with distance from piles being driven or removed. Pile installation/removal activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes.
At least two land-based PSOs must be on duty during all pile installation and removal activities. One PSO must be positioned at the ferry terminal to allow full monitoring of the waters within the shutdown zones and the closest waters of the Level B harassment monitoring zones. An additional PSO will be positioned on the shoreline around Auke Bay to observe the larger monitoring zones. Potential PSO locations are shown in Figure 2-2 of ADOT&PF's Marine Mammal Mitigation and Monitoring Plan.
PSOs must scan the waters using binoculars, and/or spotting scopes, and must use a handheld GPS or range-finder device to verify the distance to each sighting from the project site. All PSOs must be trained in marine mammal identification and behaviors and are required to have no other project-related tasks while conducting monitoring. In addition, monitoring must be conducted by qualified observers, placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. ADOT&PF must adhere to the following observer qualifications:
(i) Independent observers (
(ii) At least one observer must have prior experience working as an observer;
(iii) Other observers may substitute education (degree in biological science or related field) or training for experience; and
(iv) ADOT&PF must submit observer CVs for approval by NMFS.
Additional standard observer qualifications include:
• Ability to conduct field observations and collect data according to assigned protocols;
• Experience or training in the field identification of marine mammals, including the identification of behaviors;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
A draft marine mammal monitoring report must be submitted to NMFS within 90 days after the completion of pile installation and removal activities. It must include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:
• Date and time that monitored activity begins or ends;
• Construction activities occurring during each observation period;
• Weather parameters (
• Water conditions (
• Species, numbers, and, if possible, sex and age class of marine mammals;
• Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
• Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
• Locations of all marine mammal observations; and
• Other human activity in the area.
If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury, serious injury or mortality, ADOT&PF must immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinator. The report must include the following information:
• Description of the incident;
• Environmental conditions (
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with ADOT&PF to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ADOT&PF would not be able to resume their activities until notified by NMFS via letter, email, or telephone.
In the event that ADOT&PF discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that ADOT&PF discovers an injured or dead marine mammal and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
Pile installation/removal activities associated with the project as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A harassment and Level B harassment from underwater sounds generated from pile driving and removal. Potential takes could occur if individuals of these species are present in zones ensonified above the thresholds for Level A or Level B harassment identified above when these activities are underway.
The takes from Level A and Level B harassment would be due to potential behavioral disturbance, TTS, and PTS. No mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. Level A harassment is only anticipated for harbor porpoise and harbor seal. The potential for harassment is minimized through the construction method and the implementation of the required mitigation measures (see
Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
In addition to the expected effects resulting from authorized Level B harassment, we anticipate that harbor porpoises and harbor seals may sustain some limited Level A harassment in the form of auditory injury. However, animals in these locations that experience PTS would likely only receive slight PTS,
The project also is not expected to have significant adverse effects on affected marine mammals' habitat. The project activities would not modify existing marine mammal habitat for a significant amount of time. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
Nearly all inland waters of southeast Alaska, including Auke Bay, are included in the southeast Alaska humpback whale feeding BIA (Ferguson
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized;
• The Level A harassment exposures are anticipated to result only in slight PTS, within the lower frequencies associated with pile driving;
• The anticipated incidents of Level B harassment would consist of, at worst, temporary modifications in behavior that would not result in fitness impacts to individuals;
• The area impacted by the specified activity is very small relative to the overall habitat ranges of all species, does not include ESA-designated critical habitat, and only temporally overlaps with the southeast Alaska humpback whale feeding BIA for four months of the planned six months of activity; and
• The required mitigation measures are expected to reduce the effects of the specified activity to the level of least practicable adverse impact.
In addition, although affected humpback whales and Steller sea lions may be from a DPS that is listed under the ESA, it is unlikely that minor noise effects in a small, localized area of habitat would have any effect on the stocks' ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the required monitoring and mitigation measures, NMFS finds that the total marine mammal take from the planned activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
Table 7 demonstrates the number of animals that could be exposed to received noise levels that could cause Level A and Level B harassment for the planned work in Auke Bay. Our analysis shows that less than 8 percent of each affected stock could be taken by harassment. The numbers of animals authorized to be taken for these stocks would be considered small relative to the relevant stock's abundances even if each estimated taking occurred to a new individual—an extremely unlikely scenario.
Based on the analysis contained herein of the planned activity (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes. The planned project is not known to occur in an important subsistence hunting area. It is a developed area with regular marine vessel traffic. However, ADOT&PF plans to provide advanced public notice of construction activities to reduce construction impacts on local residents, ferry travelers, adjacent businesses, and other users of the Auke Bay ferry terminal and nearby areas. This will include notification to local Alaska Native tribes that may have members who hunt marine mammals for subsistence. Of the marine mammals considered in this IHA application, only harbor seals are known to be used for subsistence in the project area. If any tribes express concerns regarding project impacts to subsistence hunting of marine mammals, further communication between will take place, including provision of any project information, and clarification of any mitigation and minimization measures that may reduce potential impacts to marine mammals.
Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the required mitigation and monitoring measures, NMFS has determined that there will not be an unmitigable adverse impact on subsistence uses from ADOT&PF's planned activities.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS Alaska Region issued a Biological Opinion to NMFs Office of Protected Resources on October 3, 2019, which concluded the issuance of an IHA to ADOT&PF is not likely to jeopardize the continued existence of wDPS Steller sea lions or Mexico DPS humpback whales or adversely modify critical habitat because none exists in the area.
NMFS has issued an IHA to ADOT&PF for conducting pile installation and removal activities at the Auke Bay ferry terminal between January 1, 2020 and December 31, 2020, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; two proposed incidental harassment authorizations; request for comments on proposed authorizations and possible renewals.
NMFS has received a request from the U.S. Army Corps of Engineers (USACE) for two authorizations to take marine mammals incidental to the pile driving and removal activities over two years associated with the Coos Bay North Jetty maintenance and repairs project. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue two incidental harassment authorizations (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-year renewals that could be issued under certain circumstances and if all requirements are met, as described in
Comments and information must be received no later than November 22, 2019.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Stephanie Egger, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
These actions are consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of these proposed IHAs qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA requests.
On March 18, 2019, NMFS received a request from USACE for two IHAs to take marine mammals incidental to vibratory pile driving and removal associated with the North Jetty maintenance and repairs project, Coos Bay, Oregon over the course of two years with pile installation occurring during Year 1 and pile removal occurring during Year 2. The application was deemed adequate and
The USACE is proposing to repair critically damaged sections of the North Jetty, monitor erosion, and to maintain stable deep-draft navigation through the entrance into Coos Bay. Repair activities completed now will reduce the risk of jetty failure or a potential breach of the Coos Bay North Spit (CBNS). The USACE maintains this jetty system and navigational channels, and is currently proposing major repair and rehabilitation of the North Jetty. As part of its mission to build and maintain navigation facilities, the USACE also continues to maintain ownership of CBNS land to support jetty monitoring, ensure evaluation access, and to provide construction staging and stockpile areas in the event jetty maintenance or navigation repairs are needed. Work associated with the project may occur year-round beginning in September 2020. The USACE proposes to use vibratory pile driving/removal for the Material Off-loading Facility (MOF) portion of the project using 30-inch (in) steel piles and 24-in AZ sheet piles OR 12-in H piles. The use of AZ-sheets versus H-piles will be per the contractor's discretion, largely based on site conditions, material availability, and cost.
The USACE currently anticipates that construction for North Jetty maintenance and repair project will occur over two years. The IHA application is requesting take that may occur from the pile driving activities in the first year (September 1, 2020 through August 31, 2021) and from pile removal activities in the second year of pile driving activities (July 1, 2022 through June 30, 2023). The USACE proposes to complete pile driving activities between October 1st through February 15th and June 1st through July 31st each year to protect salmonids.
The USACE estimates vibratory pile driving may occur over a 1-4 month time period each year but likely would take one month for installation (Year 1) and one month for removal (Year 2). There would be an estimate of 7 days of noise expose during pile driving for each type of pile (
Coos Bay is an approximately 55.28 km
The entrance to the Coos Bay estuary and navigation channel lies between Coos Head and the Coos Bay North Spit (CBNS) (see Figure 1-1 of the application). The Coos Bay north and south jetties stabilize a 1-mile long, 47‐foot deep channel. Channel depth decreases to approximately 37 feet at RM 1 and extends 15 miles upstream where it runs adjacent to the cities of Charleston, North Bend, and Coos Bay.
The CBNS is a large isolated peninsula about 15 miles from downtown Coos Bay; supporting unique coastal habitats. The USACE parcel (see Figure 1-2 of the application) runs north from the boundary of the North Jetty, to the southern boundary of land owned by the U.S. Bureau of Land Management (BLM). It is bound by the Pacific Ocean to the west, which includes South Beach (the beach between the North Jetty and the FAA towers as shown), and by the Log-Spiral Bay (LSB) and Coos Bay to the east. The extent of the North Jetty repairs and staging areas of the overall project area are shown below in Figure 1.
The purpose of the proposed action is to repair critically damaged sections of the North Jetty in order to maintain stable deep-draft navigation through the entrance into Coos Bay and to prevent breaching of the CBNS. Completing the proposed repair activities now will reduce the risk of future jetty failure. Progressive damages to the North Jetty system over the last 20 years have resulted in an emergency repair action in 2002 and an interim repair in 2008. The proposed major maintenance of the Coos Bay North Jetty is critical to keeping the river and harbor open to deep-draft navigation and to sustaining important navigation-related components of local and state economies.
The proposed activities would include repair activities for three main jetty components: The jetty head, root, and trunk. Repair activities also require re-establishment and repair of the following three temporary construction features including the MOF, upland staging areas and road turn-outs to facilitate equipment and material delivery. Removal and site restoration for each of the temporary construction features is proposed.
The majority of proposed jetty repairs will be completed within the existing authorized footprint of the jetty structure, returning specified sections to pre-erosional conditions. However, the length of the final repaired jetty (8,425 feet (ft)) will be shorter than its originally authorized footprint length of 9,600 ft. The jetty head stabilizes the oceanward end of the jetty structure and is exposed to the most severe loading. The jetty trunk connects the jetty head to the jetty root and transitions from a jetty reach exposed to both ocean-side and channel-side loading, to the root, which is primarily loaded from the channel-side. Proposed repair elements may include some minor areas that occur outside of the existing jetty footprint, but are necessary to maintain jetty function.
Repair of the jetty root entails rebuilding up to 1,600 ft of the jetty root. Toe protection around the tip of the reconstructed section would be completed to compensate for accelerated ebb-tidal flows caused by the reconstructed root. This protection could extend beyond the area of the existing relic jetty root.
Construction of a rubble-mound jetty head (located shoreward of the originally authorized North Jetty head). While it is expected that the vast majority of the head construction will remain on the relic stone base, there may be some small increase in footprint to ensure a stable jetty head design.
The USACE proposes to rebuild sections of the jetty root where the structure has deteriorated at or below the water line. The jetty head and trunk require extensive repairs, but not to the same extent as the jetty root, which has not been repaired since the original construction. Optional repairs to the jetty root could provide additional stability to LSB and prevent further
Jetty repairs and associated construction elements require additional areas for activities involving equipment and supply staging and storage, parking areas, access roads, scales, general yard requirements, and jetty stone stock pile areas. Staging areas are required to store materials, equipment and tools, field offices, turn and maneuver trucks, and to provide parking for contractors.
There are three proposed staging areas for the Proposed Action: The Overland Delivery Staging Area (ODSA, up to about 10 acres), the North Jetty Staging Area (NJSA, up to 20 combined acres from three alternate staging areas), and the MOF Staging Area (up to 2.5 acres) (see Figure 1-3 of the application). The MOF Staging Area is where all pile driving and removal activities will occur. The ODSA was used previously for the 2008 North Jetty Interim Repair Project. The MOF Staging Area, also previously used and located upland of the MOF itself, would be necessary to accommodate stockpile and transfer of jetty stone from barges to transport vehicles prior to delivery to the NJSA. The NJSA will be a combination of areas; either approximately 20 acres near the jetty root, on top of the LSB sand placement area, or a jetty root staging area (1.5 acres) and up to an additional 18.5 acres to be chosen by the Contractor from the available Alternate Staging Area locations shown on the plans.
Staging area equipment would include a crane or excavator for transferring large stones from the highway-transport vehicles to heavy-duty off-road vehicles, or from a barge to heavy-duty off-road vehicles, an excavator, front-end loaders, and bulldozers. All of the stockpile areas would accommodate storage of a range of different sized jetty stone and other rock and gravel construction materials throughout the year. Construction of each upland staging area would require vegetation clearing and site grading, which would be followed by restoration at the completion of construction.
Most of the proposed jetty stone placement work would use land-based equipment for construction of the repair and modifications to the North Jetty. The majority of the work is expected to be conducted from on top of the jetty using an excavator or a crane. Where appropriate, there may also be rework and reuse of the existing relic and jetty prism stone. Most of the proposed stone placement would occur on existing relic stone that formed the original jetty. The prism footprint could increase in width compared to the existing prism by about 10 ft along the length of the proposed repair sections. During new stone placement, there is a chance of stone slippage down the slope of the jetty. This is only a remote possibility given the size of the rocks. Additionally, dropping armor stone from a height greater than 2 ft would be prohibited, further minimizing the risk of stone slippage. The length of the repaired jetty would remain shorter than its originally authorized footprint length.
The full width of the repaired jetty crest would double as a “jetty crest haul road” that allows construction equipment to access and reach the entire jetty construction areas (
The MOF will be constructed from the land waterward using land-based equipment. The MOF will provide vehicle access to/from the shore. The MOF could either be a simplified design of singular pipe piles for mooring a barge with spuds as a dock face, or a more complicated MOF design with piles supporting mooring dolphins with H or Z-piles to help retain material. In either case, pilings will be installed by barge using vibratory pile driving methods. Figure 1-4 of the application provides a basic overview of potential MOF elements, though the final configuration of pilings and specifications within the broader scope will be determined by the contractor. Fill material to construct the MOF could be obtained from maintenance dredging activities that occur annually in the Federal Navigation Channel, from dredging at the MOF site, or from other suitable sources, similar to those that provide the armor stone and gravel materials for the Project. Any imported material will be obtained from a clean and permitted source, suitable for in-water placement. Initial dredging of up to about 24,000 cubic yards may be required at the MOF to reach draft depth for the delivery barges. This activity will most likely be completed by mechanical dredge (
Additional details on the project construction elements can be found in Section 1 of the project application. The USACE has not requested, and NMFS does not propose to issue, take from any activities other than from vibratory pile driving and removal for the MOF.
The type and amount of piles associated with the project are provided in Table 1.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see
Systematic marine mammal surveys in Coos Bay are limited; therefore, the USACE relied on two multi-day AECOM surveys of Coos Bay, Oregon Department of Fish and Wildlife (ODFW), and anecdotal reports to better understand marine mammal presence in Coos Bay and in support of the IHA application. Seven marine mammal species comprising seven stocks have the potential to occur within Coos Bay during the project.
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 2 lists all species with expected potential for occurrence around Coos Bay and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Pacific and Alaska 2018 SARs (
All species that could potentially occur in the proposed survey areas are included in Table 2. Humpback whales (
As described below, the remaining seven species comprising seven stocks temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it.
Gray whales are only commonly found in the North Pacific. Genetic comparisons indicate there are distinct “Eastern North Pacific” (ENP) and “Western North Pacific” (WNP) population stocks, with differentiation in both mtDNA haplotype and microsatellite allele frequencies (LeDuc
From 2009 to 2013, researchers attached satellite tags to 35 gray whales off the coasts of Oregon and northern California from September to December 2009, 2012, and 2013 (Lagerquist
Since January 1, 2019, elevated gray whale strandings have occurred along the west coast of North America from Mexico through Alaska. This event has been declared an Unusual Mortality Event (UME). A UME is defined under the MMPA as a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response. As of September 5, 2019, 117 gray whales have stranded in the U.S. between Alaska and California with an additional 10 strandings in Canada and 81 in Mexico. Of the U.S. strandings, six of the animals have been found in Oregon. Full or partial necropsy examinations were conducted on a subset of the whales. Preliminary findings in several of the whales have shown evidence of emaciation. These findings are not consistent across all of the whales examined, so more research is needed. Threats to gray whales include ship strike, fishery gear entanglement, and climate change-related impacts such as reduction in prey availability, and increased human activity in the Arctic (Carretta
Killer whales are found throughout the North Pacific. Along the west coast of North American, `resident,' transient,' and `offshore' ecotypes have overlapping distributions and multiple stocks are recognized within that broader classification scheme. The West Coast Transient (WCT) Stock includes animals that range from California to southern Alaska, and is genetically distinct from other transient populations in the region (
In the Pacific Ocean, harbor porpoise are found in coastal and inland waters from Point Conception, California to Alaska and across to Kamchatka and Japan (Gaskin 1984). There are several stocks of harbor porpoise along the west coast of the U.S. and in inland waterways. While harbor porpoise are rare within Coos Bay, if present, animals are likely belonging to the Northern California/Southern Oregon stock which is delimited from Port Arena, California in the south to Lincoln City, Oregon. Use of Coos Bay by this stock is rare.
Northern elephant seals are found occasionally in Oregon either resting or molting (shedding their hair) on sandy beaches. Elephant seals do not generally breed in Oregon; however, there are a number of breeding sites in California such as Ano Nuevo State Reserve. Cape Arago State Park, just south of the entrance to Coos Bay, is the only spot where northern elephant seals haulout year-around in Oregon. The majority of the elephant seals seen in Oregon are sub-adult animals that come to shore to molt. Northern elephant seals regularly occur at haul-out sites on Cape Arago, approximately 3.7 miles south of the entrance to Coos Bay. Scordino (2006) reported total counts (average, maximum, minimum) of harbor seal, elephant seal, California sea lion, and Steller sea lion at Cape Arago during each month surveyed between 2002 and 2005. Abundance of elephant seals was low in all months, with a maximum of 54 animals reported in May (Scordino 2006). No Northern elephant seals have been observed within Coos Bay; however, given their close proximity to the mouth of the estuary, they have been included in this analysis.
California sea lions are distributed along the North Pacific waters from central Mexico to southeast Alaska, with breeding areas restricted primarily to island areas off southern California (the Channel Islands), Baja California, and in the Gulf of California (Wright
Almost all California sea lions in the Pacific Northwest are sub-adult or adult
The California sea lion stock has been growing steadily since the 1970s. The stock is estimated to be approximately 40 percent above its maximum net productivity level (MNPL = 183,481 animals), and it is therefore considered within the range of its optimum sustainable population (OSP) size (Laake
There were at least eight California sea lions sighted opportunistically during the 2017 AECOM surveys (ACEOM, 2017). No pups were observed.
The Steller sea lion range extends along the Pacific Rim, from northern Japan to central California. For management purposes, Steller sea lions inhabiting U.S. waters have been divided into two DPS: The Western U.S. and the Eastern U.S. The population known to occur within the Lower Columbia River is the Eastern DPS. The Western U.S. stock of Steller sea lions are listed as endangered under the ESA and depleted and strategic under the MMPA. The Eastern U.S. stock (including those living in Oregon) was de-listed in 2013 following a population growth from 18,000 in 1979 to 70,000 in 2010 (an estimated annual growth of 4.18 percent) (NOAA 2013). A population growth model indicates the eastern stock of Steller sea lions increased at a rate of 4.76 percent per year (95 percent confidence intervals of 4.09-5.45 percent) between 1989 and 2015 based on an analysis of pup counts in California, Oregon, British Columbia, and Southeast Alaska (Muto
Steller sea lions can be found along the Oregon coast year-round with breeding occurring in June and July. The southern coast of Oregon supports the largest Steller breeding sites in U.S. waters south of Alaska, producing some 1,500 pups annually. Near the entrance of Coos Bay, Steller sea lions can be found year round at Cape Arago State Park. The most recent Steller sea lion survey at Cape Arago was June 29, 2017, during which ODFW counted 910 non-pup Steller sea lions ashore. Steller sea lions may occasionally enter Coos Bay; however, no long-term residency patterns have been observed. One Steller sea lion was sighted opportunistically during the 2017 AECOM surveys (ACEOM 2017). No pups were observed.
Harbor seals inhabit coastal and estuarine waters off Baja California, north along the western coasts of the continental U.S., British Columbia, and Southeast Alaska, west through the Gulf of Alaska and Aleutian Islands, and in the Bering Sea north to Cape Newenham and the Pribilof Islands (Caretta
Harbor seals generally are non-migratory, with local movements associated with tides, weather, season, food availability, and reproduction (Scheffer and Slipp 1944; Fisher 1952; Bigg 1969, 1981). Harbor seals do not make extensive pelagic migrations, though some long distance movement of tagged animals in Alaska (900 km) and along the U.S. west coast (up to 550 km) have been recorded (Brown and Mate 1983, Herder 1986, Womble 2012). Harbor seals have also displayed strong fidelity to haulout sites (Pitcher and Calkins 1979, Pitcher and McAllister 1981).
The harbor seal is the most widespread and abundant resident pinniped in Oregon. They haul out to rest at low tide on sand bars in most bays and estuaries along the Oregon coast. They are also found on nearshore rocks and islands usually within 3 miles of the coast. Within Coos Bay, four harbor seal haulout sites have been identified by ODFW (Wright 2013); three of which have documented pup sightings. From the inlet to the upper Bay, these are South Slough (southeast of the entrance channel), Pigeon Point, Clam Island, and Coos Port. However, only three of the four haulouts are in the project area including the South Slough, Pigeon Point, and Clam Island (see Figure 4-1 of the application). Harbor seals generally foraging with in close proximity to their haulouts. For example, a study of radio tagged harbor seals in San Francisco Bay found that the majority of foraging trips were less than 10 km from their regular haulout (Grigg
The most recent haulout counts were conducted by ODFW in May and June 2014. In 2014, 333 seals were observed at Coos Bay haulouts in June (Wright, pers comm., August 27, 2019). May yielded slightly higher numbers, as expected since it is closer to peak pupping season; however, the South Slough haulout site was not surveyed in May due to fog.
Marine mammal presence and abundance data collection throughout Coos Bay in 2017 and 2018. These surveys were vessel based line transect surveys. Observations made by AECOM during May 2017 site-specific surveys found similar patterns to the ODFW aerial surveys. More than 350 observations of harbor seals were recorded in the estuary over the four days of survey. AECOM conducted additional surveys during November and December 2018 using vessel based line transect surveys and aerial surveys using a drone to establish a fall/winter local abundance estimate for harbor seals. A maximum of 167 seals were hauled out between the Clam Island and Pigeon Point haulouts at any one time. ODFW indicates it is likely many harbor seals are year-round residents in Coos Bay and relay on these waters for all life stages and behaviors including, by not limited to, breeding, pupping, and foraging (Wright 2013).
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The phocid pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Seven marine mammal species (three cetacean and four pinniped (three otariid and one phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. Of the cetacean species that may be present, one is classified as a low-frequency cetacean (
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The
This section contains a brief technical background on sound, on the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document. For general information on sound and its interaction with the marine environment, please see,
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the decibel (dB). A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)), and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa), while the received level is the SPL at the listener's position (referenced to 1 μPa).
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they
Sound exposure level (SEL; represented as dB re 1 μPa
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for sound produced by the pile driving activity considered here. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound, which is defined as environmental background sound levels lacking a single source or point (Richardson
The sum of the various natural and anthropogenic sound sources that comprise ambient sound at any given location and time depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 decibels (dB) from day to day (Richardson
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or intermittent (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
The impulsive sound generated by impact hammers is characterized by rapid rise times and high peak levels. Vibratory hammers produce non-impulsive, continuous noise at levels significantly lower than those produced by impact hammers. Rise time is slower, reducing the probability and severity of injury, and sound energy is distributed over a greater amount of time (
We previously provided general background information on marine mammal hearing (see
Note that, in the following discussion, we refer in many cases to a review article concerning studies of noise-induced hearing loss conducted from 1996-2015 (
Richardson
We describe the more severe effects (
TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall
NMFS defines TTS as a temporary, reversible increase in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2018). Based on data from cetacean TTS measurements (see Finneran 2014 for a review), a TTS of 6 dB is considered the minimum threshold shift clearly larger than any day-to-day or session-to-session variation in a subject's normal hearing ability (Schlundt
Depending on the degree (elevation of threshold in dB), duration (
Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans, but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several decibels above (a 40-dB threshold shift approximates PTS onset;
TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin (
The acoustic habitat in Coos Bay is regularly elevated by medium to large-sized boats. Site-specific ambient noise data were collected during a baseline survey by AECOM in Coos Bay in May 2017 and November and December 2018. Underwater sound levels for water transit vessels, which operate throughout the day in Coos Bay, ranged from 152 dB to 177 dB. The results suggested that the ambient noise level was approximately 120 dB, with high daily variability due to vessel traffic. We expect some level of habituation and or sensitization, described in more detail below, to occur due to the existing acoustic environment in Coos Bay.
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall
Sounds produced by vibratory driving or removal would be active for relatively short durations, with relation to potential for masking. The frequencies output by pile driving activity are lower than those used by most species expected to be regularly present for communication or foraging. We would expect any masking to occur concurrently within the zones of
The biological significance of behavioral disturbance is difficult to predict, especially if the detected disturbances appear minor. While, generally speaking, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction, significant behavioral modifications that could lead to impacts on health or fitness, such as drastic changes in diving/surfacing patterns or significant habitat abandonment are extremely unlikely to result from this activity.
The proposed activities would not result in permanent impacts to habitats used directly by marine mammals, but may have potential short-term impacts to food sources such as forage fish. The proposed activities could also affect acoustic habitat (see masking discussion above), but meaningful impacts are unlikely. There are no known foraging hotspots, or other ocean bottom structures of significant biological importance to marine mammals present in the marine waters in the vicinity of the project areas. Therefore, the main impact issue associated with the proposed activity would be temporarily elevated sound levels and the associated direct effects on marine mammals, as discussed previously in this preamble. The most likely impact to marine mammal habitat occurs from pile driving effects on likely marine mammal prey (
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fish react to sounds which are especially strong and/or intermittent low-frequency sounds, and behavioral responses such as flight or avoidance are the most likely effects. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. The reaction of fish to noise depends on the physiological state of the fish, past exposures, motivation (
SPLs of sufficient strength have been known to cause injury to fish and fish mortality. However, in most fish species, hair cells in the ear continuously regenerate and loss of auditory function likely is restored when damaged cells are replaced with new cells. Halvorsen
The most likely impact to fish from pile driving activities at the project areas would be temporary behavioral avoidance of the area. The duration of fish avoidance of an area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the expected short daily duration of individual pile driving events and the relatively small areas being affected.
Any behavioral avoidance by fish of the disturbed area would still leave significantly large areas of fish and marine mammal foraging habitat in the nearby vicinity. As described in the preceding, the potential for pile driving or removal to affect the availability of prey to marine mammals or to meaningfully impact the quality of physical or acoustic habitat is considered to be insignificant. Effects to habitat will not be discussed further in this document.
This section provides an estimate of the number of incidental takes proposed for authorization through these IHAs, which will inform both NMFS' consideration of “small numbers” and the negligible impact determinations.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Take of marine mammals incidental to USACE's pile driving and removal activities could occur by Level B harassment only, as pile driving has the potential to result in disruption of behavioral patterns for individual marine mammals. Based on the nature of the activity, Level A harassment is neither anticipated nor proposed to be authorized. The proposed mitigation
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Dividing sound sources into two groups (
Choosing metrics that best address the impacts of noise on hearing sensitivity,
Dividing marine mammals into hearing groups and developing auditory weighting functions based on the science supporting that not all marine mammals hear and use sound in the same manner.
These thresholds were developed by compiling and synthesizing the best available science, and are provided in Table 4 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a
This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (free-field) environment not limited by depth or water surface, resulting in a 6 dB reduction in sound level for each doubling of distance from the source (20*log(range)). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10*log(range)). As is common practice in coastal waters, here we assume practical spreading loss (4.5 dB reduction in sound level for each doubling of distance). Practical spreading is a compromise that is often used under conditions where water depth increases as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions.
The intensity of pile driving sounds is greatly influenced by factors such as the type of piles, hammers, and the physical environment in which the activity takes place. There are source level measurements available for certain pile types and sizes from the similar environments recorded from underwater pile driving projects (CALTRANS 2015, WSDOT 2010) that were used to determine reasonable sound source levels likely result from the USACE's pile driving and removal activities (Table 5).
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as from vibratory pile driving), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would incur PTS. Inputs used in the User Spreadsheet (Table 6), and the resulting isopleths are reported below (Table 7).
Utilizing the practical spreading loss model, USACE determined underwater noise will fall below the behavioral effects threshold of 120 dB rms for marine mammals at the distances shown in Table 8 for vibratory pile driving/removal. Table 8 below provides all Level B harassment radial distances (m) and their corresponding areas (km
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Potential exposures to vibratory pile driving/removal for each acoustic threshold were estimated using group size estimates and local observational data to create a density estimate. As previously stated, take by Level B harassment only will be considered for this action. Distances to Level A harassment thresholds are relatively small and mitigation is expected to avoid Level A harassment from these activities.
Over the last several decades, intermittent and independent surveys of harbor seal haul outs in Coos Bay have been conducted. The most recent aerial survey of haulouts occurred in 2014 by ODFW. Those surveys were conducted during a time when the highest number of animals would be expected to haul out (
AECOM conducted surveys vessel-based surveys in May/June 2017 and November 2018 from the Highway 101 Bridge to the seaward entrance to the Coos Bay estuary. In 2017, during the line transect surveys, there were an estimated 374 harbor seals counted in 19 groups with a relative density of 6.2 harbor seals/km. In 2018, because of the low number of harbor seals sightings during the line transect effort, reliable statistical estimates of species density could not be accurately calculated. However, for comparison with the May 2017 data, the number of seals observed/km yielded a sighting rate of 0.12 harbor seals/km.
AECOM also conducted three days of aerial (drone) flyovers at the Clam Island and Pigeon Point haulouts to capture aerial imagery during November and December 2018 to determine a fall/winter estimate for harbor seals. This aerial field effort observed a maximum of 167 harbor seals hauled out at Clam Island and 41 harbor seals hauled out at Pigeon Point on any one day. Based on these counts, an estimate of relative density was determined for the study area and ranged from 8.5-11.1 harbor seals/km
The estimated take for each IHA was calculated using this density multiplied by the area ensonified above the threshold (9.1 km
No data are available to calculate density estimates California sea lion and Steller sea lions; therefore, USACE considers likely occurrences in estimating take for California sea lions and Steller sea lions. As described in the
For this reason, USACE estimates one California and Steller sea lion may be present each day of pile driving. We multiplied 1 animal by the number of days per activity (
The abundance estimate for Northern elephant seals was based on the maximum number of seals observed at Cape Arago, a prominent haulout site roughly 6 km south of Coos Bay jetties. Surveys were conducted between 2002 and 2005 (Scordino 2006) and the reference abundance (n = 54) was the maximum count observed. USACE applied a 3.8 percent annual population growth rate (NMFS 2014c) to approximate the relative abundance of elephant seals in 2019 (
It is not possible to calculate density for killer whales in Coos Bay as they are not present in great abundance; therefore, USACE estimates take based on likely occurrence and considers group size. During migration, the species typically travels singly or as a mother and calf pair. This species has been reported in Coos Bay only a few times in the last decade. The typical group size for transient killer whales is two to four, consisting of a mother and her offspring (Orca Network 2018). Males and young females also may form small groups of around three for hunting purposes (Orca Network 2018). Previous sightings in Coos Bay documented a group of five transient killer whales in May 2007 (as reported by the Seattle Times) and a pair of killer whales were observed during the 2017 May surveys. USACE assumes that a group of two killer whales come into Coos Bay and could enter a Level B harassment zone for one day in each year of pile driving activities. Therefore, a total of two instances of take by Level B harassment are proposed for killer whales in both Year 1 for installation and in Year 2 for removal (Table 9). Because the Level A harassment zones are relatively small (Less than a 4-m isopleth at the largest for pile driving/removal of 30-in piles), and activities will occur over a small number of days, we believe the PSO will be able to effectively monitor the Level A harassment zones and we do not anticipate take by Level A harassment of killer whales.
It is not possible to calculate density for harbor porpoise in Coos Bay as they are not present in great abundance; therefore, USACE estimates take based on likely occurrence and considers group size. Harbor porpoise are most often seen singly, in pairs, or in groups of up to 10, although there are reports of aggregations of up to 200 harbor porpoises. No harbor porpoises were detected during recent marine mammal surveys within the Coos Bay estuary (AECOM 2017, 2018). However, harbor porpoises were counted during aerial surveys of marine mammals off the coasts of California, Oregon, and Washington. The maximum estimated count of harbor porpoises within approximately 1,700 km
It is not possible to calculate density for gray whales in Coos Bay as they are not present in great abundance; therefore, USACE estimates take based on likely occurrence and considers group size. Gray whales are frequently observed traveling alone or in small, unstable groups, although large aggregations may be seen in feeding and breeding grounds. The maximum estimated count of gray whales within approximately 1,700 km
For both year 1 and year 2, Table 9 below summarizes the proposed estimated take for all the species described above as a percentage of stock abundance.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and;
(2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The following mitigation measures are included in the proposed IHAs:
All work will be conducted during daylight hours. If poor environmental conditions restrict visibility full visibility of the shutdown zone, pile installation would be delayed.
For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 m of such operations, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions.
For all pile driving/removal activities, the USACE will establish shutdown zones for a marine mammal species that is greater than its corresponding Level A harassment zone. To be conservative, the USACE is proposing to implement one cetacean shutdown zone (55 m) and one pinniped shutdown zone (25 m) during any pile driving/removal activity (
If a species enters or approaches the Level B harassment zone and that species is either not authorized for take or its authorized takes are met, pile driving and removal activities must shut down immediately using delay and shutdown procedures. Activities must not resume until the animal has been confirmed to have left the area or an observation time period of 15 minutes has elapsed for pinnipeds and small cetaceans and 30 minutes for large whales.
Based on our evaluation of the USACE's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area in which take is anticipated (
Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
Effects on marine mammal habitat (
Mitigation and monitoring effectiveness.
Prior to the start of daily in-water construction activity, or whenever a break in pile driving of 30 min or longer occurs, PSOs will observe the shutdown and monitoring zones for a period of 30 min. The shutdown zone will be cleared when a marine mammal has not been observed within the zone for that 30-min period. If a marine mammal is observed within the shutdown zone, pile driving activities will not begin until the animal has left the shutdown zone or has not been observed for 15 min. If the Level B Harassment Monitoring Zone has been observed for 30 min and no marine mammals (for which take has not been authorized) are present within the zone, work can continue even if visibility becomes impaired within the Monitoring Zone. When a marine mammal permitted for Level B harassment take has been permitted is present in the Monitoring zone, piling activities may begin and Level B harassment take will be recorded.
The USACE will establish and observe monitoring zones for Level B harassment as presented in Table 8. The monitoring zones for this project are areas where SPLs are equal to or exceed 120 dB rms (for vibratory pile driving/removal). These zones provide utility for monitoring conducted for mitigation purposes (
Monitoring would be conducted 30 minutes before, during, and 30 minutes after all pile driving/removal activities. In addition, PSO shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven/removed. Pile driving/removal activities include the time to install, remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.
Monitoring will be conducted by PSOs from on land and boat. The number of PSOs will vary from one to three, depending on the type of pile driving, method of pile driving and size of pile, all of which determines the size of the harassment zones. Monitoring locations will be selected to provide an unobstructed view of all water within the shutdown zone and as much of the Level B harassment zone as possible for pile driving activities. During vibratory driving or removal of AZ-sheets or H-piles, two PSOs will be present. One PSO will be located on the shoreline adjacent to the MOF site or on the barge used for driving piles. The other PSO will be boat-based and detect animals in the water, along with monitoring the three haulout sites in the Level B harassment zone
In addition, PSOs will work in shifts lasting no longer than 4 hours with at least a 1-hour break between shifts, and will not perform duties as a PSO for more than 12 hours in a 24‐hour period (to reduce PSO fatigue).
Monitoring of pile driving shall be conducted by qualified, NMFS-approved PSOs, who shall have no other assigned tasks during monitoring periods. The USACE shall adhere to the following conditions when selecting PSOs:
Independent PSOs shall be used (
At least one PSO must have prior experience working as a marine mammal observer during construction activities;
Other PSOs may substitute education (degree in biological science or related field) or training for experience;
Where a team of three or more PSOs are required, a lead observer or monitoring coordinator shall be designated. The lead observer must have prior experience working as a marine mammal observer during construction; and
The USACE shall submit PSO CVs for approval by NMFS for all observers prior to monitoring. The USACE shall ensure that the PSOs have the following additional qualifications:
Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
Experience and ability to conduct field observations and collect data according to assigned protocols;
Experience or training in the field identification of marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior;
Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary; and
Sufficient training, orientation, or experience with the construction operations to provide for personal safety during observations.
In the unanticipated event that the planned activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as serious injury, or mortality, the USACE must immediately cease the specified activities and report the incident to the NMFS Office of Protected Resources and the West Coast Region Stranding Coordinator. The report must include the following information:
Time and date of the incident;
Description of the incident;
Environmental conditions (
Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident;
Species identification or description of the animal(s) involved;
Fate of the animal(s); and
Photographs or video footage of the animal(s).
Activities must not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with USACE to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The USACE may not resume their activities until notified by NMFS.
In the event the USACE discovers an injured or dead marine mammal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively recent (
In the event that the USACE discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the specified activities (
The USACE shall submit a draft report to NMFS no later than 90 days following the end of construction activities or 60 days prior to the issuance of any subsequent IHA for the project. The USACE shall provide a final report within 30 days following resolution of NMFS' comments on the draft report. Reports shall contain, at minimum, the following:
Date and time that monitored activity begins and ends for each day conducted (monitoring period);
Construction activities occurring during each daily observation period, including how many and what type of piles driven;
Deviation from initial proposal in pile numbers, pile types, average driving times, etc.;
Weather parameters in each monitoring period (
Water conditions in each monitoring period (
For each marine mammal sighting:
○ Species, numbers, and, if possible, sex and age class of marine mammals;
○ Number of individuals of each species (differentiated by month as appropriate) detected within the monitoring zones, and estimates of number of marine mammals taken, by species (a correction factor may be applied to total take numbers, as appropriate);
○ Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
○ Type of construction activity that was taking place at the time of sighting;
○ Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;
○ If shutdown was implemented, behavioral reactions noted and if they occurred before or after shutdown.
Description of implementation of mitigation measures within each monitoring period (
Other human activity in the area within each monitoring period;
A summary of the following:
○ Total number of individuals of each species detected within the Level B Harassment Zone, and estimated as taken if correction factor appropriate;
○ Total number of individuals of each species detected within the Level A Harassment Zone and the average amount of time that they remained in that zone; and
○ Daily average number of individuals of each species (differentiated by month as appropriate) detected within the Level B Harassment Zone, and estimated as taken, if appropriate.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the majority of our analyses applies to all the species listed in Table 9, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. For harbor seals, because there is thought to be a potential resident population and potential repeat takes of individuals, we provide a supplemental analysis independent of the other species for which we propose to authorize take. Also, because both the number and nature of the estimated takes anticipated to occur are identical in years 1 and 2, the analysis below applies to each of the IHAs.
The USACE did not request, and NMFS is not proposing to authorize, take in the form of injury, serious injury, or mortality. The nature of the work precludes the likelihood of serious injury or mortality, and the mitigation is expected to ensure that no Level A harassment occurs. For all species and stocks, any take would occur within a limited, confined area of any given stock's home range (Coos Bay). Take would be limited to Level B harassment only. Exposure to noise resulting in Level B harassment for all species is expected to be temporary and minor due to the general lack of use of Coos Bay by cetaceans and pinnipeds, as explained above. In general, cetacean and non-harbor seal pinnipeds are infrequent visitors with only occasional sightings within Coos Bay. Cetaceans such as transient killer whales may wander into Coos Bay; however, any behavioral harassment occurring during the project is highly unlikely to impact the health or fitness of any individuals, much less effect annual rates of recruitment or survival, given any exposure would be very brief with any harassment potential from the project decreasing to zero once the animals leave the bay. There are no habitat areas of particular importance for cetaceans (
For harbor seals, the impact of harassment on the stock as a whole is negligible given the stocks very large size (70,151 seals). However, we are aware that it is likely a resident population of harbor seals resides year round within Coos Bay. While this has not been scientifically investigated through research strategies such as tagging/mark-recapture techniques, anecdotal evidence suggests some seals call Coos Bay home year-round, as suggested through AECOM's winter surveys. The exact home range of this potential resident population is unknown but harbor seals, in general, tend to have limited home range sizes. Therefore, we can presume that some harbor seals will be repeatedly taken. Repeated, sequential exposure to pile driving noise over a longer duration could result in more severe impacts to individuals that could affect a population; however, the limited number of non-consecutive pile driving days for this project means that these types of impacts are not anticipated. Further, these animals are already exposed, and likely somewhat habituated, to industrial noises such as USACE maintenance dredging, commercial shipping and fishing vessel traffic (Coos Bay contains a major port), and coastal development.
In summary, although this potential small resident population is likely to be taken repeatedly, the impacts of that take are negligible to the stock because the number of repeated days of exposure is small (14 or fewer) and non-consecutive, the affected individuals represent a very small subset of the stock that is already exposed to regular higher levels of anthropogenic stressors, injurious noise levels are not proposed for authorization, and the pile driving/removal would not take place during the pupping season and during a time in which harbor seal density is greatest.
The following factors primarily support our preliminary determination that the impacts resulting from each of these two years of activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
No serious injury or mortality is anticipated or authorized;
No Level A harassment is anticipated or authorized;
The number and intensity of anticipated takes by Level B harassment is relatively low for all stocks;
No biologically important areas have been identified for the effected species within Coos Bay;
For all species, including the Oregon/Washington Coastal stock of harbor seals, Coos Bay is a very small part of their range; and
No pile driving would occur during the harbor seal pupping season; therefore, no impacts to pups from this activity is likely to occur.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from each of the two years of proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The take of seven marine mammal stocks proposed for authorization comprises no more than 2.3 percent of any stock abundance.
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, for each proposed IHA, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, for both proposed IHAs, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
No incidental take of ESA-listed marine mammal species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue two IHAs to USACE for pile driving and removal activities associated with the North Jetty maintenance and repairs project in Coos Bay, Oregon over the course of two non-consecutive years, beginning September 2020 through June 2023, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Drafts of the proposed IHAs can be found at
We request comment on our analyses, the proposed authorization, and any other aspect of this Notice of Proposed IHAs for the proposed pile driving and removal activities associated with the USACE's North Jetty maintenance and repairs project in Coos Bay, Oregon. We also request at this time comment on the potential renewal of these proposed IHAs as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for these IHAs or a subsequent Renewal.
On a case-by-case basis, NMFS may issue a one-year IHA renewal with an additional 15 days for public comments when (1) another year of identical or nearly identical activities as described in the Specified Activities section of this notice is planned or (2) the activities as described in the Specified Activities section of this notice would not be completed by the time the IHA expires and a second IHA would allow for completion of the activities beyond that described in the Dates and Duration section of this notice, provided all of the following conditions are met:
• A request for renewal is received no later than 60 days prior to expiration of the current IHA.
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the requested Renewal are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
• Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
United States Patent and Trademark Office, Department of Commerce.
Notice.
The United States Patent and Trademark Office (USPTO or Office) published on its website an updated legal framework for its Patent Electronic System. The updated legal framework provides guidance on the background statutes, regulations and policies that support the USPTO's Patent Electronic System. The Patent Electronic System currently comprises EFS-Web, which is the USPTO's web-based patent application and document submission system; and the Patent Application Information Retrieval (PAIR) system, which is the USPTO's web-based means for electronically viewing the status of, and documents filed in or associated with, patent applications and proceedings. The updated legal framework also discusses the two-step authentication method now in place for accessing the Patent Electronic System. The updated legal framework serves as a reference for applicants, parties in reexamination proceedings, attorneys, and agents.
Inquiries regarding the Patent Electronic System and other USPTO information technology (IT) systems may be directed to the Patent Electronic Business Center (Patent EBC), by telephone: (866) 217-9197 (toll-free) and (571) 272-4100, or by email:
Inquiries regarding IT policy for U.S. national patent applications may be directed to Mark Polutta, Senior Legal Advisor (telephone (571) 272-7709; email at
Inquiries regarding IT policy for international applications (PCT) may be directed to Tamara Graysay, Special Program Examiner (telephone (571) 272-6728; email at
On October 23, 2019, the USPTO published on its website an updated legal framework for its Patent Electronic System. The updated legal framework is available at
1. Section B has been revised to further clarify that third-party papers are generally prohibited from being filed via EFS-Web unless specifically authorized.
2. Section D has been revised to clarify that providing an incorrect application number and confirmation number when filing a follow-on document will result in the follow-on document being entered in the wrong application. This may result in either the unintentional abandonment of the intended application for failure to reply to an Office action (or notice) or a reduction in patent term adjustment for failure to take reasonable steps to conclude processing or examination of an application. This may result in applicant having to file a petition to revive an unintentionally abandoned application.
3. Section E has been rewritten to discuss the two-step authentication method now being used to log into EFS-Web and Private PAIR.
On September 4, 2019, Owyhee Energy Storage, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Owyhee Pumped Storage Project (Owyhee Project or project) to be located on Lake Owyhee, near Adrian, Malheur County, Oregon. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of the following: (1) A new 105-foot-high, 1,260-foot-long zoned earth and rockfill or concrete-face rockfill dam forming a lined upper reservoir with a surface area of 85 acres and a storage capacity of 3,410 acre-feet at a maximum surface elevation of 4,330 feet mean sea level (msl); (2) an existing 470-foot-high, 833-foot-long concrete arch dam forming the existing Lake Owyhee (lower reservoir) with a surface area of 13,900 acres and a storage capacity of 1,120,000 acre-feet at a maximum surface elevation of 2,650 feet msl; (3) a new 14,100-foot-long conduit connecting the upper and lower reservoirs consisting of a 2,200-foot-long, 17-foot-diameter concrete-lined low-pressure tunnel, a 7,100-foot-long, 17-foot-diameter concrete and steel lined pressure shaft, and a 4,800-foot-long, 20-foot-diameter concrete-lined tailrace; (4) a new 80-foot-long, 280-foot-wide, 120-foot-high underground powerhouse containing three reversible pump-turbine units rated at 200 megawatts (MW) each for a total capacity of 600 MW; (5) either 2.6 or 8 miles of double circuit 230-kilovolt transmission line interconnecting with either the Midpoint-Hemingway-Summer Line or the Boardman-Hemingway line, depending on the design of infrastructure; and (6) appurtenant facilities. The estimated annual generation of the Owyhee Project would be 946,080 megawatt-hours.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's website at
Federal Energy Regulatory Commission, Department of Energy.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-549 (NGPA Title III Transaction and NGA Blanket Certificate Transactions).
Comments on the collection of information are due December 23, 2019.
You may submit comments (identified by Docket No. IC20-1-000) by either of the following methods:
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Ellen Brown may be reached by email at
In 18 CFR 284.102(e), the Commission requires interstate pipelines to obtain proper certification in order to ship natural gas on behalf of intrastate pipelines and local distribution companies (LDC). This certification consists of a letter from the intrastate pipeline or LDC authorizing the interstate pipeline to ship gas on its behalf. In addition, interstate pipelines must obtain from its shippers certifications including sufficient information to verify that their services qualify under this section.
18 CFR 284.123(b) provides that intrastate gas pipeline companies file for Commission approval of rates for services performed in the interstate transportation of gas. An intrastate gas pipeline company may elect to use rates contained in one of its then effective transportation rate schedules on file with an appropriate state regulatory agency for intrastate service comparable to the interstate service or file proposed rates and supporting information showing the rates are cost based and are fair and equitable. It is the Commission policy that each pipeline must file at least every five years to ensure its rates are fair and equitable. Depending on the business process used, either 60 or 150 days after the application is filed, the rate is deemed to be fair and equitable unless the Commission either extends the time for action, institutes a proceeding or issues an order providing for rates it deems to be fair and equitable.
18 CFR 284.123(e) requires that within 30 days of commencement of new service any intrastate pipeline engaging in the transportation of gas in interstate commerce must file a statement that includes the interstate rates and a description of how the pipeline will engage in the transportation services, including operating conditions. If an intrastate gas pipeline company changes its operations or rates it must amend the statement on file with the Commission. Such amendment is to be filed not later than 30 days after commencement of the change in operations or change in rate election.
In 2006, the Commission amended its regulations to establish criteria for obtaining market-based rates for storage services offered under 18 CFR 284.501-505. First, the Commission modified its market-power analysis to better reflect the competitive alternatives to storage. Second, pursuant to the EPAct 2005, the Commission promulgated rules to implement section 4(f) of the Natural Gas Act, to permit underground natural gas storage service providers that are unable to show that they lack market power to negotiate market-based rates in circumstances where market-based rates are in the public interest and necessary to encourage the construction of the storage capacity in the area needing storage services, and where customers are adequately protected. The revisions were intended to facilitate the
The Commission's regulations at 18 CFR 284.288 and 284.403 provide that applicable sellers of natural gas adhere to a code of conduct when making gas sales in order to protect the integrity of the market. As part of this code, the Commission imposes a record retention requirement on applicable sellers to “retain, for a period of five years, all data and information upon which it billed the prices it charged for natural gas it sold pursuant to its market based sales certificate or the prices it reported for use in price indices.” FERC uses these records to monitor the jurisdictional transportation activities and unbundled sales activities of interstate natural gas pipelines and blanket marketing certificate holders.
The record retention period of five years is necessary due to the importance of records related to any investigation of possible wrongdoing and related to assuring compliance with the codes of conduct and the integrity of the market. The requirement is necessary to ensure consistency with the rule prohibiting market manipulation (regulations adopted in Order No. 670, implementing the Energy Policy Act of 2005 (EPAct 2005) anti-manipulation provisions) and the generally applicable five-year statute of limitations where the Commission seeks civil penalties for violations of the anti-manipulation rules or other rules, regulations, or orders to which the price data may be relevant.
Failure to have this information available would mean the Commission is unable to perform its regulatory functions and to monitor and evaluate transactions and operations of interstate pipelines and blanket marketing certificate holders.
• Paper storage costs (using an estimate of 12.5 cubic feet × $6.46 per cubic foot): $80.75 per respondent annually. Total annual paper storage cost to industry ($80.75 × 319 respondents): $25,759.25. This estimate assumes that a respondent stores 12.5 cubic feet of paper. We expect that this estimate should trend downward over time as more companies move away from paper storage and rely more heavily on electronic storage.
• Electronic storage costs: $3.18 per respondent annually. Total annual electronic storage cost to industry ($3.18 × 319 respondents): $1,014.42. This calculation estimates storage of approximately 200 MB per year cost of $3.18. We expect that this estimate should trend downward over time as the cost of electronic storage technology, including cloud storage, continues to decrease. For example, external hard drives of approximately 500GB are available for approximately $50. In addition, cloud storage plans from multiple providers for 1TB of storage (with a reasonable amount of requests and data transfers) are available for less than $35 per month.
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on October 15, 2019, pursuant to Rule 207(a)(2) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2) (2019), ONEOK Arbuckle II Pipeline, L.L.C. (“Arbuckle II”), filed a petition for declaratory order seeking approval of its overall tariff and service structure, proration policy, expansion rights, and open-season process for the approximately 530-miles long Arbuckle II pipeline system, which will transport demethanized mix from the STACK and SCOOP areas of Oklahoma to the Mont Belvieu, Texas area, with expansion capability in the future, all as more fully explained in the petition.
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. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
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
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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j. Lake Lynn filed its request to use the Traditional Licensing Process on August 29, 2019. Lake Lynn provided public notice of its request on August 29, 2019. In a letter dated October 17, 2019, the Director of the Division of Hydropower Licensing approved Lake Lynn's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402. We are also initiating consultation with the West Virginia State Historic Preservation Officer and the Pennsylvania State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating Lake Lynn as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. Lake Lynn filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a new license for Project No. 2459. Pursuant to 18 CFR 16.8, 16.9, and 16.10 each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by November 30, 2022.
p. Register online at
Environmental Protection Agency (EPA).
Notice; request for public comment.
The Director of the Water Division, EPA Region 10, proposes to reissue the National Pollutant Discharge Elimination System (NPDES) General Permit for Concentrated Animal Feeding Operations (CAFOs) in the State of Idaho (permit). As proposed, all animal feeding operations (AFOs) that meet the regulatory definition of a CAFO and are subject to 40 CFR part 412 are eligible for coverage under the permit, excluding facilities in Indian Country. Eligible CAFOs may apply for authorization under the terms and conditions of the permit by submitting a Notice of Intent (NOI) and nutrient management plan (NMP). Upon receipt, EPA will review the NOI and NMP to ensure that all permit requirements are met. If EPA makes a preliminary determination that the NOI is complete, the NOI, NMP, and draft terms of the NMP to be incorporated into the permit will be made available for a thirty (30) day public review and comment period. If determined appropriate by EPA, CAFOs will be granted coverage under the permit upon written notification by EPA. EPA is accepting public comments on the draft permit.
Comments must be received by December 9, 2019.
You may send comments by any of the following methods:
Comments on the draft General Permit should be sent to the Director of the Water Division; USEPA Region 10; 1200 Sixth Avenue, Suite 155, WD 19-C04; Seattle, WA 98101-3188 and may also be submitted by fax to (206) 553-0165 or electronically to
Permit documents may be found on the EPA Region 10 website at:
Please see the draft general permit and Fact Sheet.
This action was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866,
On October 11, 2019, the Export-Import Bank posted notice of an upcoming Advisory Committee meeting. This amendment announces the Sub-Saharan Africa Advisory Committee of the Export-Import Bank will participate in this meeting.
Federal Accounting Standards Advisory Board.
Notice.
Pursuant to 31 U.S.C. 3511(d), the Federal Advisory Committee Act, as amended (5 U.S.C. App.), and the FASAB Rules Of Procedure, as amended in October 2010, notice is hereby given that under the authority and in furtherance of the objectives of 31 U.S.C. 3511(d), the Secretary of the Treasury, the Director of the Office of Management and Budget, and the Comptroller General of the United States (the sponsors) have agreed to continue an advisory committee to consider and recommend accounting standards and principles for the federal government. Copies can be obtained by contacting FASAB at (202) 512-7350.
Ms. Monica R. Valentine, Executive Director, 441 G Street NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.
Federal Advisory Committee Act (5 U.S.C. App.), 31 U.S.C. 3511(d).
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary by email at
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The 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 paragraph 7 of the Act.
Comments regarding each of these applications must be received at the Federal 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 25, 2019.
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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 section 3 of the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843), and interested persons may express their views in writing on the standards enumerated in section 4. Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
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 25, 2019.
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Information covered under 5 U.S.C. 552b (c)(6) and (c)(9)(B).
Kimberly Weaver, Director, Office of External Affairs, (202) 942-1640.
Office of Governmentwide Policy (OGP), General Services Administration (GSA).
Meeting notice.
GSA is hosting an industry engagement event to highlight how section 889 of Title VII of the NDAA for FY 2019 (hereinafter Sec. 889) will affect GSA's business and supply chain. Toward that end, GSA invites industry partners and associations to join in a broad based dialogue.
This industry engagement event will be held on Wednesday, November 6, 2019, from 9:00 a.m. to 11:00 a.m., Eastern Standard Time (EST).
The meeting will be held in the Department of Interior (DOI) Yates Auditorium at 1849 C St. NW, Washington, DC 20240. There is no virtual attendance for this meeting. Information about the industry event can be found under the heading
Ms. Maria Swaby, GSA Procurement Ombudsman, 202-208-0291 or Mr. Michael Thompson, Senior Policy Advisor, 202-208-1568.
The National Defense Authorization Act (NDAA) for Fiscal Year 2019, Title VII, Section 889, Prohibition on certain telecommunications and video surveillance services or equipment, identifies sources of “covered telecommunications equipment or services” and, in paragraph (a)(1)(B), states that, as of August 13, 2020, “The head of an executive agency may not enter into a contract (or extend or renew a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.”
GSA is seeking to build industry awareness of this statutory language and hear different perspectives on the business impact on GSA and its supply chain. This meeting is NOT part of the FAR Rule-Making process. Rather it is specifically focused on GSA contractors and on the GSA mission.
GSA invites industry representatives, including representatives from the
GSA is particularly interested in the following questions:
• If (a)(1)(B) of Section 889 prohibits use by an entity of covered telecommunications equipment or services at any tier, including use that is unrelated to the performance of any GSA contract:
○ How would this impact your business, and therefore GSA's mission?
○ What are some of the challenges involved in identifying covered equipment?
○ How would your industry likely be impacted and how will this affect GSA's competition?
○ Would this impact your plans to do future business with the GSA?
○ What is your anticipated cost for compliance with this prohibition?
○ How long would it take to remove covered equipment from all levels of your supply chain on GSA contracts?
○ Are there specific use cases in the supply chain where it would not be feasible to remove the covered equipment?
• How does GSA make industry more aware of the prohibition?
To ensure adequate room accommodations, individuals wishing to attend the public meeting must register by October 28, 2019. To register, please visit the GSA Interact web page at
GSA will share the agenda and list of presenters prior to the meeting on the GSA Interact web page at
Registration check-in will begin at 8 a.m., EST, on November 6, 2019, with the meeting starting promptly at 9 a.m. EST. Information on getting to the DOI building can be found at
GSA intends to conduct a very brief overview of the Sec. 889 prohibition and the threat it is protecting against. This presentation will be followed by a discussion by a panel comprised of industry experts and a GSA moderator addressing, among other things, the questions in Section A above. Attendees will be provided an opportunity to engage in discussions at the end of the panel discussion. A copy of the agenda will be posted prior to the date of the meeting on the GSA Interact web page at
The industry engagement event is physically accessible to people with disabilities. Request for sign language interpretation or other auxiliary aids should be directed to
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by December 23, 2019.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development, Attention: Document Identifier/OMB Control Number ____, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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As a condition of award, Navigator awardees must agree to cooperate with any Federal evaluation of the program and must provide required weekly, monthly, quarterly, annual, and final (at the end of the cooperative agreement period) reports in a form prescribed by CMS, as well as any additional reports as required.
Administration for Community Living (ACL), HHS.
Notice.
The Administration for Community Living is announcing that the proposed collection of information listed above has been submitted to the Office of Management and Budget (OMB) for review and clearance as required under the Paperwork Reduction Act of 1995. This 30-Day notice collects comments on the information collection requirements related to ACL's Chronic Disease Self-Management Education grant program (Proposed Extension with Changes of a Currently Approved Collection [ICR Rev]).
Submit written comments on the collection of information by November 22, 2019.
Submit written comments on the collection of information by:
(a) Email to:
(b) Fax to 202.395.5806, Attn: OMB Desk Officer for ACL; or
(c) By mail to the Office of Information and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St. NW, Rm. 10235, Washington, DC 20503, Attn: OMB Desk Officer for ACL.
Kristie Kulinski (
In compliance with 44 U.S.C. 3507, ACL has submitted the following proposed collection of information to OMB for review and clearance. The “Empowering Older Adults and Adults with Disabilities through Chronic Disease Self-Management Education (CDSME) Programs” cooperative agreement program has been financed through the Prevention and Public Health Fund (PPHF). The statutory authority for cooperative agreements under the most recent program announcement (FY 2019) is contained in the Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019, Public Law 115-245; Public Health Service Act, 42 U.S.C. 300u-2 (Community Programs) and 300u-3 (Information Programs); and the Patient Protection and Affordable Care Act, 42 U.S.C. 300u-11 (Prevention and Public Health Fund). The Empowering Older Adults and Adults with Disabilities through CDSME Programs initiative supports a national resource center and awards competitive grants to deliver and sustain evidence-based CDSME interventions.
OMB approval of the existing set of data collection tools expires on October 31, 2019 (OMB Control Number 0985-0036). This data collection continues to be necessary for monitoring program operations and outcomes. ACL proposes to use the following tools: (1) Semi-annual program reports to monitor grantee progress; and (2) a set of tools used to collect information at each program completed by the program facilitators (Program Information Cover Sheet and Attendance Log) and a Participant Information Survey completed by each participant to document their demographic and health characteristics. ACL is not requesting renewal of Host/Implementation Organization Information Form. ACL intends to continue using an online data entry system for the program and participant survey data. In addition to non-substantive formatting edits, minor changes are being proposed to two of the four currently approved tools, as indicated below. All changes proposed are based on feedback from a focus group that included a sub-set of current grantees, as well as consultation with subject matter experts.
A notice was published in the
In addition to the public comments, feedback on the current forms was sought from the following:
• ACL Performance and Evaluation subject matter experts
• National Chronic Disease Self-Management Education Resource Center
• One grantee focus group (fewer than nine participants)
Based on this collective feedback, the following modifications to the currently approved forms are being proposed:
The proposed data collection forms may be found on the ACL website at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors of the NIH Clinical Center.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual grant applications conducted by the CLINICAL CENTER, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. to achieve expeditious commercialization of results of federally-funded research and development.
Licensing information may be obtained by emailing Michael Shmilovich,
Technology description follows.
Available for licensing and commercial development is a system and technique for enhancing the resolution of images acquired through light sheet microscopy by adding additional enhanced depth-of-focus optical arrangements and high numerical aperture objective lenses. The technique employs an arrangement of three objective lenses and a processor for combining captured images. The first objective lens illuminates the sample and the second and third objective lenses collect the fluorescence emissions emitted by the sample. The second objective lens focuses a first portion of the fluorescence emissions for detection by a second detection component. The third objective lens focuses a second portion of the fluorescence emissions through a diffractive or refractive optic component. A processor combines the images resulting from first and second portions of the fluorescence emissions and generates a composite image with improved axial and lateral resolution.
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 a meeting of the National Advisory Council for Complementary and Integrative Health.
The meeting will be open to the public as indicated below, with attendance limited to space available.
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/or contract proposals 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 and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
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.
Advisory Council on Historic Preservation.
Notice of Advisory Council on Historic Preservation quarterly business meeting.
Notice is hereby given that the Advisory Council on Historic Preservation (ACHP) will have its next quarterly meeting on Thursday, November 7, 2019. The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE, Washington, DC, starting at 1:00 p.m.
The quarterly meeting will take place on Thursday, November 7, 2019 starting at 1:00 p.m.
The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE, Washington, DC.
Tanya DeVonish, 202-517-0205,
The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that promotes the preservation, enhancement, and sustainable use of our nation's diverse historic resources, and advises the President and the Congress on national historic preservation policy. The goal of the National Historic Preservation Act (NHPA), which established the ACHP in 1966, is to have federal agencies act as responsible stewards of our nation's resources when their actions affect historic properties. The ACHP is the only entity with the legal responsibility to encourage federal agencies to factor historic preservation into their decision making. For more information on the ACHP, please visit our website at
The agenda for the upcoming quarterly meeting of the ACHP is the following:
The meetings of the ACHP are open to the public. If you need special accommodations due to a disability, please contact Tanya DeVonish, 202-517-0205 or
54 U.S.C. 304102.
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)
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
Federal Emergency Management Agency, DHS.
Notice; withdrawal.
The Federal Emergency Management Agency (FEMA) is withdrawing its proposed notice concerning proposed flood hazard determinations, which may include the addition or modification of any Base Flood Elevation, base flood depth, Special Flood Hazard Area boundary or zone designation, or regulatory floodway (herein after referred to as proposed flood hazard determinations) on the Flood Insurance Rate Maps and, where applicable, in the supporting Flood Insurance Study reports for Livingston County, Kentucky and Incorporated Areas.
This withdrawal is effective October 23, 2019.
You may submit comments, identified by Docket No. FEMA-B-1915 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)
On April 5, 2019, FEMA published a proposed notice at 84 FR 13674, proposing flood hazard determinations for Livingston County, Kentucky and Incorporated Areas. FEMA is withdrawing the proposed notice for Livingston County, Kentucky and Incorporated Areas.
42 U.S.C. 4104; 44 CFR 67.4.
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
Comments are to be submitted on or before January 21, 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-1966, 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
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
The Department of Homeland Security (DHS), The Office of Partnership and Engagement (OPE).
Notice of partially closed Federal Advisory Committee meeting.
The Homeland Security Advisory Council (“HSAC” or “Council”) will meet in person on Thursday, November 14, 2019. Members of the public may participate in person. The meeting will be partially closed to the public.
The Council will meet November 14, 2019, from 9:30 a.m. to 3:30 p.m. EDT. The meeting will be open to the public from 1:45 p.m. to 3:30 p.m. EDT. Please note the meeting may close early if the Council completes its business. The meeting will be closed to the public from 9:30 a.m. to 1:30 p.m. EDT.
The public meeting will be held in Town Hall at the Transportation Security Administration (TSA), 601 S 12th Street (East Building), in Arlington, VA 20598. Members of the public will meet in the Visitors Center, located to the left of the East Building entrance. For information on facilities or services for individuals with disabilities, or to request special assistance at the meeting, contact Mike Miron at
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Mike Miron at
Notice of this meeting is given under Section 10(a) of the Federal Advisory Committee Act (FACA), Public Law 92-463 (5 U.S.C. Appendix), which requires each FACA committee meeting to be open to the public.
The Council provides organizationally independent, strategic, timely, specific, actionable advice, and recommendations to the Secretary of Homeland Security on matters related to homeland security. The Council is comprised of leaders of local law enforcement, first responders, Federal, State, and local government, the private sector, and academia.
The Council will meet in an open session between 1:45 p.m. to 3:30 p.m. EDT. The Council will swear in new members, and review and deliberate on reports from the Families and Children Care Panel, Emerging Technologies, Prevention of Targeted Violence Against Faith-based Communities, and State, Local, Tribal, and Territorial Cybersecurity subcommittees. Following this, there will be a break for public commentary.
The Council will meet in a closed session from 9:30 a.m. to 1:30 p.m. EDT to receive sensitive operational information from senior officials on current counterterrorism threats, border security, Arctic Strategy, and cybersecurity.
The Council will receive closed session briefings at the For Official Use Only and Law Enforcement sensitive information from senior officials. These briefings will concern matters sensitive to homeland security within the meaning of 5 U.S.C. 552b(c)(7)(E) and 552b(c)(9)(B). The Council will receive operational counterterrorism updates on the current threat environment and security measures associated with countering such threats, including those related to the U.S. Coast Guards Arctic Strategy, border security, immigration enforcement, and cybersecurity.
The session is closed under 5 U.S.C. 552b(c)(7)(E) because disclosure of that information could reveal investigative techniques and procedures not generally available to the public, allowing terrorists and those with interests
Specifically, there will be material presented during the briefings regarding the latest viable threats against the United States and how DHS and other Federal agencies plan to address those threats. Disclosure of this information could frustrate the successful implementation of protective measures designed to keep our country safe. In addition, the session is closed pursuant to 5 U.S.C. 552b(c)(9)(B) because disclosure of these techniques and procedures could frustrate the successful implementation of protective measures designed to keep our country safe.
U.S. Citizenship and Immigration Services, Department of Homeland Security.
60-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration
(USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 23, 2019.
All submissions received must include the OMB Control Number 1615-0018 in the body of the letter, the agency name and Docket ID USCIS-2008-0068. To avoid duplicate submissions, please use only
(1)
(2)
USCIS, Office of Policy and Strategy, Regulatory Coordination Division, Samantha Deshommes, Chief, 20 Massachusetts Avenue NW, Washington, DC 20529-2140, telephone number 202-272-8377 (This is not a toll-free number. Comments are not accepted via telephone message). Please note contact information provided here is solely for questions regarding this notice. It is not for individual case status inquiries. Applicants seeking information about the status of their individual cases can check Case Status Online, available at the USCIS website at
You may access the information collection instrument with instructions, or additional information by visiting the Federal eRulemaking Portal site at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
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(2)
(3)
(4)
USCIS must review all documents that relate to the alien's exclusion, deportation, or removal proceedings, the alien's record of immigration violations, and the alien's criminal record, if applicable. Moreover, if the alien is inadmissible under section 212(a)(9)(C)(i) of the Act, evidence must be submitted to demonstrate that the alien has remained outside the United States for a period of at least 10 years since the date of his or her last departure.
In addition to USCIS, U.S. Customs and Border Protection (CBP) and the Executive Board for Immigration Review (EOIR) of the U.S. Department of Justice (DOJ) also rely Form I-212 to grant consent to reapply for admission. These agencies use the application in the same manner as USCIS. CBP has developed an electronic filing system, called Electronic Secured Adjudication Forms Environment (e-SAFE), through which Form I-212 can be submitted when filed with CBP.
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Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 30 days of public comment.
Comments Due Date: November 22, 2019.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Anna P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email her at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
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 and 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 your written comments on or before November 22, 2019.
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Colleen Henson, Regional Recovery Permit Coordinator, Ecological Services, (503) 231-6131 (phone);
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 or interstate commerce 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 (CFR) 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 a permit to 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 meeting.
The Aquatic Nuisance Species (ANS) Task Force will hold a public meeting in accordance with the Federal Advisory Committee Act. The ANS Task Force's purpose is to develop and implement a program for U.S. waters to prevent introduction and dispersal of aquatic invasive species; to monitor, control, and study such species; and to disseminate related information.
Susan Pasko, ANS Task Force Executive Secretary, by telephone at 703-358-
The ANS Task Force was established by the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, as amended (NANPCA; 16 U.S.C. 4701
The meeting is open to the public; however, for security purposes, registration is required. For more information, contact the ANS Task Force Executive Secretary (see
• Update on new species occurrences in the United States.
• Review the role and responsibility of the ANS Task Force under the Vessel Incidental Discharge Act.
• Update from the working group meeting on genetic biocontrol of invasive species.
• Review of subcommittee work plans to advance the goals identified in the ANS Task Force Strategic Plan for 2020-2025.
• Review of management plans from other Federal interagency invasive species groups.
• Response to recommendations from the ANS Task Force regional panels.
• Public comment.
The final agenda and other related meeting information will be posted on the ANS Task Force website at
There will be an opportunity for public comment during the meeting. Depending on the number of people interested in addressing the Task Force, a time limit on comments may be imposed.
If you provide a written comment, 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.
5 U.S.C. Appendix 2.
Bureau of Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Indian Affairs (BIA), are proposing to renew an information collection with revisions.
Interested persons are invited to submit comments on or before November 22, 2019.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's Desk Officer for the Department of the Interior by email at
To request additional information about this ICR, contact Ms. Sharlene Round Face by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the BIA; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BIA enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BIA minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. 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.
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 authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
The U.S. Department of the Interior, National Park Service, Wupatki National Monument has completed an inventory of human remains, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is no cultural affiliation between the human remains and any present-day Indian Tribes or Native Hawaiian organizations. Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Wupatki National Monument. If no additional requestors come forward, transfer of control of the human remains to the Indian Tribes or Native Hawaiian organizations stated in this notice may proceed.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Wupatki National Monument at the address in this notice by November 22, 2019.
Kayci Cook Collins, Superintendent, Wupatki National Monument, 6400 N Highway 89, Flagstaff, AZ 86004, telephone (928) 526-1157 ext. 227, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the U.S. Department of the Interior, National Park Service, Wupatki National Monument, Flagstaff, AZ. The human remains were removed from within the boundaries of Wupatki National Monument, Coconino County, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the Superintendent, Wupatki National Monument.
A detailed assessment of the human remains was made by Wupatki National Monument professional staff in consultation with representatives of the Fort McDowell Yavapai Nation, Arizona; Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Jicarilla Apache Nation, New Mexico; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; San Juan Southern Paiute Tribe of Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona); and the Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
Prior to 1950, human remains representing, at minimum, one individual were removed from an unknown location within Wupatki National Monument in Coconino County, AZ. The right calcaneus of a three-to-five year old individual was misidentified as faunal until 2018 when faunal analysts from Northern Arizona University correctly identified the bone as human, sex-indeterminate. The remains were found in a box labeled with several different archeological sites, making it difficult to determine exact provenience. No known individuals were identified. No associated funerary objects are present.
Officials of the U.S. Department of the Interior, National Park Service, Wupatki National Monument have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice are Native American based on the expert opinions of bio-archeologists at the Museum of Northern Arizona.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian Tribe.
• According to final judgements of the Indian Claims Commission or the Court of Federal Claims, the land from which the Native American human remains were removed is the aboriginal land of the Fort McDowell Yavapai Nation, Arizona; Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Navajo Nation, Arizona, New Mexico & Utah; San Carlos Apache Tribe of the San Carlos Reservation,
• Treaties, Acts of Congress, or Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Fort McDowell Yavapai Nation, Arizona; Havasupai Tribe of the Havasupai Reservation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Jicarilla Apache Nation, New Mexico; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; San Juan Southern Paiute Tribe of Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and the Yavapai-Prescott Indian Tribe (previously listed as the Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona) hereafter referred to as “The Aboriginal Land Tribes.”
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Aboriginal Land Tribes.
Representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Kayci Cook Collins, Superintendent, Wupatki National Monument, 6400 N Highway 89, Flagstaff, AZ 86004, telephone (928) 526-1157 ext. 227, email
The U.S. Department of the Interior, National Park Service, Wupatki National Monument is responsible for notifying The Tribes that this notice has been published.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the Administrative Law Judge's (“ALJ”) final initial determination (“ID”), issued on July 12, 2019, finding a violation of section 337 in the above-referenced investigation and to extend the target date for completion of the above-referenced investigation to December 19, 2019. The Commission requests briefing from the parties on certain issues under review, as indicated in this notice.
Benjamin S. Richards, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-5453. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server at
On February 21, 2018, the Commission instituted this investigation based on a complaint filed by 10X Genomics, Inc. of Pleasanton, CA. 83 FR 7491 (Feb. 21, 2018). The complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain microfluidic systems and components thereof and products containing same by reason of infringement of one or more claims of U.S. Patent Nos. 9,644,204 (“the '204 patent”); 9,689,024 (“the '024 patent”); 9,695,468 (“the '468 patent”); and 9,856,530 (“the '530 patent”).
On July 12, 2019, the ALJ issued the final ID. The ID found a violation of section 337 by virtue of Bio-Rad's indirect infringement of the '024, the '468, and the '530 patents. The ID found that 10X had not established a violation with respect to the '204 patent. The ID also found that Bio-Rad failed to establish invalidity of any of the asserted claims of any patent. The ID further found that the domestic industry requirement was satisfied for each of the asserted patents. Finally, the ID found that Bio-Rad had not carried its burden with respect to various additional affirmative defenses, including improper inventorship and ownership.
On July 25, 2019, the ALJ issued her recommended determination on remedy and bonding. The ALJ recommended, upon a finding of violation, that the Commission issue a limited exclusion order, issue a cease and desist order, and impose a bond in the amount of twenty-five percent of the entered value of any covered products imported during the period of Presidential review.
On July 29, 2019, 10X, Bio-Rad, and OUII submitted petitions seeking review of the ID. On August 6, 2019, 10X, Bio-Rad, and OUII submitted responses to the others' petitions. On August 26, 2019, 10X and Bio-Rad submitted comments on the public interest pursuant to Commission Rule 210.50(a)(4).
Having examined the record of this investigation, including the ID, the petitions for review, and the responses thereto, the Commission has determined to review the ID with respect to (1) all findings related to a violation based on the '024 patent; (2) all findings related to a violation based on the '468 patent; (3) noninfringement of the '204 patent; (4) all findings related to a violation based on the '530 patent; (5) Bio-Rad's inventorship and ownership defenses; and (6) a typographical error on page 91.
The Commission has further determined to extend the target date in this investigation to December 19, 2019.
The parties are requested to brief their positions on only the following issues under review with reference to the applicable law and the evidentiary record:
1. With respect to Bio-Rad's ownership defense, would Drs. Hindson and Saxanov be considered inventors of the asserted patents based only on the “ideas” they developed at QuantaLife/Bio-Rad? Your response should address how, if at all, those “ideas” correspond to the particular inventions claimed in the asserted patents.
2. Was the ALJ correct to focus on the “inventive concept” of the asserted patents in determining whether Bio-Rad has ownership rights in the asserted patents? If not, what is the correct focus?
3. The ID construed the term “amplification” in the '024 and '468 patent claims to mean “increasing the number of copies of the target sequence to be detected, including by reverse transcription.” Explain whether the ID's construction is supported by the Application No. PCT/US 99/01705 (“the '705 application”), U.S. Patent Application Publication No. 2011/0053798 (“the '798 application”), or the specifications of the '024 and '468 patents. Please cite and explain each section that supports or detracts from this construction as well as any expert testimony that interprets those sections.
4. If the Commission determined to construe “amplification” to exclude reverse transcription, consistent with OUII's petition, what effect, if any, would that have on the ID's finding of infringement of the asserted claims of the '024 and '468 patents?
5. In its response to OUII's petition on the construction of “amplification,” Bio-Rad argues that, if the ID's construction of “amplification” is modified to exclude reverse transcription, then the ID's infringement findings with respect to the '024 patent should be reversed. Bio-Rad's argument focuses particularly on whether amplification occurs in a droplet. Explain how, if at all, modifying the ID's construction of “amplification” to exclude reverse transcription could give rise to a noninfringement finding based on the location where amplification occurs.
6. Has Bio-Rad waived its noninfringement argument for the '024 patent based on the location where amplification occurs, as described in question 5, by failing to raise the argument in its petition for review? If you contend that the argument is not waived, provide citations to where this issue was raised in Bio-Rad's prehearing brief, posthearing brief, and petition for review.
7. Does the evidence of record support the conclusion that [[ ]] in the context of the products accused of infringing the '204 patent?
8. Claim 1 of the '530 patent includes the clause “wherein said barcode molecules become detached from said gel bead.” Is this clause part of step (c) of the claimed method such that barcode molecules must become detached from the gel bead during that step, or does the clause modify the entire method such that the barcode molecules may become detached during any step of the method? Address the significance of the separate indentation of the “wherein” clause and the punctuation setting it off from the rest of the claim.
9. If claim 1 of the '530 patent is construed such that the barcode molecules must become detached from the gel bead during step (c) of the claimed method, does a preponderance of the evidence show that Bio-Rad's accused products and/or 10X's domestic industry products practice step (c) of claim 1? Please identify all evidence supporting your position.
10. Did any party argue in its pre- or post-hearing briefing that the ALJ's construction of claim 1 of the '530 patent, as laid out in orders 22 and 35, was indefinite? If they did, identify where in the briefing those arguments were made.
The parties are not to brief other issues on review, which are adequately presented in the parties' existing filings.
In connection with the final disposition of this investigation, the Commission may issue: (1) An exclusion order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) a cease-and-desist order that could result in the respondent being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background,
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
The parties' written submissions and proposed remedial orders must be filed no later than the close of business on October 31, 2019. Reply submissions must be filed no later than the close of business on November 7, 2019. Opening submissions are limited to 75 pages. Reply submissions are limited to 60 pages. Such submissions should address the ALJ's recommended determination on remedy and bonding. Interested government agencies and any other interested parties are also encouraged to file written submissions on the issues of remedy, the public interest, and bonding. Third-party submissions should be filed no later than the close
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit eight true paper copies to the Office of the Secretary pursuant to Section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337-TA-1100”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the continuation of the final phase of antidumping investigation No. 731-TA-747 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of fresh tomatoes from Mexico preliminarily determined by the Department of Commerce (“Commerce”) to be sold at less than fair value (“LTFV”). This notice also provides the revised schedule for the final phase.
October 17, 2019.
Christopher W. Robinson (202) 205-2542), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
On February 1, 2018, Commerce initiated and the Commission instituted their fourth five-year reviews of the suspended investigation (83 FR 4641, 83 FR 4676). On May 7, 2019, Commerce terminated the suspension agreement and resumed its antidumping investigation (84 FR 20858, May 13, 2019). Effective May 7, 2019, the Commission terminated its fourth review (84 FR 21360, May 14, 2019) and resumed its antidumping investigation (84 FR 27805, June 14, 2019). On August 7, 2019, the Commission published a schedule for the conduct of the final phase of the subject investigation (84 FR 38643). On September 24, 2019, Commerce published notice in the
On October 11 and 15, 2019, Commerce received timely requests, pursuant to section 734(g) of the Tariff Act of 1930 (19 U.S.C. 1673c(g)), to continue its antidumping investigation on fresh tomatoes from Mexico and therefore resumed its final investigation. The Commission, therefore, is continuing its antidumping investigation and gives notice of its revised schedule.
The Commission's new schedule for its final investigation is as follows: The hearing will be held at the U.S. International Trade Commission Building at 9:30 a.m. on October 24, 2019; the deadline for filing posthearing briefs is October 31, 2019; the Commission will make its final release of information on November 18, 2019; and final party comments are due on November 20, 2019. (Requests to appear at the hearing and the deadline for prehearing briefs already occurred under the prior schedule for this final investigation.) For further information concerning this proceeding, see the Commission's notices cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, C, and D (19 CFR part 207).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 33) issued by the presiding administrative law judge (“ALJ”) granting a motion to terminate the investigation based on a settlement agreement and a withdrawal of the complaint.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
The Commission instituted this investigation on April 3, 2019, based on a complaint filed by Innovative Foundry Technologies LLC of Portsmouth, New Hampshire (“IFT”). 84 FR 13065. The complaint, as supplemented, alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain semiconductor devices, integrated circuits, and consumer products containing the same by reason of infringement of certain claims of U.S. Patent Nos. 6,583,012; 6,797,572; 7,009,226; 7,880,236; and 9,373,548.
On September 4, 2019, IFT filed an unopposed motion to terminate the investigation with respect to TSMC, MediaTek, and Qualcomm based on a settlement agreement, and to terminate the investigation with respect to all other respondents based on a withdrawal of the complaint. On September 6, 2019, OUII filed a response in support of the motion.
On September 27, 2019, the ALJ issued the subject ID, granting the motion to terminate the investigation based on a settlement agreement and the withdrawal of the complaint. The ALJ found that the motion complied with the Commission Rules and that there was no evidence that termination was contrary to the public interest. No petitions for review of the ID were received.
The Commission has determined not to review the subject ID. The investigation is terminated.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Bureau of Justice Statistics, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics (BJS), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until December 23, 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 Suzanne Strong, Statistician, Prosecution and Judicial Statistics Unit, Bureau of Justice Statistics, 810 Seventh Street NW, Washington, DC 20531 (email:
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:
(1)
(2)
(3)
(4)
BJS will request complete records from the statewide and mostly-statewide systems, with separate requests to the counties not included in the mostly statewide systems. BJS will also sample counties from the states unable to provide statewide extracts. The requests will sample with certainty any county with a total resident population exceeding one million persons.
This is BJS's first collection from state courts since the Survey of Juveniles Charged in Adult Criminal Courts effort in 2014. BJS is requesting that the extracts include all felony and misdemeanor criminal cases disposed of by December 31, 2019. BJS is also requesting that the extracts include defendant demographics; information about charges, hearings, disposition, and sentences; attorney information; diversion and problem-solving court information; and whether a bench warrant was issued during the case. State and local courts can provide the data extract or extracts in any format.
(5)
(6)
Community Oriented Policing Services, Department of Justice.
60-Day notice.
The Department of Justice (DOJ) Office of Community Oriented Policing Services (COPS) 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 purpose of this notice is to allow for an additional 30 days for public comment December 23, 2019.
If you have 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 Lashon M. Hilliard, Department of Justice Office of Community Oriented Policing Services, 145 N Street NE, Washington, DC 20530, (202) 514-6563.
Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20530 or sent to
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:
(1)
(2)
(3)
(4)
(5)
(6)
Department of Labor.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Office of the Assistant Secretary for Policy, Chief Evaluation Office (CEO) sponsored information collection request (ICR) proposal titled, “Evaluation of the American Apprenticeship Initiative,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 22, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-CEO, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks PRA authority for the Evaluation of the American Apprenticeship Initiative information collection. The American Apprenticeship Initiative (AAI) awarded funds to multiple grantees to support the expansion of quality and innovative apprenticeship training programs, and the Department of Labor is sponsoring an evaluation of this initiative. The AAI is a significant DOL investment to expand apprenticeship in the U.S., and the evaluation will provide a wealth of information on apprenticeship outcomes and ROI for businesses that invest in apprenticeship. The American Apprenticeship Initiative is authorized by Section 414(c) of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), as amended (codified at 29 U.S.C. 2916a).
This proposed information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB, under the PRA, approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility:
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Office of the Assistant Secretary for Policy, Chief Evaluation Office, Department of Labor.
Notice of information collection; request for comment.
The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents is properly assessed. Currently, the Department of Labor is soliciting comments concerning the collection of data about the Cascades Job Corps College and Career Academy Pilot Evaluation. A copy of the proposed Information Collection Request (ICR) can be obtained by contacting the office listed below in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee section below on or before December 23, 2019.
You may submit comments by either one of the following methods:
Deborah Martierrez by email at
I.
This
1. Extension of data collection through the follow-up tracking form; and
2. A modest increase in burden for the implementation site visits.
The extension of the follow-up data collection and additional burden for the implementation site visits will provide vital data for the evaluation.
II.
○ Evaluate whether the proposed collection of information is necessary for the proper performance functions of the agency, including whether the information will have practical utility;
○ evaluate the accuracy of the agency's burden estimate of the proposed information collection, including the validity of the methodology and assumptions;
○ enhance the quality, utility, and clarity of the information to be collected; and
○ minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology—for example, permitting electronic submissions of responses.
III.
Comments submitted in response to this request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Office of the Secretary, Department of Labor.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Office of the Assistant Secretary for Policy, Chief Evaluation Office (CEO) sponsored information collection request (ICR) proposal titled, “TechHire and Strengthening Working Families Initiative Grant Programs Evaluation—18-Month Follow-Up,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before November 22, 2019.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL-CEO, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202-395-5806 (this is not a toll-free number); or by email:
Frederick Licari by telephone at 202-693-8073, TTY 202-693-8064, (these are not toll-free numbers) or by email at
This ICR seeks PRA authority for the TechHire and Strengthening Working Families Initiative Grant Programs Evaluation—18-Month Follow-Up Survey information collection. The U.S. Department of Labor's Chief Evaluation Office (CEO) is undertaking the Evaluation of Strategies Used in the TechHire and Strengthening Working
This proposed information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB, under the PRA, approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility:
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Bureau of Labor Statistics, Department of Labor.
Notice of information collection; request for comment.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Bureau of Labor Statistics (BLS) is soliciting comments concerning the proposed revision of the “Report on Occupational Employment and Wages.” A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
Send comments to Carol Rowan, BLS Clearance Officer, Division of Management Systems, Bureau of Labor Statistics, Room 4080, 2 Massachusetts Avenue NE, Washington, DC 20212. Written comments also may be transmitted by fax to 202-691-5111 (this is not a toll free number).
Carol Rowan, BLS Clearance Officer, at 202-691-7628 (this is not a toll free number). (See
The Occupational Employment Statistics (OES) survey is a Federal/State establishment survey of wage and salary workers designed to produce data on current detailed occupational employment and wages for each Metropolitan Statistical Area and Metropolitan Division as well as by detailed industry classification. OES survey data assist in the development of employment and training programs established by the Perkins Vocational Education Act of 1998 and the Wagner-Peyser Act.
The OES program operates a periodic mail survey of a sample of non-farm establishments conducted by all fifty States, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. Over three-year periods, data on occupational employment and wages are collected by industry at the four- and five-digit North American Industry Classification System (NAICS) levels. The Department of Labor uses OES data in the administration of the Foreign Labor Certification process under the Immigration Act of 1990.
Office of Management and Budget clearance is being sought for the OES program. Occupational employment data obtained by the OES survey are used to develop information regarding current and projected employment needs and job opportunities. These data assist in the development of State vocational education plans. OES wage data provide a significant source of information to support a number of different Federal, State, and local efforts.
As part of an ongoing effort to reduce respondent burden, OES has several electronic submission options which are available to respondents. Respondents have the ability to submit data by email, or fillable online forms. In many cases, a respondent can submit existing payroll records and would not need to submit a survey form.
The Bureau of Labor Statistics is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they also will become a matter of public record.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the National Aeronautics and Space Administration (NASA) announces a meeting of the Earth Science Advisory Committee (ESAC). This Committee functions in an advisory capacity to the Director, Earth Science Division, in the NASA Science Mission Directorate. The meeting will be held for the purpose of soliciting, from the science community and other persons, scientific and technical information relevant to program planning.
Thursday, November 14, 2019, 3:30 p.m.-4:30 p.m., Eastern Time.
This meeting will take place telephonically. Any interested person must use a touch-tone phone to participate in this meeting. Any interested person may call the USA toll free number 1-800-475-0212 or toll number 1-517-308-9094, passcode 6749647.
KarShelia Henderson, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358-2355, fax (202) 358-2779, or
The agenda for the meeting includes the following topic:
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration (NASA).
Notice of information collection—renewal of existing information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections.
Comments are due by December 23, 2019.
All comments should be addressed to Claire Little, National Aeronautics and Space Administration, 300 E Street SW, Washington, DC 20546-0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Claire Little, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546 or email
This collection of information supports the National Aeronautics and Space Act of 1958, as amended, to create opportunities to improve processes associated with the evaluation and selection of individuals to participate in the NASA Astronaut Candidate Selection Program. The NASA Astronaut Selection Office (ASO) located at the Lyndon B. Johnson Space Center (JSC) in Houston, Texas is responsible for selecting astronauts for the various United States Space Exploration programs. In evaluating an applicant for the Astronaut Candidate Program, it is important that the ASO have the benefit of qualitative and quantitative information and recommendations from persons who have been directly associated with the applicant over the course of their career.
This information will be used by the NASA ASO and Human Resources (HR) personnel, during the candidate selection process (approx. 2 year duration), to gain insight into the candidates' work ethic and
Electronic and optionally by paper.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) 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 automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Endowment for the Humanities; National Foundation on the Arts and the Humanities.
Notice of meeting.
The National Endowment for the Humanities will hold twenty-two meetings of the Humanities Panel, a federal advisory committee, during November 2019. The purpose of the meetings is for panel review, discussion, evaluation, and recommendation of applications for financial assistance under the National Foundation on the Arts and the Humanities Act of 1965.
See
The meetings will be held at Constitution Center, 400 7th Street SW, Washington, DC 20506, unless otherwise indicated.
Elizabeth Voyatzis, Committee Management Officer, 400 7th Street SW, Room 4060, Washington, DC 20506; (202) 606-8322;
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given of the following meetings:
This meeting will discuss applications on the topics of Arts and Culture, for the Media Projects: Development Grants, submitted to the Division of Public Programs.
This meeting will discuss applications on the topic of Cultural History, for the Media Projects: Production Grants, submitted to the Division of Public Programs.
This meeting will discuss applications on the topics of Music and Performing Arts, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This meeting will discuss applications on the topic of U.S. History (Political and Military), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This meeting will discuss applications on the topic of Art History, for the Public Humanities Projects: Exhibitions (Implementation) grant program, submitted to the Division of Public Programs.
This meeting will discuss applications on the topics of Asia, Africa, and Europe, for the Kluge Fellowships, submitted to the Division of Research Programs.
This meeting will discuss applications on the topic of History, for the Media Projects: Production Grants, submitted to the Division of Public Programs.
This meeting will discuss applications on the topic of U.S. History (African-American), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This meeting will discuss applications on for the Public Humanities Projects: Humanities Discussions Grants, submitted to the Division of Public Programs.
This meeting will discuss applications on the topic of the Americas, for the Kluge Fellowships, submitted to the Division of Research Programs.
This meeting will discuss applications on the topics of Arts and Culture, for the Public Humanities Projects: Exhibitions (Implementation) grant program, submitted to the Division of Public Programs.
This meeting will discuss applications for the Humanities Connections Implementation Grants, submitted to the Division of Education Programs.
This meeting will discuss applications for the Humanities Connections Implementation Grants, submitted to the Division of Education Programs.
This meeting will discuss applications on the topics of American
This meeting will discuss applications on the topic of Indigenous Studies, for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This meeting will discuss applications for the Humanities Connections Planning Grants, submitted to the Division of Education Programs.
This meeting will discuss applications for the Humanities Connections Planning Grants, submitted to the Division of Education Programs.
This meeting will discuss applications on the topic of World Studies (Modern), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This meeting will discuss applications for the Humanities Connections Planning Grants, submitted to the Division of Education Programs.
This meeting will discuss applications for the Humanities Connections Planning Grants, submitted to the Division of Education Programs.
This meeting will discuss applications on the topic of U.S. History (Pre-1900), for the Humanities Collections and Reference Resources grant program, submitted to the Division of Preservation and Access.
This meeting will discuss applications for the Humanities Connections Planning Grants, submitted to the Division of Education Programs.
Because these meetings will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, the meetings will be closed to the public pursuant to sections 552b(c)(4) and 552b(c)(6) of Title 5, U.S.C., as amended. I have made this determination pursuant to the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated April 15, 2016.
Nuclear Regulatory Commission.
Exemptions; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued exemptions in response to an April 12, 2019, request from Exelon Generation Company, LLC (Exelon, the licensee). One exemption permits the use of the Three Mile Island Nuclear Station, Unit 1 (TMI-1) Decommissioning Trust Fund (DTF) for spent fuel management activities based on the TMI-1 post-shutdown decommissioning activities report (PSDAR) and site-specific decommissioning cost estimate (DCE). The other exemption permits the licensee to make withdrawals from the DTF for spent fuel management activities without prior notification of the NRC.
The exemptions were issued on October 16, 2019.
Please refer to Docket ID NRC-2019-0199 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Justin C. Poole, Office of Nuclear Reactor Regulation; U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2048; email:
The text of the exemptions are attached.
For the Nuclear Regulatory Commission.
Exelon Generation Company, LLC (Exelon, the licensee) is the holder of Renewed Facility Operating License No. DPR-50 for the Three Mile Island Nuclear Station, Unit 1 (TMI-1). The facility is located in Dauphin County, Pennsylvania.
By letter dated June 20, 2017 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML17171A151), Exelon submitted a certification in accordance with Section 50.82(a)(1)(i) of Title 10 of the
By letter dated April 12, 2019 (ADAMS Accession No. ML19102A085), Exelon submitted a request for exemptions from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv). The requested exemption from 10 CFR 50.82(a)(8)(i)(A) would permit Exelon to use funds from the TMI-1 Decommissioning Trust Fund (DTF) for spent fuel management activities in accordance with the TMI-1 site-specific DCE. The exemption from 10 CFR 50.75(h)(1)(iv) would also permit Exelon to make these withdrawals without prior notification of the NRC, similar to withdrawals for decommissioning activities made in accordance with 10 CFR 50.82(a)(8).
The 10 CFR 50.82(a)(8)(i)(A) requirement restricts the use of DTF withdrawals to expenses for legitimate decommissioning activities consistent with the definition of decommissioning that appears in 10 CFR 50.2. The definition of “decommission” in 10 CFR 50.2 reads as follows:
To remove a facility or site safely from service and reduce residual radioactivity to a level that permits—
(1) Release of the property for unrestricted use and termination of the license; or
(2) Release of the property under restricted conditions and termination of the license.
This definition does not include activities associated with spent fuel management activities. Therefore, an exemption from 10 CFR 50.82(a)(8)(i)(A) is needed to allow Exelon to use funds from the DTF for spent fuel management activities. The requirements of 10 CFR 50.75(h)(1)(iv) also restrict the use of DTF disbursements (other than for ordinary and incidental expenses) to decommissioning expenses until final radiological decommissioning is completed. Therefore, partial exemptions from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) are needed to allow Exelon to use funds from the TMI-1 DTF for spent fuel management activities in accordance with the TMI-1 site-specific DCE.
The requirements of 10 CFR 50.75(h)(1)(iv) further provide that, except for withdrawals being made under 10 CFR 50.82(a)(8) or for payments of ordinary administrative costs and other incidental expenses of the fund in connection with the operation of the fund, no disbursement may be made from the DTF without written notice to the NRC at least 30 working days in advance. Therefore, an exemption from 10 CFR 50.75(h)(1)(iv) is also needed to allow Exelon to use funds from the TMI-1 DTF for spent fuel management activities at TMI-1 without prior NRC notification.
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50: (1) When the exemptions are authorized by law, will not present an undue risk to the public health and safety, and are consistent with the common defense and security; and (2) when any of the special circumstances listed in 10 CFR 50.12(a)(2) are present. These special circumstances include, among other things:
(a) Application of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule; and
(b) Compliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated.
The requested exemptions from 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) would allow Exelon to use a portion of the funds from the TMI-1 DTF for spent fuel management activities at TMI-1 without prior notice to the NRC, in the same manner that withdrawals are made under 10 CFR 50.82(a)(8) for decommissioning activities. As stated above, 10 CFR 50.12 allows the NRC to grant exemptions from the requirements of 10 CFR part 50 when the exemptions are authorized by law. The NRC staff has determined, as explained below, that there is reasonable assurance of adequate funding for radiological decommissioning because the licensee's use of the DTF for activities associated with spent fuel management will not negatively impact the availability of funding for radiological decommissioning. Accordingly, the exemptions are authorized by law because granting the licensee's proposed exemptions will not result in a violation of the Atomic Energy Act of 1954, as amended, or the Commission's regulations.
The underlying purpose of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) is to provide reasonable assurance that adequate funds will be available for the radiological decommissioning of power reactors. As explained in further detail in Section D below, based on the NRC staff's review of Exelon's site-specific DCE and the staff's independent cash flow analysis provided in the enclosed Table 1, “NRC Cash Flow Analysis of TMI-1 Decommissioning Trust Funds and Associated Costs, including Spent Fuel Management,” the NRC staff finds that the use of the TMI-1 DTF for spent fuel management activities at TMI-1 will not adversely impact Exelon's ability to terminate the TMI-1 license (
Furthermore, an exemption from 10 CFR 50.75(h)(1)(iv) to allow the licensee to make withdrawals from the DTF for spent fuel management activities without prior written notification to the NRC will not affect the sufficiency of funds in the DTF to accomplish radiological decommissioning because such withdrawals are still constrained by the provisions of 10 CFR 50.82(a)(8)(i)(B)-(C) and are reviewable under the annual reporting requirements of 10 CFR 50.82(a)(8)(v)-(vii).
There are no new accident precursors created by using the DTF in the proposed manner. Thus, the probability of postulated accidents is not increased. Also, based on the above, the consequences of postulated accidents are not increased. No changes are being made in the types or amounts of effluents that may be released offsite. There is no significant increase in occupational or public radiation exposure. Therefore, the requested exemptions will not present an undue risk to the public health and safety.
The requested exemptions would allow Exelon to use funds from the TMI-1 DTF for spent fuel management activities at TMI-1. Spent fuel management under 10 CFR 50.54(bb) is an integral part of the planned decommissioning and license termination process and will not adversely affect Exelon's ability to physically secure the site or protect special nuclear material. This change to enable the use of a portion of the funds
Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii), are present whenever application of the regulation in the particular circumstances is not necessary to achieve the underlying purpose of the regulation.
The underlying purpose of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv), which restricts withdrawals from DTFs to expenses for radiological decommissioning activities, is to provide reasonable assurance that adequate funds will be available for radiological decommissioning of power reactors and license termination. Strict application of these requirements would prohibit the withdrawal of funds from the TMI-1 DTF for spent fuel management activities, until final radiological decommissioning at TMI-1 has been completed.
The April 1, 2019, annual report on the status of decommissioning funding for TMI-1 (ADAMS Accession No. ML19091A140), and the PSDAR both report a DTF balance of $669.6 million as of December 31, 2018. The cash flow analysis in Table 2 of the April 12, 2019, application is based on a beginning DTF balance of $662.9 million as of December 31, 2018. The licensee stated that the beginning DTF balance was adjusted to account for 2017 and 2018 site radiological decommissioning planning and 2018 spent fuel management planning costs that would be reimbursed if the exemptions were granted. The Exelon analysis in the TMI-1 site-specific DCE, PSDAR, and exemption requests project the total radiological decommissioning cost of TMI-1 to be approximately $1 billion in 2018 dollars and the spent fuel management costs to be $158.6 million in 2018 dollars. This amounts to total estimated costs of approximately $1.16 billion for decommissioning and spent fuel management, with license termination occurring in 2081.
The NRC staff performed an independent cash flow analysis of the DTF over the 60 year SAFSTOR period (assuming an annual real rate of return of two percent, as allowed by 10 CFR 50.75(e)(1)(ii)) and determined the projected earnings of the DTF. The results of the staff's analysis are presented in the enclosed Table 1. In its analysis, the NRC staff used the lesser opening DTF balance of $662.9 million as a conservative estimate that reflects less money available to cover radiological decommissioning and spent fuel management costs.
As shown in the enclosed Table 1, the NRC staff confirmed that the current funds in the DTF and projected earnings are expected to be available and sufficient to complete all NRC required radiological decommissioning activities at TMI-1, and also to pay for spent fuel management activities. Therefore, the NRC staff finds that Exelon has provided reasonable assurance that adequate funds will be available for the radiological decommissioning of TMI-1, even with the disbursement of funds from the DTF for spent fuel management activities. Consequently, the NRC staff concludes that application of the requirements of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv), that funds from the DTF only be used for radiological decommissioning activities and not for spent fuel management activities, is not necessary to achieve the underlying purpose of the rule; thus, special circumstances are present supporting approval of the exemption requests.
In its submittal, Exelon also requested exemption from the requirement of 10 CFR 50.75(h)(1)(iv) concerning prior written notification to the NRC of withdrawals from the DTF to fund activities other than radiological decommissioning. The underlying purpose of notifying the NRC prior to withdrawal of funds from the DTF is to provide opportunity for NRC intervention, when deemed necessary, if the withdrawals are for expenses other than those authorized by 10 CFR 50.75(h)(1)(iv) and 10 CFR 50.82(a)(8) that could result in there being insufficient funds in the DTF to accomplish radiological decommissioning.
By granting the exemptions to 10 CFR 50.75(h)(1)(iv) and 10 CFR 50.82(a)(8)(i)(A), the NRC staff considers that withdrawals consistent with the licensee's submittal dated April 12, 2019, are authorized. As stated previously, the NRC staff has determined that there are sufficient funds in the DTF to complete radiological decommissioning activities as well as to conduct spent fuel management activities consistent with the PSDAR, site-specific DCE, and the April 12, 2019, exemption requests. Pursuant to the requirements in 10 CFR 50.82(a)(8)(v) and (vii), licensees are required to monitor and annually report to the NRC the status of the DTF and the licensee's funding for managing spent fuel. These reports provide the NRC staff with awareness of, and the ability to take action on, any actual or potential funding deficiencies. Additionally, 10 CFR 50.82(a)(8)(vi) requires that the annual financial assurance status report must include additional financial assurance to cover the estimated cost of completion if the sum of the balance of any remaining decommissioning funds, plus earnings on such funds calculated at not greater than a two-percent real rate of return, together with the amount provided by other financial assurance methods being relied upon, does not cover the estimated cost to complete the decommissioning. The requested exemption would not allow the withdrawal of funds from the DTF for any other purpose that is not currently authorized in the regulations without prior notification to the NRC. Therefore, the granting of this exemption to 10 CFR 50.75(h)(1)(iv) to allow the licensee to make withdrawals from the DTF to cover authorized expenses for spent fuel management activities without prior written notification to the NRC will still meet the underlying purpose of the regulation.
Special circumstances, in accordance with 10 CFR 50.12(a)(2)(iii), are present whenever compliance would result in undue hardship or other costs that are significantly in excess of those contemplated when the regulation was adopted, or that are significantly in excess of those incurred by others similarly situated. The licensee stated that the DTF contains funds in excess of the estimated costs of radiological decommissioning and that these excess funds are needed for spent fuel management activities. Preventing access to those excess funds in the DTF because spent fuel management activities are not associated with radiological decommissioning would create an unnecessary financial burden without any corresponding safety benefit. The adequacy of the DTF to cover the cost of activities associated with radiological decommissioning and pay for costs associated with spent fuel management is supported by the staff's independent cash flow analysis in the enclosed Table 1. If the licensee cannot use its DTF for spent fuel management, it would need to obtain additional funding that would not be recoverable from the DTF, or the licensee would have to modify its decommissioning approach and methods. The NRC staff concludes that either outcome would impose an unnecessary and undue burden significantly in excess of that contemplated when 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) were adopted.
Since the underlying purposes of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) would be achieved by allowing Exelon to use a portion of the
In accordance with 10 CFR 51.31(a), the Commission has determined that the granting of the exemptions will not have a significant effect on the quality of the human environment (see Environmental Assessment and Finding of No Significant Impact published in the
In consideration of the above, the NRC staff finds that the proposed exemptions confirm the adequacy of funding in the TMI-1 DTF to complete radiological decommissioning of the site and to terminate the license and also to cover estimated spent fuel management activities.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants Exelon exemptions from the requirements of 10 CFR 50.82(a)(8)(i)(A) and 10 CFR 50.75(h)(1)(iv) to allow them to use of a portion of the funds from the TMI-1 DTF for spent fuel management activities, without prior NRC notification, consistent with the PSDAR and site-specific DCE dated April 5, 2019.
The exemptions are effective upon issuance.
Dated at Rockville, Maryland, this 16th day of October, 2019.
For the Nuclear Regulatory Commission.
U.S. Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from May 1, 2019 to May 31, 2019.
Julia Alford, Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No Schedule A Authorities to report during May 2019.
No Schedule B Authorities to report during May 2019.
The following Schedule C appointing authorities were approved during May 2019.
The following Schedule C appointing authorities were revoked during May 2019.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218.
Office of Personnel Management.
U.S. Office of Personnel Management (OPM).
Notice.
This notice identifies Schedule A, B, and C appointing authorities applicable to a single agency that were established or revoked from June 1, 2019 to June 30, 2019.
Julia Alford, Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
In accordance with 5 CFR 213.103, Schedule A, B, and C appointing authorities available for use by all agencies are codified in the Code of Federal Regulations (CFR). Schedule A, B, and C appointing authorities applicable to a single agency are not codified in the CFR, but the Office of Personnel Management (OPM) publishes a notice of agency-specific authorities established or revoked each month in the
No Schedule A Authorities to report during June 2019.
No Schedule B Authorities to report during June 2019.
The following Schedule C appointing authorities were approved during June 2019.
The following Schedule C appointing authorities were revoked during June 2019.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218.
U.S. Office of Personnel Management.
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 18, 2019, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail Express & Priority Mail Contract 101 to Competitive Product List. Documents are available at
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe EDGA Exchange, Inc. (“EDGA” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.16. The text of the proposed rule change is enclosed as 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.
EDGA Rules 11.16(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The Exchange now proposes to amend Rule 11.16 to extend the pilot to the close of business on October 18, 2020. This filing does not propose any substantive or additional changes to Rule 11.16. The Exchange will use the extension period to develop with the other SROs rules and procedures that would allow for the periodic testing of the performance of the MWCB mechanism, with industry member participation in such testing. The extension will also permit the exchanges to consider enhancements to the MWCB processes such as modifications to the Level 3 process.
The market-wide circuit breaker under Rule 11.16 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity. Market-wide circuit breakers provide for trading halts in all equities and options markets during a severe market decline as measured by a single-day decline in the S&P 500 Index.
Pursuant to Rule 11.16, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2),
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.16 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
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 because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Exchange, in conjunction with the other SROs, consider and develop rules and procedures that would allow for the periodic testing of the performance of the MWCB mechanism. In addition, as noted above, the extension will permit the exchanges to consider enhancements to the MWCB processes such as modifications to the Level 3 process. Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) 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 under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the 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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the
All submissions should refer to File Number SR-CboeEDGA-2019-016 and should be submitted on or before November 13, 2019.
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 its Price List to adopt a new pricing tier, the Step Up Tier 2 Adding Credit, in Tape A securities. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its Price List to adopt a new pricing tier, the Step Up Tier 2 Adding Credit, in Tape A securities.
The proposed changes respond to the current competitive environment where order flow providers have a choice of where to direct liquidity-providing orders by offering further incentives for member organizations to send additional displayed liquidity to the Exchange.
The Exchange proposes to implement the fee changes effective October 1, 2019.
The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
As the Commission itself recognized, the market for trading services in NMS stocks has become “more fragmented and competitive.”
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can move order flow, or discontinue or reduce use of certain categories of products, in response to fee changes. With respect to non-marketable order flow that would provide displayed liquidity on an Exchange, member organizations can choose from any one of the 13 currently operating registered exchanges to route such order flow. Accordingly, competitive forces constrain exchange transaction fees that relate to orders that would provide liquidity on an exchange.
In response to this competitive environment, the Exchange has established incentives for its member organizations who submit orders that provide liquidity on the Exchange. The proposed fee change is designed to attract additional order flow to the Exchange by offering a new pricing tier to incentivize member organizations to step up their liquidity-providing orders on the Exchange on all tapes.
The Exchange proposes to adopt a “Step Up Tier 2 Adding Credit” that would offer a higher credit to member organizations that qualify for the tier. The proposed tier would also offer an additional credit for member organizations providing displayed liquidity in Tapes B and C securities.
As proposed, a member organization that sends orders, except Mid-Point Liquidity Orders (“MPL”) and Non-Displayed Limit Orders, that add liquidity (“Adding ADV”) in Tape A securities would receive a credit of $0.0029 if:
• The member organization quotes at least 15% of the National Best Bid or Offer (“NBBO”)
• The member organization's Adding ADV as a percentage of NYSE consolidated average daily volume (“CADV”),
• the member organization's Adding ADV as a percentage of NYSE CADV, excluding any liquidity added by a DMM, exceeds that member organization's Adding ADV in July 2019 taken as a percentage of NYSE CADV as follows:
• For the billing month of October 2019, an Adding ADV, excluding any liquidity added by a DMM, that is at least 0.35% of NYSE CADV over that member organization's July 2019 Adding ADV taken as a percentage of NYSE CADV.
• For the billing month of November 2019, an Adding ADV, excluding any liquidity added by a DMM, that is at least 0.70% of NYSE CADV over that member organization's July 2019 Adding ADV taken as a percentage of NYSE CADV.
• For the billing month of December 2019 and for every month thereafter, an Adding ADV, excluding any liquidity added by a DMM, that is at least 1.05% of NYSE CADV over that member organization's July 2019 Adding ADV taken as a percentage of NYSE CADV.
In addition, a member organization that meets these requirements, and thus qualifies for the $0.0029 credit in Tape A securities, would be eligible to receive an additional $0.00005 per share if trades in Tapes B and C securities against the member organization's orders that add liquidity, excluding orders as a Supplemental Liquidity Provider (“SLP”), equal to at least 0.20% of Tape B and Tape C CADV combined. The proposed additional credit mirrors the additional credits offered in current Tier 1, Tier 2, Tier 3 and Tier 4 for trades in Tapes B and C securities against a member organization's orders that add liquidity, excluding orders as an SLP, equal to at least a specified percentage of Tape B and Tape C CADV combined.
For example, member organization A has an Adding ADV of 12 million shares when NYSE CADV (Tape A) was 3.0 billion, or 0.40% of NYSE CADV in all Tape A securities, in the baseline month of July 2019 (the “Baseline Month”). Member organization A also has an Adding ADV of 0.75% of US CADV in Tape A securities in October 2019.
Based on the foregoing, member organization A would meet the 0.35% step up requirement for October 2019 but fall short of the two times Adding ADV as a percentage of NYSE CADV requirement in order to qualify for the proposed tier. In order to qualify for the proposed rate in October 2019, member organization A would need two times its 0.40% of NYSE CADV in the Baseline Month or at least 0.80% of NYSE CADV. In order to qualify for the proposed rate in November 2019, member organization A would need at least 1.10% share of NYSE CADV. In order to qualify for December 2019 and subsequent months, member organization A would need at least 1.45% share.
If member organization B had an Adding ADV of 0.05% of NYSE CADV in the Baseline Month, that firm would need an Adding ADV share of NYSE CADV of at least 0.40% in October 2019, 0.75% in November 2019, and 1.10% in December 2019 and onward in order to qualify for the proposed rate. By meeting the percentage CADV step up requirement in the respective billing months, member organization B with a smaller Adding ADV would also meet the two times Adding ADV as a percent of NYSE requirement.
The purpose of this proposed change is to incentivize member organizations to increase the liquidity-providing orders in Tape A securities they send to the Exchange, which would support the quality of price discovery on the Exchange and provide additional price improvement opportunities for incoming orders. The Exchange believes that by correlating the amount of the credit to the level of orders sent by a member organization that add liquidity, the Exchange's fee structure would incentivize member organizations to submit more orders that add liquidity to the Exchange, thereby increasing the potential for price improvement to incoming marketable orders submitted to the Exchange.
The Exchange proposes a higher credit under the proposed Step Up Tier 2 compared with the current Step Up Tier to provide an incentive for member organizations to send more orders because they would then qualify for the credit. As noted above, the Exchange operates in a competitive environment, particularly as it relates to attracting non-marketable orders, which add liquidity to the Exchange. Because, as proposed, the tier requires a member organization to increase the volume of its trades against orders that add liquidity over that member organization's July 2019 baseline at increasing levels in October 2019, November 2019, December 2019 and thereafter at the December 2019 level, the Exchange believes that the proposed higher credit would provide an incentive for member organizations to route additional liquidity to the Exchange in order to qualify for it.
The Exchange does not know how much order flow member organizations choose to route to other exchanges or to off-exchange venues. There are currently no firms that could qualify for the proposed higher Step Up Tier 2 Adding Credit based on their current trading profile on the Exchange, but believes that at least 8 member organizations could qualify for the tier if they so choose. However, without having a view of member organization's activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any member organization directing orders to the Exchange in order to qualify for the new tier.
Each of the proposed changes are not otherwise intended to address other issues, and the Exchange is not aware of any significant problems that market participants would have in complying with the proposed changes.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
As discussed above, the Exchange operates in a highly fragmented and competitive market. The Commission has repeatedly expressed its preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. Specifically, in Regulation NMS, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
The Exchange believes that the ever-shifting market share among the exchanges from month to month demonstrates that market participants can move order flow, or discontinue or reduce use of certain categories of products, in response to fee changes. With respect to non-marketable orders which provide liquidity on an Exchange, member organizations can choose from any one of the 13 currently operating registered exchanges to route such order flow. Accordingly, competitive forces constrain exchange transaction fees that relate to orders that would provide displayed liquidity on an exchange. Stated otherwise, changes to exchange transaction fees can have a direct effect on the ability of an exchange to compete for order flow.
Given this competitive environment, the proposal represents a reasonable attempt to attract additional order flow to the Exchange. As noted, the Exchange's market share of intraday trading (
Specifically, the Exchange believes that the proposed Step Up Tier 2 would provide an incentive for member organizations to route additional liquidity-providing orders to the Exchange in Tape A securities. As noted above, the Exchange operates in a highly competitive environment, particularly for attracting non-marketable order flow that provides liquidity on an exchange. The Exchange believes it is reasonable to provide a higher credit for orders that provide additional liquidity. The Exchange believes that requiring member organizations to quote at least 15% of the NBBO in 300 or more securities on a monthly basis in order to qualify for the proposed Step Up Tier 2 Adding Credit is reasonable because it would encourage additional displayed liquidity on the Exchange and because market participants benefit from the greater amounts of displayed liquidity present on the Exchange. Similarly, the Exchange believes that it is reasonable to provide an incremental credit to member organizations that meet the requirements of the Step Up Tier that add additional liquidity in UTP securities on Pillar.
Since the proposed Step Up Tier 2 would be new with a requirement for increased Adding ADV over the baseline month, no member organization currently qualifies for the proposed pricing tier. As previously noted, there are a number of member organizations that could qualify for the proposed higher credit but without a view of member organization activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether the proposed rule change would result in any member organization qualifying for the tier. The Exchange believes the proposed higher credit is reasonable as it would provide an additional incentive for member organizations to direct their order flow to the Exchange and provide meaningful added levels of liquidity in order to qualify for the higher credit, thereby contributing to depth and market quality on the Exchange.
The Exchange believes its proposal equitably allocates its fees among its market participants.
The Exchange believes that the proposed Step Up Tier 2 is equitable because the magnitude of the additional credit is not unreasonably high relative to the other adding tier credits, which noted above range from $0.0015 to $0.0022, in comparison to the credits paid by other exchanges for orders that provide additional step up liquidity.
Since the proposed Step Up Tier 2 would be new, no member organization currently qualifies for it. As noted, there are currently no member organizations that could qualify for the proposed higher credit, but without a view of member organization activity on other exchanges and off-exchange venues, the Exchange has no way of knowing whether this proposed rule change would result in any member organization qualifying for the tier. The Exchange believes the proposed higher credit is reasonable as it would provide an additional incentive for member organizations to direct their order flow to the Exchange and provide meaningful added levels of liquidity in order to qualify for the higher credit, thereby contributing to depth and market quality on the Exchange.
The proposal neither targets nor will it have a disparate impact on any particular category of market participant. All member organizations would be eligible to qualify for the higher credit proposed in Step Up Tier 2 if they increase their Adding ADV over their own baseline of order flow. The Exchange believes that offering a higher step up credit for providing liquidity if the step up requirements for Tape A securities are met, will continue to attract order flow and liquidity to the Exchange, thereby providing additional price improvement opportunities on the Exchange and benefiting investors generally. As to those market participants that do not presently qualify for the adding liquidity credits, the proposal will not adversely impact their existing pricing or their ability to qualify for other credits provided by the Exchange.
The Exchange believes that the proposal is not unfairly discriminatory. In the prevailing competitive environment, member organizations are free to disfavor the Exchange's pricing if
The Exchange believes it is not unfairly discriminatory to provide a higher per share step up credit, as the proposed credit would be provided on an equal basis to all member organizations that add liquidity by meeting the new proposed Step Up 2 Tier's requirements. For the same reason, the Exchange believes it is not unfairly discriminatory to provide an additional incremental credit to member organizations that satisfy the Step Up Tier 2 requirements and add liquidity in UTP securities. Further, the Exchange believes the proposed Step Up Tier 2 credit would incentivize member organizations that meet the current tiered requirements to send more orders to the Exchange to qualify for higher credits. The Exchange also believes that the proposed change is not unfairly discriminatory because it is reasonably related to the value to the Exchange's market quality associated with higher volume. Finally, the submission of orders to the Exchange is optional for member organizations in that they could choose whether to submit orders to the Exchange and, if they do, the extent of its activity in this regard.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that the proposed change could promote competition between the Exchange and other execution venues, including those that currently offer similar order types and comparable transaction pricing, by encouraging additional orders to be sent to the Exchange for execution. The Exchange also believes that the proposed change is designed to provide the public and investors with a Price List that is clear and consistent, thereby reducing burdens on the marketplace and facilitating investor protection.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to permit the Exchange to list and trade Exchange Traded Products that have a component NMS Stock listed on the Exchange or that are based on, or represent an interest in, an underlying index or reference asset that includes an NMS Stock listed on the Exchange. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to permit the Exchange to list and trade Exchange Traded Products (“ETPs”)
Currently, the Exchange trades securities, including ETPs, on its Pillar trading platform on an unlisted trading privileges (“UTP”) basis, subject to Pillar Platform Rules 1P-13P.
The Exchange's rules also permit it to list ETPs under Rules 5P and 8P. Specifically, Rules 5P (Securities Traded) and 8P (Trading of Certain Exchange Traded Products) provide for the listing of certain ETPs on the Exchange that (1) meet the applicable requirements set forth in those rules, and (2) do not have any component NMS Stock that is listed on the Exchange or is based on, or represents an interest in, an underlying index or reference asset that includes an NMS Stock listed on the Exchange. ETPs listed under Rules 5P and 8P would be “Tape A” listings and would be traded pursuant to the rules applicable to NYSE-listed securities.
Accordingly, once an ETP is listed, it will be assigned to a DMM pursuant to Rule 103B and the assigned DMM will have obligations vis-à-vis such securities as specified in Rule 104, including facilitating the opening, reopening, and closing of such securities.
The Exchange proposes to expand the ETPs that would be eligible to list and trade on the Exchange to include ETPs that have a component NMS Stock or that are based on, or represent an interest in, an underlying index or reference asset that includes an NMS
The proposal would permit the Exchange to list and trade on the NYSE Trading Floor
In making a determination of whether an ETP is broad-based, the Commission has relied on an exchange's listing standards. For instance, in permitting integrated market making and side-by-side trading for two types of ETPs and their related options, the Commission looked to the American Stock Exchange LLC's listing standards that, as described below, are very similar to the Exchange's current listing standards.
Specifically, the Commission observed that the ETPs at issue, an ETF and a TIR, were securities based on “groups of stocks” whose prices were based on the prices of their component securities. As such, the Commission was of the view that a market participant's ability to manipulate the price of ETPs or the related options would be “limited.”
Finally, the Commission noted that the capitalization and liquidity requirements imposed by the listing standards—for example, the component securities that in the aggregate account for at least 90% of the weight of the portfolio must have a minimum market value of at least $75 million and the component securities representing 90% of the weight of the portfolio each must have a minimum trading volume during each of the last six month of at least 250,000 shares—“should reduce the likelihood that any market participant has an unfair information advantage about the ETF, TIR, its related options, or its component securities, or that a market participant would not be able to manipulate the prices of the ETFs, TIRs, or their related options.”
The Exchange notes that the relationship between an ETP and its underlying listed NMS Stock component or components is fundamentally different than that between an ETP and its related option. In the latter case, a small move in the price of the listed security can trigger a large move in the price of the related option, increasing the incentive for a market maker or specialist to manipulate the security or coordinate trading with the options market maker or specialist. Here, there is no similar outsized correlation between a move in the price of a listed ETP and one or more of its underlying NMS Stock components. Indeed, as discussed below, the potential for manipulation or coordinated trading is significantly attenuated for listed ETPs and their underlying NMS Stock components because the Exchange's generic listed standards are designed to ensure that the Exchange will only list ETPs that are “broad-based”—that is, the ETP's underlying component securities must be sufficiently liquid and well-capitalized, and the ETP must not be unduly concentrated.
As set forth in Supplementary Material .01 of Rule 5.2(j)(3), the index components for investment company units (“Units”) consisting solely of US Component Stocks
• Component stocks (excluding Units and securities defined in Section 2 of Rule 8P) that in the aggregate account
• Component stocks (excluding Units and securities defined in Section 2 of Rule 8P) that in the aggregate account for at least 70% of the equity weight of the portfolio (excluding Units and securities defined in Section 2 of Rule 8P) each must have a minimum monthly trading volume of 250,000 shares, or minimum notional volume traded per month of $25,000,000, averaged over the last six months;
• The most heavily weighted component stock (excluding Units and securities defined in Section 2 of Rule 8P) cannot exceed 30% of the equity weight of the portfolio, and, to the extent applicable, the five most heavily weighted component stocks (excluding Units and securities defined in Section 2 of Rule 8P) cannot exceed 65% of the equity weight of the portfolio;
• Where the equity portion of the portfolio does not include Non-US Component Stocks,
• All securities in the index or portfolio will be US Component Stocks listed on a listed on a national securities exchange and be NMS Stocks as defined in Rule 6000 of Regulation NMS.
The listing standards for Units based on an index of both US Component Stocks and Non-US Component Stocks;
By virtue of the numerous restrictions in the Exchange's generic listing standards relating to market cap, trading volume, and diversity requirements, among others, that the underlying components must meet to list on the Exchange, the generic listing standards are, among other things,
The Exchange believes that listed ETPs meeting these composition and concentration measures would be sufficiently broad-based to allow integrated market making and side-by-side trading in both the ETP and the component NMS securities with no requirement for information barriers or physical or organizational separation.
As noted, equity-based ETPs that do not meet the applicable generic listing standards would require a rule filing with the Commission prior to commencement of Exchange listing or trading. The rule filing would set forth the initial and continued listing requirements in order for such a product to be listed and traded on the Exchange. In order for a rule proposal to be consistent with the Act, it must, among other things, further the objectives of Section 6(b)(5) of the Act
While the “broad-based” nature of listed ETPs under either the generic listing standards or via a rule filing makes manipulation less likely, the Exchange also believes that the potential for manipulation of listed ETPs is minimal because ETP pricing is based on an “arbitrage function” performed by market participants that affects the supply of and demand for ETP shares and, thus, ETP prices. This “arbitrage function” is effectuated by creating new ETP shares and redeeming existing ETP shares based on investor demand; thus, ETP supply is open-ended. As the Commission has acknowledged, the arbitrage function helps to keep an ETP's price in line with the value of its underlying portfolio,
The Exchange believes that the price regulating function played by the arbitrage mechanism renders attempts to influence or manipulate the price of an ETP more difficult and more susceptible to immediate detection and correction. The fact that an ETP and one or more of its underlying components are traded in the same physical space on the Exchange or by the same DMM on the Exchange does not alter this dynamic in the slightest, nor does it make price manipulation more likely. Rather, the Exchange believes the arbitrage mechanism would make price manipulation more difficult and, thus, less likely. Attempts by Floor-based market participants to influence the price of an ETP by, for instance, manipulating or [sic] one or more of component securities would be reflected in the deviation of the price from the NAV just as similar attempts today by upstairs traders would be reflected in the deviation of the price from the NAV. Moreover, a broad-based ETP would, as shown above, be even less susceptible to price manipulation. The Exchange thus believes that the type of broad-based equity ETPs eligible for listing under the generic listing standards, coupled with the arbitrage mechanism, sufficiently minimize the potential for manipulation of ETPs listed and traded on the Trading Floor.
With respect to integrated market making, the Commission has approved changes to Rule 98 that permit a DMM unit to engage in integrated market making with off-Floor market making units in related products.
Finally, trading on the Exchange is subject to a comprehensive regulatory program that includes a suite of surveillances and routine examinations that review trading by DMMs and other market participants on the Exchange's trading Floor. Market participants on the trading Floor, including DMMs, are also required to implement policies and procedures reasonably designed to detect and deter inappropriate conduct and prevent the misuse of material, non-public information or disclosure of Floor-based non-public order information.
For all of the reasons stated above, the proposal is therefore consistent with the requirements of the Act.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that listing and trading ETPs that have a component NMS Stock or are based on, or represent an interest in, an underlying index or reference asset that includes an NMS stock listed on the Exchange would remove impediments to and perfect the mechanism of a free and open market and a national market system by facilitating the listing and trading a broader range of ETPs consistent with the Exchange's current structure to trade listed securities. The Exchange believes that removal of the current exclusion of listed ETPs with NMS Stock components and the exclusion of ETPs from the definition of related products would not be inconsistent with the public interest and the protection of investors because listed ETPs that include equity securities as components are subject to listing requirements—whether the generic listing standards or those approved by individual rule filing—that are designed to ensure that underlying indices or portfolios are sufficiently broad-based and well-diversified to protect against manipulation. Moreover, the Exchange believes that potential manipulation of listed ETPs is also minimal because of ETPs reliance on an “arbitrage function” performed by market participants that influences the supply and demand of shares and, thus, trading prices relative to NAV. The Exchange believes that these safeguards would continue to serve to prevent fraudulent and manipulative acts and practices, as well as to protect investors and the public interest from concerns that may be associated with integrated market making and any possible misuse of non-public information.
For the foregoing reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove the proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 15, 2019, The Nasdaq Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (“BZX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.18. The text of the proposed rule change is enclosed as 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.
BZX Rules 11.18(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The Exchange now proposes to amend Rule 11.18 to extend the pilot to the close of business on October 18, 2020. This filing does not propose any substantive or additional changes to Rule 11.18. The Exchange will use the extension period to develop with the other SROs rules and procedures that would allow for the periodic testing of the performance of the MWCB mechanism, with industry member participation in such testing. The extension will also permit the exchanges to consider enhancements to the MWCB processes such as modifications to the Level 3 process.
The market-wide circuit breaker under Rule 11.18 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity. Market-wide circuit breakers provide for trading halts in all equities and options markets during a severe market decline as measured by a single-day decline in the S&P 500 Index.
Pursuant to Rule 11.18, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for 15 minutes, while a similar market decline at or after 3:25 p.m. ET would not halt market-wide trading. A market decline that triggers a Level 3 halt, at any time during the trading day, would halt market-wide trading until the primary listing market opens the next trading day.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.18 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
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 because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Exchange, in conjunction with the other SROs, consider and develop rules and procedures that would allow for the periodic testing of the performance of the MWCB mechanism. In addition, as noted above, the extension will permit the exchanges to consider enhancements to the MWCB processes such as modifications to the Level 3 process. Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) 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 under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the 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 SR-CboeBZX-2019-088 and should be submitted
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
To Be Published.
Wednesday, October 23, 2019 at 10:00 a.m.
The Open Meeting scheduled under the Government in the Sunshine Act for Wednesday, October 23, 2019 at 10:00 a.m., has been cancelled and is expected to be rescheduled for a date in November 2019.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
ICE Clear Europe proposes to make certain amendments to the F&O Risk Procedures to enhance to enhance their clarity in relation to the margin account structure, certain margin add-on calculation methodology, the process for the monitoring and reporting of the back-testing results and the data management and governance document processes.
In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
ICE Clear Europe is proposing to amend its F&O Risk Procedures to enhance their clarity in relation to the margin account structure, certain margin add-on calculation methodology, the process for the monitoring and reporting of the back-testing results and the data management and governance document processes.
The revised procedures ensure that the short descriptions of the various accounts offered by ICE Clear Europe would be aligned with the related terminology present in the ICE Clear Europe Clearing Procedures. They would also allow for the clarification of the ICE Clear Europe departments responsible for the review of the F&O margins' parameters. The proposed amendments would also include certain other enhancements and clarifications, described below.
The amendments would facilitate a more accurate description of the methodology with which the Clearing House currently complies with Article 26 of the EMIR Regulatory Technical Standards (RTS). The requirement prescribes that all Clearing Members' house and proprietary positions from affiliates of a Clearing Member use a minimum of a two-business day margin period of risk (MPOR).
The EMIR add-on ensures that at least a two- business day MPOR amount would be collected for these positions for products that would otherwise use a one- business day MPOR for initial margin.
The amendments would ensure an accurate explanation of the EMIR add-on calculation inclusion in the ICE Clear Europe end of day margins calculation process and of the fact that ICE Clear Europe does not publish parameter arrays used for calculating additional initial margins.
Several aspects of the F&O Risk Procedures addressing the back-testing process would be amended to enhance clarity and to ensure that the operational steps followed by ICE Clear Europe are accurately reflected in the F&O Risk Procedures. The amendments would cover the assumptions and the formula for the margin coverage calculation and its test methodology. In relation to the back-test statistics, the amendments would specify that the Clearing Risk Department (CRD) could apply at its discretion other back testing statistics, in addition to the standard Basel Traffic Light.
In relation to the macro back-testing the amendments would explain that if the model displays consistent and continuous red zone for some portfolios, ICE Clear Europe may require Clearing Members to provide for additional margin, referred to as super margin.
The amendments would also introduce a new section to the F&O Risk Procedures to address the margin coverage and back-testing monitoring and reporting process. The amendments would clarify, for both the macro and micro back-testing, the process for the daily creation of the relevant risk report for the top day breaches and the process for the related investigation by a Clearing Risk Department (“CRD”) analyst and escalation process to senior CRD personnel. Each macro margin coverage breach is also presented monthly to the Model Oversight Committee and bi-monthly to the F&O Product Risk Committee. The amendments would also cover the frequency with which the back-testing statistics, for both macro and micro back-testing, are generated and the internal reporting process followed for the review of the related results. Back-testing results would be reported by CRD analysts daily to Clearing House senior management staff with respect to macro back-testing results, and with respect to macro and micro back-testing results, monthly to the Model Oversight Committee and bi-monthly to the F&O Product Risk Committee. A Risk Oversight Department (“ROD”) analyst also reviews the macro level results and discusses details if necessary before presenting it to the Model Oversight Committee. Model remediation actions on a Clearing Member portfolio at a macro level or due to product back-testing results at a micro level would be flagged to senior management, the Model Oversight Committee and the F&O Product Risk Committee. The same information regarding monitoring and reporting would also be summarized in a table which would specify the level of the back-testing, the name of the report that is generated, the metrics contained in each report, the storage system used by the Clearing House, the frequency of
The amendments would also introduce a new section to the F&O Risk Procedures to define the different types and sources of data used by the CRD and the related controls. The amendments classify the data used by the CRD into either static or dynamic data, and explain which data are included in each category.
The amendments would also provide details on the data quality checks performed by the CRD on the static and dynamic data and on the historical prices.
The section would also describe the reasons for which the CRD is allowed to correct or exclude data from being used in the margin models or stress scenarios and require that the list of exclusions and corrections with related justifications be reviewed each month by the Model Oversight Committee.
The amendments would also introduce a new section to the F&O Risk Procedures to describe the breach management process for the reporting and possible escalation of material breaches or unapproved deviations from the F&O Risk Procedures. The section would also include the description of the exception handling process and governance.
Certain other typographical corrections and similar clarifications would also be made.
ICE Clear Europe believes that the proposed amendments are consistent with the requirements of Section 17A of the Act
The amendments would also satisfy the relevant specific requirements of Rule 17Ad-22,
Rule 17Ad-22(e)(6)(i)
Rule 17Ad-22(e)(6)(vi)(D)
Rule 17Ad-22(e)(2)(i) and (v)
ICE Clear Europe does not believe the proposed rule changes would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed amendments on the EMIR add-on would apply to those F&O Contracts that are margined using a one-business day MPOR and are intended to strengthen risk management relating to these products and to ensure compliance with EMIR requirements relating to the EMIR add-on. The amendments would apply to all F&O Clearing Members that trade contracts in the relevant category. ICE Clear Europe does not believe the amendments would generally affect the overall cost of clearing for F&O Clearing Members or other market participants or otherwise affect access to clearing generally. To the extent the amendments relating to the EMIR add-on may impose certain additional costs on F&O Clearing Members, these result from requirement imposed by EMIR and are generally applicable to F&O Clearing Members. As a result, any additional burdens placed on F&O Clearing Members would be appropriate in furtherance of enhancing risk management, and are not intended to disadvantage any particular Clearing Member. As a result, ICE Clear Europe believes that any impact on competition would be appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed amendments have not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any comments received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act and paragraph (f) of Rule 19b-4 thereunder. 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.
All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-ICEEU-2019-021 and should be submitted on or before November 13, 2019.
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 its Fees schedule to modify certain processes and requirements relating to the submission of rebate requests. 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
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”). Cboe Options intends to migrate its trading platform to the same system used by the Cboe Affiliated Exchanges, and also migrate its current billing system to a new billing system, on October 7, 2019 (the “migration”). In connection with the migration, the Exchange proposes to modify certain processes and requirements relating to the submission of rebate requests, effective October 7, 2019.
Particularly, the Exchange proposes to modify the process relating to Frequent Trader ID updates and eliminate the ability for TPHs to submit certain forms and written requests relating to: (i) Strategy order rebates, (ii) customer and non-customer large trade discounts and (iii) compression order rebates. Instead, TPHs will be required to mark inbound orders appropriately or make same-day changes in the Clearing Editor.
The Exchange first proposes to amend its fee schedule with respect to the Frequent Trader Program. By way of background, through the Frequent Trader Program, the Exchange offers transaction fee rebates to Customers and Professional Customers and Voluntary Professionals (origin codes “C” and “W”, respectively) (collectively “Customers”) that meet certain volume thresholds in VIX, SPX (including SPXW) and RUT options, provided the Customer registers for the program. Once registered, the Customer is provided a unique Frequent Trader identification number (“FTID”) that can be affixed to each of its orders. The FTID allows the Exchange to identify and aggregate all electronic and manual trades from that Customer for purposes of determining whether the Customer meets any of the various volume thresholds. The Customer has to provide its FTID to the Trading Permit Holder (“TPH”) submitting that Customer's order to the Exchange (“executing agent” or “executing TPH”) and that executing TPH would have to enter the Customer's FTID on each of that Customer's orders.
The Exchange notes that there are instances however, in which a Customer's FTID was not or could not be, affixed to an order. For example, an executing TPH may receive an order with multiple contra parties, including parties that are also customers with their own unique FTIDs. The executing TPH's front end system however, may only allow it to input only one FTID on the order. Thus the other Customers to the trade would not have their FTID represented at the time of submission. Additionally, it is possible that an executing TPH inadvertently enters an incorrect FTID number on an order. Accordingly, the Exchange currently allows TPHs to add or modify FTID information on post-trade records using a Cboe Trade Match (CTM) terminal for changes on the trade date or submit such FTID information electronically to the Exchange in a form and manner prescribed by the Exchange.
The Exchange notes that post-migration, in connection with the transition of the Exchange's billing system, the Exchange will no longer be able to apply rebates to any trades that were not marked or updated on the trade date. As such, the Exchange proposes to eliminate the ability for TPHs to submit electronically updated FTID information on the following trade date. Instead, the Exchange proposes to provide that an executing TPH may add or modify FTID information on post-trade records using the Clearing Editor
Next, the Exchange proposes to amend Footnote 13 of the Fees Schedule to eliminate the requirement to submit a rebate request with supporting documentation in order to qualify for strategy order fee caps. By way of
Next, the Exchange proposes to amend Footnotes 27 and 47 which govern the Customer Large Trade Discount Program and a non-customer Large Trade Discount Program, respectively. By way of background, the Customer Large Trade Discount Program caps fees for customer orders of a certain size in VIX, SPX/SPXW, XSP, other index options and ETF and ETN options. The Large Trade Discount Program similarly caps fees for non-customer orders of a certain size in VIX options. Both programs provide that qualification of an order for the fee caps are based on the trade date and order ID on each order. More specifically, to qualify for the discount, the entire order quantity must be tied to a single order ID (unless the order is a complex order with a number of legs that exceeds system limitations) either within the Cboe Command system or PULSe or in the front end system used to enter and/or transmit the order (provided the Exchange is granted access to effectively audit such front end system) (the order must be entered in its entirety on one system so that the Exchange can clearly identify the total size of the order). Currently, for an order entered via PULSe or another front end system, or a complex order with multiple order IDs, a large trade discount request must be submitted to the Exchange within 3 business days of the transactions and must identify all necessary information, including the order ID and related trade details. The Exchange proposes to eliminate the ability to submit a form for orders entered via PULSe or another front end system or a complex order with multiple order IDs. Particularly, the Exchange notes that TPHs should be able to identify such orders on each order thus eliminating the need to support a rebate request and documentation post-trade. Additionally, the Exchange notes that it has received less than a handful of forms over the past year. As such, the Exchange believes the impact of the proposed change to be de minimis.
Lastly, the Exchange proposes to amend Footnote 41 to eliminate the requirement that TPHs must submit a rebate request to receive rebates for compression trades. By way of background, the Exchange rebates transaction fees, including the Index License Surcharge, for SPX and SPXW transactions if the transaction: (i) Involves a complex order with at least five (5) different series in S&P 500 Index (SPX) options, SPX Weeklys (SPXW) options, (ii) is a closing-only transaction or, if the transaction involves a Firm order (origin code “F”), is an opening transaction executed to facilitate a compression of option positions for a market-maker or joint-back office (“JBO”) account executed as a cross pursuant to and in accordance with Cboe Options Rule 6.74(b) or (d); (iii) is a position with a required capital charge equal to the minimum capital charge under Option Clearing Corporation's (“OCC”) rules RBH Calculator or is a position comprised of option series with a delta of ten (10) or less and (iv) is entered on any of the final three (3) trading days of any calendar month. The Exchange also rebates transaction fees, including the Index License Surcharge, for closing transactions involving SPX and SPXW compression-list positions executed in a compression forum. Currently, to receive either rebate, a rebate request with supporting documentation must be submitted to the Exchange within 3 business days of the transactions. The Exchange notes that upon migration, TPHs will be able to mark their orders to identify them as eligible for the compression rebates which would enable the Exchange to validate and process the rebates without the submission of a request and supporting documentation. As such, the Exchange believes the need to submit rebate requests and supporting documentation to receive compression rebates are no longer necessary.
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.
First, the Exchange notes that eliminating the ability to submit FTID information after the trade date is reasonable as the Exchange will no longer be able to apply rebates to any trades that were not marked or updated on the trade date. The Exchange further believes that all TPHs should be able to prepare and submit FTID information electronically to the Exchange on the trade date. The proposed change continues to ensure timely processing and finality. Additionally, it has been approximately 3 years since the original FT Form was adopted and as such, TPHs should be familiar with the Frequent Trader Program and should have systems and procedures in place to process to provide the required FTID information on the trade date. The Exchange also notes that the ability to provide FTID information electronically to the Exchange post-trade is merely an additional means to ensure FTID information is relayed to the Exchange. TPHs still have the option of affixing FTIDs on the orders or may add or
The Exchange also believes eliminating the requirement to submit a written rebate request with supporting documentation in order to (i) qualify for strategy orders fee caps, (ii) to receive the discounts under the customer and non-customer Large Trade Discount programs for certain orders and (iii) to qualify for compression rebates is reasonable as TPHs are still eligible to receive all available caps, discounts and rebates. Specifically, post-migration, TPHs must merely mark inbound orders appropriately by populating the appropriate FIX or BOE field or make same-day changes in the Clearing Editor, in lieu of submitting documentation post-trade. The proposed changes also streamline and simplify the Exchange's billing processes, as the system will be able to identify marked orders and apply fee caps, rebates and discounts without TPHs having to submit, and the Exchange having to manually review, additional documentation. Lastly, the Exchange notes the proposed rule change is not intended to have a significant impact or address any competitive issues. Rather it is precipitated by the transition of its billing system to a new system that is automated and will not process post-trade rebate requests.
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 because the proposed changes applies uniformly to all TPHs and still provide for TPHs an opportunity to receive the above described caps, rebates, and discounts notwithstanding the elimination of various form submissions. The Exchange believes that the proposed rule change will not cause an unnecessary burden on intermarket competition because it only applies to trading on Cboe Options. To the extent that the proposed changes make Cboe Options a more attractive marketplace for market participants at other exchanges, such market participants are welcome to become Cboe Options market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
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 will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 September 6, 2019, Cboe Exchange, Inc. (“Cboe” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Specified quantities of ETF shares are created and redeemed for consideration by authorized participants. “In-kind” creations and redemptions occur when the authorized participants present (in the case of creations) or receive (in the case of redemptions) securities in exchange for ETF shares. The Commission has observed that, when creation and redemption transactions occur wholly or partly in-kind, certain benefits can accrue to an ETF and its investors; specifically, in-kind exchanges generally result in: (1) Lower trading expenses (because securities received or delivered in-kind do not need to be purchased or sold in the market by the ETF, thus avoiding brokerage fees); and (2) lower taxable gains to shareholders (because appreciated securities are not sold but are delivered in kind to redeeming authorized participants).
The Exchange's current rules do not allow its Trading Permit Holders to effect options transfers in connection with ETF creations or redemptions because such transfers do not occur on Cboe or on another national securities exchange. Specifically, Cboe Rule 5.12(a)
The Exchange proposes to adopt Rule 6.9, which would add a new circumstance under which off-floor transfers of options positions by Trading Permit Holders would be allowed. Under proposed Rule 6.9, positions in options listed on the Exchange would be permitted to be transferred off the Exchange by a Trading Permit Holder in connection with transactions to purchase or redeem “creation units” of ETF shares between an “authorized participant”
The Exchange asserts that proposed Rule 6.9: (1) Would allow options-based
The Commission received one comment letter, and the commenter supports Cboe's proposal. The commenter states that Cboe's current rules do not permit off-floor transfers for an equal value of shares of an ETF. As a result, only equity- and bond-based ETFs may utilize the in-kind redemption process, which provides tax efficiency.
After careful review, the Commission finds that the proposed rule change, as modified by Amendment Nos. 2 and 3, is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission believes that proposed Rule 6.9 is designed to protect investors and the public interest because it should facilitate in-kind creations and redemptions by options-based ETFs, which should lower taxable gains of shareholders of such ETFs. The Commission further believes that, by facilitating in-kind creations and redemptions by options-based ETFs, the proposed rule may also lower such funds' transaction costs.
In support of this proposal, the Exchange has made the following representations:
1. OCC has informed the Exchange that it has the operational capabilities to effect the proposed position transfers.
2. All transfers pursuant to proposed Rule 6.9 would be required to comply with OCC rules.
This approval order is based on all of the Exchange's statements and representations, including those set forth above, in the Notice, and in Amendment No. 2.
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment Nos. 2 and 3, is consistent with the Act
The Commission finds good cause to approve the proposed rule change, as modified by Amendment Nos. 2 and 3, prior to the thirtieth day after the date of publication of the Notice in the
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 make minor amendments to and relocate certain rules related to the listing of index options (including binary and range options) from the currently effective Rulebook (“current Rulebook”) to proposed Chapter 4, Section B 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 and the related reorganization of its Rulebook, 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 make minor amendments to and relocate certain rules related to the listing of index options (including binary options and range options) into proposed Chapter 4, Section B of the shell Rulebook.
The proposed rule change deletes current Rules 22.11 and 22.13(d), as those rules merely point to other rules as applying to binary options. Pursuant to proposed Rule 4.16(a), all rules apply to binary options unless otherwise provided or unless the context provides otherwise. Therefore, these rules are redundant and unnecessary.
The proposed rule change deletes the introduction to current Chapter XXIV. It is clear from the Chapter and Section headings that the rules being moved into the shell Rulebook relate to index options. Any rules that apply differently to index options specify that in the rules in the shell Rulebook. [sic]
The proposed rule change deletes indexes currently listed in current Rules 24.1, Interpretation and Policy .01 and 24.9(a)(3), (a)(4), (b)(2) and Interpretation and Policy .01
The proposed rule change deletes a reference to Rule 8.14 from current Rule 24.9(d)(6) (proposed Rule 4.13(d)(6), as that provision was deleted as unnecessary.
The proposed rule change updates references in current Rule 24.9, Interpretations and Policies .01(b) and .11(c) (proposed Rule 4.13, Interpretations and Policies .01(b) and .10(c)) to the EOW/EOM Pilot Program in current Rule 24.9(e) (which the proposed rule change moves to proposed Rule 4.13(e)), to the Nonstandard Expirations Pilot Program, which is the current name of that program.
The proposed rule changes make also makes nonsubstantive changes to the rules in order to add section headings, 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 (
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 only deletes redundant rules, deletes references to indexes on which the Exchange does not list (and does not intend to list) options, and makes nonsubstantive changes to the rules and is merely intended to simplify, consolidate, and reorganize the Exchange's Rules in anticipation of the technology migration on October 7, 2019. The Exchange believes that these proposed change will foster cooperation and coordination with those facilitating transactions in securities and remove impediments to and perfect the mechanism of a free and open market and national market system by simplifying the Rules and Rulebook as a whole, and making its Rules easier to follow and understand, 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 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 Exchange's trading platform to the same system as the Cboe Affiliated Exchanges and the related reorganization of the Rulebook, 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 only deletes redundant rules, deletes references to indexes on which the Exchange does not list (and does not intend to list) options, and makes nonsubstantive changes to the rules and is merely intended to simplify, consolidate, reorganize the Exchange's Rules 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 substantially 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.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 EDGX Exchange, Inc. (“EDGX” or the “Exchange”) is filing with the Securities and Exchange Commission (the “Commission”) a proposal to extend the pilot related to the market-wide circuit breaker in Rule 11.16. The text of the proposed rule change is enclosed as 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.
EDGX Rules 11.16(a) through (d), (f) and (g) describe the methodology for determining when to halt trading in all stocks due to extraordinary market volatility,
The Exchange now proposes to amend Rule 11.16 to extend the pilot to the close of business on October 18, 2020. This filing does not propose any substantive or additional changes to Rule 11.16. The Exchange will use the extension period to develop with the other SROs rules and procedures that would allow for the periodic testing of the performance of the MWCB mechanism, with industry member participation in such testing. The
The market-wide circuit breaker under Rule 11.16 provides an important, automatic mechanism that is invoked to promote stability and investor confidence during a period of significant stress when securities markets experience extreme broad-based declines. All U.S. equity exchanges and FINRA adopted uniform rules on a pilot basis relating to market-wide circuit breakers in 2012 (“MWCB Rules”), which are designed to slow the effects of extreme price movement through coordinated trading halts across securities markets when severe price declines reach levels that may exhaust market liquidity. Market-wide circuit breakers provide for trading halts in all equities and options markets during a severe market decline as measured by a single-day decline in the S&P 500 Index.
Pursuant to Rule 11.16, a market-wide trading halt will be triggered if the S&P 500 Index declines in price by specified percentages from the prior day's closing price of that index. Currently, the triggers are set at three circuit breaker thresholds: 7% (Level 1), 13% (Level 2), and 20% (Level 3). A market decline that triggers a Level 1 or Level 2 halt after 9:30 a.m. ET and before 3:25 p.m. ET would halt market-wide trading for 15 minutes, while a similar market decline at or after 3:25 p.m. ET would not halt market-wide trading. A market decline that triggers a Level 3 halt, at any time during the trading day, would halt market-wide trading until the primary listing market opens the next trading day.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes that the proposed rule change promotes just and equitable principles of trade in that it promotes transparency and uniformity across markets concerning when and how to halt trading in all stocks as a result of extraordinary market volatility. Based on the foregoing, the Exchange believes the benefits to market participants from the MWCB under Rule 11.16 should continue on a pilot basis because the MWCB will promote fair and orderly markets, and protect investors and the public interest.
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 because the proposal would ensure the continued, uninterrupted operation of a consistent mechanism to halt trading across the U.S. markets while the Exchange, in conjunction with the other SROs, consider and develop rules and procedures that would allow for the periodic testing of the performance of the MWCB mechanism. In addition, as noted above, the extension will permit the exchanges to consider enhancements to the MWCB processes such as modifications to the Level 3 process. Further, the Exchange understands that FINRA and other national securities exchanges will file proposals to extend their rules regarding the market-wide circuit breaker pilot. Thus, the proposed rule change will help to ensure consistency across market centers without implicating any competitive issues.
No comments were solicited or received on the proposed rule change.
Because the foregoing proposed rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) 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 under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the 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.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly.
All submissions should refer to File Number SR-CboeEDGX-2019-061 and should be submitted on or before
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U. S. Small Business Administration.
Notice of Members for the FY 2019 Performance Review Board.
Title 5 U.S.C. 4314(c)(4) requires each agency to publish notification of the appointment of individuals who may serve as members of that agency's Performance Review Board (PRB). The following individuals have been designated to serve on the FY 2019 Performance Review Board for the U.S. Small Business Administration.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of North Carolina dated 10/16/2019.
Issued on 10/16/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16160 8 and for economic injury is 16161 0.
The State which received an EIDL Declaration # is North Carolina.
Social Security Administration (SSA).
Notice of a new matching program.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a new matching program with the Department of Labor (DOL).
The matching agreement (agreement) establishes the terms, conditions, and safeguards under which DOL will disclose the DOL-administered Part C Black Lung (BL) benefit data to SSA. SSA will match DOL's Part C BL data with SSA's records of persons receiving Social Security disability benefits to verify that Part C BL beneficiaries are receiving the correct amount of Social Security disability benefits.
The deadline to submit comments on the proposed matching program is 30 days from the date of publication of this notice in the
Interested parties may comment on this notice by either telefaxing to (410) 966-0869, writing to Matthew D. Ramsey, Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore, MD 21235-6401, or emailing
Norma Followell, Supervisory Team Lead, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore, MD 21235-6401, at Telephone: (410) 966-5855, or send an email to
None.
SSA and DOL.
The legal authority for this matching program is section 224(h)(1) of the Social Security Act (Act), 42 U.S.C. 424a(h)(1). This legal authority requires any Federal agency to provide SSA with information in its possession that SSA may require for making a timely determination of the amount of reduction required under section 224 of the Act for workers' compensation offset.
This matching program establishes the terms, conditions, and safeguards under which DOL will disclose the DOL-administered Part C BL benefit data to SSA. SSA will match DOL's Part C BL data with SSA's records of persons receiving Social Security disability benefits to verify that Part C BL beneficiaries are receiving the correct amount of Social Security disability benefits.
The individuals whose information is involved in this matching program are those individuals who are receiving Part C BL benefits and Social Security disability benefits.
DOL's monthly extract file will contain each Part C BL beneficiary's Social Security number (SSN), name, date of birth, date of entitlement, payment status, current benefit amount, and effective date of the current benefit amount. SSA will determine which of the beneficiaries are receiving Social Security disability benefits and match the DOL data against the SSN, type of action code, and offset type for those beneficiaries in SSA's Master Beneficiary Record (MBR).
SSA will match the DOL extract file against the MBR, 60-0090, last fully published at 71 FR 1826 (January 11, 2006), as amended at 72 FR 69723 (December 10, 2007), 78 FR 40542 (July 5, 2013), 83 FR 31250-31251 (July 3, 2018), and 83 FR 54969 (November 1, 2018). DOL's extract file is from DOL's Office of Workers' Compensation Programs (OWCP), BL Benefit Payments file, DOL/OWCP-9, last fully published at 81 FR 25765 (April 29, 2016). Both agencies have published the appropriate routine uses to permit the disclosures necessary to conduct this match.
Social Security Administration (SSA).
Notice of a new matching program.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a new matching program with the Department of Labor (DOL).
This matching agreement establishes the terms, conditions, and safeguards under which the DOL will disclose the DOL-administered Part B Black Lung (BL) benefit data to SSA. SSA will match DOL's Part B BL data with SSA's records of persons receiving Supplemental Security Income (SSI) to verify that Part B BL beneficiaries are receiving the correct amount of SSI payments.
The deadline to submit comments on the proposed matching program is 30 days from the date of publication of this notice in the
Interested parties may comment on this notice by either telefaxing to (410) 966-0869, writing to Matthew D. Ramsey, Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore, MD 21235-6401, or emailing
Norma Followell, Supervisory Team Lead, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G-401 WHR, 6401 Security Boulevard, Baltimore, MD 21235-6401, at Telephone: (410) 966-5855, or send an email to
None.
SSA and DOL.
The legal authority for this matching program is section 1631(f) of the Social Security Act (Act), 42 U.S.C. 1383(f). This legal authority requires any Federal agency to provide SSA with information in its possession that SSA may require for making a determination of eligibility for, or the proper amount, of SSI payments.
This matching program establishes the terms, conditions, and safeguards under which DOL will disclose the DOL-administered Part B BL benefit data to SSA. SSA will match DOL's Part B BL data with SSA's records of persons receiving SSI to verify that Part B BL beneficiaries are receiving the correct amount of SSI payments.
The individuals whose information is involved in this matching program are those individuals who are receiving Part B BL benefits and SSI benefits.
DOL's monthly extract file will contain each Part B BL beneficiary's Social Security number (SSN), name, date of birth, date of entitlement, payment status, current benefit amount, and effective date of the current benefit amount. SSA will determine which of the recipients are receiving SSI payments and match the DOL data against the SSN, type of action code, and income type for those recipients in SSA's Supplemental Security Income Record and Special Veterans Benefits (SSR/SVB) system of records.
SSA will match the SSR/SVB (60-0103) system of records, last fully published on January 11, 2006 (71 FR 1830), as amended on December 10, 2007 (72 FR 69723), July 3, 2018 (83 FR 31250-31251), and November 1, 2018 (83 FR 54969), which contains all data pertinent to payments made to Title XVI recipients, with an extract from DOL's Office of Workers' Compensation Programs, BL Benefit Payments file (OWCP-9), published on April 29, 2016 (81 FR 25765). DOL has the appropriate routine uses to permit the disclosures necessary to conduct this match.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that it has received an application from Kentucky Equipment Distributors (KED) requesting an exemption from the requirement that drivers of commercial motor vehicles (CMVs) qualifying for the “short-haul—100 air-mile radius driver” exception must return to the original work reporting location within 12 hours of coming on duty. KED asks that its short-haul CMV drivers be permitted to return within 14 hours instead of 12 without losing their short-haul status. FMCSA requests public comment on KED's application for exemption.
Comments must be received on or before November 22, 2019.
You may submit comments identified by Federal Docket Management System (FDMS) Number FMCSA-2019-0192 by any of the following methods:
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Each submission must include the Agency name and the docket number for this notice. DOT posts all comments received without change to
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: (202) 366-4325; Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2019-0192), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
Drivers qualifying for the hours-of-service (HOS) short-haul exception in 49 CFR 395.1(e)(1) do not have to maintain a record of duty status (RODS) on board the vehicle. However, such drivers must return to their normal work reporting location and be released from work within 12 hours after coming on duty. A driver who exceeds the 12-hour limit loses the short-haul exception and must immediately prepare RODS for the entire day, often by means of an electronic logging device (ELD)(49 CFR 395.8(a)(1)(i)). KED is requesting that its short-haul CMV drivers be permitted to return within 14 hours instead of 12 without losing their short-haul status.
Kentucky Equipment Distributors (KED) is comprised of several large machinery distributors operating in several states whose fleet focuses on agriculture, construction, mining, as well as road paving. KED includes seven companies and approximately 3,500 employees. The requested exemption would apply to short-haul drivers engaged in the transportation and repair of equipment and machinery. KED drivers generally meet the requirements of the short-haul operations exception, though they may occasionally take more than 12 hours to return and be released from their work reporting location. The requested increase to 14 hours will ensure KED drivers meet the requirements of the short-haul operations exception.
KED companies currently own and operate 431 vehicles that fall under the HOS regulations in 49 CFR part 395. Most of the vehicles are field service and parts delivery trucks. Duties associated with these vehicles enable the company to bring their shop/tools to the piece of equipment needing servicing versus having to transport the equipment back to the shop. KED's drivers perform duties such as but not limited to: onsite repairs, hauling parts and components, as well as routine maintenance. The vehicles are primarily utilized for haulage of equipment and tooling as relates to their primary use versus utilization for long-haul trucking.
Operators and owners within KED operate a series of large delivery vehicles and are not classified as long-haul drivers. All KED drivers perform a great deal of work outside of the vehicle, unlike drivers whose extended time behind the wheel makes them susceptible to fatigue. KED requests that these vehicles, which are like ready-mixed concrete and oilfield operational trucks, be designated for the exemption. KED drivers, like that of the ready-mixed concrete industry, spend most their shift hours performing non-driving job duties, which lessens driver fatigue. KED estimates that only 20% of its drivers' daily duties involves driving, typically to and from the worksite.
According to KED, the application is consistent with the current 14-hour limit for drivers of ready-mixed concrete vehicles. KED also pointed out that FMCSA had granted similar short-haul exemptions to Waste Management (WM) and the National Asphalt Pavement Association (NAPA). According to KED, WM drivers spend 30-50% of their time in “collection mode” and NAPA drivers drive 20% of the time. KED estimates that its drivers travel between 50-80 miles during each shift; driving time is therefore less than 20% of the individual's total duties.
KED's application for exemption is available for review in the docket for this notice.
To ensure an equivalent level of safety, KED offers supplementary driver management training which includes identifying and managing sleep deprivation, reducing eye strain, as well as driver fatigue prevention. According to KED, this training helps drivers to understand as well as identify triggers associated with fatigue, and provides help to minimize fatigue. KED notes that Waste Management and asphalt paving workers have similar daily schedules, where driving is only a small part of their workload.
A copy of KED's application for exemption is available for review in the docket for this notice.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
FMCSA announces that it has received an application from Illumination Fireworks Partners, LP and ACE Pyro, LLC (Applicants) for an exemption from the requirements that drivers of commercial motor vehicles (CMVs) must not drive following the 14th hour after coming on duty. The exemption would apply solely to the drivers of 60 CMVs employed by the applicant in conjunction with staging fireworks shows in celebration of Independence Day during the period of June 26-July 8, for the next five years (2019-2024) inclusive. During this period, the CMV drivers employed by the applicant would be allowed to exclude off-duty and sleeper-berth time of any length from the calculation of the 14 hours. These drivers would not be allowed to drive after accumulating a total of 14 hours of on-duty time, following 10 consecutive hours off duty, and would continue to be subject to the
November 22, 2019.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA-2019-0180 using any of the following methods:
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Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
For information concerning this notice contact Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325. Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA-2019-0180), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The hours-of-service (HOS) rule in 49 CFR 395.3(a)(2) prohibits a property-carrying CMV driver from driving a CMV after the 14th hour after coming on duty following 10 consecutive hours off duty. Illumination Fireworks Partners, LP (USDOT 3247742) and ACE Pyro, LLC (USDOT 1352892) (Applicants) are fireworks display companies that employ CMV drivers who hold commercial driver's licenses (CDLs) with hazardous materials endorsements. The drivers transport Division 1.3G and 1.4G fireworks and setup of firework shows for Independence Day celebrations. The applicants seek an exemption from the 14-hour rule in 49 CFR 395.3(a)(2) so that drivers would be allowed to exclude off-duty and sleeper-berth time of any length from the calculation of the 14 hours. Illumination Fireworks Partners, LP states that the basis for the request is the existing FMCSA exemption granted to Illumination Fireworks, LLC and ACE Pyro, LLC under Docket No. FMCSA-2014-0111. The applicants state that they are seeking the HOS exemption because compliance with the 14-hour rule would impose economic hardship on cities, municipalities, and themselves. Complying with the
The applicants assert that without the extra duty period provided by the exemption, safety would decline as firework drivers would be unable to return to their home base following each show should they have fireworks remaining after the display. Drivers would be forced to park the CMVs carrying Division 1.3G and 1.4G products in areas less secure than the motor carrier's home base.
To ensure an equivalent level of safety, the applicant offers short distance driving from the distribution point to the site of the fireworks display, no more than 150 miles. Drivers have several hours of off duty in the late afternoon and early evening the day of the event. In addition, drivers drive in the early morning during light traffic. Lastly, the applicant states that they have not been involved in any reportable accidents while operating under terms and conditions of the same exemption granted to the previous owner of the company.
A copy of the application for exemption is available for review in the docket for this notice.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of advisory committee meeting.
This notice announces a joint public meeting of the Technical Pipeline Safety Standards Committee, also known as the Gas Pipeline Advisory Committee (GPAC), and the Technical Hazardous Liquid Pipeline Safety Standards Committee, also known as the Liquid Pipeline Advisory Committee (LPAC). The GPAC and LPAC will meet jointly to discuss a variety of policy issues and topics relevant to both gas and liquid pipeline safety.
The GPAC and LPAC will meet jointly on November 14, 2019, from 8:30 a.m. to 5.00 p.m. ET. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Tewabe Asebe by November 4, 2019.
The meeting will be held at the Intercontinental Washington DC—The Wharf, 801 Wharf Street SW, Washington, DC 20024. The agenda and any additional information for the meeting will be published on the following meeting page at:
The meeting will be open to the public. Members of the public will be provided an opportunity to make a statement during the meeting. The proceeding will be recorded and a record of the proceeding will be made available to the public at
If you wish to receive confirmation of receipt of your written comments, please include a self-addressed, stamped postcard with the following statement: “Comments on PHMSA-2016-0136.” The docket clerk will date stamp the postcard prior to returning it to you via the US mail.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this notice contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this notice, it is important that you clearly designate the submitted comments as CBI. Pursuant to 49 CFR 190.343, you may ask PHMSA to give confidential treatment to information you give to the agency by taking the following steps: (1) Mark each page of the original document submission containing CBI as “Confidential”; (2) send PHMSA, along with the original document, a second copy of the original document with the CBI deleted; and (3) explain why the information you are submitting is CBI. Unless you are notified otherwise, PHMSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of this notice. Submissions containing CBI should be sent to Tewabe Asebe at DOT, PHMSA, PHP-30, 1200 New Jersey
For information about the meeting, contact Tewabe Asebe at (202) 366-5523, or
The committees will meet in a joint session to discuss a variety of topics to update committee members on both gas and liquid pipeline applicable safety program and policy issues, such as: Pipeline safety public awareness; reauthorization of the pipeline safety program; a regulatory agenda update; a discussion of safety management systems within the pipeline industry; an update on the Voluntary Information Sharing Working Group, and an update on pipeline safety's research and development program.
The GPAC and the LPAC are statutorily mandated advisory committees that advise PHMSA on proposed gas pipeline and hazardous liquid pipeline safety standards, respectively, and their associated risk assessments. The committees are established in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2, as amended) and 49 U.S.C. 60115. The committees consist of 15 members with membership evenly divided among federal and state governments, the regulated industry, and the general public. The committees advise PHMSA on the technical feasibility, reasonableness, cost-effectiveness, and practicability of each proposed pipeline safety standard.
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 23, 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.
a. Certification: Eligible entities and providers will be required to submit to VA information concerning relevant credentials, licenses, and other information as requested by VA to evaluate eligibility for certification. The information to be collected is authorized by 38 U.S.C. 1703A(c).
b. Discontinuation: Eligible entities and providers would be required to submit to VA a written notice of intent to discontinue a Veterans Care Agreement prior to the date of such discontinuation. The information to be collected is authorized by 38 U.S.C. 1703A(f)(1).
c. Disputes: Eligible entities and providers would be required to submit to VA written notices of dispute that contain specific information to allow VA to assess and resolve the matter in dispute. The information to be collected is authorized by 38 U.S.C. 1703A(h).
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that the VA National Academic Affiliations Council (NAAC) will meet via conference call on December 11, 2019, from 1:00 p.m. to 3:00 p.m. EST. The meeting is open to the public.
The purpose of the Council is to advise the Secretary on matters affecting partnerships between VA and its academic affiliates.
On December 11, 2019, the Council will receive updates from its Subcommittees and Work Groups: Diversity and Inclusion, Electronic Health Record Modernization, and Affiliation Partnership Councils; receive briefings on the status of VA MISSION Act educational sections; and discuss Graduate Medical Education expansion and other follow-up items. The Council will receive public comments from 2:40 p.m. to 2:50 p.m. EST.
Interested persons may attend and/or present oral statements to the Council. The dial in number to attend the conference call is: 1-800-767-1750. At the prompt, enter access code 12095 then press #. Individuals seeking to present oral statements are invited to submit a 1-2 page summary of their comments at the time of the meeting for inclusion in the official meeting record. Oral presentations will be limited to five minutes or less, depending on the number of participants. Interested parties may also provide written comments for review by the Council prior to the meeting or at any time, via email to
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 22, 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
This information collection is necessary to ensure that VA per diem payments are limited to facilities providing high quality care. To verify this level of care, VA requires those facilities providing nursing home care, domiciliary, and adult day health care programs to Veterans to supply various kinds of information. The information required includes an application/eligibility for admission and justification for payment; records and reports which facility management must maintain regarding activities of payment for eligible residents or participants; and the records and reports that facilities management and health care professionals must maintain regarding the level of care approved for residents or participants.
This OMB Control Number previously included six additional forms, VA Forms 10-0460, 10-0143, 10-0143A, 10-0144, 10-0144A, and 10-3567, which have now been separated out into another information collection (to be approved under a separate OMB Control Number). This information collection, under OMB Control Number 2900-0160, now includes only three forms: VA Forms 10-5588, 10-5588A, and 10-10SH.
a. VA Form 10-5588: State Home Report and Statement of Federal Aid Claimed—38 CFR 51, 52 and Title 38, U.S.C., Sections 1741, 1742, 1743 and 1745—is used to assess and provide per diem to State homes. This collection is used by the State home employees and VA Staff.
b. VA Form 10-5588A: Claim for Increased Per Diem Payment for Veterans Awarded Retroactive Service Connection—38 CFR 51, 52 and Title 38, U.S.C., Sections 1741, 1742, 1743 and 1745—is used to assess and provide per diem to State homes retroactively. This collection is used by the State home employees and VA Staff.
c. VA Form 10-10SH: State Home Program Application for Veterans Care Medical Certification—38 CFR 51, 52 and Title 38, U.S.C., Sections 1741, 1742, 1743 and 1745—provides for the collection of information to apply for the benefits of this program.
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.
Employee Benefits Security Administration, Department of Labor.
Proposed rule and request for information.
The Department of Labor is proposing in this document a new, additional safe harbor for the use of electronic media by employee benefit plans to furnish information to participants and beneficiaries of plans subject to the Employee Retirement Income Security Act of 1974 (ERISA). The proposal, if adopted, would allow plan administrators who satisfy specified conditions to provide participants and beneficiaries with a notice that certain disclosures will be made available on a website. Individuals who prefer to receive these disclosures on paper will be able to request paper copies and to opt out of electronic delivery entirely. The Department expects that the proposal, if adopted, would improve the effectiveness of the disclosures and significantly reduce the costs and burden associated with furnishing many of the recurring and most costly ERISA disclosures. This document also contains, in section D of the preamble, a Request for Information that explores whether and how any additional changes to ERISA's general disclosure framework, focusing on design, delivery, and content, may be made to further improve the effectiveness of ERISA disclosures.
Comments on the proposal and on the Request for Information, in section D of the preamble, must be submitted on or before November 22, 2019.
You may submit written comments, identified by RIN 1210-AB90 to either of the following addresses:
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Rebecca Davis or Kristen Zarenko, Office of Regulations and Interpretations, Employee Benefits Security Administration, (202) 693-8500. This is not a toll-free number.
The Employee Retirement Income Security Act of 1974 (ERISA) and regulations thereunder provide general standards for the delivery of all information required to be furnished to participants, beneficiaries, and other individuals under Title I of ERISA.
Based on developing technology, such as email and the internet, the Department of Labor (Department) amended the general standards for delivery of required disclosures in 2002 by establishing a safe harbor for the use of electronic media (the 2002 safe harbor).
The 2002 safe harbor, which is set forth in paragraph (c) of § 2520.104b-1, is available only if: First, the plan administrator takes appropriate and necessary measures reasonably calculated to ensure that the system for furnishing documents results in actual receipt of transmitted information and protects the confidentiality of personal information relating to the individual's accounts and benefits; second, the electronically delivered documents are prepared and furnished in a manner that is consistent with the style, format, and content requirements applicable to the particular document; third, notice is provided to each participant, beneficiary, or other individual, in electronic or non-electronic form, at the time a document is furnished electronically, that apprises the individual of the significance of the document when it is not otherwise reasonably evident as transmitted and of the right to request and obtain a paper version of such document; and fourth, upon request, the participant, beneficiary or other individual is furnished a paper version of the electronically furnished documents.
The 2002 safe harbor applies only to two categories of individual recipients. The first category includes those participants who have the ability to effectively access documents furnished in electronic form at any location where the participant is reasonably expected to perform his or her duties as an employee and with respect to whom access to the employer's or plan sponsor's electronic information system is an integral part of those duties. This group is sometimes referred to as being “wired at work.” The second category includes participants, beneficiaries, and other persons who are entitled to documents under Title I of ERISA who do not fit into the first category, but who
In general, the affirmative consent condition requires plan administrators to ensure that an individual has affirmatively consented, in electronic or
In addition, before consenting, the individual must be provided, in electronic or non-electronic form, a clear and conspicuous statement indicating: First, the types of documents to which the consent would apply; second, that consent can be withdrawn at any time without charge; third, the procedures for withdrawing consent and for updating the participant's, beneficiary's, or other individual's address for receipt of electronically furnished documents or other information; fourth, the right to request and obtain a paper version of an electronically furnished document, including whether the paper version will be provided free of charge; and fifth, any hardware and software requirements for accessing and retaining the documents.
Further, following consent, if a change in such hardware or software requirements creates a material risk that the individual will be unable to access or retain electronically furnished documents, the individual: First, is provided with a statement of the revised hardware or software requirements for access to and retention of electronically furnished documents; second, is given the right to withdraw consent without charge and without the imposition of any condition or consequence that was not disclosed at the time of the initial consent; and third, again consents in accordance with the requirements above.
Although the 2002 safe harbor remains in effect, the Department occasionally has issued guidance in limited circumstances addressing electronic delivery methods other than the method permitted by the 2002 safe harbor. For example, in 2006, the Department issued Field Assistance Bulletin 2006-03 (FAB 2006-03) to help administrators and their service providers comply with amendments to ERISA's pension benefit statement requirements made by the Pension Protection Act of 2006.
On April 29, 2008, the Department issued Field Assistance Bulletin 2008-03 (FAB 2008-03), which provides guidance on the Department's final regulation providing relief from certain fiduciary responsibilities under ERISA for investments made on behalf of participants or beneficiaries who fail to direct the investment of assets in their individual accounts.
On December 8, 2011, the Department issued Technical Release 2011-03R (TR 2011-03R), which sets forth an interim enforcement policy regarding the use of electronic media to satisfy the disclosure requirements under 29 CFR 2550.404a-5, the participant-level disclosure regulation. Under TR 2011-03R, a plan administrator may furnish § 2550.404a-5 disclosures through electronic media (including through a continuous access website) if participants voluntarily provide the employer, plan sponsor, or plan administrator (or its designee) with an email address; if the administrator furnishes initial and annual notices; and if other conditions are satisfied. TR 2011-03R establishes a temporary enforcement policy until the Department issues further guidance in this area. Under this policy, the Department will not take any enforcement action against a plan administrator who complies with the conditions in TR 2011-03R. TR 2011-03R is specifically limited to the obligation to furnish required disclosures under 29 CFR 2520.104b-1(b)(1), as it applies to the disclosures under 29 CFR 2550.404a-5.
The Department's Request for Information Regarding Electronic Disclosure by Employee Benefit Plans, published April 7, 2011 (the 2011 Request for Information), explained in detail what is required for an administrator to establish “affirmative consent” by an individual.
Since publication of the 2011 Request for Information, the Department continues to consider whether there are more effective ways to regulate the disclosure and delivery of information to participants and beneficiaries. Questions have been raised in connection with many of the Department's rulemaking and other initiatives. Stakeholders on these initiatives increasingly request that the Department recognize changes in technology as some other Federal agencies have done, and take advantage of those changes by updating and modernizing ERISA's electronic delivery standards. Many stakeholders believe the Department should promote electronic delivery of information to the greatest extent possible, and contend that electronic delivery is more efficient, less burdensome, and less costly than delivery of paper disclosures. Other stakeholders state that electronic delivery is not necessarily appropriate for all individuals, or for all ERISA disclosures. The Department agrees that electronic delivery generally can be as effective as paper based communication, and that it can reduce plan costs and increase the timeliness and accuracy of information that is disclosed. The Department also understands, however, that some of America's workers and retirees do not have reasonable access to the internet, and that some workers and retirees prefer, and may benefit from, traditional (paper) delivery for important financial information, including ERISA plan disclosures.
The Department believes that caution is warranted before taking regulatory action to change the longstanding electronic delivery standard under ERISA. The Department has spent considerable time analyzing the issue, both internally and by consulting other Federal departments and agencies with disclosure requirements that may affect the employee benefit plan marketplace. The Department consistently strives to reconcile competing policy goals when considering the best framework for delivering ERISA disclosures—a framework that appropriately balances the innovations and reduced costs that may be achieved through enhanced use of electronic communication with suitable safeguards for participants and beneficiaries who may be harmed or disadvantaged by such enhanced use.
Since publication of the 2011 Request for Information—and, before then, publication of the current electronic delivery safe harbor rule in 2002—the Department has recognized the importance of the ever-evolving changes in technology affecting individuals at home and at work. Examples include the expansion of broadband internet access through cable, fiber optic and wireless networks; internet-connected applications (apps); hardware improvements to servers and personal computers improving storage, memory, recovery, and computing power; introduction of smartphones, net books and other personal computing devices; and social networking (
Evidence suggests substantial access to and use of electronic media:
• A 2017 survey by the U.S. Census Bureau, for instance, found that 87 percent of the United States population lives in a home with a broadband internet subscription.
• A 2018 study concluded that 93 percent of households owning defined contribution accounts had access to, and used, the internet in 2016.
• A 2015 survey of retirement plan participants' online habits indicated that 99 percent reported having internet access at home or work, and 88 percent of respondents reported accessing the internet on a daily basis.
• A 2015 report observes that smartphones are used for much more than calling, texting, or basic internet browsing. Based on surveys, the report notes that: 62 percent of smartphone owners have used their smartphones in the past year to look up information about a health condition; 57 percent to do online banking; 44 percent to look up real estate listings; 43 percent to look up information about a job; 40 percent to look up government services or information; 30 percent to take a class or find education content; and 18 percent to submit a job application.
The Department believes that these access and usage rates, to date and as they continue in the future, may increase the number of individuals for whom electronic delivery of ERISA disclosures is appropriate or preferred. Further, increased technological capabilities may enable plan administrators, their service and investment providers, and the Department to monitor and ensure the effectiveness of the safeguards in place for all participants and beneficiaries. Accordingly, and in response to Executive Order 13847, discussed in the next section, the Department is now prepared to propose a new electronic delivery framework, as a safe harbor, for ERISA disclosures. The proposed safe harbor would be in addition to the 2002 safe harbor. Thus, plan sponsors and administrators could choose between the two safe harbors, or use both safe harbors, selecting the best approach for their plan population.
On August 31, 2018, President Trump issued Executive Order 13847, affirming the Federal Government's policy to expand access to workplace retirement plans for American workers, ensuring that workers will be financially prepared to retire.
Specifically, Executive Order 13847 directs that within 1 year of the date of the Order, the Secretary of Labor shall, in consultation with the Secretary of the Treasury, “complete a review of actions that could be taken through regulation or guidance, or both, to make retirement plan disclosures required under ERISA
Since issuance of the Order, the Department has undertaken a comprehensive review of actions that may be taken in response to the Order's policy mandates. In doing so, the Department consulted with not only staff of the Treasury Department, as to notices required under the Code, but also the Securities and Exchange Commission (Commission), banking regulators, and others concerning their electronic disclosure requirements and practices. The Department also has reviewed recent studies focusing on changes in internet access and usage across different populations and met with stakeholders to hear about specific experiences with electronic delivery. Having completed this review as set forth in the Order, the Department decided to publish a proposed regulation on electronic disclosure that it believes will reduce the costs and burdens imposed on employers and other plan fiduciaries, while at the same time creating the opportunity for disclosures that are more useful to participants and beneficiaries. The Department has also concluded that it needs further information from stakeholders before proposing any substantive regulatory additions, deletions, or changes to ERISA's disclosures themselves, as opposed to delivery of such disclosures. Therefore, this document includes, below, a Request for Information comprising a series of questions to elicit views from all interested parties on additional ways to enhance the usefulness and effectiveness of ERISA disclosures.
The Department has reviewed other agencies' practices and standards regarding electronic delivery of required information. Although the Executive Order only directed the Department to consult with the Treasury Department, the Department of Labor believed it prudent to explore a wider variety of approaches to electronic delivery.
For budgetary reasons, the Social Security Administration effectively eliminated paper as the primary method of furnishing benefits statements.
The Federal Thrift Savings Plan (TSP) is a retirement savings plan similar to a 401(k) plan, covering Federal civilian employees and members of the uniformed services. The TSP has approximately 5.5 million participant accounts
On October 20, 2006, the Treasury Department and the IRS published 26 CFR 1.401(a)-21, setting forth rules relating to the use of an electronic medium to provide applicable notices and to make participant elections, with respect to a retirement plan, an employee benefit arrangement, or an individual retirement plan.
The mission of the U.S. Securities and Exchange Commission (SEC) is to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation. The SEC oversees the key participants in the securities marketplace, including securities exchanges, securities brokers and dealers, investment advisers, and mutual fund companies. These participants very often are service providers to ERISA-covered retirement plans.
On June 22, 2018, the SEC adopted a new rule, 30e-3, under the Investment Company Act of 1940.
Similarly, in 2007 the SEC adopted amendments to the proxy rules under the Securities Exchange Act of 1934 that provide an alternative method for issuers and other persons to furnish proxy materials to shareholders by posting them on an internet website and providing shareholders with notice of the availability of the proxy materials. Under the amendments, issuers must make copies of the proxy materials available to shareholders on request, at no charge to shareholders. The amendments put into place processes that provide shareholders with notice of, and access to, proxy materials while taking advantage of technological developments and the growth of the internet and electronic communication. The amendments were phased-in over a two-year period.
On January 26, 2009, the SEC adopted amendments to the form used by mutual fund companies to register under the Investment Company Act of 1940 and to offer their securities under the Securities Act of 1933 in order to enhance the disclosures that are provided to mutual fund investors. The amendments require key information to appear in plain English in a standardized order at the front of a mutual fund statutory prospectus. The amendments also permit persons to satisfy their mutual fund prospectus delivery obligations under Section 5(b)(2) of the Securities Act by sending or giving the key information directly to investors in the form of a summary prospectus and providing the statutory prospectus on an internet website. Upon an investor's request, mutual fund companies are also required to send the statutory prospectus to the investor.
Apart from these three document-specific rules, the SEC has a longstanding position that governs the use of electronic media for other investor disclosures by issuers of all types, including operating companies, investment companies, and municipal securities issuers, as well as market intermediaries. In general, issuers and market intermediaries must assess their compliance with legal disclosure delivery requirements in terms of notice, access, and evidence of delivery. One method for satisfying the evidence-of-delivery standard is to obtain an informed consent from an investor to
The Office of the Comptroller of the Currency (OCC) charters, regulates, and supervises all national banks and Federal savings associations as well as Federal branches and agencies of foreign banks. The OCC is an independent bureau of the Treasury Department. The mission of the OCC is to ensure that national banks and Federal savings associations operate in a safe and sound manner, provide fair access to financial services, treat customers fairly, and comply with applicable laws and regulations. These businesses very often are service providers to ERISA-covered retirement plans. On January 23, 2017, as part of its review under the Economic Growth and Regulatory Paperwork Reduction Act of 1996, the OCC revised certain of its rules to remove outdated or otherwise unnecessary provisions. The OCC found that the use of electronic communications has become widespread and is provided for in state and Federal law, such as the E-SIGN Act, which allows for electronic communications with customers. The OCC, consequently, removed 12 CFR 12.102 and 151.110 which required, among other things, that customers must agree to electronic instead of hard-copy notifications.
The actions taken today are responsive not only to Executive Order 13847, but to recommendations made to the Department by the Employee Benefits Security Administration's ERISA Advisory Council, the U.S. Government Accountability Office (GAO), and other parties.
The ERISA Advisory Council (the Advisory Council) has repeatedly made recommendations to the Department concerning possible changes to the electronic delivery rules for ERISA disclosures. Most recently, in its November 2017 report, the Advisory Council recommended that to ease burdens on plans and improve understandability for participants, an ideal disclosure protocol would implement both paper and electronic delivery.
The Council believes that the IRS Regulations will adequately protect the rights of those participants who are actively employed because it will generally be very simple for administrators to determine whether active employees have reasonable access to the electronic medium used to furnish the disclosure. The Council believes that administrators will not furnish those individuals who are not working actively— such as retirees or beneficiaries—with electronic disclosure
Electronic communications have enormously improved the retirement system for both plans covered by ERISA and their participants. They have improved participant education, retirement planning, and plan participation. Electronic communications have allowed plans to furnish more information to participants and beneficiaries for less cost. They have simplified plan administration and improved plan recordkeeping. All of these benefits of electronic communication have improved retirement security, which was and remains an underlying goal of ERISA. The Council believes that this goal of retirement security would be better served if the DOL would expand the array of electronic media that plan administrators may use to satisfy ERISA's disclosure requirements.
In its 2013 report, “Private Pensions: Clarity of Required Reports and Disclosures Could Be Improved,” the GAO recommended requiring plans to include the summary plan description (SPD) and any summaries of material modifications (SMMs) on a continuous access website.
The Department also observes that in recent years there has been continued Congressional interest in expanding the use of electronic media for ERISA disclosures.
In this document, the Department proposes to amend part 2520 by adding a new section, § 2520.104b-31, entitled “Alternative method for disclosure through electronic media—Notice and access.” This proposed safe harbor method for electronic disclosure is an additional method and would not change the Department's current safe harbor for electronic delivery in § 2520.104b-1(c). As proposed, plan administrators who wish to continue to rely on the existing safe harbor for electronic delivery, or to furnish paper documents by hand-delivery or by mail, are free to continue to do so. The Department requests comments on whether it should make a technical amendment to § 2520.104b-1(c) to direct readers to the newly proposed safe harbor, or whether affected parties would know to consider both possible options without such a technical amendment.
After reviewing and analyzing a variety of electronic disclosure standards and other related information, and discussions with various regulators, the Department has determined that its policy objectives may be best advanced through adoption of a “notice and access” structure, similar to that previously adopted by the Department in FAB 2006-03 and by the Commission for certain investor disclosures.
In addition to the specific conditions of the proposed rule, the Department invites commenters to submit general views on the proposed “notice and access” disclosure framework. For example, the Department is interested in comments on the desire for enhanced internet availability of required disclosures, from the plan's and from the participants' perspective; how many plans (or sponsoring employers) already have and use websites to make information available to employees; whether administrators or service providers for small plans are more or less likely to have and use websites, and whether and what other disclosure rules may be more appropriate for small plans; and whether the Department should reconsider the existing electronic delivery rules in § 2520.104b-1(c)(2), including the consent requirement, instead of or in addition to the proposed framework. Although the proposed safe harbor provides for access to required disclosures on a “website,” the Department invites comments on whether, and how, the proposal should be modified to explicitly include other internet-based mechanisms, such as multimedia messaging and mobile applications. When feasible and sufficiently protective of plan participants, the Department does not want to inhibit innovation in the delivery of required disclosures, especially as forms of internet-based communication continue to expand. In this sense, the Department wishes to explore whether the proposal would require revision to promote technical neutrality. Commenters should explain not only their views on the use of other internet-based mechanisms, but also their (or plan participants') experiences with such mechanisms.
In light of Executive Order 13847 requiring consultation with the Treasury Department, this proposal is intended to align with Treasury's electronic media regulation for applicable notices at § 26 CFR 1.401(a)-21(c). Commenters are invited to share their views on whether this objective is desirable and what other steps might be needed to achieve it.
The proposed rule begins by defining the individuals to whom disclosure may be made under the new safe harbor. Paragraph (b) defines a “covered individual” for purposes of the rule as a participant, beneficiary, or other individual entitled to covered documents and who, as a condition of employment, at commencement of plan participation, or otherwise, provides the employer, plan sponsor, or administrator (or an appropriate designee of any of the foregoing) with an electronic address, such as an email address or internet-connected mobile-computing-device (
While the proposal conditions “covered individual” status on the provision of an electronic address, which may include an address or number associated with an internet-based mobile-computing device, such as a smartphone, tablet, or laptop computer, the proposal does not impose any specific requirements or limitations on the type of device that a person must have in order to be a covered individual under the safe harbor. The Department intends to avoid favoring any particular technology that is considered advanced today but could be outdated tomorrow. On prior rulemaking initiatives under ERISA, many commenters have cautioned the Department against inadvertently stifling innovation by sanctioning particular technologies considered state-of-the-art at the time, especially in matters of digital technology. The Department invites comments on this analysis and whether different types of mobile-computing devices, or technologies, warrant different conditions to ensure that covered individuals are able to receive, review, and take appropriate actions in response to a notice of internet availability.
Paragraph (c) of the proposal goes on to define the “covered documents” to which the rule applies. The safe harbor may be used, for a pension benefit plan, as defined in ERISA section 3(2), to furnish any document that the administrator is required to furnish to participants and beneficiaries pursuant to Title I of ERISA, except for any document that must be furnished upon request.
The safe harbor, as proposed, does not apply to employee welfare benefit plans, as defined in section 3(1) of ERISA, such as plans providing disability benefits or group health plans. Paragraph (c)(2) of the proposal, instead, is reserved so that the Department can study the future application of the new safe harbor to documents that must be furnished to participants and beneficiaries of employee welfare benefit plans. This reservation follows the directive of Executive Order 13847, which focuses the Department's review on retirement plan disclosures. Although the Department does not interpret the Order's directive as limiting the Department's ability to take action with respect to employee welfare benefit plans, especially to the extent similar policy goals, including the reduction of plan administrative costs and improvement of disclosures' effectiveness, may be achieved, this proposal is limited to retirement plan disclosures. Welfare plan disclosures, such as group health plan disclosures, may raise different considerations, such as pre-service claims review and access to emergency and urgent health care. Moreover, the Department shares interpretive jurisdiction over many group health plan disclosures with the Treasury Department and the Department of Health and Human Services. In considering any possible new electronic delivery safe harbor for group health plan disclosures in the future, the Department would want to consult with these other Departments. Accordingly, focusing its attention first on retirement disclosures is a sound and efficient use of the Department's resources.
As a general rule, the proposed method for delivery through electronic media requires that administrators furnish to each covered individual a notice of internet availability for each covered document, in accordance with the requirements of this section. Thus, for example, if a particular plan is required to furnish to all of its covered individuals eight different covered documents in a given year, the proposed safe harbor's general rule would require that the plan's administrator instead furnish to covered individuals eight notices of internet availability (subject to the more specific rule in paragraph (i), which allows an administrator to combine notices for certain covered documents). Paragraph (d) sets forth the conditions for satisfying this first requirement of the safe harbor.
Paragraph (d)(2) provides that the administrator must furnish a notice of internet availability at the time the covered document that is the subject of the notice is made available on the website. For example, if section 105 of ERISA requires a plan administrator to furnish to covered individuals their pension benefit statements no later than April 15th of a given year, the administrator could satisfy that obligation by furnishing to these individuals a notice of internet availability on April 15th and ensuring that the covered document is accessible on the internet website on this date.
If, however, the administrator furnishes a combined notice of internet availability for more than one covered document, pursuant to paragraph (i) of the proposal, discussed below, the requirement to furnish a notice of internet availability will be treated as satisfied if the combined notice of internet availability is furnished each plan year, and, if the combined notice was furnished in the prior plan year, no more than 14 months following the date the prior plan year's notice was furnished. The proposal provides administrators with a 14-month period in which to comply with the annual notice requirement to ensure adequate flexibility to the extent the date of furnishing may vary slightly from year to year. Further, the Department does not want administrators to have to push back the date of furnishing from year to year to avoid the risk that they run afoul of a strict 12-month requirement. The Department intends that the proposed two-month grace period will offer sufficient administrative flexibility without compromising participants' and beneficiaries' receipt of a notice on a periodic, and essentially annual, basis. The Department requests comments on these timing requirements, and whether different timing requirements would be more likely to ensure prompt and efficient delivery to participants and beneficiaries.
The proposal also requires, as discussed below, that a covered document must be made available on the website no later than the date on which the covered document otherwise must be furnished in accordance with the applicable section of ERISA or regulation thereunder. This proposal is
Paragraph (d)(3) lists the proposed content requirements for the notice of internet availability: A prominent statement, for example as a title, legend, or subject line that reads, “Disclosure About Your Retirement Plan;” a statement that, “Important information about your retirement plan is available at the website address below. Please review this information;” a brief description of the covered document; the internet website address where the covered document is available; a statement of the right to request and obtain a paper version of the covered document, free of charge, and an explanation of how to exercise this right; a statement of the right to opt out of receiving covered documents electronically, and an explanation of how to exercise this right; and a telephone number to contact the
The rule provides that the required internet website address must be sufficiently specific to provide ready access to the covered document (or, in the case of a combined notice of internet availability, covered documents).
An administrator must ensure that the “brief description” of a covered document communicates key information about its importance. The Department does not intend this “brief description” to be a technical summary of the content of the underlying disclosure. The Department encourages comments on the content requirements for the notice, including views as to the most critical information that should be included in a “brief description” of a covered document. Although the current requirement provides a level of flexibility to administrators in how they draft the “brief description,” the Department may consider providing more explicit guidelines or models for administrators to use in drafting these descriptions. Commenters may address whether additional guidelines or models would be useful, and the specific issues it would be most helpful to address.
One of the Department's goals in establishing the proposed framework was to be certain that, regardless of the delivery method chosen by a plan administrator, covered individuals who wish to receive paper copies of covered documents would be able to do so without undue burden. Paragraphs (d)(3)(v) and (vi) set forth two significant protections for such covered individuals. First, any time a participant prefers to receive a paper copy of any of the covered documents, he has the right to request and receive a paper copy, free of charge. For example, a participant who receives a notice of internet availability of the plan's SPD, but prefers to have a paper copy of the SPD to keep in his personal finance files at home, will be able to request a paper copy of the SPD in accordance with the explanation of how to exercise his right to do so. Further, a covered individual who prefers to receive all covered documents in paper may opt out of receiving any covered documents electronically. This global opt out provision enables a participant who wants to have all of her disclosures in paper, without having to make repeated elections to do so; she will receive all covered documents in paper, unless and until she later consents to receive covered documents electronically.
The Department requests comments on these proposed content requirements and whether the notice of internet availability will adequately serve its intended purpose. Commenters are encouraged to focus on whether the content requirements are sufficient or excessive. Specifically, the Department requests comments regarding whether a toll-free number should be used or whether specific website, login or password reset features should be described in the notice.
The Department intends the notice of internet availability to be a concise, clear disclosure that will convey its importance and easily call the recipient's attention to its content. With this goal in mind, paragraph (d)(4) describes standards for the form and manner of furnishing the notice. To satisfy the safe harbor, a notice of internet availability must: First, be furnished electronically to the address referred to in paragraph (b) of the proposal; second, contain only the content specified in paragraph (d)(3) of the proposal, except that the administrator may include pictures, logos, or similar design elements, so long as the design is not inaccurate or misleading and the required content is clear; third, be furnished separately from any other documents or disclosures furnished to covered individuals, except as permitted under paragraph (i) of the proposal (which deals with consolidation of certain notices of internet availability); and fourth, be written in a manner calculated to be understood by the average plan participant. A notice that uses short sentences without double negatives, everyday words rather than technical and legal terminology, active voice, and language that results in a Flesch Reading Ease test score of at least 60 will satisfy the fourth requirement.
Because the notice of internet availability contains important information alerting covered individuals to the online disclosures available to them with respect to their plan, the Department believes it is essential that the notice be furnished by itself and not be obscured by other information, including other information that is required to be disclosed under ERISA. The second and third requirements in paragraph (d)(4) are intended to achieve this objective. Any additional information or content must be limited; to permit otherwise may frustrate the Department's goal of a clear, concise notice. However, to the extent design elements may enhance the appearance of the notice of internet availability and possibly increase the likelihood that it will draw the desired attention of covered individuals, the proposal does not exclude the use of pictures, logos, and similar design elements, so long as the design is not inaccurate or misleading and the required content is clear.
Plan administrators must write clear and understandable notices of internet availability. The proposal relies on the standard measure for readability of ERISA disclosures—that the annual notice be “written in a manner calculated to be understood by the average plan participant[.]” However, because the content of this notice is so concise, and because the information is so critical to the effectiveness of covered documents, paragraph (d)(4)(iv) includes additional guidelines for administrators to satisfy the readability requirement. Administrators are encouraged to apply the plain language concepts described above. The Department believes that use of these concepts may improve individuals' comprehension of the information on the notice of internet availability. Administrators who apply these concepts will satisfy the readability
The Department is mindful of the additional cost and burden associated with any additional disclosure, especially when it must be furnished separately. In this case, however, the Department believes that the additional cost and burden associated with the required notice of internet availability will be more than offset by the reductions in cost and burden available to administrators who rely on this safe harbor to make disclosures available online instead of furnishing them directly to covered individuals. The Department invites commenters to discuss these relative costs, as well as the other standards in paragraph (d)(4). The Department also is interested in views on whether additional or different content should be required, or permitted, on the notice, and whether commenters have other ideas about how to ensure the notice is clear and understandable to an average plan participant, consistent with the notice's intended purpose. If commenters believe that a model notice of internet availability would be useful, the Department requests that they submit a sample “model notice” for the Department's consideration, along with any reason(s) to believe that such a model notice would be used and would be helpful.
The proposed safe harbor also includes minimum standards concerning the availability of the covered documents on a website. Paragraph (e)(1) of the proposal begins by stating the general requirement that the administrator must ensure the existence of an internet website at which a covered individual is able to access covered documents. This paragraph holds the plan administrator responsible for ensuring the establishment and maintenance of the website. The Department understands that in some cases the administrator may not establish and maintain a website himself or herself. Some responsibilities associated with websites may be assumed by plan service or investment providers or other third parties. The proposed safe harbor does not preclude the assignment of website-related activities to parties other than the administrator, subject to the administrator's compliance with paragraph (j) of the safe harbor, “Reasonable procedures for compliance,” discussed below, and the administrator's general obligation as a plan fiduciary under ERISA section 404 to prudently select and monitor such parties.
A plan administrator also must take measures reasonably calculated to ensure that the specific standards for the internet website, listed in paragraph (e)(2), have been satisfied. First, paragraph (e)(2)(i) requires that the covered document be available on the website no later than the date on which the covered document must be furnished under ERISA. As discussed above, the proposed safe harbor does not alter the substantive or timing requirements for covered documents. Even if an administrator chooses to consolidate a notice of internet availability for certain disclosures and furnish a combined notice pursuant to paragraph (i) of the proposal, a covered document (as opposed to the notice for such document) must be made available on the website on a timely basis consistent with when it would otherwise be required to be furnished under the relevant statute or regulation. For example, if the administrator of a participant-directed individual account plan wishes to rely on the safe harbor to make its comparative investment chart for participants available on the website, the administrator must look to the timing requirements in 29 CFR 2550.404a-5(d)(1) to determine when the annual investment chart must be furnished; the comparative investment chart must be made available on the website no later than that date.
Second, the covered document must remain available on the website, pursuant to paragraph (e)(2)(ii) of the rule, until it is superseded by a subsequent version of the covered document. In the preceding example, the participant-level fee disclosure regulation requires an updated investment chart to be furnished “at least annually”—an administrator would need to adhere to the definition of “at least annually” in 29 CFR 2550.404a-5(h)(1) to determine when the next year's investment chart would have to be made available on the website. Requiring the covered document to remain available on the internet site until it is superseded is intended to ensure that covered individuals have readily available the information they need to protect and enforce their rights under ERISA and the plan. The Department requests comments on whether there are circumstances when a superseded document may still be relevant to a covered individual's claims or rights under the plan and, if so, whether additional or different conditions are needed to address such circumstances. Comments also are invited on whether a final rule should explicitly address the category of covered documents that technically do not become superseded by reason of a subsequent version of the covered document, but instead ceases to have continued relevance to covered individuals. For instance, as opposed to the investment chart referenced earlier in this paragraph, blackout notices typically are not superseded by subsequent blackout notices, but they do lack relevance after the temporary restriction ends. Would a final rule be clearer on this point if it provided that a covered document must remain available on the website until it is superseded by a subsequent version of the covered document or, if applicable, until it ceases to have continued relevance?
Paragraphs (e)(2)(iii) through (vi) of the proposed safe harbor address the presentation of covered documents on the website. Paragraph (e)(2)(iii) requires that a covered document be presented on the website in a manner calculated to be understood by the average plan participant. This standard is identical to the readability standard for the notice of internet availability in paragraph (d)(4)(iv), which is discussed above. Next, the covered document must, pursuant to paragraph (e)(2)(iv), be presented on the website in a widely-available format or formats that are suitable to be both read online and printed clearly on paper. An administrator may be able to comply with this requirement, for example, by posting the document in a portable document format (PDF) or similar widely-used format on the website. The covered document also must be searchable electronically by numbers, letters, or words, to satisfy paragraph (e)(2)(v). The Department believes that an electronic searching capability for covered documents will contribute significantly to making disclosures more effective for participants, enabling them to use keywords to quickly and easily find specific information about a particular topic or benefits question.
Finally, under paragraph (e)(2)(vi), the covered document must be presented on the website in a widely-available format or formats that allow the covered document to be permanently retained in an electronic format that satisfies the requirements of paragraph (e)(2)(iv) (requiring a format that can be read online and printed clearly on paper). This requirement is intended to enable covered individuals and plans to keep a copy of the covered document, for example, by saving it to a file in electronic format, on a personal computer.
Several studies observe that some individuals access the internet only through hand-held devices, such as smartphones. Some of these individuals may not have full access to the enhanced functionality of plan websites and may find the presentation of covered documents to be less effective. What, if any, additional actions are needed to ensure that an effective and useful presentation of covered documents is available to hand-held-device-only individuals? Should such actions be mandatory for administrators who wish to comply with the proposal? What are the likely cost implications of these actions?
The final standard for the internet website is based on the fact that, in some cases, covered documents contain personal information about covered individuals and their benefits. In order to protect this information, paragraph (e)(3) of the proposal requires the administrator to take measures reasonably calculated to ensure that the website protects the confidentiality of personal information relating to any covered individual. For example, a pension benefit statement includes individualized information about a specific person's accrued benefit and should not be accessible to others without authority.
As part of any increase in electronic disclosure permitted under ERISA, the Department believes it is essential to respect the wishes of participants and beneficiaries who prefer to receive covered documents on paper, mailed or delivered to them in accordance with 2520.104b-1(b). To that end, the proposed safe harbor, in paragraph (f), provides two safeguards for these covered individuals. First, paragraph (f)(1) provides that, upon request from a covered individual, the administrator must furnish to such individual, free of charge, a paper copy of a covered document. The Department expects that the copy will be furnished to the covered individual as soon as reasonably practicable after receiving the request.
The Department expects that some covered individuals, however, may want all of their covered documents in paper and, accordingly, paragraph (f)(2) of the proposal provides covered individuals with a broad opt out right. Specifically, the administrator must give covered individuals the ability to opt out of electronic delivery and receive only paper versions of some or all covered documents. If a covered individual elects to opt out, the administrator must promptly comply with the individual's election. This provision may be referred to as a “global” opt out, in the sense that an individual can opt out of electronic delivery entirely. All future covered documents must be furnished to the electing covered individual in paper, unless and until the covered individual expresses the desire to “opt back in” to electronic delivery. Covered individuals may opt out pursuant to this provision at any time in accordance with the plan's reasonable procedures for doing so. The two provisions operate together to give covered individuals a good deal of flexibility in how they receive their disclosures. A participant who does not wish to opt out entirely but, for a variety of potential reasons, would like a paper copy of a covered document, may request a copy under paragraph (f)(1). Alternatively, the global opt out provision in paragraph (f)(2) provides a more comprehensive option for a covered individual who truly prefers paper in all circumstances. The Department requests that commenters address whether these two safeguards are sufficiently protective of covered individuals who do not always want to receive information electronically. Commenters are invited to suggest additional or different safeguards that they believe may be more effective.
To further protect the rights of covered individuals who want paper copies of covered documents, the rule requires administrators to carefully manage requests for paper copies or requests to opt out of electronic delivery under the safe harbor. Specifically, paragraph (f)(3) provides that the administrator must establish and maintain reasonable procedures governing requests or elections under paragraphs (f)(1) and (2) of the safe harbor. The procedures are not reasonable if they contain any provision, or are administered in a way, that unduly inhibits or hampers the initiation or processing of a request or election.
Finally, paragraph (f)(4) requires that the system for furnishing the notice of internet availability must be designed to alert the plan administrator of an invalid or inoperable electronic address. In the event that a plan administrator becomes aware of an invalid or inoperable electronic address, such as if an email is returned as undeliverable and the problem is not promptly cured, the administrator must treat the covered individual as if he or she had elected to opt out of electronic delivery. One way to cure the problem would be to keep a secondary electronic address for the covered individual on file and send the notice of internet availability to the secondary address when alerted of the invalidity or inoperability of the primary electronic address. Another way to cure the problem would be to promptly obtain a new electronic address for the covered individual. Certainly other cures exist depending on the particular facts and circumstances surrounding the un-deliverability of the notice of internet availability. If the problem is not promptly cured, however, the deemed election would persist until the administrator is able to obtain a valid and operable electronic address for the covered individual.
This provision is intended to ensure that covered individuals actually receive their pension documents by guarding against invalid or inoperable electronic addresses. So long as the plan administrator is not alerted to an invalid or inoperable address, and the other
The Department believes it is important for all participants and beneficiaries, who are accustomed to the current ERISA delivery rules, to be notified, on paper, that the administrator will be adopting a new method of electronic delivery. At this point in time, before a participant or beneficiary receives disclosures in accordance with the proposed safe harbor, the individual must be apprised that he or she will receive future retirement plan information electronically, through a notice and access model in which the notice will be furnished to an electronic address (
The Department appreciates that, as part of the framework proposed today, covered individuals may continue to receive and need access to certain ERISA disclosures even after they sever their employment with the employer sponsoring the plan. To ensure that this severance does not interrupt a covered individual's access to important ERISA information if he or she continues to participate in the plan, paragraph (h) of the proposal provides a special rule for severance from employment. At the time a covered individual who is an employee severs from employment, the administrator must take measures reasonably calculated to ensure the continued accuracy of the covered individual's electronic address or number, described in paragraph (b), or to obtain a new electronic address that enables receipt of covered documents following the individual's severance from employment. This provision focuses on circumstances in which there is special cause for concern about the accuracy of contact information in connection with an employee's severance from employment, and does not diminish or alter plan fiduciaries' ongoing obligation to keep accurate records on plan participants.
The Department requests comments as to whether this requirement will be effective in ensuring a seamless transition with respect to the dissemination of ERISA plan information when an employee has a severance from employment. For example, commenters may submit views on whether any unique issues arise in the context of terminated vested participants after severance from employment, for example as to updating and validating changes to contact or similar information, and whether these issues warrant additional safeguards in the proposal. This provision may ensure not only effective electronic delivery in the future for such individuals, but may also serve as a protection against these individuals becoming missing participants. Further, commenters should raise any other relevant transition issues that may arise for employees severing employment under the notice and access framework of this proposal.
When an email address was previously provided by the employer, the employer could (as part of its severance from employment procedures) ask the participant for another means of electronic communication for future notifications. The Department requests comments as to whether such information is currently requested or provided at severance from employment. The Department also requests comments on whether employers envision relying on this safe harbor for participants who have severed from employment.
The words “severance from employment” in paragraph (h) are intended to have their ordinary meaning. Thus, for example, a severance from employment occurs when an employee dies, retires, is dismissed, or otherwise terminates employment with the employer that maintains the plan, including when the employee continues on the same job for a different employer as a result of a liquidation, merger, consolidation or other similar corporate transaction. Whether a severance from employment has occurred is determined based on the facts and circumstances of the particular situation. The Department
As noted above, the proposed safe harbor would be available to all pension benefit plans, including multiemployer pension plans. The Department solicits comments on whether the requirements in paragraph (h) accommodate routine practices of multiemployer pension plans. For example, will the administrator of a multiemployer pension plan typically have knowledge of a covered individual's severance from employment from a contributing employer = “at the time” of the individual's severance? Commenters are encouraged to identify whether there are unique circumstances in this setting that warrant modifications or adjustments to the approach taken in paragraph (h) of the proposal, or with respect to any other provision in the safe harbor, (including paragraph (b) permitting the administrator to use an electronic address assigned by an employer).
Although the proposal generally requires, in paragraph (d)(1), that an administrator furnish a notice of internet availability for each covered document, a special rule in paragraph (i) of the proposal allows an administrator to furnish one notice of internet availability, subject to the timing requirements in paragraph (d)(2), that incorporates or combines the content required by paragraph (d)(3) with respect to one or more of a subset of covered documents. These documents include, as applicable: (1) A summary plan description; (2) a summary of material modifications; (3) a summary annual report; (4) an annual funding notice; (5) an investment-related disclosure under 29 CFR 2550.404a-5(d); (6) a qualified default investment alternative notice; and (7) a pension benefit statement. These covered documents represent the most common and recurring disclosures that are made to pension plan participants, and which are triggered by no event other than the passage of time.
The Department excluded other required documents, for example, because they are event-specific disclosures and might communicate information that requires or invites specific and timely action on behalf of a participant or beneficiary. In other cases, this special rule excludes contingent or irregular documents that are furnished based on an individual transaction or plan status basis, or that are not regularly furnished to participants and beneficiaries. For example, a participant who receives notice of a blackout period, as required by ERISA section 101(i), may consider changing her investment directions and, if so, must do so within the timeline specified. Similarly, a participant who receives notice of an adverse benefit claim determination, as required by ERISA section 503(1), may wish to appeal or take other action following such determination, in which case he too must act within defined periods of time. Additional examples include a qualified domestic relations order determination under ERISA section 206(d)(3)(G)(i)(II), a notice of the right to divest under ERISA section 101(m), a notice of failure to meet minimum funding standards under ERISA section 101(d), and a notice of significant reduction in future benefit accruals under ERISA 204(h).
In short, the Department excluded documents that it believes do not lend themselves, primarily because of their timing, irregularity, or requirement of potentially timely action by a covered individual, to a framework that permits consolidation into one annual notice. The Department solicits comments on whether, and why, the subset of covered documents eligible for paragraph (i) should be expanded or narrowed, and the criteria that would justify an expansion or narrowing. In addition, the Department solicits comments on whether, instead of an explicit list of the covered documents to which paragraph (i) applies, a final rule should adopt a principle-based or categorical approach, describing the type or nature of covered documents that may be consolidated?
Paragraph (d)(2), as discussed above, requires that a combined notice of internet availability for more than one covered document under paragraph (i) be furnished at least once each plan year, and, if the combined notice was used for the prior plan year, no more than 14 months following the prior year's notice. The Department intends that this combined notice of internet availability be an annual disclosure; however, to provide flexibility to administrators and avoid potential foot faults associated with a strict 12-month standard, the rule provides that an “annual” notice of internet availability may be furnished up to 14 months following the prior “annual” notice.
The Department understands that, for a variety of technical and other reasons beyond the control of the administrator, there may be temporary interruptions to the availability of covered documents on a website. For example, in spite of reasonable diligence by an administrator, its information technology staff, and service and internet providers, there may be network outages or connectivity problems due to utility interruptions, force majeure, or other factors reasonably beyond these parties' control. To prevent administrators from violating their disclosure obligations under ERISA in such limited circumstances, the proposal includes relief for administrators if reasonable compliance procedures are in place. Paragraph (j) explains that if certain requirements are satisfied, the conditions of the safe harbor are satisfied, notwithstanding the fact that covered documents are temporarily unavailable for a period of time in the manner required by § 2520.104b-31 due to unforeseeable events or circumstances beyond the control of the administrator. The administrator must have reasonable procedures in place to ensure that the covered documents are available in the manner required by § 2520.104b-31. In the event that covered documents are temporarily unavailable, the administrator must take prompt action to ensure that the documents become available in the manner required by § 2520.104b-31 as soon as practicable following the earlier of the time at which the administrator knows or reasonably should know that the documents are temporarily unavailable. The Department believes that paragraph (j) fairly balances the reality of temporary disruptions to website accessibility in modern times with the protection of participants and beneficiaries by expecting that administrators act reasonably in preparing for, and reacting to, such disruptions. The Department requests comments on whether this is a suitable standard that is practical and realistic, but also sufficiently rigorous to make sure that, as a general matter, important ERISA information is available to participants and beneficiaries when they need it.
The Department proposes effective and applicability dates for the safe harbor in paragraph (k). Specifically, paragraph (k)(1) provides that the new alternative method for disclosure
Under this proposed regulation, for the reasons discussed below, the covered documents would be exempt from the consumer consent requirements of the E-SIGN Act and would provide an alternative method of complying with the requirement that covered documents be furnished in writing. Section 101(c) of the E-SIGN Act sets forth special protections that apply when a statute, regulation, or other rule of law requires that information relating to a transaction be provided or made available to a consumer in writing. Section 101(e) of the E-SIGN Act provides that if a statute, regulation, or other rule of law requires that a contract or other record relating to a transaction in or affecting interstate or foreign commerce be in writing, the legal effect, validity, or enforceability of an electronic record of the contract or other record may be denied if the contract or other record is not in a form that is capable of being retained and accurately reproduced for later reference by all parties or persons who are entitled to retain the contract or other record.
Under section 104(d)(1) of the E-SIGN Act, a Federal regulatory agency may exempt, without condition, a specified category or type of record from the consumer consent requirements in section 101(c) if the exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers. If finalized, this proposed regulation would be an alternative method of compliance which would satisfy section 104(d)(1) of the E-SIGN Act. In accordance with section 104 of the E-SIGN Act, the Department believes that there is substantial justification for this proposed regulatory exemption from the consent requirements of the E-SIGN Act because the rule is necessary to eliminate a substantial burden on electronic commerce and the proposal would not pose a material risk of harm to consumers. The Department requests comments as to whether there are additional, or different, steps it could take to ensure that these proposed rules are consistent with the requirements of section 104(d)(1) of the E-SIGN Act. The Department is particularly interested in receiving comments that provide suggestions or evidence related to whether these proposed rules would (or would not) impose unreasonable costs on the acceptance and use of electronic records. The Department believes that, as proposed, these regulations would not require (or accord greater legal status, or effect to) the use of any specific technology. The Department requests comments, however, on whether there are any changes to the proposal that would better ensure the proposal does not require (or in any way endorse) any specific technology.
The Department invites comments from interested persons on all facets of the proposed alternative method for disclosure through electronic media—
As discussed earlier in this document, Executive Order 13847 called on the Department to explore not only reducing burdens and costs associated with ERISA disclosures, in particular through the use of electronic media, but also enhancing the effectiveness of ERISA's disclosures for participants and beneficiaries. The Department is confident that the electronic delivery safe harbor proposed in 29 CFR 2520.104b-31 would, without more, substantially respond to both prongs of the Executive Order, including the directive pertaining to improving the effectiveness of plan disclosures. As discussed in the Regulatory Impact Analysis section of this document, a notice and access framework has the potential to significantly reduce plan costs. A notice and access framework also facilitates, among other things, interactivity, just-in-time notifications, layered or nested information, word and number searching, engagement monitoring, anytime or anywhere access, and potentially improved visuals, tutorials, assistive technology for those with disabilities, and translation software. These features may be used to improve participants' and beneficiaries' disclosure experiences.
Nevertheless, pursuant to the Executive Order's directive pertaining to improving the effectiveness of plan disclosures, the Request for Information solicits information, data, and ideas on additional measures (beyond the electronic delivery safe harbor proposed in 29 CFR 2520.104b-31) the Department could take in the future (either as part of finalizing the proposal in this document, or a separate regulatory or appropriate guidance initiative) to improve the effectiveness of ERISA disclosures, especially with respect to design and content of ERISA disclosures. To foster consideration of these issues, the Department sets forth below a number of questions for consideration. Commenters need not answer every question, but should identify by number the questions that are addressed. Although the rule, as proposed in this document, does not include employee welfare benefit plans, commenters should feel free, as relevant, to respond to these questions for both pension and welfare benefit plans. Commenters also are encouraged to address any other matters they believe to be relevant to the effectiveness of ERISA disclosures and, when relevant, to submit samples or
1. What is the best way to measure the effectiveness of a disclosure? Should participant engagement or attentiveness to plan affairs be a measure of the effectiveness of mandated disclosures? If so, how can the Department have the most meaningful impact on engagement through mandated disclosures? Are there factors other than design, delivery, and content that should be considered by the Department? Please direct the Department's attention to relevant research and evidence that illuminates how and to what degree plan disclosures can be made more effective, and how regulation (or deregulation) can best promote effective disclosure.
2. How do or could plan sponsors and administrators assess the use, effectiveness, and impact of disclosures? What are the findings of these assessments? What actions are taken in response to such assessments? Should assessments and responses be required by regulation, either together with or as an alternative to prescriptive standards for disclosures?
3. Please identify any currently mandated routine retirement plan disclosures for which effectiveness and efficiency could be improved and set forth recommendations for improvement. Please explain why the particular disclosure needs improvement.
4. Would more personalized disclosure enhance engagement? If so, how?
5. Are there ways through regulation or appropriate sub-regulatory guidance to require, incentivize, or facilitate plan administrators to organize information within the required disclosures to reflect life events so that information is available as the need arises?
6. Some people have indicated that at least some ERISA documents may be too voluminous, complex, or both. These individuals highlight a need to strike a balance between providing too little information for participants to gain an adequate understanding of what the disclosure is trying to convey and providing too much information, which can become overwhelming and confusing. Please identify each ERISA document in these categories.
7. With respect to each document identified in the previous question, state whether the Department should encourage or require, as an alternative to furnishing the entire document, that the plan administrator furnish a brief, clear, and accurate summary of key information from the document, for example not to exceed one or two pages, coupled with access to more detailed information online, on request, or both. Also identify what should be considered “key” for this purpose. To illustrate this concept, readers are directed to the 2017 ERISA Advisory Council Report.
8. Does ERISA require disclosure of any information that has become obsolete, for example as a result of the passage of time or changes in the regulatory, business, or technological environment? If so, what information? Is there information that would be important to disclose instead of the obsolete information?
9. Is there redundant or inconsistent information disclosed to participants under current rules? If so, which information?
10. Is the problem that there are too many disclosures, or that there is too much information that is disclosed, or both? Would it be feasible, and advisable, to condense and streamline information into fewer disclosures or less voluminous disclosures, rather than eliminating disclosure of certain information?
11. To what degree does the design of disclosures (as opposed to their content) impact the likelihood that participants will read and understand the information disclosed? Are there design elements or tools that are particularly effective? For example, should certain information be presented in a question-and-answer (Q&A) format? Are larger font sizes, greater use of white spaces, colors, or visuals, or the use of audio or video potentially helpful? Would it be appropriate for the Department to require particular design elements for all plans (
12. Are there additional or better standards for improving the readability of the content in disclosures than the Department's general standard—
13. How can the Department best assess the views of plan participants themselves on the frequency, content, design, delivery, and other aspects of ERISA disclosures? Although commenters who represent plan participants are well positioned to evaluate participants' understanding of, and opinions on, ERISA disclosures, would the Department be better served by supplementing these commenters' point of view with feedback from individuals directly? If so, what would be an effective approach (
14. Do the timing requirements for various ERISA disclosures increase or decrease the likelihood that participants will pay attention to them? Should the Department consider changing when information is disclosed to participants and, if so, how? Explain how such changes would enhance the likelihood that participants would pay attention to the disclosure or disclosures or otherwise improve the disclosure experience.
15. Discuss the role of education in assisting participants and beneficiaries with the often technical and complex subject matter of ERISA disclosures, including investing generally. Should the Department take additional steps or provide further guidance with respect to participant education and, if so, what steps? How would this improve participants' receipt, understanding, or use of information required to be disclosed? What could or should the Department do to increase engagement on the part of ERISA plan participants?
16. Well-designed plan websites or internet-connected apps may benefit plan participants by effectively communicating plan information, including by adopting features not possible with paper, such as interactive videos, calculators, and layered design. What common features have plan administrators adopted in their websites or apps that are effective in communicating plan information to participants and attracting participants to engage in activity with their plan accounts online? What are the benefits of these features, and how do they achieve them? Should any such features be required by regulation?
17. As discussed in the regulatory impact analysis (RIA), well-designed plan websites and apps may also be used to provide effective communication of plan information to certain vulnerable populations, such as the visually impaired and non-native English speakers, by adding voice-reader and translation features. How do plan websites and apps currently use these features and how effective are they in enhancing the presentation and use of covered documents by participants with special needs?
18. Some plan sponsors and participants have expressed concerns about cybersecurity and privacy when participants access sensitive plan information and engage in financial activity online. To protect against these concerns, how do plan administrators
19. Some literature suggests that participants find that different documents are presented more effectively in different mediums. For example, some participants prefer to receive certain covered documents on paper while other types of covered documents are preferred to be received electronically. What, if any, types of covered disclosures do plans and participants perceive to be more effectively communicated in print (
20. In the RIA for this proposal, the Department estimates that plans will benefit from substantial cost savings by distributing more covered documents electronically. How and to what extent do plans share these cost savings with plan participants?
21. Are there steps the Department could take to better coordinate disclosures required under ERISA and notices required under the Code?
Executive Orders 12866
Under Executive Order 12866, “significant” regulatory actions are subject to review by the Office of Management and Budget (OMB). Section 3(f) of the Executive Order defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any one year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Department anticipates that this proposed regulatory action would likely have economic impacts of $100 million or more in any one year, and therefore meets the definition of an “economically significant rule” within the meaning of section 3(f)(1) of the Executive Order 12866. Therefore, the Department has provided an assessment of the potential benefits, costs, and transfers associated with this proposed rule. In accordance with the provisions of Executive Order 12866, this proposed rule was reviewed by OMB.
Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. This proposed rule is expected to be an E.O. 13771 deregulatory action, because it would provide pension benefit plans subject to ERISA with an alternative safe harbor to use electronic media to provide required disclosures to participants and beneficiaries thereby reducing the printing, material, and postage costs associated with providing printed disclosures by mail. Details on the estimated net cost savings of this proposed rule can be found below.
Technology has changed substantially since the establishment of the 2002 safe harbor,
Moreover, as technological capabilities and access to and use of the internet has increased, other government agencies have issued rules encouraging wider use of electronic disclosure. For example, the Social Security Administration no longer sends paper statements to workers; rather, workers generally must register on the Administration's website for a “
In addition, on October 20, 2006, the Treasury and the IRS published 26 CFR 1.401(a)-21, setting forth standards for electronic systems that make use of an electronic medium to provide a notice to a recipient or to make a participant election or consent, generally with respect to a retirement plan, an employee benefit arrangement, or an individual retirement plan.
The ERISA Advisory Council in prior years has made multiple recommendations regarding improvements to the 2002 safe harbor. Most recently, in its November 2017 report, the Advisory Council recommended that to ease burdens on plans and improve understandability for participants, an ideal disclosure protocol would implement both paper and electronic delivery.
As discussed earlier in this preamble, in Executive Order 13847 dated August 31, 2018,
Responding to the mandate in Executive Order 13847, recommendations by the ERISA Advisory Council and GAO, and widespread use of the internet, computers, and mobile devices, as discussed in detail in Section B, above, the Department is proposing an alternative method for disclosure through electronic media in addition to the Department's current safe harbor for electronic delivery, which also would remain available. According to the Private Pension Plan Bulletin, there exist approximately 702,000 private retirement plans with over 136 million participants in 2016.
The Department expects that the proposed rule would facilitate expanded use of electronic technologies when providing covered disclosures to participants and beneficiaries, which will produce cost savings for plan sponsors by eliminating materials, printing, and mailing costs associated with furnishing printed disclosures.
The Department estimates that plans currently incur approximately $355 million annually to furnish only seven selected disclosures such as SPDs by mail.
The Department's projections are based on the following assumptions: (i) The number of participants will grow at 0.7 percent per year,
Industry groups have published estimates of the costs plans incur to furnish covered documents by mail taking into account printing, material, and mailing costs. For example, a recent report submitted to the Department
• Reflecting practices under current rules, including the Department's 2002 safe harbor, the Department assumes that
• The Department assumes that in the first year about 18 percent of individuals that currently receive paper documents would opt out of e-delivery and continue to receive covered documents by mail.
• The Department estimated the cost savings disclosure by disclosure, assuming different percentages of plans and participants would receive different disclosures. Due to this methodology, it is difficult to directly compare the report's assumptions regarding the average number of notices participants receive annually.
• The Department assumes plans would incur one-time start-up costs to develop systems and notices required by the proposal and material, printing, and postage costs to mail the initial notice of internet availability and right to opt out. As shown in the cost savings table below, these one-time costs will significantly diminish over time and become negligible in the long-term.
The Department's cost savings estimates understate the potential savings generated from this proposed rule, because they account for cost savings that would be realized by eliminating materials, printing, and mailing costs associated with furnishing only seven selected disclosures, such as SPDs, even though the rule would be more broadly available for other pension disclosures as well.
The Department's cost savings estimate is derived from the methodology it uses to estimate costs associated with furnishing printed disclosures for information collections subject to the Paperwork Reduction Act. For this purpose, preparation costs generally include costs plans incur to develop the content and format of disclosures, while distribution costs generally include materials, printing,
While the Department expects the proposed rule to reduce costs associated with distributing covered disclosures by eliminating material, printing, and mailing costs, these cost reductions are partly offset by costs incurred by administrators to meet the new safe harbor's requirements to: (1) Furnish a notice of internet availability to covered individuals ((paragraph (d) of the proposal); (2) ensure the existence of an website at which a covered individual is able to access covered documents (paragraph (e) of the proposal); and (3) furnish an initial notification of default electronic delivery and right to opt out in paper to each person, before he or she becomes a covered individual (paragraph (g) of the proposal).
The Department assumes that plans will incur one-time start-up costs to develop systems and notices required by the proposal, which would include time for the plan's (or the plan service provider's) legal counsel to prepare and review the notices to ensure compliance with the proposed regulatory requirements. While the Department also assumes that the cost incurred by plans to distribute notices of internet availability would be negligible because they could be distributed electronically, the initial notification of default electronic delivery and right to opt out would impose material, printing, and postage costs on administrators, because they would be required to be furnished to covered individuals in a non-electronic format.
The initial notification and right to opt out is a one-time transitional notice that informs participants who are existing employees of changes in default delivery system to e-delivery.
Retirement plans will incur one-time costs to develop and design an initial notice. The proposed rule clearly describes the specific information required to be included in this notice; therefore, the Department expects the costs to develop and design the notice would be modest, approximately $39 million on aggregate assuming all retirement plans decide to rely on this proposed alternative.
Paragraph (e) of the proposed rule would require administrators to ensure the existence of a website at which plan participants can access covered disclosures. The Department understands that very modest one-time costs would be incurred to comply with this condition of the proposed safe harbor. This is based on the Department's assumption that nearly all plans have institutional recordkeepers, third-party administrators, trustees, or investment providers that have compliant or easily adaptable platforms that most plans would rely on for compliance. The Department acknowledges that a small fraction of plans without institutional recordkeepers, third-party administrators, or investment providers may incur costs to develop or modify their websites. The Department is concerned that, while most small plans use bundled service providers that maintain highly functional websites, those few small plans that do not are less likely than larger plans to have their own websites, and, thus, are more likely to bear the cost burden associated with this requirement. The Department, however, does not have sufficient data to estimate such costs. The Department solicits comments regarding the fraction of plans, particularly the fraction of small plans, that would need to develop or modify a website in order to rely on this proposed safe harbor rule, and how the burden on small plans can be minimized while encouraging plans to furnish disclosures electronically.
Paragraph (f)(4) of the proposal requires plan administrators to take certain actions if they are alerted that a covered individual's electronic address has become invalid or inoperable, such as if a notice of internet availability sent to that address is returned as undeliverable. In such circumstances, the administrator must (1) promptly take reasonable steps to cure the problem (for example, by furnishing a notice of internet availability to the covered individual's secondary electronic address that is valid and operable, if available, or obtaining a new valid and operable electronic address for the covered individual), or (2) treat the covered individual as if he or she made an election to opt out of electronic disclosure under paragraph (f)(2) of the proposal. If the covered individual is treated as if he or she opted out, the plan administrator must furnish to the covered individual, as soon as is reasonably practicable, a paper version of the covered document identified in the undelivered notice of internet availability. To satisfy this requirement, plan administrators would incur costs associated with detecting invalid or inoperable electronic addresses, taking appropriate actions to remedy the problem, and/or treating those covered individuals as if they opted out of electronic disclosure and furnishing covered documents to them via mail.
Some plan administrators would incur costs to purchase software to detect the validity and operability of electronic addresses due to this requirement. The Department believes, however, that most plan administrators already have such features built into their electronic delivery systems. The Department assumes that a small fraction, approximately one percent, of plans currently do not have such features built in to their systems, and thus, would incur costs to purchase software to allow them to verify whether electronic notices are delivered, bounced back, opened, and clicked through.
Plan administrators also would incur costs to remedy failed delivery of internet availability notices. The Department assumes that before mailing out covered documents to the recipients of an undelivered notice of internet availability, plan administrators would choose the option of resolving issues that are relatively easier to fix such as attempting to redeliver bounced emails or reaching out to covered employees to obtain updated electronic addresses. However, it may be difficult for plan administrators to remedy failed delivery for certain covered individuals, such as those who have separated from service. Plan administrators consequently are likely to treat at least some such covered individuals as opting out of electronic delivery. Although the Department acknowledges that plan administrators would spend time attempting to correct failed delivery as provided in paragraph (f)(4) of the proposal, it does not have sufficient data to quantify associated costs. The Department, however, assumes that plan administrators always would select the least costly and most efficient option. Therefore, if obtaining updated electronic addresses were too burdensome, the Department assumes that the plans would furnish covered documents identified in the undelivered notice of internet availability to those participants by mail.
For purposes of this regulatory impact analysis, the Department assumes that this requirement would increase the global out-out rate by 0.5 percentage points relative to what it otherwise have been in each year as plans furnish covered disclosures by mail to covered individuals with invalid or inoperable electronic addresses.
This proposed rule would provide a comprehensive alternative to the 2002 safe harbor, such that all participants and beneficiaries may be easily covered. Although some plan sponsors currently using the 2002 safe harbor may prefer to switch entirely to the proposed alternative, the Department assumes that most will maintain their existing systems and use the proposed rule to cover individuals that fall outside of the existing safe harbor.
The Department's estimates of the net cost savings from the proposed regulations are summarized below.
The estimated cost savings of each covered disclosure, $289 million for the first year, in the Table reflect the Department's assumption that approximately 81.5 percent of participants who currently receive paper copies of covered documents by mail would receive covered documents electronically under the proposed rule, while 18.5 percent would elect to receive such documents by mail.
Although overall 82 percent of U.S. households had access to the internet at home in 2016, the data indicate that the following persons have lower rates of internet-access at home: Limited English-speaking households (63%), households with income less than $25,000 (59%), households where the head of the household is age 65 or older (68%), black households (73%), households in nonmetropolitan areas of the South (69%), and households where the head of the household obtained a high school diploma or less (56%).
Another subpopulation worth noting is households connected to the internet only through smartphones. Racial/ethnic minorities and low-income households are more likely to comprise these smartphone-only households.
For participants without ready internet access, this proposed rule may create additional impediments to accessing critical plan information by requiring them to go to a public library or family members' home to access the information if they do not opt out or request printed documents. As stated earlier in this preamble, the proposed rule would require covered individuals to receive a notice of internet availability containing statements regarding their rights to (1) request and obtain a paper version of the covered document, free of charge, and receive an explanation of how to exercise this right, and (2) opt out of receiving all covered documents electronically and an explanation of how to exercise this right. One of the Department's goals in establishing the proposed framework was to be certain that, regardless of the delivery method chosen by a plan administrator, covered individuals who wish to receive paper copies of covered documents would be able to do so without undue burden. Further, a covered individual who prefers to receive all covered documents in paper may opt out of receiving any covered documents electronically. This global opt-out provision enables a participant who wants to have all of her disclosures in paper, without having to make repeated requests, to elect to do so; she will receive all covered documents in paper.
If covered individuals in groups with low internet-access rates fail to request hard copies of disclosures or exercise their opt-out rights due to inertia or if they face impediments to accessing the covered documents on the internet (if, for example, they forget their password that must be entered when the plan's internet address takes them to a login page), the negative impacts imposed on these individuals would offset some benefits of this proposed regulation. The Department does not have sufficient data to quantify these negative impacts, which most likely would be borne disproportionately by demographics such as the low-income, the elderly, and workers in rural areas. If these unintended consequences were to occur, plan administrators might take steps to limit their impact, such as conducting outreach with these demographics and communicate their plan's electronic disclosure policy effectively, providing sufficient time for participant education before implementing any electronic disclosure changes, and employing simple processes for requesting print documents, opting out of electronic disclosure, and establishing and resetting passwords. Such steps might help ensure that the cost savings discussed above would be realized without unduly burdening vulnerable subpopulation groups.
Another potential negative impact is that covered individuals' confidential information could be intentionally or unintentionally breached due to increased use of electronic media to furnish covered documents to them. Paragraph (e)(3) of the proposal requires the administrator to take measures reasonably calculated to ensure that the website protects the confidentiality of personal information relating to any covered individual. As generally required by ERISA section 404, the Department expects that many administrators, or their service or investment providers, already have secure systems in place to protect covered individuals' personal information, which should reduce the possibility that confidentiality breaches would occur.
Although this proposed regulation generally would not require plan sponsors to develop formats or content beyond that which satisfies disclosure requirements in printed form, some plan sponsors may elect to develop new formats and content for electronic disclosures. Such formats may include interactive interfaces that involve hot-links and/or multimedia presentations, all of which could improve the quality and accessibility of information for participants. Furthermore, for defined contribution plans, the account information is available to participants continuously and updated in real-time, which allows them to effectively manage their accounts. Using assistive technology such as screen readers, some electronic disclosures could be read to the visually impaired, thus making disclosures more accessible to a wide participant population. Some technology features, such as online translation, also could enhance the ability of covered individuals with limited English proficiency to understand their disclosures, which would assist their decision-making process. Some plans may create apps with interactive features that will allow participants to navigate with ease and conduct account transactions. Although the Department does not have sufficient data to quantify these benefits, it underscores that effective design using currently available technology could make disclosures more accessible and relevant to recipients. The Department solicits comments about how to improve the effectiveness of ERISA disclosures, particularly by incorporating recent technological features in the companion Request for Information.
In conformance with Executive Order 12866, the Department considered several regulatory approaches in developing this proposed rule, which are discussed below.
As discussed earlier in section (B)(2)(ii) of this document, while the Department considered including welfare benefit plan disclosures in the proposal, it has concluded not to include them. Therefore, paragraph (c)(2) of the proposed rule currently is reserved so that the Department can study the future application of the new safe harbor to documents that must be furnished to participants in employee welfare benefit plans. This reservation follows the directive of Executive Order 13847, which focuses the Department's review on retirement plan disclosures.
Although the Department does not interpret the Order's directive as limiting the Department's ability to take action with respect to employee welfare benefit plans, especially to the extent similar policy goals, including the reduction of plan administrative costs and improvement of disclosures' effectiveness, may be achieved, this proposal is limited to retirement plan disclosures.
Welfare plan disclosures, such as group health plan disclosures, may raise different considerations, such as pre-service claims review and access to emergency and urgent health care. Moreover, the Department shares interpretive jurisdiction over many group health plan disclosures with the Treasury Department and the Department of Health and Human Services. In considering any possible new electronic delivery safe harbor for group health plan disclosures in the future, the Department would want to consult with these other Departments. Accordingly, focusing its attention first
Executive Order 13847 directed the Department to coordinate with the Treasury Department in exploring the potential for broader use of electronic delivery as a way to improve the effectiveness of disclosures and to reduce their associated costs and burdens. Following discussions with Treasury staff, the Department considered as one of its regulatory alternatives adopting an approach similar to 26 CFR 1.401(a)-21 relating to the use of an electronic medium for disclosures.
The Department also consulted with other relevant regulators, including the Securities and Exchange Commission. The Department's proposed approach, discussed in Section B above, resembles the “notice and access” approach taken by the Securities and Exchange Commission for certain investor disclosures.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)). This helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Currently, the Department is soliciting comments concerning the proposed information collection requests (ICR) incorporated in the proposed rule relating to use of electronic communication by employee benefit plans. A copy of the ICR may be obtained by contacting the PRA addressee shown below or at
The Department has submitted a copy of the proposed information collection to the Office of Management and Budget (OMB) in accordance with 44 U.S.C. 3507(d) for review of its information collections. The Department and OMB are particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Attention: Desk Officer for the Employee Benefits Security Administration. OMB requests that comments be received within 30 days of publication of the proposed ICR to ensure their consideration.
As discussed above, the proposed regulation would create two new information collections that are subject to the PRA: The annual notice of internet availability (§ 2520.104b-31(d)(2)) and the initial notification (§ 2520.104b-31(g)). These information collections are discussed below. Also, as discussed below, the proposed rule also would reduce costs for some of the Department's existing information collections.
The Department is unaware of any data source that would directly identify the number of plans that will decide to use the proposed new alternative safe harbor. Therefore, for purposes of this analysis, the Department conservatively assumes that all plans will use the proposed alternative safe harbor for at least some of their covered individuals. As discussed in the Cost Saving section above, the Department has estimated that plans using the proposed new safe harbor would incur a one-time start-up cost to prepare the annual notice of internet availability, and prepare and distribute by paper the initial notification. The proposed rule's impact on the hour and cost burden associated with the Department's information collections are discussed below.
The expiration date for this information collection is May 31, 2021.
As discussed earlier in this preamble, on April 9, 2002, the Department published a notice of final rulemaking on electronic disclosure and recordkeeping issues
Before consenting, the plan administrator must provide a participant or beneficiary with a clear and conspicuous statement indicating: The types of documents to which the consent would apply; that consent may be withdrawn at any time; the procedures for withdrawing consent and updating necessary information; the right to obtain a paper copy, free of charge; and any hardware and software requirements.
The Department is proposing to revise this information collection by adding the information collections that are associated with the alternative safe harbor in this proposal that are discussed above. This will increase the number of respondents for the information collection by 703,000, the responses by 109,756,000, the hour burden by 1,189, and the cost burden by $40,412.
Although the foregoing discussion pertains to the information collections contained in the existing safe harbor and proposed alternative new safe harbor, the Department's burden estimates for several existing information collections that are covered disclosures also would be affected by the proposal. Specifically, as a result of meeting the conditions of this existing and proposed new alternative safe harbors, the burden associated with the following existing covered disclosures that are information collections covered by the PRA would be reduced: The SPD, the SMM, the SAR, the annual funding notice, disclosures for participant directed individual account plans under ERISA section 404(a)(5), and the QDIA notice. The burden reductions resulting from a wider adoption of electronic delivery of covered disclosures that would be facilitated by this proposed regulation are estimated based upon cost and hour burdens for the Department's existing ICRs for the covered disclosures as adjusted for the number of plan and participants assumed to rely on the proposed rule to send and receive the covered disclosures electronically. The Department discusses these ICRs and its revised estimates below. The Department has submitted the revised information collections for these covered disclosures to OMB for review in accordance with 44 U.S.C. 3507(d).
The Department estimates that due to plan administrators' use of the proposed alternative safe harbor to provide disclosures to participants who currently are receiving them by mail, the hour burden will be reduced by 125,000 and the cost burden by $90,969,000.
The Department estimates that due to plan administrators' use of the proposed alternative safe harbor to provide disclosures to participants who currently are receiving them by mail, the cost burden will be reduced by $23, 132,000.
The Department estimates that due to plan administrators' use of the proposed alternative safe harbor to provide disclosures to participants who currently are receiving them by mail, the cost burden will be reduced by $12,676,000.
The Department estimates that due to plan administrators' use of the proposed alternative safe harbor to provide disclosures to participants who currently are receiving them by mail, the cost burden will be reduced by $42,307,000.
The Pension Protection Act (PPA), Public Law 109-280, amended ERISA section 404(c) by adding subparagraph (c)(5)(A). The new subparagraph says that a participant in an individual account plan who fails to make investment elections regarding his or her account assets will nevertheless be treated as having exercised control over those assets so long as the plan provides appropriate notice (as specified) and invests the assets “in accordance with regulations prescribed by the Secretary [of Labor].” Section 404(c)(5)(A) further requires the Department of Labor (Department) to issue corresponding final regulations within six months after enactment of the PPA. The PPA was signed into law on August 17, 2006. The Department of Labor issued a final regulation under ERISA section 404(c)(5)(A) offering guidance on the types of investment vehicles that plans may choose as their “qualified default investment alternative” (QDIA). The regulation also outlines two information collections. First, it implements the statutory requirement that plans provide annual notices to participants and beneficiaries whose account assets could be invested in a QDIA. Second, the regulation requires plans to pass certain pertinent materials they receive relating to a QDIA to those participants and beneficiaries with assets invested in
The Department estimates that due to plan administrators' use of the proposed alternative safe harbor to provide disclosures to participants who currently are receiving them by mail, the cost burden will be reduced by $8,117,000.
The Regulatory Flexibility Act (5 U.S.C. 601
For purposes of analysis under the RFA, the Employee Benefits Security Administration (EBSA) continues to consider a small entity to be an employee benefit plan with fewer than 100 participants.
Further, while some large employers may have small plans, in general small employers maintain most small plans. Thus, EBSA believes that assessing the impact of this proposed rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business that is based on size standards promulgated by the Small Business Administration (SBA) (13 CFR 121.201) pursuant to the Small Business Act (15 U.S.C. 631
The Department has determined that this proposed rule is likely to have a significant impact on a substantial number of small entities based on the definition considered appropriate by EBSA as based on section 104(a)(2) of ERISA, as an employee benefit plan with fewer than 100 participants. Therefore, the Department provides its IRFA of the proposed rule, below.
Pursuant to section 505 of ERISA, the Secretary of Labor has broad authority “to prescribe such regulations as he finds necessary or appropriate to carry out the provisions of [Title I] of ERISA.” As discussed earlier in this preamble, the proposed rule offers a voluntary alternative method to broaden the use of electronic delivery of disclosures and, thus, would reduce the costs and burdens that disclosures impose on employers and other plan fiduciaries responsible for their production and distribution. By reducing printing and mailing costs of covered disclosures, the proposed rule would benefit plans regardless of the size, large and small. Thus, the Department intends and expects that the proposed rule would deliver benefits to the participants of many small plans and their families, as well as many small plans themselves.
The majority of private retirement plans are small plans with fewer than 100 participants. The 2016 Form 5500 filings show out of total 702,000 private retirement plans approximately 87 percent, 613,000 ERISA-covered retirement plans were small plans with fewer than 100 participants
As discussed above, by broadening a base of participants who access covered disclosures online, the proposed rule would yield cost savings to retirement plans including small plans. These cost savings could in turn be used to defray other plan-related expenses, and thus lower the overall fees charged to participants. In addition, although not required by the proposed rule, disclosures that effectively use modern technology features can better assist participants with disabilities or limited English skills to understand the content of disclosures, which will allow them to better manage their plan accounts. Both large and small plans would benefit from the cost savings and other benefits that result from wider use of e-disclosure.
As discussed in the preamble, this proposed rule is a voluntary safe harbor. Therefore, plan administrators would not be required to make any specific disclosures available on a website. This proposed rule would simply provide an additional method for plan administrators to deliver covered disclosures to participants and beneficiaries electronically and would not change any underlying reporting, disclosure and recordkeeping compliance requirements of plans under ERISA. Therefore, the Department does not believe this proposed rule would impose any additional reporting and recordkeeping compliance requirements on small entities.
The proposed rule would provide retirement plans with an alternative method to furnish covered disclosures electronically. In an effort to assess how to best disseminate information electronically to workers participating in employee benefit plans without duplicating or overlapping other relevant regulatory requirements, the Department consulted with other relevant regulators, including the Treasury Department and the Securities
The RFA directs the Department to consider significant alternatives that would accomplish the stated objective, while minimizing any significant adverse impact on small entities. As discussed above, the Department expects that this proposed rule, as currently drafted, would generate significant cost savings for small plans as well as large plans by eliminating materials, printing and mailing costs.
The Department considered an option to relax the notice of internet availability by emailing the combined notice of internet availability less frequently than on an annual basis. One of the disclosures that can be included in the combined annual notice of internet availability is a Pension Benefit Statement. This pension benefit statement is required to be furnished on a quarterly basis for certain types of plans. If the combined annual notice of internet availability is to be sent less frequently than an annual basis, for example, every other year, some participants may not know their benefit statements are available online, and thus not access them for an extended period of time. In the Department's view, this can have detrimental impacts on participants' retirement savings, while resulting in only minimal cost savings. Therefore, the Department determines that the current proposal is a more balanced approach that provides sufficient protection for participants while generating substantial cost savings. The Department further determines that this current approach does not impose any undue burden on small plans nor place small plans in disadvantaged positions.
The proposed rule is subject to the Congressional Review Act (CRA) provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. For purposes of the Unfunded Mandates Reform Act, as well as Executive Order 12875, this proposal would not include any Federal mandate that the Department expects would result in such expenditures by State, local, or tribal governments, or the private sector. This is because the proposal merely would provide an alternative safe harbor for pension benefit plans subject to the ERISA to use electronic media to furnish required disclosures to participants and beneficiaries.
Executive Order 13132 outlines fundamental principles of federalism. E.O. 13132 requires Federal agencies to follow specific criteria in forming and implementing policies that have “substantial direct effects” on the States, the relationship between the national Government and States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies promulgating regulations that have federalism implications must consult with State and local officials and describe the extent of their consultation and the nature of the concerns of State and local officials in the preamble to the final rule.
In the Department's view, these proposed regulations would not have federalism implications because they would have not have a direct effect on the States, the relationship between the national Government and the States, and on the distribution of power and responsibilities among various levels of government. The Department welcomes input from affected States and other interested parties regarding this assessment.
Employee benefit plans, Pensions.
For the reasons stated in the preamble, the Department of Labor proposes to amend 29 CFR part 2520 as follows:
29 U.S.C. 1021-1025, 1027, 1029-1031, 1059, 1134 and 1135; and Secretary of Labor's Order 1-2011 77 FR 1088 (Jan. 9, 2012). Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.102-3, 2520.104b-1 and 2520.104b-3 also issued under 29 U.S.C. 1003, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.104b-1 and 2520.107 also issued under 26 U.S.C. 401 note, 111 Stat. 788. Sec. 2520.101-5 also issued under sec. 501 of Pub. L. 109-280, 120 Stat. 780, and sec. 105(a), Pub. L. 110-458, 122 Stat. 5092.
(a)
(b)
(c)
(1)
(2) [Reserved]
(d)
(2)
(3)
(i) A prominent statement, for example as a title, legend, or subject line that reads, “Disclosure About Your Retirement Plan.”
(ii) A statement that: “Important information about your retirement plan is available at the website address below. Please review this information.”
(iii) A brief description of the covered document.
(iv) The internet website address where the covered document is available. The website address must be sufficiently specific to provide ready access to the covered document. A website address satisfies the standard in the preceding sentence if the address leads the covered individual directly to the covered document. A website address also satisfies the “sufficiently specific” standard if the address leads the covered individual to a login page that provides, or immediately after a covered individual logs on provides, a prominent link to the covered document.
(v) A statement of the right to request and obtain a paper version of the covered document, free of charge, and an explanation of how to exercise this right.
(vi) A statement of the right to opt out of receiving covered documents electronically, and an explanation of how to exercise this right.
(vii) A telephone number to contact the administrator or other designated representative of the plan.
(4)
(i) Be furnished electronically to the address referred to in paragraph (b) of this section;
(ii) Contain only the content specified in paragraph (d)(3) of this section, except that the administrator may include pictures, logos, or similar design elements, so long as the design is not inaccurate or misleading and the required content is clear;
(iii) Be furnished separately from any other documents or disclosures furnished to covered individuals, except as permitted under paragraph (i) of this section; and
(iv) Be written in a manner calculated to be understood by the average plan participant. A notice that uses short sentences without double negatives, everyday words rather than technical and legal terminology, active voice, and language that results in a Flesch Reading Ease test score of at least 60 satisfies the understandability standard in the preceding sentence.
(e)
(2) The administrator must take measures reasonably calculated to ensure that:
(i) The covered document is available on the website no later than the date on which the covered document must be furnished under the Act;
(ii) The covered document remains available on the website until it is superseded by a subsequent version of the covered document;
(iii) The covered document is presented on the website in a manner calculated to be understood by the average plan participant;
(iv) The covered document is presented on the website in a widely-available format or formats that are suitable to be both read online and printed clearly on paper;
(v) The covered document can be searched electronically by numbers, letters, or words; and
(vi) The covered document is presented on the website in a widely-available format or formats that allow the covered document to be permanently retained in an electronic format that satisfies the requirements of paragraph (e)(2)(iv) of this section.
(3) The administrator must take measures reasonably calculated to ensure that the website protects the confidentiality of personal information relating to any covered individual.
(f)
(2) Covered individuals must have the right to opt out of electronic delivery and receive only paper versions of some or all covered documents. Upon request from a covered individual, the administrator must promptly comply with such an election.
(3) The administrator must establish and maintain reasonable procedures governing requests or elections under paragraphs (f)(1) and (2) of this section. The procedures are not reasonable if they contain any provision, or are administered in a way, that unduly inhibits or hampers the initiation or processing of a request or election.
(4) The system for furnishing a notice of internet availability must be designed to alert the administrator of a covered individual's invalid or inoperable electronic address. If the administrator is alerted that a covered individual's electronic address has become invalid or inoperable, such as if a notice of internet availability sent to that address is returned as undeliverable, the administrator must promptly take reasonable steps to cure the problem (for example, by furnishing a notice of internet availability to the covered individual's secondary electronic address that is valid and operable, if available, or obtaining a new valid and operable electronic address for the covered individual) or treat the covered individual as if he or she made an election under paragraph (f)(2) of this section. If the covered individual is treated as if he or she made an election under paragraph (f)(2) of this section, the administrator must furnish to the covered individual, as soon as is reasonably practicable, a paper version of the covered document identified in the undelivered notice of internet availability.
(g)
(h)
(i)
(1) A summary plan description, as required pursuant to section 104(a) of the Act;
(2) A summary of material modification, as required pursuant to section 104(a) of the Act;
(3) A summary annual report, as required pursuant to section 104(b)(3) of the Act;
(4) An annual funding notice, as required pursuant to section 101(f) of the Act;
(5) An investment-related disclosure, as required pursuant to 29 CFR 2550.404a-5(d);
(6) A qualified default investment alternative notice, as required pursuant to section 404(c)(5)(B) of the Act; and
(7) A pension benefit statement, as required pursuant to section 105(a) of the Act.
(j)
(1) The administrator has reasonable procedures in place to ensure that the covered documents are available in the manner required by this section; and
(2) The administrator takes prompt action to ensure that the covered documents become available in the manner required by this section as soon as practicable following the earlier of the time at which the administrator knows or reasonably should know that the covered documents are temporarily unavailable in the manner required by this section.
(k)
(2)