Animal and Plant Health Inspection Service
Federal Crop Insurance Corporation
Forest Service
National Agricultural Statistics Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Drug Enforcement Administration
Justice Programs Office
Workers Compensation Programs Office
Federal Aviation Administration
Federal Railroad Administration
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Federal Crop Insurance Corporation, USDA.
Final rule with request for comments.
The Federal Crop Insurance Corporation (FCIC) amends the Common Crop Insurance Regulations, Rice Crop Insurance Provisions (Crop Provisions). The intended effect of this action is to allow for new irrigation methods and change the cancellation and termination dates in certain states to align with other row crops to implement the changes contained in the Agriculture Improvement Act of 2018 (commonly referred to as the 2018 Farm Bill). The changes will be effective for the 2020 and succeeding crop years.
We invite you to submit comments on this rule. In your comments, include the date, volume, and page number of this issue of the
•
•
All comments received, including those received by mail, will be posted without change and publicly available on
Francie Tolle; telephone (816) 926-7829; email
The FCIC serves America's agricultural producers through effective, market-based risk management tools to strengthen the economic stability of agricultural producers and rural communities. FCIC is committed to increasing the availability and effectiveness of Federal crop insurance as a risk management tool. Approved Insurance Providers (AIP) sell and service Federal crop insurance policies in every state and in Puerto Rico through a public-private partnership. FCIC reinsures the AIPs who share the risks associated with catastrophic losses due to major weather events. FCIC's vision is to secure the future of agriculture by providing world class risk management tools to rural America.
Federal crop insurance policies typically consist of the Basic Provisions, the Crop Provisions, the Special Provisions, the Commodity Exchange Price Provisions, if applicable, other applicable endorsements or options, the actuarial documents for the insured agricultural commodity, the Catastrophic Risk Protection Endorsement, if applicable, and the applicable regulations published in 7 CFR chapter IV.
FCIC amends the Common Crop Insurance Regulations (7 CFR part 457) by revising 7 CFR 457.141 Rice Crop Insurance Provisions to implement the changes contained in the 2018 Farm Bill (Pub. L. 115-334) to be effective for the 2020 and succeeding crop years. The 2018 Farm Bill requires that FCIC research and develop an insurance product that provides coverage to alternative irrigation practices for rice; specifically, intermittent flooding and furrow irrigation practices.
The changes to 7 CFR 457.141 Rice Crop Insurance Provisions are as follows:
1. Section 5—FCIC is adding an additional cancellation and termination date of March 15 for Illinois and Missouri. This change is needed to make the dates consistent with other row crops in these states.
2. Section 6—FCIC is revising section 6(c) to allow additional irrigation methods to be specified in the Special Provisions. In the past, rice has traditionally been grown under flood irrigation, whereby an entire field is continuously flooded during the entire growing season and not drained until preparations for harvest. Currently, only continuously-flooded rice is covered under the Rice Crop Provisions.
The intermittent flood irrigation and furrow irrigation methods are desirable alternatives to continuous flood irrigation because they produce a similar yield to continuously flooded fields while using less water and lowering greenhouse gas emissions.
Intermittent flood irrigation is a method of crop irrigation, also known as alternate wetting and drying (AWD), that allows flood irrigation water within a field to subside naturally (dry down) during rice growth and development before the rice field is reflooded.
Furrow irrigation is a method of crop irrigation in which furrows are created to convey water down the field; capacity and equipment must be able to apply water uniformly across the crown of the field to assure water delivery to all rice plants in the field.
These alternative irrigation methods will offer existing rice growers flexibility to choose the most appropriate irrigation method for their farming operation, while maintaining crop insurance eligibility. Crop insurance is an important component of many farming operations to manage financial risks and is often required by lending institutions to receive an operating loan.
In general, the Administrative Procedure Act (APA, 5 U.S.C. 553) requires that a notice of proposed rulemaking be published in the
The Office of Management and Budget (OMB) designated this rule as not major under the Congressional Review Act, as defined by 5 U.S.C. 804(2). Therefore, FCIC is not required to delay the effective date for 60 days from the date of publication to allow for Congressional review. Accordingly, this rule is effective November 30, 2019.
Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” established a federal policy to alleviate unnecessary regulatory burdens on the American people.
The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866, “Regulatory Planning and Review,” and therefore, OMB has not reviewed this rule.
Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” requires that in order to manage the private costs required to comply with Federal regulations that for every new significant or economically significant regulation issued, the new costs must be offset by the elimination of at least two prior regulations. As this rule is designated as not significant, it is not subject to Executive Order 13771.
Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this rule, we invite your comments on how to make the rule easier to understand. For example:
• Are the requirements in the rule clearly stated? Are the scope and intent of the rule clear?
• Does the rule contain technical language or jargon that is not clear?
• Is the material logically organized?
• Would changing the grouping or order of sections or adding headings make the rule easier to understand?
• Could we improve clarity by adding tables, lists, or diagrams?
• Would more, but shorter, sections be better? Are there specific sections that are too long or confusing?
• What else could we do to make the rule easier to understand?
The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by SBREFA, generally requires an agency to prepare a regulatory analysis of any rule whenever an agency is required by APA or any other law to publish a proposed rule, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is not subject to the Regulatory Flexibility Act because as noted above, this rule is exempt from APA and no other law requires that a proposed rule be published for this rulemaking initiative.
In general, the environmental impacts of rules are to be considered in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347) and the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508). FCIC conducts programs and activities that have been determined to have no individual or cumulative effect on the human environment. As specified in 7 CFR 1b.4, FCIC is categorically excluded from the preparation of an Environmental Analysis or Environmental Impact Statement unless the FCIC Manager (agency head) determines that an action may have a significant environmental effect. The FCIC Manager has determined this rule will not have a significant environmental effect. Therefore, FCIC will not prepare an environmental assessment or environmental impact statement for this action and this rule serves as documentation of the programmatic environmental compliance decision.
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. For reasons specified in the final rule related notice regarding 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities in this rule are excluded from the scope of Executive Order 12372.
This rule has been reviewed under Executive Order 12988, “Civil Justice Reform.” This rule will not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial actions may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 are to be exhausted.
This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, except as required by law. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.
This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
FCIC has assessed the impact of this rule on Indian Tribes and determined that this rule does not, to our knowledge, have Tribal implications that require Tribal consultation under E.O. 13175. The regulation changes do not have Tribal implications that preempt Tribal law and are not expected have a substantial direct effect on one or more Indian Tribes. If a Tribe requests consultation, FCIC will work with the USDA Office of Tribal Relations to ensure meaningful consultation is provided where changes and additions identified in this rule are not expressly mandated by the 2018 Farm Bill.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions of State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including cost benefits analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates, as defined in Title II of UMRA, for State, local, and Tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
The title and number of the Federal Domestic Assistance Program listed in the Catalog of Federal Domestic Assistance to which this rule applies is No. 10.450—Crop Insurance.
In accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, subchapter I), the rule does not change the information collection approved by OMB under control numbers 0563-0053.
FCIC is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Acreage allotments, Crop insurance, Reporting and recordkeeping requirements.
For the reasons discussed above, FCIC amends 7 CFR part 457, effective for the 2021 and succeeding crop years, as follows:
7 U.S.C. 1506(l) and 1506(o).
The revisions read as follows:
5. Cancellation and Termination Dates
6. Insured Crop.
(c) That is flood irrigated unless otherwise specified in the Special Provisions; and
Federal Crop Insurance Corporation, USDA.
Final rule; correcting amendment.
The Federal Crop Insurance Corporation is correcting a final rule that was published in the
Francie Tolle; telephone (816) 926-7730; email
This correction is being published to correct section 3(g)(3) of the Common Crop Insurance Policy Basic Provisions, published June 28, 2019 (84 FR 30857-30862). Section 3(g)(3) incorrectly references “section 34(c)(3).” The correct reference should be “section 34(b)(3)” and is being revised in this correction.
Acreage allotments, Crop insurance, Reporting and recordkeeping requirements.
Accordingly, 7 CFR part 457 is corrected by making the following amendments:
7 U.S.C. 1506(l) and 1506(o).
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the Swine Health Protection Act regulations by removing the State status lists from the regulations in order to maintain these lists on the Agency's website. These changes will allow us to use a notice-based, streamlined approach to update the lists while continuing to protect swine health in the United States.
Effective December 23, 2019.
Dr. Ross Free, Veterinary Services, APHIS, 920 Main Campus Dr. #200, Raleigh, NC 27606; email:
The Swine Health Protection Act (7 U.S.C. 3801
On June 20, 2019, we published in the
We solicited comments concerning our proposal for 60 days ending August 19, 2019. We received four comments by that date. They were from a national organization representing pork producers and members of the public. All responses were in favor of moving the State status lists in § 166.15 from the regulations to the APHIS website.
One commenter stated that we should ensure that information be made available in an alternative format for persons without online access.
In § 166.15(b), we note that for information concerning the feeding of garbage to swine, the public may contact the APHIS Area Veterinarian in Charge, the State animal health official, or Veterinary Services, 4700 River Road, Unit 37, Riverdale, MD 20737-1231.
Therefore, for the reasons given in the proposed rule, we are adopting the proposed rule as a final rule, without change.
This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the
In accordance with the Swine Health Protection Act (7 U.S.C. 3801
We are revising the regulations by moving the State status lists in § 166.15 from the regulations to the APHIS website. As a result of this move, any subsequent additions, deletions, and other changes to a State's status will be made using a notice-based process.
This final rule, while facilitating changes to the State status lists, is not expected to have an economic impact on hog and pig farms.
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
Pursuant to the Congressional Review Act (5 U.S.C. 801
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995
The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Mr. Joseph Moxey, APHIS' Information Collection Coordinator, at (301) 851-2483.
Animal diseases, Reporting and recordkeeping requirements, Swine.
Accordingly, we are amending 9 CFR part 166 as follows:
7 U.S.C. 3801-3813; 7 CFR 2.22, 2.80, and 371.4.
The revision reads as follows:
(a) The Animal and Plant Health Inspection Service (APHIS) will maintain on its website
(1) States that prohibit the feeding of garbage to swine;
(2) States that allow the feeding of treated garbage to swine;
(3) States that have primary enforcement responsibility under the Act; and
(4) States that issue licenses under cooperative agreements with APHIS, but do not have primary responsibility under the Act.
(b) For information concerning the feeding of garbage to swine, the public may contact the APHIS Area Veterinarian in Charge, the State animal health official, or Veterinary Services, 4700 River Road, Unit 37, Riverdale, MD 20737-1231.
Internal Revenue Service (IRS), Treasury.
Correcting amendment.
This document contains corrections to Treasury Decision TD 9613, which was published in the
This correction is effective on November 22, 2019 and is applicable on or after February 27, 2013.
Janet Engel Kidd, Office of Associate Chief Counsel (Procedure and Administration), (202) 317-3600 (not a toll-free number).
The final regulations (TD 9613) that are the subject of this correction are issued under section 6654 of the Internal Revenue Code.
As published February 27, 2013 (78 FR 13221), the final regulations (TD 9613) contain an error that needs to be corrected.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:
26 U.S.C. 7805 * * *
Section 1.6654-2 also issued under 26 U.S.C. 6654(n).
Office of Foreign Assets Control, Treasury.
Final rule.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is amending the Venezuela Sanctions Regulations to incorporate additional Executive orders, add a general license authorizing U.S. Government activities, and add an interpretive provision.
OFAC: Assistant Director for Licensing, 202-622-2480; Assistant Director for Regulatory Affairs, 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, 202-622-2490.
This document and additional information concerning OFAC are available on OFAC's website (
On July 10, 2015, OFAC issued the Venezuela Sanctions Regulations, 31 CFR part 591 (the “Regulations”) (80 FR 39676, July 10, 2015) to implement the Venezuela Defense of Human Rights and Civil Society Act of 2014 (Pub. L. 113-278) and Executive Order 13692 of March 8, 2015 (“Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela”) (E.O. 13692). The Regulations were published in abbreviated form for the purpose of providing immediate guidance to the public. Since then, the President has issued six additional Executive orders pursuant to the national emergency declared in E.O. 13692: Executive Order 13808 of August 24, 2017 (“Imposing Additional Sanctions With Respect to the Situation in Venezuela”) (82 FR 41155, August 29, 2017); Executive Order 13827 of March 19, 2018 (“Taking Additional Steps to Address the Situation in Venezuela”) (83 FR 12469, March 21, 2018); Executive Order 13835 of May 21, 2018 (“Prohibiting Certain Additional Transactions With Respect to Venezuela”) (83 FR 24001, May 24, 2018); Executive Order 13850 of November 1, 2018 (“Blocking Property of Additional Persons Contributing to the Situation in Venezuela”) (83 FR 55243, November 2, 2018); Executive Order 13857 of January 25, 2019 (“Taking Additional Steps To Address the National Emergency With Respect to Venezuela”) (84 FR 509, January 30, 2019); and Executive Order 13884 of August 5, 2019 (“Blocking Property of the Government of Venezuela”) (84 FR 38843, August 7, 2019).
In subpart B of the Regulations, OFAC is expanding existing § 591.201 to specify that the prohibitions in that section include all transactions prohibited pursuant to E.O. 13692 of March 8, 2015 or any further Executive order issued pursuant to the national emergency declared in E.O. 13692. In subpart C of the Regulations, OFAC is making a technical amendment to the definition of financial, material, or technological support at § 591.304 to reflect the changes being made to § 591.201.
OFAC also is incorporating a general license into subpart E that was previously posted only on OFAC's website. This general license, which is being added as new § 591.509, authorizes the U.S. Government to engage in certain activities related to Venezuela. OFAC is adding a new interpretative provision at § 591.407 regarding settlement agreements and the enforcement of liens, judgments, arbitral awards, decrees, or other orders through execution, garnishment, or other judicial process. This interpretive provision clarifies that, notwithstanding the existence of any general license issued under 31 CFR part 591, or issued under any Executive order issued pursuant to the national emergency declared in E.O. 13692, the entry into a settlement agreement or the enforcement of any lien, judgment, arbitral award, decree, or other order through execution, garnishment, or other judicial process purporting to transfer or otherwise alter or affect property or interests in property blocked pursuant to § 591.201 is prohibited unless authorized pursuant to a specific license issued by OFAC. Finally, OFAC is making certain technical and conforming edits.
OFAC intends to supplement part 591 with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance and additional general licenses and statements of licensing policy.
Because the Regulations involve a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of Executive Order 13771, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.
The collections of information related to the Regulations are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
Administrative practice and procedure, Banks, Banking, Blocking of assets, Legal services, Penalties, Reporting and recordkeeping requirements, Sanctions.
For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR chapter V as follows:
3 U.S.C. 301; 31 U.S.C. 321(b); 50 U.S.C. 1601-1651, 1701-1706; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 110-96, 121 Stat. 1011 (50 U.S.C. 1705 note); Pub. L. 113-278, 128 Stat. 3011 (50 U.S.C. 1701 note); E.O. 13692, 80 FR 12747, March 11, 2015, 3 CFR, 2015 Comp., p. 276; E.O. 13808, 82 FR 41155, August 29, 2017, 3 CFR, 2017 Comp., p. 377; E.O. 13827, 83 FR 12469, March 21, 2018, 3 CFR, 2018 Comp., p. 794; E.O. 13835, 83 FR 24001, May 24, 2018, 3 CFR, 2018 Comp., p. 817; E.O. 13850, 83 FR 55243, November 2, 2018, 3 CFR, 2018 Comp., p. 881; E.O. 13857, 84 FR 509, January 30, 2019; E.O. 13884, 84 FR 38843, August 7, 2019.
All transactions prohibited pursuant to Executive Order 13692 of March 8, 2015, or any further Executive orders issued pursuant to the national emergency declared in Executive Order 13692, are prohibited pursuant to this part.
The names of persons designated pursuant to Executive Order 13692, or pursuant to any further Executive orders issued pursuant to the national emergency declared in Executive Order 13692, whose property and interests in property therefore are blocked pursuant to this section, are published in the
The International Emergency Economic Powers Act (50 U.S.C. 1701-1706), in Section 203 (50 U.S.C. 1702), authorizes the blocking of property and interests in property of a person during the pendency of an investigation. The names of persons whose property and interests in property are blocked pending investigation pursuant to this section also are published in the
Sections 501.806 and 501.807 of this chapter describe the procedures to be followed by persons seeking, respectively, the unblocking of funds that they believe were blocked due to mistaken identity, or administrative reconsideration of their status as persons whose property and interests in property are blocked pursuant to this section.
Notwithstanding the existence of any general license issued under this part, or issued under any Executive order issued pursuant to the national emergency declared in E.O. 13692, the entry into a settlement agreement or the enforcement of any lien, judgment, arbitral award, decree, or other order through execution, garnishment, or other judicial process purporting to transfer or otherwise alter or affect property or interests in property blocked pursuant to § 591.201, as referenced in § 591.506(c), is prohibited unless authorized pursuant to a specific license issued by OFAC pursuant to this part.
All transactions that are for the conduct of the official business of the United States Government by employees, grantees, or contractors thereof are authorized.
For additional information regarding requirements relating to the entry into a settlement agreement or the enforcement of any lien, judgment, arbitral award, decree, or other order through execution, garnishment, or other judicial process purporting to transfer or otherwise alter or affect property or interests in property blocked pursuant to § 591.201,
Any action that the Secretary of the Treasury is authorized to take pursuant to Executive Order 13692 of March 8, 2015, Executive Order 13808 of August 24, 2017, Executive Order 13827 of March 19, 2018, Executive Order 13835 of May 21, 2018, Executive Order 13850 of November 1, 2018, Executive Order 13857 of January 25, 2019, Executive Order 13884 of August 5, 2019, and any further Executive orders issued pursuant to the national emergency declared in Executive Order 13692 of March 8, 2015, may be taken by the Director of OFAC or by any other person to whom the Secretary of the Treasury has delegated authority so to act.
Coast Guard, DHS.
Final rule.
The Coast Guard is authorizing the Conrail Railroad Bridge, mile 1.48, across the River Rouge, to be operated remotely.
This rule is effective December 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 Mr. Lee D. Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone 216-902-6085, email
On March 28, 2019, we published a NPRM entitled “Drawbridge Operation Regulation; River Rouge, Detroit, MI” in the
The Coast Guard is issuing this rule under authority 33 U.S.C. 499.
Conrail Railroad Bridge, mile 1.48, across the River Rouge is a single leaf bascule bridge. A horizontal navigation clearance of 123 feet is available. Eight feet of vertical clearance, referred to LWD is available in the closed position. The Conrail Bridge is advertised as having unlimited clearance in the open position; however, the tip of the bridge leaf does encroach slightly into the northern boundary of the navigation channel. The Federal Channel has a bend in the river immediately west of the Conrail Bridge. Because of this bend most large commercial vessels will not enter the river unless they have conformation that this bridge is opened. The Rouge River is primarily used by commercial vessels.
The Coast Guard provided a comment period of 180 days and no comments were received. We did not make any changes to regulatory language.
We developed this rule after considering numerous statutes and
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.
We did not change the operating schedule of the bridge we only changed the location of the drawtender.
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 IV.A above this final rule would not have a significant economic impact on any vessel owner or operator because the operating schedule did not change.
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 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 provided a 180 day comment period and we did not receive any comments concerning the Unfunded Mandates Reform Act of 1995.
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
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; and Department of Homeland Security Delegation No. 0170.1.
The draw of the Conrail Bridge, mile 1.48, is remotely operated, is required to operate a radiotelephone, and shall open on signal.
Office of Elementary and Secondary Education, Department of Education.
Final regulations.
The Department modifies the requirements related to the responsibilities of State educational agency (SEA) recipients of funds under title I, part C, of the Elementary and Secondary Education Act of 1965, as amended (ESEA), to conduct annual prospective re-interviews to confirm the eligibility of children under the Migrant Education Program (MEP). We clarify the definition of “independent re-interviewer” and reduce the costs and burden of prospective re-interviews conducted by independent re-interviewers while maintaining adequate quality control measures to safeguard the integrity of program eligibility determinations.
These regulations are effective December 23, 2019.
Sarah Martinez, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E343, Washington, DC 20202. Telephone: (202) 260-1334. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll-free, at 1-800-877-8339.
On November 29, 2018, the Secretary published a notice of proposed rulemaking (NPRM) for this program in the
• Clarifying for SEAs that as a quality control measure, individuals conducting annual prospective re-interviews must be individuals who did not work on the initial eligibility determination being reviewed.
• Replacing the reference to “current-year” eligibility determinations with the term “current performance reporting period.” A performance reporting period, sometimes referred to as a child count year, is a more specific time frame: September 1 through August 31, and thus clarifies any ambiguity associated with the phrase “current-year.”
• Modifying the requirement that SEAs use independent re-interviewers for prospective re-interviews at least once every three years. Instead, the regulations require the use of independent re-interviewers at least once every three years until September 1, 2020. After September 1, 2020, SEAs are required to use independent re-interviewers for prospective re-interviews at least once during one of the first three full performance reporting periods (September 1 through August 31) following the effective date of a major statutory or regulatory change that impacts program eligibility (as determined by the Secretary), in order to test eligibility determinations made based on the changed eligibility criteria.
Except for minor editorial revisions, there are no substantive differences between the NPRM and these final regulations.
The same commenter also asked whether the changes to the regulations would reduce the number of individuals considered eligible due to the reduced frequency of interviews.
In response to the commenter's second question, regarding the impact of these regulations on the number of children considered eligible for the MEP, we do not anticipate that the reduced frequency of independent re-interviews will reduce the number of children considered eligible for the program. SEAs must continue to conduct annual prospective re-interviews. The change from previous requirements concerns when an SEA must use independent re-interviewers to conduct those annual prospective re-interviews. The purpose of the annual prospective re-interview process is to help ensure that eligibility determinations are being made accurately, and to identify problems in order for the SEA to implement corrective actions in a timely manner. The SEA is not required to re-interview all currently eligible migratory children, nor is a re-interview required to maintain a child's 36 months of MEP eligibility, which begins on the child's qualifying arrival date.
Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees,
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. Pursuant to the Congressional Review Act (5 U.S.C. 801
Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For Fiscal Year 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. The final regulations are not a significant regulatory action. Therefore, the requirements of Executive Order 13771 do not apply.
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, or Tribal governments in the exercise of their governmental functions.
In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
We anticipate that the changes to these regulations will reduce the cost and burden associated with prospective re-interviewing, specifically the use of independent re-interviewers, for some SEAs. While we believe that SEAs will be required to conduct independent re-interviews less frequently under the amended regulations than they are currently, we cannot predict when statutory changes that directly impact child eligibility will occur. To qualify as “independent,” the re-interviewers must be neither SEA nor local operating agency staff members working to administer or operate the State MEP nor any other persons who worked on the initial eligibility determinations being tested. Although there is no Federal requirement for SEAs to use a specific funding mechanism to support independent re-interviewers, such as a contract, or to use out-of-State personnel who require travel costs, several SEAs have chosen to use such methods and personnel for independent re-interviews. For those SEAs that have chosen to use more costly methods for independent re-interviews, we anticipate that the reduced frequency of independent re-interviews will result in reduced cost and burden. Further, we do not believe that burden will be affected by the clarification that annual prospective re-interviews must be conducted by individuals who did not work on the initial eligibility determination being reviewed, as this is consistent with the current practices of most SEAs.
We remain committed to providing SEAs with technical assistance to support their efforts to maintain effective quality control over program eligibility determinations, which includes prospective re-interviewing. Past support has included the Technical Assistance Guide on Re-interviewing published in December 2010,
Elsewhere in this section, under
The Secretary certifies that these final regulations would not have a significant economic impact on a substantial number of small entities. Because these final regulations would affect only States and State agencies, the final regulations would not have an impact on small entities. States and State agencies are not defined as “small entities” in the Regulatory Flexibility Act.
These regulations contain information collection requirements that are
A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the Paperwork Reduction Act of 1995 (PRA) and the corresponding information collection instrument displays a currently valid OMB control number. Notwithstanding any other provision of law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number.
Section 200.89(b) contains an information collection requirement. This information collection has been approved by OMB Control Number 1810-0662. The currently approved collection includes cost and burden estimates for annual prospective re-interviewing that do not vary based on the specific personnel used for re-interviews—
We estimate a standard number of hours to conduct re-interviews—including multiple attempts to locate the family and travel to their location (2 hours/child), analyze the findings (1 hour/child), and summarize findings for annual reporting (2 hours/SEA). We estimate costs based on a standard hourly rate for staff conducting re-interviews ($10/hour) and a higher standard hourly rate for staff responsible for analysis and reporting ($25/hour).
Some SEAs have elected to use more costly resources and methods when conducting independent re-interviews, such as contracts with private organizations and out-of-State personnel. Since these are not Federal requirements, under the PRA, any increased costs associated with these resources and methods were not factored into the cost and burden estimates in the currently approved collection, and, accordingly, any decreased costs associated with these resources and methods that would result from their less frequent use under the final regulations also do not affect the cost and burden estimates. Thus, the burden estimated in the approved information collection remains unchanged.
This program is subject to the requirements of Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
Executive Order 13132 requires us to ensure meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications. “Federalism implications” means 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.
In the NPRM we identified a specific section that may have federalism implications and encouraged State and local elected officials to review and provide comments on the proposed regulations. In the
You may also access documents of the Department published in the
Education of disadvantaged, Elementary and secondary education, Grant programs—education, Indians—education, Infants and children, Juvenile delinquency, Migrant labor, Private schools, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Secretary amends part 200 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 6301 through 6576, unless otherwise noted.
Section 200.1 also issued under 20 U.S.C. 6311(b)(1).
Section 200.11 also issued under 20 U.S.C. 6311(c)(2), (g)(2)(D), (h)(1)(C)(xii), (h)(2)(C), 6312(c)(3), 9622(d)(1).
Section 200.25 also issued under 20 U.S.C. 6314.
Section 200.26 also issued under 20 U.S.C. 6314.
Section 200.29 also issued under 20 U.S.C. 1413(a)(2)(D), 6311(g)(2)(E), 6314, 6396(b)(4), 7425(c), 7703(d).
Section 200.61 also issued under 20 U.S.C. 6312(e).
Section 200.62 also issued under 20 U.S.C. 6320(a).
Section 200.63 also issued under 20 U.S.C. 6320(b).
Section 200.64 also issued under 20 U.S.C. 6320.
Section 200.65 also issued under 20 U.S.C. 6320(a)(1)(B).
Section 200.68 also issued under 20 U.S.C. 6320(a)(3)(B).
Section 200.73 also issued under 20 U.S.C. 6332(c), 6336(f)(3), 7221e(c).
Section 200.77 also issued under 20 U.S.C. 6313(c)(3)-(5), 6318(a)(3), 6320; 42 U.S.C. 11432(g)(1)(J)(ii)-(iii), 11433(b)(1).
Section 200.78 also issued under 20 U.S.C. 6313(a)(5)(B), (c), 6333(c)(2).
Section 200.79 also issued under 20 U.S.C. 6313(b)(1)(D), (c)(2)(B), 6321(d).
Section 200.81 also issued under 20 U.S.C. 6391-6399.
Section 200.83 also issued under 20 U.S.C. 6396.
Section 200.85 also issued under 20 U.S.C. 6398.
Section 200.87 also issued under 20 U.S.C. 7881(b)(1)(A).
Section 200.88 also issued under 20 U.S.C. 6321(d).
Section 200.89 also issued under 20 U.S.C. 6391-6399, 6571, 18 U.S.C. 1001.
Section 200.90 also issued under 20 U.S.C. 6432, 6454, 6472.
Section 200.100 also issued under 20 U.S.C. 6303, 6303b, 6304.
Section 200.103 also issued under 20 U.S.C. 6315(c)(1)(A)(ii), 6571(a), 8101(4).
The revisions read as follows:
(b) * * *
(2)
(i) Except as specified in paragraphs (b)(2)(i)(A) and (B) of this section, use one or more re-interviewers who may be SEA or local operating agency staff members working to administer or operate the State MEP, or any other person trained to conduct personal interviews and to understand and apply program eligibility requirements, but who did not work on the initial eligibility determinations being tested;
(A) At least once every three years until September 1, 2020, SEAs must use one or more independent re-interviewers (
(B) Beginning September 1, 2020, an SEA must use one or more independent re-interviewers to validate child eligibility determinations made during one of the first three full performance reporting periods (September 1 through August 31) following the effective date of a major statutory or regulatory change that directly impacts child eligibility (as determined by the Secretary). Therefore, the entire sample of eligibility determinations to be tested by independent re-interviewers must be drawn from children determined to be eligible in a single performance period, based on eligibility requirements that include the major statutory or regulatory change.
(ii) Select a random sample of identified migratory children so that a sufficient number of eligibility determinations in the current performance reporting period are tested on a statewide basis or within categories associated with identified risk factors (
National Park Service, Interior.
Final rule.
The National Park Service amends the special regulations for Hot Springs National Park to allow bicycle use on a new trail connection between the Park and property owned by the City of Hot Springs, Arkansas. The new 0.65-mile trail will provide local residents and visitors with access in and across the Park to an extensive network of recreational trails in the City's Northwoods Urban Forest Park. The new natural surface, multi-use trail connection will be open to both pedestrian and bicycle use. National Park Service regulations require promulgation of a special regulation to designate new trails for bicycle use off park roads and outside developed areas.
This rule is effective on December 23, 2019.
Tokey Boswell, Chief of Planning and Compliance, Serving DOI Unified Regions 3, 4, and 5, 601 Riverfront Drive, Omaha, Nebraska 68102. Phone: 402 661-1534, Email:
People have long recognized the unique thermal waters that flow from the base of Hot Springs Mountain in Hot Springs, Arkansas. For thousands of years before it became a favored vacation destination in the 18th century, and prior to the arrival of early European explorers journeying west of the Mississippi River, Native Americans from around the region traveled to the springs and surrounding rocky mountain slopes, quarrying novaculite from the hilltops for their tools and weapons, and drinking and bathing in the mineral rich waters bubbling from the ground. The first permanent settlers to reach the Hot Springs area in 1807 were quick to realize the springs' potential as a health resort, and a bustling town grew up around the hot springs to provide services for health seekers.
To protect this unique national resource and preserve it for the use of the public, Congress set aside the springs and adjoining mountains as a Federal reservation in 1832, making it the oldest unit of the National Park System. Over the next 50 years, the area transformed from a rough frontier town to an elegant and thriving spa city. In 1921, Congress designated the reservation as Hot Springs National Park (the Park). Today, the 5,500-acre Park contains vegetation, thermal waters, cold-water springs, bathhouses and associated cultural features, nearly 26 miles of hiking and equestrian trails, and prehistoric and historic novaculite quarries. The National Park Service (NPS) preserves and manages the natural and cultural resources of the Park for more than 1.5 million annual visitors. The City of Hot Springs, with an approximate population of 37,000, is located next to the Park.
The NPS will create a new 0.65-mile natural surface trail within the Park. This new Pullman Avenue Trail Connection will extend north from a trailhead at Pullman Avenue and connect the Park with ongoing trail development on City property at the Park's northern boundary. The NPS will build the trail using sustainable trail construction techniques and designate it for both pedestrian and bicycle use. The trail will follow the natural contours of the site, winding around obstacles such as trees, large rocks, and bushes; and will feature shallower grades and wider turns to support user safety, reduce water pooling and erosion, and reduce the overall maintenance costs associated with more complex trail features. This gently-graded bare soil and bedrock trail connection will (1) better connect the Park with the adjacent City and county
On February 1, 2019, the NPS published the Pullman Avenue Trail Connection/Environmental Assessment (EA). The EA presents two alternatives for future trail opportunities at the Park, and identifies one of the alternatives as the NPS preferred alternative. Under the preferred alternative, the NPS will construct the Pullman Avenue Trail Connection and designate it for pedestrian and bicycle use. The EA evaluates (1) the suitability of the Pullman Avenue Trail Connection for bicycle use; and (2) life cycle maintenance costs, safety considerations, methods to prevent or minimize user conflict, and methods to protect natural and cultural resources and mitigate impacts associated with bicycle use on the trail in compliance with 36 CFR 4.30(e)(2). The EA contains a full description of the purpose and need for taking action, the alternatives considered, maps, and the environmental impacts associated with the project. After a public review period, the Acting Regional Director, Interior Regions 3, 4, and 5 (formerly the Midwest Region) signed a Finding of No Significant Impact (FONSI) on July 28, 2019 that identified the preferred alternative (Alternative B) in the EA as the selected alternative. Concurrently, the Acting Regional Director signed a Written Determination to assure that bicycle use on the new trail is consistent with the protection of the Park's natural, scenic, and aesthetic values, safety considerations and management objectives, and that it will not disturb wildlife or park resources. The EA, FONSI, and Written Determination may be viewed online at
This rule implements the selected alternative in the FONSI and authorizes the Superintendent to designate bicycle use on the Pullman Avenue Trail Connection. This rule does not include any existing park trails, which are not and will not be opened to bicycles by this rule.
This rule complies with the requirement in 36 CFR 4.30 that the NPS must promulgate a special regulation in order to designate a new bicycle trail that requires construction activities outside of developed areas. The rule adds a new paragraph (c) to 36 CFR 7.18—Special Regulations, Areas of the National Park System for Hot Springs National Park. After the trail is constructed, the rule requires the Superintendent to notify the public prior to designating the trail for bicycle use through one or more of the methods listed in 36 CFR 1.7, and identify the designation on maps available at Park visitor centers and on the Park website (
The NPS published a proposed rule in the
2.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Enabling regulations are considered deregulatory under guidance implementing E.O. 13771 (M-17-21). This rule authorizes the Superintendent to designate a trail for bicycle use at the Park, which will create an opportunity for recreation and access that would otherwise be prohibited.
This rule will not have a significant economic effect 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 or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(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 rule does 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. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. This rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes. Nevertheless, in support of the Department of Interior and NPS commitment for government-to-government consultation, through the EA process, the NPS initiated consultation with the four Indian tribes traditionally associated with the Park.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
The NPS has prepared the EA to determine whether this rule will have a significant impact on the quality of the human environment under the NEPA. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because of the FONSI. A copy of the EA and FONSI can be found online at
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.
The primary authors of this regulation are Julia Larkin and Jay Calhoun, National Park Service, Division of Regulations, Jurisdiction, and Special Park Uses.
National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service amends 36 CFR part 7 as set forth below:
54 U.S.C. 100101, 100751, 320102; Sec. 7.96 also issued under D.C. Code 10-137 and D.C. Code 50-2201.07.
(c)
(i) Pullman Avenue Trail Connection (full length of the trail approximately 0.65 miles).
(ii) [Reserved]
(2) A map showing trails open to bicycle use will be available at park visitor centers and posted on the park website. The Superintendent will provide notice of all trails designated for bicycle use in accordance with § 1.7 of this chapter. The Superintendent may limit, restrict, or impose conditions on bicycle use, or close any trail to bicycle use, or terminate such conditions, closures, limits, or restrictions in accordance with § 4.30 of this chapter.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Maricopa County Air Quality Department (MCAQD) portion of the Arizona State Implementation Plan (SIP). These revisions concern emissions of volatile organic compounds (VOCs) and particulate matter (PM) from brick and structural clay products manufacturing, rubber sports ball manufacturing, and vegetable oil extraction processes. We are approving the rescission of local rules that regulate these emission sources under the Clean Air Act (CAA or the Act).
These rule rescissions will be effective on December 23, 2019.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2019-0497. All documents in the docket are listed on the
Robert Schwartz, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3286 or by email at
Throughout this document, “we,” “us” and “our” refer to the EPA.
On September 9, 2019 (84 FR 47211), the EPA proposed to approve the rescission of the following rules from the Arizona SIP.
We proposed to approve the rescission of these rules because we determined that the SIP revisions,
The EPA's proposed action provided a 30-day public comment period. During this period, we received one anonymous comment.
No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these rule rescissions from the Arizona SIP.
In this document, as described in the amendments to 40 CFR part 52 set forth below, the EPA is removing provisions of the EPA Approved Maricopa County rules from the Arizona State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving State Implementation Plan (SIP) revisions submitted by the State of Georgia, through the Georgia Environmental Protection Division (GA EPD) of the Department of Natural Resources, in letters dated September 19, 2006, with a clarification submitted on November 6, 2006, and July 31, 2018. EPA is approving miscellaneous changes to several Georgia rules. This action is being finalized pursuant to the Clean Air Act (CAA or Act) and its implementing regulations.
This rule will be effective December 23, 2019.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2018-0711. All documents in the docket are listed on the
Sean Lakeman, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9043. Mr. Lakeman can also be reached via electronic mail at
GA EPD submitted a SIP revision through a letter dated July 31, 2018, to EPA for review and approval into the Georgia SIP that contains changes to a number of Georgia's air quality rules in Rule 391-3-1.
See EPA's June 29, 2017 (82 FR 29418)
See also EPA's July 10, 2019 (84 FR 32851) NPRM
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Georgia's air quality Rules 391-3-1-.01, “Definitions,” 391-3-1-.02(2)(c), “Incinerators,” and 391-3-1-.03(11) “Permits by Rule,” State effective July 23, 2018, and Rule 391-3-1-.03(6), “Exemptions,” State effective August 9, 2012,
EPA is approving the aforementioned changes to Georgia's SIP submitted on September 19, 2006, and August 2, 2018, that make revisions to Rule 391-3-1-.01, “Definitions,” Rule 391-3-1-.02(2)(c), “Incinerators,” Rule 391-3-1-.03(6), “Exemptions,” and Rule 391-3-1-.03(11) “Permit by Rule.” EPA views these changes as being consistent with the CAA.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Are not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Are not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Do not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not an economically significant regulatory action based on health or
• Are not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a Clean Air Act (CAA) section 111(d) plan submitted by the West Virginia Department of Environmental Protection (WVDEP). This plan was submitted to fulfill the requirements of the CAA and in response to EPA's promulgation of Emissions Guidelines and Compliance Times for municipal solid waste (MSW) landfills. The West Virginia plan establishes emission limits for existing MSW landfills, and provides for the implementation and enforcement of those limits.
This final rule is effective on December 23, 2019. The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register as of December 23, 2019.
EPA has established a docket for this action under Docket ID Number EPA- EPA-R03-OAR-2019-0187. All documents in the docket are listed on the
Mike Gordon, Permits Branch (3AD10), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-2039. Mr. Gordon can also be reached via electronic mail at
On July 1, 2019 (84 FR 31278), EPA published a notice of proposed rulemaking (NPRM) for the State of West Virginia. In the NPRM, EPA proposed approval of a Clean Air Act (CAA) section 111(d) plan submitted by the WVDEP. The formal State Plan was submitted by West Virginia on September 13, 2018.
EPA has reviewed the West Virginia section 111(d) plan submittal in the context of the requirements of 40 CFR part 60, subparts B and Cf, and part 62, subpart A. In this action, EPA is determining that the submitted section 111(d) plan meets the above-cited requirements. Included within the section 111(d) plan are regulations under the West Virginia Code, specifically, West Virginia legislative rule 45 C.S.R. 23, entitled “Control of Air Pollution from Municipal Solid Waste Landfills.” A detailed explanation of the rationale behind this proposed approval is available in the Technical Support Document (TSD).
Other specific requirements of West Virginia's State Plan for MSW landfills and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.
EPA is approving the West Virginia section 111(d) plan for MSW landfills submitted pursuant to 40 CFR part 60, subpart Cf. Therefore, EPA is amending 40 CFR part 62, subpart XX to reflect this action. The scope of the approval of the section 111(d) plan is limited to the provisions of 40 CFR parts 60 and 62 for existing MSW landfills, as referenced in the emission guidelines, subpart Cf. The EPA Administrator continues to retain authority for approval of alternative methods to determine the nonmethane organic compound concentration or a site-specific methane generation rate constant (k), as stipulated in 40 CFR 60.30f(c), as well as section 4.8.b, “Implementation of Emission Guidelines for Existing MSW Landfills,” of West Virginia's 111(d) plan submittal.
In accordance with the requirements of 1 CFR 51.5, EPA is finalizing regulatory text that includes the incorporation by reference of West Virginia Code, specifically, West Virginia legislative rule 45 C.S.R. 23, effective June 1, 2018, entitled “Control of Air Pollution from Municipal Solid Waste Landfills,” which is part of the CAA section 111(d) plan applicable to existing MSW landfills in West Virginia as discussed in section II of this preamble. The regulatory provisions of 45 C.S.R. 23 establish emission standards and compliance times for the control of methane and other organic compounds from certain existing MSW landfills located in West Virginia that commenced construction, modification, or reconstruction on or before July 17, 2014. These provisions set forth requirements meeting criteria promulgated by EPA at 40 CFR part 60, subpart Cf. EPA has made, and will continue to make, 45 C.S.R. 23, as well as the entire West Virginia plan, generally available through
Under the Clean Air Act, the Administrator is required to approve section 111(d) state plan submissions that comply with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7411(d); 40 CFR part 60, subparts B and Cf; and 40 CFR part 62, subpart A. Thus, in reviewing CAA section 111(d) state plan submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Act and implementing regulations. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because this action is not significant under Executive Order 12866.
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the State Plan is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 21, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving West Virginia's State Plan for existing MSW landfills may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Landfills, Incorporation by reference, Intergovernmental relations, Methane, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 62 as follows:
42 U.S.C. 7401
(a) West Virginia 111(d) plan for municipal solid waste landfills, including delegation of Federal plan compliance schedule and reporting requirements, as submitted to the Environmental Protection Agency on May 29, 1998, and as amended on May 15, 2000, and December 20, 2000, to implement 40 CFR part 60, subpart Cc.
(b)(1) Control of landfill gas emissions from existing municipal solid waste landfills, submitted by the West Virginia Department of Environmental Protection on September 13, 2018, to implement 40 CFR part 60, subpart Cf. The Plan includes regulatory provisions cited in paragraph (c) of this section, which the EPA incorporates by reference.
(2) After December 23, 2019, the substantive requirements of the municipal solid waste landfills state plan are contained in paragraph (b) of this section and owners and operators of municipal solid waste landfills in West Virginia must comply with the requirements in paragraph (b) of this section.
(c)
(2) State of West Virginia, Secretary of State, Code of State Regulations.
(i) 45 CSR 23: West Virginia legislative rule; Title 45, Department of Environmental Protection, Air Quality; Series 23, Control of Air Pollution from Municipal Solid Waste Landfills, effective June 1, 2018.
(ii) [Reserved]
(a) The plan in § 62.12125(a) applies to all existing West Virginia municipal solid waste landfills for which construction, reconstruction, or modification was commenced before May 30, 1991 and that accepted waste at any time since November 8, 1987, or that have additional capacity available for future waste deposition, as described in 40 CFR part 60, subpart Cc.
(b) The plan in § 62.12125(b) applies to all existing municipal solid waste landfills under the jurisdiction of the West Virginia Department of Environmental Protection for which construction, reconstruction, or modification was commenced on or before July 17, 2014.
(a) The effective date of the plan submitted on May 29, 1998, and as amended on May 15, 2000 by the West Virginia Department of Environmental Protection for municipal solid waste landfills is July 23, 2001.
(b) The effective date of the plan submitted on September 13, 2018 by the West Virginia Department of Environmental Protection for municipal solid waste landfills is December 23, 2019.
Office for Human Research Protections (OHRP), Office of the Assistant Secretary for Health (OASH), Department of Health and Human Services (HHS)
Determination of Exception: required use of single institutional review board for cooperative research.
The Office for Human Research Protections (OHRP), Office of the Assistant Secretary for Health (OASH), Department of Health and Human Services (HHS), excepts two categories of research from the required use of a single institutional review board (IRB) to review cooperative research under the HHS regulations for the protection of human subjects. This determination is specific to research conducted or supported by HHS.
This exception is applicable as of November 22, 2019.
Irene Stith-Coleman, Director, Division of Policy and Assurances, Office for Human Research Protections (OHRP), Department of Health and Human Services, 1101 Wootton Parkway, Suite 200, Rockville, MD 20852; telephone: 240-453-6900 or 1-866-447-4777; facsimile: 240-453-8409; email:
In a final rule published on January 19, 2017, HHS and other Federal departments and agencies revised the Federal Policy for the Protection of Human Subjects (the “Common Rule”), codified with respect to HHS at subpart A of 45 CFR part 46. The Common Rule is followed by 19 other Federal departments and agencies, either as Common Rule signatories, or as required by Executive Order or statute. The revised Common Rule, including amendments made by a January 22, 2018 interim final rule (83 FR 2885) and June 19, 2018 final rule (83 FR 28497) (also referred to as the “2018 Requirements”), became effective on July 19, 2018.
The revised Common Rule requires that U.S. institutions engaged in cooperative research must rely on a single institutional review board (IRB) to review and approve the portion of the research conducted at domestic sites.
The revised Common Rule applies to all research initially approved by an IRB on or after January 21, 2019.
The revised Common Rule provides that the agency conducting or supporting cooperative research may except the research from the single IRB mandate. To do so, the agency must both determine and document that using a single IRB is not appropriate in the particular context.
With respect to HHS-conducted or supported research, OHRP has determined that the following research is excepted from the single IRB mandate: (1) Cooperative research conducted or supported by HHS agencies other than the National Institutes of Health (NIH), if an IRB approved the research before January 20, 2020, or (2) cooperative research conducted or supported by NIH if either (a) the NIH single IRB policy
In May 2019, the Association of American Medical Colleges (AAMC), the Council on Governmental Relations (COGR), the Association of American Universities (AAU), and the Association of Public Land-Grant Universities (APLGU) wrote to the director of OHRP expressing concern regarding the application of the single IRB requirement to cooperative research subject to the revised Common Rule when the research was approved before January 20, 2020 (available at
OHRP has considered this request. One of the objectives of the revised Common Rule's single IRB requirement is to reduce administrative costs of cooperative research. For cooperative research that already has been initially approved by multiple IRBs, the cost savings associated with reduced IRB reviews would not be achieved by making the single IRB requirement applicable to such cooperative research. Members of the regulated community report that transitioning cooperative research from multiple IRBs to a single IRB would, conversely, be costly for most institutions. Further, excepting such research from the single IRB mandate would not adversely affect the rights and welfare of the research subjects. For these reasons, OHRP has decided to except cooperative research approved before January 20, 2020, from the single IRB mandate. This general exception does not apply to NIH research; an NIH-specific exception is discussed
OHRP has determined that a relatively small number of HHS protocols (other than NIH research) will be eligible for exception. OHRP surveyed the HHS agency, other than NIH, that OHRP expects conducts or supports the majority of such human subjects research. Based on the information provided by that agency, OHRP understands that this agency is supporting five ongoing cooperative research studies that are subject to the revised Common Rule. Approximately three to five additional cooperative research studies supported by this agency that would be subject to the revised Common Rule are expected to be initiated before January 20, 2020.
The NIH policy on the use of a single IRB for multi-site research has been in effect since January 25, 2018. It requires all U.S. sites participating in NIH-funded multi-site (
As stated above, if more than one IRB initially reviewed and approved cooperative research, imposition of the single IRB mandate in mid-stream could result in increased costs and burdens to regulated entities, rather than cost savings. Excepting such NIH-conducted or supported research from mandated single IRB review will not adversely affect the rights and welfare of the research subjects. Further, NIH has given thoughtful consideration to these research contexts, and already determined that single IRB review should not be required. NIH deliberately structured its single IRB policy such that certain research would fall outside the scope of coverage. Likewise, in issuing case-by-case exceptions to its single IRB policy, NIH concluded that single IRB review is not appropriate for those particular research contexts. Thus, OHRP has decided to except NIH cooperative research from the Common Rule single IRB mandate if either (a) the NIH single IRB policy does not apply, and the research was initially approved by an IRB before January 20, 2020, or (b) NIH excepted the research from its single IRB policy before January 20, 2020. For more information on the NIH single IRB policy, see:
This exception is an exercise of OHRP's enforcement discretion, as specifically permitted by 45 CFR 46.114(b)(2), that affects relatively few research protocols for a limited time. As required by 45 CFR 46.114(b)(2), OHRP determines and documents that using a single IRB is not appropriate for the described categories of research, and, for the reasons stated above, OHRP excepts this research from the single IRB mandate. The full text of the exception is listed below, and may also be found in the “Single IRB Requirement” tab in the “Regulations, Policy, & Posting” section of the OHRP website (see
The Office for Human Research Protections (OHRP) has determined that for HHS cooperative research subject to the 2018 Requirements, and for purposes of 45 CFR 46.114(b)(2)(ii), an institution may continue to use multiple IRBs, in lieu of a single IRB, for the following research:
(1) Cooperative research conducted or supported by HHS agencies other than the National Institutes of Health (NIH), if an IRB initially approved the research before January 20, 2020.
(2) Cooperative research conducted or supported by NIH if either:
a. The NIH single IRB policy does not apply, and the research was initially approved by an IRB before January 20, 2020, or
b. NIH excepted the research from its single IRB policy before January 20, 2020.
Note that this determination is only made for purposes of section 46.114(b)(2)(ii)—namely, for determining whether certain cooperative research may be excepted from the single IRB mandate. This determination does not prevent, nor should it be viewed as discouraging, the voluntary use of a single IRB in cooperative research subject to the 2018 Requirements that would fall within the above two categories. Further, note that category (2)(b), above, applies for the duration of NIH's exception from its policy for the particular research study; categories (1) and (2)(a) apply for the duration of the research.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Atka mackerel in the Bering Sea subarea and Eastern Aleutian District (BS/EAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access sector. This action is necessary to prevent exceeding the 2019 total allowable catch (TAC) of Atka mackerel in the BS/EAI allocated to vessels participating in the BSAI trawl limited access sector.
Effective 1200 hrs, Alaska local time (A.l.t.), November 19, 2019, through 2400 hrs, A.l.t., December 31, 2019.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2019 TAC of Atka mackerel, in the BS/EAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 2,050 metric tons by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019).
In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Atka mackerel in the BS/EAI by vessels participating in the BSAI trawl limited access sector fishing. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishing. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the Atka mackerel directed fishing in the BS/EAI for vessels participating in the BSAI trawl limited access sector fishing. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 18, 2019.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific ocean perch in the Eastern Aleutian district (EAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access sector fishery. This action is necessary to prevent exceeding the 2019 total allowable catch (TAC) of Pacific ocean perch in the EAI allocated to vessels participating in the BSAI trawl limited access sector fishery.
Effective 1200 hrs, Alaska local time (A.l.t.), November 19, 2019, through 2400 hrs, A.l.t., December 31, 2019.
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2019 TAC of Pacific ocean perch, in the EAI, allocated to vessels participating in the BSAI trawl limited access sector fishery was established as a directed fishing allowance of 973 metric tons by the final 2019 and 2020 harvest specifications for groundfish in the BSAI (84 FR 9000, March 13, 2019).
In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the EAI by vessels participating in the BSAI trawl limited access sector fishery. While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of the Pacific ocean perch directed fishery in the EAI for vessels participating in the BSAI trawl limited access sector fishery. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 18, 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
Bureau of Consumer Financial Protection.
Assessment and request for public comment.
The Bureau of Consumer Financial Protection (Bureau) is conducting an assessment of the Integrated Mortgage Disclosures Under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z) Rule and certain amendments in accordance with section 1022(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The Bureau is requesting public comment on its plans for assessing this rule as well as certain recommendations and information that may be useful in conducting the planned assessment.
Comments must be received on or before: January 21, 2020.
You may submit comments, identified by Docket No. CFPB-2019-0055, by any of the following methods:
•
•
•
All submissions in response to this request for information, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Proprietary information or sensitive personal information, such as account numbers or Social Security numbers, or names of other individuals, should not be included. Submissions will not be edited to remove any identifying or contact information.
Dustin Beckett, Economist; Pedro De Oliveira, Senior Counsel; Alan Ellison, Small Business Program Manager; Division of Research, Markets, and Regulations at 202-435-7700. If you require this document in an alternative electronic format, please contact
Section 1022(d) of the Dodd-Frank Act requires the Bureau to conduct an assessment of each significant rule or order adopted by the Bureau under Federal consumer financial law. The Bureau must publish a report of the assessment not later than five years after the effective date of such rule or order. The assessment must address, among other relevant factors, the rule or order's effectiveness in meeting the purposes and objectives of title X of the Dodd-Frank Act and the specific goals stated by the Bureau. The assessment also must reflect available evidence and any data that the Bureau reasonably may collect. Before publishing a report of its assessment, the Bureau must invite public comment on recommendations for modifying, expanding, or eliminating the rule or order.
In November 2013, the Bureau issued a final rule titled “Integrated Mortgage Disclosures under the Real Estate Settlement Procedures Act (Regulation X) and the Truth In Lending Act (Regulation Z)” to implement sections 1098 and 1100A of the Dodd-Frank Act and, as amended, the rule took effect on October 3, 2015.
The Bureau also amended the TRID Rule after the October 3, 2015 effective date, in amendments issued in July 2017 and April 2018.
Assessments pursuant to section 1022(d) of the Dodd-Frank Act are for informational purposes only and are not part of any formal or informal rulemaking proceedings under the Administrative Procedure Act. The
For more than 30 years, Federal law required creditors and settlement agents to provide two different sets of disclosure forms to consumers applying for and consummating consumer mortgage transactions. Two different Federal agencies, the Department of Housing and Urban Development and the Board of Governors of the Federal Reserve System, developed these disclosure forms separately, under two distinct Federal statutes: the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act of 1974 (RESPA). In 2010, under the Dodd-Frank Act sections 1032(f), 1098, and 1100A, Congress directed the Bureau to integrate TILA and RESPA mortgage loan disclosures.
The TRID Rule contains six major elements.
The TRID Rule implemented the Dodd-Frank Act's directive to combine certain disclosures that consumers received under TILA and RESPA in connection with applying for and closing on a mortgage loan. Specifically, the TRID Rule's Loan Estimate form integrated RESPA's Good Faith Estimate (GFE) and TILA's initial disclosure, while the TRID Rule's Closing Disclosure form integrated RESPA's HUD-1 settlement statement and TILA's final disclosure.
The TRID Rule not only combined previous TILA and RESPA disclosures but also required that all creditors use standardized forms (
The TRID Rule changed how certain required information was disclosed. For example, the TRID Rule changed who was responsible for disclosing title insurance premiums for federally related mortgage loans.
The TRID Rule revised the regulatory definition of a consumer mortgage loan “application.”
The TRID Rule changed the timing of when consumers receive certain information. The TRID Rule requires that within three business days of receiving an application, as defined by
For applications submitted to a mortgage broker, prior to the TRID Rule, Regulation X had already permitted a mortgage broker on a creditor's behalf to provide a RESPA GFE not later than three business days after a mortgage broker received information from a consumer sufficient to complete an application. Regulation X also assigned creditors the responsibility for ascertaining whether mortgage brokers had provided GFEs to consumers.
The three-business-day period may facilitate consumers identifying whether and how the terms of their loans or of their transactions may have changed from what creditors or mortgage brokers previously disclosed to them.
The TRID Rule also tightened the tolerance rules that limit creditors and third party service providers charging consumers settlement costs that exceed the estimates that had been previously disclosed.
The Bureau has determined that the TRID Rule is a significant rule for purposes of Dodd-Frank Act section 1022(d).
Second, while generally creditors were already responsible for the GFE, by reallocating responsibility for completing and providing settlement disclosures to the consumer, the TRID Rule reallocated from settlement agents to creditors some of the risks of liability for regulatory violations. Such legal risk in turn may increase the risk to creditors that those who purchase their loans in the secondary market will demand that creditors repurchase the loans if they were not originated in compliance with the TRID Rule. To avoid or mitigate this risk, creditors may have increased the resources they devote to quality control to eliminate or reduce such defects in the disclosures they provide to consumers during origination.
Third, the TRID Rule may have also affected quality control operations because, as described above, the Rule requires that all creditors use standardized forms for most consumer transactions,
Finally, the Bureau considered the costs of the TRID Rule. In the 1022(b)(2) cost-benefit analysis that accompanied the 2013 TILA-RESPA Final Rule, the Bureau estimated that the major costs of the Rule would be one-time implementation costs, primarily labor costs, which creditors, settlement agents or third-party providers would incur to update systems and procedures to comply with the Rule. Specifically, the Bureau estimated that the Rule would impose one-time costs of approximately $1 billion on creditors and approximately $340 million on settlement agents. In its analysis, the Bureau amortized all costs over five years, using a simple straight-line amortization, resulting in an estimate of approximately $275 million per year of cost for each of the five years. The Bureau also stated that the ongoing costs of the Rule would be “negligible” relative to the baseline of existing regulatory requirements.
Taking these factors and others into consideration, the Bureau concluded that the TRID Rule is “significant” for purposes of section 1022(d) of the Dodd-Frank Act. Section 1022(d) therefore requires the Bureau to conduct an assessment of the TRID Rule.
Pursuant to section 1022(d) of the Dodd Frank Act, this assessment must address, among other relevant factors, the Rule's effectiveness in meeting the purposes and objectives of title X of the Dodd-Frank Act and the specific goals of the TRID Rule as stated by the Bureau.
(a) Consumers are provided with timely and understandable information to make responsible decisions about financial transactions;
(b) Consumers are protected from unfair, deceptive, or abusive acts and practices and from discrimination;
(c) Outdated, unnecessary, or unduly burdensome regulations are regularly identified and addressed in order to reduce unwarranted regulatory burdens;
(d) Federal consumer financial law is enforced consistently, without regard to the status of a person as a depository institution, in order to promote fair competition; and
(e) Markets for consumer financial products and services operate transparently and efficiently to facilitate access and innovation.
The Bureau stated a number of goals in the final TRID Rule, the preamble to the final TRID Rule, and in public statements surrounding the release of the Rule. Generally, these goals reflect the goals set forth in the Dodd-Frank Act. In promulgating the Rule, the Bureau sought to: Aid consumers in understanding their mortgage loan transactions, facilitate cost comparisons, and assist consumers in making decisions regarding their mortgage loans, including helping consumers decide whether they can afford a loan as offered.
By combining the TILA and RESPA disclosures, the TRID Rule also sought to identify and reconcile inconsistencies between TILA and RESPA requirements to reduce regulatory burdens.
To the extent possible, the assessment will associate Rule requirements with observed outcomes of interest. In certain cases, data may be available that will allow the Bureau to identify effects caused by the Rule. However, more generally, the presence of multiple other factors that affect the mortgage market independently of the Rule may make it challenging to identify exact measures of the effects of the Rule. In general, any association between observed outcomes and requirements of the Rule, while informative as to the effectiveness of the Rule, does not necessarily prove the Rule caused that outcome. In conducting this assessment, the Bureau will consider existing mortgage data and data that the Bureau may reasonably collect, including third-party sources (see more detail below regarding the Bureau's research activities, data sources, and comment requests).
The Bureau has been conducting, and will continue to conduct, external outreach meetings with industry (including trade associations), other government agencies, and consumer groups (including housing counselors). The primary goal of this outreach is for the Bureau to become better informed of the potential effects of the Rule on various market segments.
Other research activities in addition to those described in the remainder of this section may also be considered as appropriate, and the Bureau is interested in suggestions from stakeholders regarding additional research activities that the Bureau could conduct to better assess the Rule.
The approach to examining the TRID Rule's effect on consumers is shaped by four broad research questions based on the aforementioned goals of the Rule, namely, how the TRID Rule affected consumers': (i) Understanding of their mortgage disclosures; (ii) mortgage and settlement service shopping behaviors; (iii) satisfaction with their mortgage disclosures, mortgage products, and settlement services; and (iv) ability to compare and choose among mortgages and settlement services. Internal Bureau data can provide insight on many of these research questions. The TRID disclosure testing, conducted during the process that resulted in the 2015 TRID Rule, can provide causal estimates of the effect of the new disclosures on consumer understanding and on consumers' ability to compare mortgage terms across different mortgage products. In addition, analysis of the National Survey of Mortgage Originations (NSMO) can provide correlational estimates of how much consumers' knowledge, shopping, and satisfaction changed after the Rule took effect.
The approach to assessing the TRID Rule's effect on firms is shaped by four broad research questions: (i) What were the TRID Rule's implementation costs to firms; (ii) what are the TRID Rule's ongoing costs and cost savings to firms; (iii) how did the TRID Rule affect creditor's ability to sell mortgages to others on the secondary market; and (iv) how did the TRID Rule affect the way
To address these questions, the Bureau envisions conducting structured interviews and surveys with industry participants as well as using relevant data the Bureau already possesses and third-party information that may be useful. Surveying and interviewing creditors and settlement agents will help the Bureau to assess firms' implementation costs, ongoing costs, and cost savings, and allow the assessment to assess how the accuracy and timing of disclosures changed as a result of the TRID Rule and where creditors faced particular difficulties, if any, with respect to disclosures creditors provided.
The Bureau anticipates that interviewing creditors and quality control providers will provide insight on potential difficulties the TRID Rule may cause for creditors seeking to sell mortgage loans in the secondary market. In addition, the Bureau may use loan-level securities data from the Bloomberg Terminal and aggregate secondary market data from Inside Mortgage Finance (IMF) to assess the TRID Rule's effect on creditors selling loans on the secondary market.
Additional data that would be informative to the Bureau in understanding the effects of the Rule on creditors providing disclosures to consumers include a consumer-level dataset. Such a dataset would be most informative if it covered a period before and after the effective date of the TRID Rule and if it included all or most TILA and RESPA related mortgage loan disclosures that creditors provided to consumers in the process of obtaining a mortgage loan. The ideal fields contained in this dataset would include the type of disclosure, the date it was disclosed, if the creditor re-disclosed forms, the reason for the creditor's re-disclosure, and fields for information contained on the forms (
Consumer demand and firm supply interact in markets. This interaction can be measured in transaction prices, transaction volume, and market structure, among other ways. The assessment's approach to market effects is thus reflected by three broad questions: (i) Did the TRID Rule affect the price of mortgages or the volume of mortgage originations in the aggregate or for particular market segments or mortgage product types (
To assess market effects, the assessment will rely first on data the Bureau already possess, such as Home Mortgage Disclosure Act (HMDA) data and the National Mortgage Database (NMDB) and stress testing data from the Federal Reserve (Y-14 data). These datasets may be used to identify changes in overall loan volumes, mortgage prices, price dispersions, and the availability of mortgage products. In addition, the assessment will rely on the same survey and structured interviews with industry participants that would be used to consider costs on the firm side. The industry survey will allow the Bureau to assess specific areas of the market or mortgage product types (
Comments to the Rulemaking RFIs generally centered on topics and issues pertaining to TRID including curing violations, secondary market issues, applicability to specific products, disclosure redesign, legal liability, and title insurance. For example, with regard to secondary market issues, two trade groups expressed concerns that creditors will need to either retain in portfolio or sell on the “scratch and dent” secondary market at a steep discount loans containing TRID errors. Commenters indicated that this treatment of loans results in lack of liquidity or losses for the lender. Commenters also indicated that lenders can face higher risk of receiving buyback requests, which are demands from investors (most often GSEs) that lenders buy back the loan from the creditor due to documentation errors or other irregularities. As another example, a trade group commented that many creditors have been hesitant to offer more complex mortgage products, including, among others, construction loans, for fear of misinterpreting TRID requirements. Four commenters provided comments relating to the construction loan market specifically. Most of these commenters requested additional guidance or simpler disclosures for construction loans.
In March of 2018, as part of the 2018 Call for Evidence series, the Bureau also issued the Bureau Guidance and Implementation Support Request for Information (Guidance RFI), a request for comment and information to assist the Bureau in assessing the overall effectiveness and accessibility of its guidance materials and activities (including implementation support) to
The Bureau hereby invites members of the public to submit information and other comments relevant to the issues identified above and below, information relevant to enumerating costs and benefits of the TRID Rule to inform the assessment's cost-benefit perspective, and any other information relevant to assessing the effectiveness of the TRID Rule in meeting the purposes and objectives of title X of the Dodd-Frank Act (section 1021) and the specific goals of the Bureau. In particular, the Bureau invites the public, including consumers and their advocates, housing counselors, mortgage creditors, settlement agents, and other industry participant, industry analysts, and other interested persons to submit comments on any or all of the following:
(1) Comments on the feasibility and effectiveness of the assessment plan, the objectives of the TRID Rule that the Bureau intends to use in the assessment, and the outcomes, metrics, baselines, and analytical methods for assessing the effectiveness of the Rule as described in part IV above;
(2) Data and other factual information that the Bureau may find useful in executing its assessment plan and answering related research questions, particularly research questions that may be difficult to address with the data currently available to the Bureau, as described in part IV above;
(3) Recommendations to improve the assessment plan, as well as data, other factual information, and sources of data that would be useful and available to the Bureau to execute any recommended improvements to the assessment plan;
(4) Data and other factual information about the benefits and costs of the TRID Rule for consumers, creditors, or other stakeholders;
(5) Data and other factual information about the effects of the Rule on transparency, efficiency, access, and innovation in the mortgage market;
(6) Data and other factual information about the Rule's effectiveness in meeting the purposes and objectives of title X of the Dodd-Frank Act (section 1021), which are listed in part IV above;
(7) Data and other factual information on the disclosure dataset specified in the Assessing Firm Effects section above under part IV;
(8) Comments on any aspects of the TRID Rule that were or are confusing or on which more guidance was or is needed during implementation including whether the issues have been resolved or remain unresolved; and
(9) Recommendations for modifying, expanding, or eliminating the TRID Rule.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain International Aero Engines, LLC (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1129G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM model turbofan engines. This proposed AD was prompted by reports of failures of certain low-pressure turbine (LPT) 3rd-stage blades. This proposed AD would require replacement of the affected LPT 3rd-stage blades. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by January 6, 2020.
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 International Aero Engines, LLC, 400 Main Street, East Hartford, CT 06118; phone: 800-565-0140; email:
You may examine the AD docket on the internet at
Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7088; fax: 781-238-7199; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
The FAA will post all comments received, without change, to
The FAA received several reports of failures of the affected LPT 3rd-stage blades. These failures appear to be caused by debris passing through the engine. The manufacturer has determined the need to replace any affected LPT 3rd-stage blade with an LPT blade made of a different material that is less susceptible to impact damage. This condition, if not addressed, could result in uncontained release of the LPT 3rd-stage blades, failure of one or more engines, loss of thrust control, and loss of the airplane.
The FAA reviewed Pratt & Whitney Service Bulletin PW1000G-C-72-00-0111-00A-930A-D, Issue No. 002, dated October 18, 2019. The service information describes procedures for removal of the affected LPT 3rd-stage blades and their replacement with parts eligible for installation.
The FAA is proposing this AD because the Agency 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 require removal from service of LPT 3rd-stage blades part/number (P/N) 5387343, 5387493, 5387473, or 5387503, and their replacement with parts eligible for installation.
The FAA estimates that this proposed AD affects 65 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 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, the FAA certifies this 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 by January 6, 2020.
None.
This AD applies to International Aero Engines (IAE) PW1133G-JM, PW1133GA-JM, PW1130G-JM, PW1129G-JM, PW1127G-JM, PW1127GA-JM, PW1127G1-JM, PW1124G-JM, PW1124G1-JM, and PW1122G-JM turbofan model engines with low-pressure turbine (LPT) 3rd-stage blades, part number
Joint Aircraft System Component (JASC) Code 7250, Turbine Section.
This AD was prompted by reports of failure of certain LPT 3rd-stage blades. The FAA is issuing this AD to prevent failure of these LPT 3rd-stage blades. The unsafe condition, if not addressed, could result in uncontained release of the LPT 3rd-stage blades, failure of one or more engines, loss of thrust control, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the next engine shop visit after the effective date of this AD, remove from service any LPT 3rd-stage blade, P/N 5387343, 5387493, 5387473, or 5387503, and replace with a part eligible for installation.
(1) For the purpose of this AD, an “engine shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation of the engine without subsequent engine maintenance does not constitute an engine shop visit.
(2) For the purpose of this AD, a “part eligible for installation” is any LPT 3rd-stage blade that does not have a P/N 5387343, 5387493, 5387473, or 5387503.
(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 (j)(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 Kevin M. Clark, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA, 01803; phone: 781-238-7088; fax: 781-238-7199; email:
(2) For service information identified in this AD, contact International Aero Engines, LLC, 400 Main Street, East Hartford, CT, 06118; phone: 800-565-0140; email:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus SAS Model A319-112, -115, and -132 airplanes; and Model A320-214, -216, -232, and -233 airplanes. This proposed AD was prompted by a report that a possible interference was identified between 1M and 2M wiring harnesses and the tapping units, and that the interference could adversely affect the lavatory smoke detection system and/or the passenger oxygen system. This proposed AD would require modifying the 1M and 2M harness routing, as specified in a European Union Aviation Safety Agency (EASA) AD, which will be incorporated by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by January 6, 2020.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For the material identified in this proposed AD that will be incorporated by reference (IBR), contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 89990 1000; email
You may examine the AD docket on the internet at
Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
The FAA will post all comments, without change, to
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0227, dated September 11, 2019 (“EASA AD 2019-0227”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus SAS Model A319-112, -115, and -132 airplanes; and Model A320-214, -216, -232 and -233 airplanes.
This proposed AD was prompted by a report that a possible interference was identified between 1M and 2M wiring harnesses and the tapping units. It was determined that the root cause for this interference was caused by a modified optional tapping unit design, reducing the clearance between the wire harnesses and the tapping unit. Further investigation determined that interference could adversely affect the lavatory smoke detection system and/or the passenger oxygen system. The FAA is proposing this AD to address possible loss of lavatory smoke detection and/or loss of passenger oxygen system commands, which could prevent the delivery of passenger oxygen during an emergency, and possibly result in injury to airplane occupants. See the MCAI for additional background information.
EASA AD 2019-0227 describes procedures for modifying the 1M and 2M harness routing. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI referenced above. The FAA is proposing this AD because the FAA 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 require accomplishing the actions specified in EASA AD 2019-0227 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2019-0227 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2019-0227 in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA AD 2019-0227 that is required for compliance with EASA AD 2019-0227 will be available on the internet at
The FAA estimates that this proposed AD affects 6 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 proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) 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
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 by January 6, 2020.
None.
This AD applies to Airbus SAS Model A319-112, -115, and -132 airplanes; and Model A320-214, -216, -232 and -233 airplanes; certificated in any category; as identified in European Union Aviation Safety Agency (EASA) AD 2019-0227, dated September 11, 2019 (“EASA AD 2019-0227”).
Air Transport Association (ATA) of America Code 92, Electric and Electronic
Common Installation.
This AD was prompted by a report that a possible interference was identified between 1M and 2M wiring harnesses and the tapping units, and that the interference could adversely affect the lavatory smoke detection system and/or the passenger oxygen system. The FAA is issuing this AD to address possible loss of lavatory smoke detection and/or passenger oxygen system commands, which could prevent the delivery of passenger oxygen during an emergency and possibly result in injury to airplane occupants.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2019-0227.
(1) Where EASA AD 2019-0227 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Remarks” section of EASA AD 2019-0227 does not apply to this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) For information about EASA AD 2019-0227, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 89990 6017; email
(2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to establish a temporary safety zone for certain waters of the Tongass Narrows. This action is necessary to provide for the safety of life on all navigable waters of the Tongass Narrows, from shoreline to shoreline, within a 500-yard radius of the Pinnacle Rock before, during, and after the scheduled operation between December 16, 2019 and January 31, 2020. This proposed rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Southeast Alaska or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before December 9, 2019. The Coast Guard has shortened the comment period to ensure the public's ability to comment on this proposed rule despite our organization's delayed notification of all details surrounding this operation.
You may submit comments identified by docket number USCG-2019-0838 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Jesse
Contract Drilling & Blasting LLC notified the Coast Guard that it will be conducting explosive dredging from 30 minutes after sunrise to one hour before sunset between December 16, 2019 and January 31, 2020. The operation will take place approximately 300 yards southwest of Berth II in Ketchikan, AK. Hazards from explosive dredging include concussive forces. The COTP has determined that potential hazards associated with the explosives to be used in this operation would be a safety concern for anyone above the water's surface within a 500-yard radius of Pinnacle Rock (located at approximately latitude 55°20′37″ N, longitude 131°38′96″ W).
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters of the Tongass Narrows, from shoreline to shoreline, within a 500-yard radius of Pinnacle Rock before, during, and after the scheduled operation December 16, 2019 and January 31, 2020. The Coast Guard is proposing 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 from 30 minutes after sunrise to one hour before sunset between December 16, 2019 and January 31, 2020. The safety zone would cover all navigable waters within 500 yards of Pinnacle Rock during explosive dredging operations in the Tongass Narrows located approximately 300 yards southwest of Berth II in Ketchikan, AK. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the daily 35-minute period of explosive dredging.
No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, time-of-day and time-of-year of the safety zone. Vessel traffic would be able to safely transit around this safety zone, south of Pennock Island, which would impact a small designated area of the Tongass Narrows for less than one hour per day when Contract Drilling & Blasting LLC would decide to detonate the explosives. 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 call or email 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 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
We have analyzed this proposed 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 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 less than an hour daily for 47 days that would prohibit entry within 500 yards of an explosive dredging operation. 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. 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 call or email 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 907-463-2980 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)
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
In response to a petition for rulemaking, FRA proposes amending its regulation on Training, Qualification, and Oversight for Safety-Related Railroad Employees by delaying the regulation's implementation dates for all contractors, and those Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more.
Written comments on the proposed rule must be received by December 23, 2019. FRA will consider comments received after that date to the extent practicable.
You may send comments, identified by docket number FRA-2019-0095 and RIN 2130-AC86, by any of the following methods:
•
•
•
•
Robert J. Castiglione, Staff Director -Human Performance Division, Federal Railroad Administration, 4100 International Plaza, Suite 450, Fort Worth, TX 76109-4820 (telephone: 817-447-2715); or Alan H. Nagler, Senior Attorney, Federal Railroad Administration, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-6038).
On November 7, 2014, FRA published a final rule (2014 Final Rule) that established minimum training standards for each category and subcategory of safety-related railroad employees and required railroad carriers, contractors, and subcontractors to submit training programs to FRA for approval.
On May 3, 2017, FRA delayed implementation dates in the 2014 Final Rule by one year. On April 27, 2018, FRA responded to a petition for reconsideration of that May 2017 rule by granting the American Short Line and Regional Railroad Association's (ASLRRA) request to delay the implementation dates by an additional year.
On June 27 and July 12, 2019, ASLRRA and the National Railroad Construction and Maintenance Association, Inc. (NRC) (collectively Associations) filed petitions for rulemaking that were docketed in the U.S. DOT's Docket Management System as FRA-2019-0050. In the June 27, 2019 petition, ASLRRA and NRC request that FRA make several substantive changes to the part 243 regulation. In that petition, ASLRRA and NRC assert that as the regulation currently exists, it presents short line and regional railroads and contractors with “substantial and unnecessary regulatory burdens” and therefore additional regulatory flexibility should be afforded to short line and regional railroads and contractors. In the July 12, 2019 petition ASLRRA and NRC request that FRA initiate a rulemaking to delay the implementation dates in part 243 as applicable to Class II and III railroads and contractors for two years while FRA considers its June 27, 2019 petition. In the alternative, ASLRRA and NRC ask that FRA suspend the current implementation dates as applied to Class II and III railroads and contractors.
ASLRRA and NRC take the position that even though some of their members are not small entities by FRA's definition of fewer than 400,000 total employee work hours annually, these other entities will likely implement model programs in the same way as the small entities, rather than develop their own programs as is expected for Class I railroads. In the June 27, 2019 petition, the Associations state that Class II regional railroads are more like Class III shortlines in terms of structure, resources, and operations than Class I railroads. For example, Class II regional railroads operate trains for shorter distances and at lower speeds than Class I railroads. Class II regional railroads also were described in the June 27, 2019 petition as typically having fewer managerial layers and without their own training facilities, which would further differentiate them from Class I railroads. That petition also asserts that even large contractors are often not comparable to Class I railroads considering that a contractor's workforce is likely to be more spreadout, resulting in the contractor incurring greater implementation costs and stretched resources than a Class I railroad. Further, the June 27, 2019 petition states that FRA's regulation treats medium and large contractors the same as a Class I railroad even if the contractor's railroad-related work is only a small percentage of its work and is equal to that of a small entity contractor.
In the 2014 Final Rule's Regulatory Impact Analysis (2014 RIA), FRA made certain assumptions. For instance, FRA assumed that all seven Class I freight railroads, all 26 commuter railroads, and two intercity passenger railroads would not rely on model programs. Another assumption in the 2014 RIA was that 10 other entities (5 Class II railroads, 2 Class III railroads, and 3 contractors) would not rely on model programs. Thus, FRA agrees with the premise in ASLRRA and NRC's June 27, 2019 petition that, except for the approximately 45 employers who FRA estimated would develop their own programs, it is likely that the remainder will implement model programs because doing so would minimize costs for each employer. Treating this remainder group of employers in the same manner as the small entities would therefore reflect a more consistent approach to those employers adopting model programs.
In responding to the petitions for rulemaking, FRA is proposing to delay the implementation dates in the rule for all contractors, and those Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours
FRA's proposed response is specifically targeted to equalize the implementation dates for those employers most likely to adopt model programs rather than develop their own programs as FRA identified in the 2014 RIA. The reason for this specifically targeted proposed rule is that FRA is considering whether to initiate a separate rulemaking which would be limited to amending FRA's training regulation so that the regulatory text includes the latest guidance that is intended to help small entities and other users of model training programs. Thus, without any changes to the implementation dates, the targeted employers might not understand that the regulation contains more flexibility than is commonly understood or they may not feel comfortable following the guidance believing there is regulatory uncertainty.
FRA understands that many regulated entities are on schedule to meet the deadlines in the part 243 regulation. For those regulated entities that are prepared to move forward in advance of any deadline, there is certainly no prohibition against doing so and implementing a compliant training program earlier than required should benefit the overall safety of those employers' operations.
In consideration of the foregoing, FRA is proposing to reclassify those employers that FRA anticipates will likely adopt a model program so that they have the same implementation deadlines as the small entities. For purposes of this proposed rule, the Class II and III railroads and the contractors who would get relief provide training and operations in a manner more similar to that of a small entity than a Class I railroad thereby justifying delays in the implementation schedule. The proposed implementation date delays will not impact the Class I railroads, and those commuter and intercity passenger railroads with 400,000 total employee work hours annually or more.
FRA proposes to amend the implementation date in § 243.101(a)(1) so that it is limited to Class I railroads, and those intercity or commuter passenger railroads with 400,000 total employee work hours annually or more. Also, FRA proposes to amend this section so that all employers not covered by § 243.101(a)(1) will now be covered by § 243.101(a)(2), unless the employer is commencing operations after January 1, 2020 and would be covered by § 243.101(b). In other words, § 243.101(a)(1) would specifically except all contractors, and those Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more from complying with the January 1, 2020 training program submission implementation deadline. Instead, under proposed § 243.101(a)(2), all contractors, and those Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more, will be required to comply with a training program submission deadline of May 1, 2021. Thus, those entities that benefit from the proposed rule will have an additional 16 months to submit a training program for their safety-related railroad employees.
FRA proposes to amend the implementation dates in paragraphs (a)(1) and (e)(1) of this section so that they are limited to Class I railroads, and those intercity or commuter passenger railroads with 400,000 total employee work hours annually or more. Also, FRA proposes to amend this section so that all employers not covered by § 243.201 (a)(1) and (e)(1) will now be covered by § 243.201(a)(2) and (e)(2). Please note that an employer commencing operations after January 1, 2020 would still be covered by § 243.201(b) and would be expected to implement a refresher training program upon commencing operations.
This proposed rule is a non-significant regulatory action within the meaning of Executive Order 12866 and DOT policies and procedures.
As explained in the Supplementary Information section, FRA published the 2014 Final Rule to fulfill a statutory mandate. On May 3, 2017, FRA delayed implementation dates in the 2014 Final Rule by one year. On April 27, 2018, FRA responded to a petition for reconsideration of that May 2017 rule by granting the ASLRRA's request to delay the implementation dates an additional year. FRA is issuing a proposed rulemaking targeted to equalize the implementation dates for Class II railroads, Class III railroads, and contractors regardless of their annual employee work hours with the exception of those intercity or commuter passenger railroads with 400,000 total employee work hours annually or more. With adoption of this proposed rule, the targeted employers will have until May 1, 2021 to submit a training program to FRA instead of the previous January 1, 2020 deadline which was applicable to railroads (regardless of whether they were Class II or III railroads), and contractors with 400,000 annual employee work hours or more.
FRA believes that the proposed rule will reduce the regulatory burden on the railroad industry by delaying the implementation dates. This proposed rule will extend the implementation deadlines for some regulated entities by a total of 16 months from the 2018 request. This proposed rule would be beneficial for regulated entities by adding time for some railroads and contractors to comply.
The costs arising from the training rule in 49 CFR part 243 over the 20-year period considered include: The costs of revising training programs to include “hands-on” training where appropriate, as well as the costs of creating entirely new training programs for any employer that does not have one already; the costs of customizing model training programs for those employers that choose to adopt a model program rather than create a new program; the costs of annual data review and analysis required in order to improve training programs; the costs of revising programs in later years; the costs of additional time new employees may have to spend in initial training; the costs of additional periodic oversight tests and inspections; the costs of additional qualification tests; and the
FRA believes that additional hands-on and refresher training will reduce the frequency and severity of some future accidents and incidents. Expected safety benefits were calculated using full accident costs, which are based on past accident history, the values of preventing future fatalities and injuries sustained, and the cost of property damage. Full accident costs are determined by the number of fatalities and injuries multiplied by their respective prevention valuations, and the cost of property damage. By delaying the implementation dates, all contractors, and those Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more will realize a cost savings. All contractors, and those Class II and III railroads that are not intercity or commuter passenger railroads with 400,000 total employee work hours annually or more will not incur costs during the first 16 months of this analysis. Also, costs incurred in future years will be discounted an extra 16 months, which will decrease the present value burden. The present value of costs would be less than if the original implementation dates were maintained. FRA has estimated this cost savings to be approximately $3.0 million, at a 7% discount rate, for impacted railroads and contractors that will experience relief as a result of this proposed rule.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601
“Small entity” is defined in 5 U.S.C. 601 as including a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a for profit “linehaul railroad” that has fewer than 1,500 employees, a “short line railroad” with fewer than 500 employees, or a “commuter rail system” with annual receipts of less than 15 million dollars. See “Size Eligibility Provisions and Standards,” 13 CFR part 121, subpart A. Additionally, 5 U.S.C. 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. Federal agencies may adopt their own size standards for small entities, in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final statement of agency policy that formally establishes “small entities” or “small businesses” as being railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891 (May 9, 2003), codified at appendix C to 49 CFR part 209. The $20-million limit is based on the Surface Transportation Board's revenue threshold for a Class III railroad. Railroad revenue is adjusted for inflation by applying a revenue deflator formula in accordance with 49 CFR 1201.1-1. FRA is using this definition for this rulemaking.
The requirements of this proposed rule would apply to employers of safety-related railroad employees that FRA previously determined were not small entities. This proposed rule would have no direct impact on small units of government, businesses, or other organizations. State rail agencies are not required to participate in this program. State owned railroads would receive a positive impact by having additional time to comply. Therefore, the proposed rule would not impact any small entities. Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the FRA Administrator hereby certifies that this proposed rule would not have a significant impact on a substantial number of small entities. FRA requests comments on all aspects of this certification.
There are no new collection of information requirements contained in this proposed rule and, in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
This proposed rule will not have a substantial 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. Thus in accordance with Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), preparation of a Federalism Assessment is not warranted.
The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards.
This proposed rule is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.
FRA has evaluated this proposed rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this proposed rule that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed rule is not a major Federal action significantly affecting the quality of the human environment.
Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law). Section 202 of the Act (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This proposed rule will not result in such an expenditure, and thus preparation of such a statement is not required.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). FRA evaluated this proposed rule in accordance with Executive Order 13211, and determined that this regulatory action is not a “significant energy action” within the meaning of the Executive Order.
Executive Order 13783, “Promoting Energy Independence and Economic Growth,” requires Federal agencies to review regulations to determine whether they potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. 82 FR 16093 (Mar. 31, 2017). FRA determined this proposed rule will not burden the development or use of domestically produced energy resources.
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
Administrative practice and procedure, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FRA proposes to amend part 243 of chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows:
49 U.S.C. 20103, 20107, 20131-20155, 20162, 20301-20306, 20701-20702, 21301-21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
(a)(1) Effective January 1, 2020, each Class I railroad, and each intercity or commuter passenger railroad conducting operations subject to this part with 400,000 total employee work hours annually or more, shall submit, adopt, and comply with a training program for its safety-related railroad employees.
(2) Effective May 1, 2021, each employer conducting operations subject to this part not covered by paragraph (a)(1) of this section shall submit, adopt, and comply with a training program for its safety-related railroad employees.
(a) * * *
(1) By no later than September 1, 2020, each Class I railroad, and each intercity or commuter passenger railroad conducting operations subject to this part with 400,000 total employee work hours annually or more in operation as of January 1, 2020, shall declare the designation of each of its
(2) By no later than January 1, 2022, each employer conducting operations subject to this part not covered by paragraph (a)(1) of this section in operation as of January 1, 2021, shall declare the designation of each of its existing safety-related railroad employees by occupational category or subcategory, and only permit designated employees to perform safety-related service in that occupational category or subcategory. The Associate Administrator may extend this period based on a written request.
(e) * * *
(1) Beginning January 1, 2022, each Class I railroad, and each intercity or commuter passenger railroad conducting operations subject to this part with 400,000 total employee work hours annually or more, shall deliver refresher training at an interval not to exceed 3 calendar years from the date of an employee's last training event, except where refresher training is specifically required more frequently in accordance with this chapter. If the last training event occurs before FRA's approval of the employer's training program, the employer shall provide refresher training either within 3 calendar years from that prior training event or no later than December 31, 2024. Each employer shall ensure that, as part of each employee's refresher training, the employee is trained and qualified on the application of any Federal railroad safety laws, regulations, and orders the person is required to comply with, as well as any relevant railroad rules and procedures promulgated to implement those Federal railroad safety laws, regulations, and orders.
(2) Beginning May 1, 2023, each employer conducting operations subject to this part not covered by paragraph (e)(1) of this section shall deliver refresher training at an interval not to exceed 3 calendar years from the date of an employee's last training event, except where refresher training is specifically required more frequently in accordance with this chapter. If the last training event occurs before FRA's approval of the employer's training program, the employer shall provide refresher training either within 3 calendar years from that prior training event or no later than December 31, 2025. Each employer shall ensure that, as part of each employee's refresher training, the employee is trained and qualified on the application of any Federal railroad safety laws, regulations, and orders the person is required to comply with, as well as any relevant railroad rules and procedures promulgated to implement those Federal railroad safety laws, regulations, and orders.
Issued in Washington, DC.
Forest Service, USDA.
Notice of intent.
Notice is hereby given that the U.S. Department of Agriculture, Forest Service, intends to grant to Hunter Farms dba Whispering Green Energy of 684 County Road #2 Hillier, Ontario K0K 2J0, Canada, an exclusive license to U.S. Patent Application No. 15/882,078, “LOW TEMPERATURE AND EFFICIENT FRACTIONATION OF LIGNOCELLULOSIC BIOMASS USING RECYCLABLE ORGANIC SOLID ACIDS”, filed on January 29, 2018.
Comments must be received on or before December 9, 2019.
Send comments to: Thomas Moreland, Technology Transfer Coordinator, USDA Forest Service, 443-677-6858,
Thomas Moreland, Technology Transfer Coordinator, USDA Forest Service, 443-677-6858,
The Federal Government's patent rights in this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license this invention as Hunter Farms dba Whispering Green Energy of 684 County Road #2 Hillier, Ontario K0K 2J0, Canada has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within fifteen (15) days from the date of this published Notice, the USDA Forest Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Cotton Ginning Survey. Revision to burden hours may be needed due to possible changes in the size of the target population, sampling design, and/or questionnaire length.
Comments on this notice must be received by January 21, 2020 to be assured of consideration.
You may submit comments, identified by docket number 0535-0220, by any of the following methods:
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Kevin L. Barnes, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202)720-2707. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS—OMB Clearance Officer, at (202)690-2388 or at
NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
Bureau of Industry and Security.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before January 21, 2020.
Direct all written comments to Mark Crace, IC Liaison, Bureau of Industry and Security, 1401 Constitution Avenue, Suite 2099B, Washington, DC 20233 (or via the internet at
This collection of information involves ten miscellaneous activities described in Sections 744.15(b), Part 744 Supplement No. 7, paragraph (d), § 748.4 and Part 758 of the EAR that are associated with the export of items controlled by the Department of Commerce. Most of these activities do not involve submission of documents to the Bureau of Industry and Security (BIS) but instead involve exchange of documents among parties in the export transaction to ensure that each party understands its obligations under U.S. law. Others involve writing certain export control statements on shipping documents or reporting unforeseen changes in shipping and disposition of exported commodities. These activities are needed by the Office of Export Enforcement and the U.S. Customs Service to document export transactions, enforce the EAR and protect the National Security of the United States
This information can be transmitted electronically, orally, in paper format, or by other conventional means as requested.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Bureau of Industry and Security, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before January 21, 2020.
Direct all written comments to Mark Crace, IC Liaison, Bureau of Industry and Security, 1401 Constitution Avenue, Suite 2099B, Washington, DC 20233 (or via the internet at
All U.S. firms desiring to participate in the NATO International Competitive Bidding (ICB) process under the NATO Security Investment Program (NSIP) must be certified as technically, financially and professionally competent. The U.S. Department of Commerce provides the Declaration of Eligibility that certifies these firms. Any such firm seeking certification is required to submit a completed Form BIS-4023P along with a current annual financial report and a resume of past projects in order to become certified and placed on the Consolidated List of Eligible Bidders.
Applications are submitted to the U.S. Department of Commerce's Office of Strategic Industries and Economic Security, Defense Programs Division where the contents are reviewed for completeness and accuracy by the NATO Program Specialist. The application is a one-time effort. The information provided on the BIS-4023P form is used to certify the U.S. firm and place it in the bidders list database.
BIS has developed a form-fillable .PDF version of the BIS-4023P to enable electronic submission of this form. The form is available at the following URL:
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) continues to determine that Noksel Celik Boru Sanayi A.S. (Noksel), a producer and/or exporter of heavy walled rectangular welded carbon steel pipes and tubes (HWR pipes and tubes) from the Republic of Turkey (Turkey), sold subject merchandise in the United States at prices below normal value (NV) during the period of review (POR) September 1, 2017 through August 31, 2018. We also determine that Cinar Boru Profil San Ve Tic A.S. (Cinar Boru) had no shipments of HWR pipes and tubes during the POR. Based on an analysis of the comments received, we have not made changes to the weighted-average dumping margins listed in the “Final Results of Review” section below.
Applicable November 22, 2019.
William Horn or Alexis Cherry, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4868 or (202) 482-0607, respectively.
Commerce published the
The products covered by the order are HWR pipes and tubes from Turkey. A full description of the scope of the order is contained in the Issues and Decision Memorandum.
The issues raised by the petitioners in their case brief are addressed in the Issues and Decision Memorandum.
For these final results, we continue to find that Noksel withheld necessary information requested by Commerce, failed to provide information to Commerce by the required deadline, and significantly impeded the proceeding. Further, we continue to find that because Noksel received Commerce's questionnaire but did not respond to our request for information, Noksel failed to cooperate to the best of its ability. Therefore, we continue to find that the application of adverse facts available, pursuant to sections 776(a) and (b) of the Act, is warranted with respect to Noksel.
In the
After issuing the
For these final results, we continue to assign to Noksel as AFA the highest rate on the record of this proceeding. We will also apply to the non-selected companies the dumping margin that we are applying to Noksel in this administrative review.
As a result of this review, we determine the following weighted-average dumping margins exist for the POR:
Commerce has determined,
We intend to issue instructions to CBP 15 days after the date of publication of the final results of this review.
The following deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rates for each specific company listed above will be the weighted-average dumping margins established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which the manufacturer or exporter participated; (3) if the exporter is not a firm covered in this review, a prior review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of the proceeding for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 17.73 percent
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
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.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that no companies under review qualify for a separate rate, and that these companies are therefore considered part of the Vietnam-wide entity. The period of review (POR) is February 1, 2018 through January 31, 2019.
Applicable November 22, 2019.
Irene Gorelik, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6905.
On September 12, 2019, Commerce published in the
The merchandise subject to the order is certain frozen warmwater shrimp. The product is currently classified under the following Harmonized Tariff Schedule of the United States (HTSUS) item numbers: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. Although the HTSUS numbers are provided for convenience and for customs purposes, the written product description remains dispositive.
In the
As no parties submitted comments regarding the
Normally, Commerce will disclose the calculations used in its analysis to parties in this review within five days of the date of publication of the notice of final results in the
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.
With regard to the companies identified in Appendix II as part of the Vietnam-wide entity, we will instruct CBP to apply an
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from Vietnam entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For all Vietnam exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the existing rate for the Vietnam-wide entity of 25.76 percent; (2) for previously investigated or reviewed Vietnam and non-Vietnam exporters, not listed in this notice, that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate; and (3) for all non-Vietnam exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the Vietnam exporter that supplied that non-Vietnam exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a final reminder to parties subject to APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
The scope of the order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,
The frozen warmwater shrimp and prawn products included in the scope of the order, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTS”), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the
The products covered by this order are currently classified under the following HTS subheadings: 0306.17.00.03, 0306.17.00.06, 0306.17.00.09, 0306.17.00.12, 0306.17.00.15, 0306.17.00.18, 0306.17.00.21, 0306.17.00.24, 0306.17.00.27, 0306.17.00.40, 1605.21.10.30, and 1605.29.10.10. These HTS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On November 8, 2019, the United States Court of International Trade (Court) sustained the final remand results pertaining to the countervailing duty (CVD) investigation on certain carbon and alloy steel cut-to-length (CTL) plate from the Republic of Korea (Korea) covering the period January 1, 2015 through December 31, 2015. The Department of Commerce (Commerce) is notifying the public that the final judgment in this case is not in harmony with the final determination of the CVD investigation and that Commerce is amending the final determination with respect to the net countervailable subsidy rates assigned to POSCO and all other producers/exporters not individually investigated.
Applicable November 18, 2019.
Yasmin Bordas, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3813.
On April 4, 2017, Commerce published its
On December 6, 2018, the Court remanded various aspects of the
Separately, the Court held that Commerce did not “evaluate the application of the highest available AFA rates” as required by section 776(d)(2) of the Tariff Act of 1930, as amended (the Act).
Shortly thereafter, POSCO filed a motion for reconsideration of the Court's opinion. In its
Pursuant to the
In its decision in
Because there is now a final court decision, Commerce is amending its
Because POSCO does not have a superseding cash deposit rate,
This notice is issued and published in accordance with sections 516A(c)(1) and (e)(1), 705(c)(1)(B), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that OCTAL SAOC-FZC (OCTAL) did not make sales of polyethylene terephthalate resin (PET resin) from the Sultanate of Oman (Oman) at less than normal value during the period of review (POR), May 1, 2017 through April 30, 2018.
Applicable November 22, 2019.
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) 482-3518.
On July 18, 2019, Commerce published the
The merchandise covered by this order is PET resin having an intrinsic viscosity of at least 0.70, but not more than 0.88, deciliters per gram. The merchandise subject to this order is properly classified under subheadings 3907.60.00.30, 3907.61.0000, 3907.61.0010, 3907.61.0050, 3907.69.0000, 3907.69.0010, and 3907.69.0050 of the Harmonized Tariff Schedule of the United States (HTSUS).
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the IDM, which is hereby adopted by this notice. A list of the issues raised is attached to this notice as an Appendix. The IDM is a public document and is on-file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our review of the record and comments received from interested parties, we made no revisions to the preliminary dumping margin calculations for OCTAL.
We have determined that the following weighted-average dumping margin exists for the firm listed below for the period May 1, 2017 through April 30, 2018:
Pursuant to section 751(a)(2)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.212(b)(1), Commerce will determine, and U.S. Customs and Border Protections (CBP) shall assess, AD duties on all appropriate entries of subject merchandise in accordance with the final results of this review. Because OCTAL's weighted-average dumping margin is zero percent, we will instruct CBP to liquidate the appropriate entries without regard to AD duties.
For POR entries of subject merchandise produced by OCTAL for which it did not know the merchandise was destined for the United States, we will instruct CBP to liquidate these 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 the final results of this review.
The following cash deposit requirements will be effective upon publication of this notice of final results of administrative review in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of AD duties prior to liquidation of the relevant entries during the POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of AD duties occurred and the subsequent assessment of doubled AD 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). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) continues to find that GVN Fuels, Ltd. (GVN) had no shipments of subject merchandise during the period of review (POR) September 1, 2017 through August 31, 2018.
Charlotte Baskin-Gerwitz, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4880.
On August 13, 2019, Commerce published the
The merchandise covered by the order is certain oil country tubular goods (OCTG), which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
Excluded from the scope of the order are: Casing or tubing containing 10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and unattached thread protectors.
The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The merchandise subject to the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55, 7306.30.50.90, 7306.50.50.50, and 7306.50.50.70.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the order is dispositive.
Commerce preliminarily determined that GVN had no shipments of subject merchandise during the POR.
We have calculated no assessment rates in this administrative review. Pursuant to Commerce's assessment practice, because we have determined that GVN had no shipments of the subject merchandise, any suspended entries that entered under that exporter's case number (
As a result of this administrative review, there are no changes to the existing cash deposit requirements, which shall remain in effect until further notice.
This notice 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 Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(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
These final results of administrative are issued and published in accordance with sections 751(a)(1) and 777(i) of the Tariff Act of 1930, as amended, and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is partially rescinding its administrative review of the antidumping duty order on certain circular welded carbon steel pipes and tubes from Taiwan for the period May 1, 2018, through April 30, 2019.
Applicable November 22, 2019.
Hannah Falvey or Nicolas Mayora, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4889 or (202) 482-3053, respectively.
On May 1, 2019, Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation. The request for an administrative review of the following companies was withdrawn within 90 days of the date of publication of the
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. For the companies for which this review is rescinded, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse for consumption, in accordance with 19 CFR 351.212(c)(l)(i). Commerce intends to issue appropriate assessment instruction to CBP 15 days after publication of this notice in the
This notice 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 any antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of any antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written or on-line comments must be submitted on or before January 21, 2020.
Direct all written comments to Adrienne Thomas, PRA Officer, NOAA, 151 Patton Avenue, Room 159, Asheville, NC 28801 (or via internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Christopher “J” Dunn, LTJG/NOAA. NOAA Office of Ocean Exploration and Research, 215 South Ferry Road, Narragansett, RI 02882; 401-874-6478;
This request is for a revision of an existing information collection.
NOAA's Office of Ocean Exploration and Research (OER) is the only federal organization dedicated to ocean exploration. By using unique capabilities in terms of personnel, technology, infrastructure, and exploration missions, OER is reducing unknowns in deep-ocean areas and providing high-value environmental intelligence needed by NOAA and the nation to address both current and emerging science and management needs. Our expertise, work products, and services generally fall into the areas of expedition planning and operations; marine archaeology; coastal and ocean mapping; science; technology; data management; and education.
Since the inception of NOAA's exploration program in 2001, OER data management has been guided by the 2000 President's Panel Report recommendations which prioritized rapid and unrestricted data sharing as one of five critical exploration program components. More recently, Public law 111-11 [Section XII Ocean Exploration] reinforced and expanded OER data management objectives, continuing to stress the importance of sharing unique exploration data and information to improve public understanding of the oceans, and for research and management purposes.
Telepresence satellite communication from the ship to shore brings the unknown ocean to the screens of both scientists and the general public in their homes, schools or offices in near real time. With technology constantly evolving it is important to address the needs of the shore-based scientists and public to maintain a high level of participation. We use voluntary surveys to identify the needs of users of data and best approaches to leverage expertise of shore-based participants for meaningful public engagement focused on ocean exploration.
This information collection consists of four forms. (1) Sailing Contact Information (new). This form is sent to the few scientists that directly sail on NOAA Ship
Information is only collected via online form.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of intent; request for applications.
NMFS announces its request for applications for the 2020 shark research fishery from commercial shark fishermen with directed or incidental shark limited access permits. The shark research fishery allows for the collection of fishery-dependent and biological data for future stock assessments and to meet the research objectives of the Agency. The only commercial vessels authorized to land sandbar sharks are those participating in the shark research fishery. Shark research fishery permittees may also land other large coastal sharks (LCS), small coastal sharks (SCS), smoothhound, and pelagic sharks. Commercial shark fishermen who are interested in participating in the shark research fishery need to submit a completed Shark Research Fishery Permit Application in order to be considered.
Shark Research Fishery Applications must be received no later than December 23, 2019.
Please submit completed applications to the HMS Management Division at:
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•
For copies of the Shark Research Fishery Permit Application, please write to the HMS Management Division at the address listed above, call (301) 427-8503 (phone), or email a request to
Karyl Brewster-Geisz, Lauren Latchford at (301) 427-8503 (phone) or Delisse Ortiz at (240) 681-9037 or email
The Atlantic shark fisheries are managed under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The 2006 Consolidated HMS Fishery Management Plan (FMP), as amended, is implemented by regulations at 50 CFR part 635.
The shark research fishery was established, in part, to maintain time series data for stock assessments and to meet NMFS' research objectives. Since the shark research fishery was established in 2008, the research fishery has allowed for: The collection of fishery-dependent data for current and future stock assessments; the operation of cooperative research to meet NMFS' ongoing research objectives; the collection of updated life-history information used in the sandbar shark (and other species) stock assessment; the collection of data on habitat preferences that might help reduce fishery interactions through bycatch mitigation; evaluation of the utility of the mid-Atlantic closed area on the recovery of dusky sharks and collection of hook-timer and pop-up satellite archival tag information to determine at-vessel and post-release mortality of dusky sharks; and collection of sharks to determine the weight conversion factor from dressed weight to whole weight.
The shark research fishery allows selected commercial fishermen the opportunity to earn revenue from selling additional sharks, including sandbar sharks. Only the commercial shark fishermen selected to participate in the shark research fishery are authorized to land sandbar sharks subject to the sandbar quota available each year. The base quota is 90.7 metric tons (mt) dressed weight (dw) per year, although this number may be reduced in the event of overharvests, if any. The selected shark research fishery permittees will also be allowed to land other LCS, SCS, smoothhound, and pelagic sharks consistent with any restrictions established on their shark research fishery permit. Generally, the shark research fishery permits are valid only for the calendar year for which they are issued.
The specific 2020 trip limits and number of trips per month will depend on the availability of funding, number of selected vessels, the availability of observers, the available quota, and the objectives of the research fishery, and will be included in the permit terms at time of issuance. The number of participants in the research fishery changes each year. In 2019, five fishermen were chosen to participate. From 2008 through 2019, there has been an average of seven participants each year with the range from five to eleven. The number of trips allowed per month can change, but in the last few years this number has remained constant with partipating vessels on average been able to take one trip per month. However, the number of trips taken per month are limited by the scientific and research needs of the Agency and the number of NMFS-approved observers available. Participants may also be limited on the amount of gear they can deploy on a given set (
In the 2019 fishing season, NMFS split 90 percent of the sandbar and LCS research fishery quotas equally among selected participants, with each vessel allocated 16.3 mt dw (35,992 lb dw) of sandbar shark research fishery quota and 9.0 mt dw (19,841 lb dw) of other LCS research fishery quota. The remaining quota was held in reserve to ensure the overall sandbar and LCS research fishery quotas were not exceeded. NMFS also established a regional dusky bycatch limit, which was implemented in 2013, specific to this small research fishery, where once three or more dusky sharks were brought to the vessel dead in any of four regions across the Gulf of Mexico and Atlantic through the entire year, any shark research fishery permit holder in that region was not able to soak their gear for longer than 3 hours. If, after the change in soak time, there were two additional
Participants were also required to land any dead sharks, unless they were a prohibited species, in which case they were required to discard them. All prohibited species must be released, unless the observer requests that the shark be retained for research purposes. If the regional non-blacknose SCS, blacknose, and/or pelagic shark commercial management group quotas were closed, then any shark research fishery permit holder fishing in the region was required to discard all of the species from the closed management groups regardless of condition. Any sharks, except prohibited species or species from closed commercial management groups, caught and brought to the vessel alive could be released alive or landed. The vessels participating in the shark research fishery took on average 9 trips in 2019, but the timing, and number of the trips varied based on seasonal availability of certain species and individual allocated quotas.
In order to participate in the shark research fishery, commercial shark fishermen need to submit a completed Shark Research Fishery Application by the deadline noted above (see
Each year, the research objectives are developed by a shark board, which is comprised of representatives within NMFS, including representatives from the Southeast Fisheries Science Center (SEFSC) Panama City Laboratory, the Southeast Regional Office Protected Resources Division, and the HMS Management Division. The research objectives for 2020 are based on various documents, including the 2012 Biological Opinion for the Continued Authorization of the Atlantic Shark Fisheries and the Federal Authorization of a Smoothhound Fishery, as well as recent stock assessments for the U.S. South Atlantic blacknose, U.S Gulf of Mexico blacknose, U.S. Gulf of Mexico blacktip, sandbar, and dusky sharks (all these stock assessments can be found at
• Collect reproductive, length, sex, and age data from sandbar and other sharks throughout the calendar year for species-specific stock assessments;
• Monitor the size distribution of sandbar sharks and other species captured in the fishery;
• Continue on-going tagging shark programs for identification of migration corridors and stock structure using dart and/or spaghetti tags;
• Maintain time-series of abundance from previously derived indices for the shark bottom longline observer program;
• Sample fin sets (
• Acquire fin-clip samples of all shark and other species for genetic analysis;
• Attach satellite archival tags to endangered smalltooth sawfish to provide information on critical habitat and preferred depth, consistent with the requirements listed in the take permit issued under section 10 of the Endangered Species Act to the SEFSC observer program;
• Attach satellite archival tags to prohibited dusky and other sharks, as needed, to provide information on daily and seasonal movement patterns, and preferred depth;
• Evaluate hooking mortality and post-release survivorship of dusky, hammerhead, blacktip, and other sharks using hook-timers and temperature-depth recorders;
• Evaluate the effects of controlled gear experiments in order to determine the effects of potential hook changes to prohibited species interactions and fishery yields;
• Examine the size distribution of sandbar and other sharks captured throughout the fishery including in the Mid-Atlantic shark time/area closure off the coast of North Carolina from January 1 through July 31;
• Develop allometric and weight relationships of selected species of sharks (
• Collect samples such as liver and muscle plugs for stable isotope analysis as a part of a trophic level-based ecosystem study.
Shark Research Fishery Permit Applications will only be accepted from commercial shark fishermen who hold a current directed or incidental shark limited access permit. While incidental permit holders are welcome to submit an application, to ensure that an appropriate number of sharks are landed to meet the research objectives for this year, NMFS will give priority to directed permit holders as recommended by the shark board. As such, qualified incidental permit holders will be selected only if there are not enough qualified directed permit holders to meet research objectives.
The Shark Research Fishery Permit Application includes, but is not limited to, a request for the following information: Type of commercial shark permit possessed; past participation and availability in the commercial shark fishery (not including sharks caught for display); past involvement and compliance with HMS observer programs per 50 CFR 635.7; past compliance with HMS regulations at 50 CFR part 635; past and present availability to participate in the shark research fishery year-round; ability to fish in the regions and season requested; ability to attend necessary meetings regarding the objectives and research protocols of the shark research fishery; and ability to carry out the research objectives of the Agency. Preference will be given to those applicants who are willing and available to fish year-round and who affirmatively state that they intend to do so, in order to ensure the timely and accurate data collection NMFS needs to meet this year's research objectives. An applicant who has been charged criminally or civilly (
The HMS Management Division will review all submitted applications and develop a list of qualified applicants from those applications that are deemed complete. A qualified applicant is an applicant that has submitted a complete application by the deadline (see
Once the selection process is complete, NMFS will notify the selected applicants and issue the shark research fishery permits. The shark research fishery permits will be valid through December 31, 2020, unless otherwise specified. If needed, NMFS will communicate with the shark research fishery permit holders to arrange a captain's meeting to discuss the research objectives and protocols. NMFS usually holds mandatory captain's meetings before observers are placed on vessels and may hold one for the 2020 shark research fishery in early 2020. Once the fishery starts, the shark research fishery permit holders must contact the NMFS observer coordinator to arrange the placement of a NMFS-approved observer for each shark research trip. Additionally, selected applicants are expected to allow observers the opportunity to perform their duties as required and assist observers as necessary.
A shark research fishery permit will only be valid for the vessel and owner(s) and terms and conditions listed on the permit, and, thus, cannot be transferred to another vessel or owner(s). Shark research fishery permit holders must carry a NMFS-approved observer in order to land sandbar sharks. Issuance of a shark research permit does not guarantee that the permit holder will be assigned a NMFS-approved observer on any particular trip. Rather, issuance indicates that a vessel may be issued a NMFS-approved observer for a particular trip, and on such trips, may be allowed to harvest Atlantic sharks, including sandbar sharks, in excess of the retention limits described in 50 CFR 635.24(a). These retention limits will be based on available quota, number of vessels participating in the 2020 shark research fishery, the research objectives set forth by the shark board, the extent of other restrictions placed on the vessel, and may vary by vessel and/or location. When not operating under the auspices of the shark research fishery, the vessel would still be able to land LCS, SCS, and pelagic sharks subject to existing retention limits on trips without a NMFS-approved observer.
NMFS annually invites commercial shark permit holders (directed and incidental) to submit an application to participate in the shark research fishery. Permit applications can be found on the HMS Management Division's website at
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes products and services to the Procurement List that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
On 10/11/2019 and 10/18/2019, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and services listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services deleted from the Procurement List.
Accordingly, the following products and services are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the Procurement List.
The Committee is proposing to add services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes products and services previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603-2117, Fax: (703) 603-0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following products and services are proposed for deletion from the Procurement List:
Under Secretary of Defense for Research and Engineering (USD(R&E)), Department of Defense (DoD).
Notice of proposal to adopt a demonstration project plan and additional flexibilities.
This
The ARI demonstration project proposal may not be implemented until a 30-day comment period is provided, comments addressed, and a final FRN published. To be considered, written comments must be submitted on or before December 23, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
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Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1995, Public Law (Pub. L.) 103-337, as amended, authorizes the Secretary of Defense (SECDEF), through the USD(R&E), to conduct personnel demonstration projects at DoD laboratories designated as STRLs.
Since 1966, many studies of DoD laboratories have been conducted on laboratory quality and personnel. Most of these studies have recommended improvements in civilian personnel policy, organization, and management. Pursuant to the authority provided in section 342(b) of the NDAA for FY 1995, as amended, a number of DoD STRL personnel demonstration projects were approved. These projects are “generally similar in nature” to the Department of Navy's “China Lake” Personnel Demonstration Project. The terminology, “generally similar in nature,” does not imply an emulation of various features, but rather implies a similar opportunity and authority to develop personnel flexibilities that significantly increase the decision authority of laboratory commanders and/or directors.
ARI conducted a thorough review of the personnel practices of existing DoD laboratories designated as STRLs and applicable laws, regulations, and guidance to identify potential flexibilities that would allow ARI to (1) improve effectiveness through a more flexible, responsive personnel system; (2) increase management authority over human resources management; (3) recruit, develop, motivate, and retain a high quality workforce; and (4) adjust workforce levels to meet strategic program and organizational needs.
This demonstration project involves:
(1) New appointment authorities;
(2) Extended probationary periods;
(3) Supervisory probationary periods;
(4) Pay banding;
(5) Streamlined delegated examining;
(6) Simplified job classification;
(7) A pay-for-performance based appraisal system;
(8) A sabbatical program;
(9) Academic degree and certificate training;
(10) A Volunteer Emeritus Corps; and
(11) Senior Scientific Technical Manager (SSTM) positions.
The demonstration project also involves the use of numerous direct hire authorities, as appropriate and in accordance with guidance. Many aspects of a demonstration project are experimental. Modifications may be made from time to time as we gain experience, analyze results, and reach conclusions on how the system is working. The provisions of Department of Defense Instruction (“DoDI”) 1400.37, “Science and Technology Reinvention Laboratory (STRL) Personnel Demonstration Projects” (available at
ARI intends to build its demonstration project using flexibilities adopted from existing STRL demonstration programs with significant overlap with the CCDC C5ISR, CCDC CBC, and CCDC SC.
As described in 73 FR 73248, December 2, 2008, flexibilities are defined as those features described in a STRL FRN; amendments thereto published in an FRN; minor changes made within the authorities of a demonstration project plan, documented in laboratory internal issuances and disseminated to employees; and official laboratory implementing issuances that have been distributed.
Flexibilities published in this FR will be available for use by all STRLs listed enumerated in section 1105(a) of Public Law 111-84, as amended, in accordance with DoDI 1400.37 (including revised or superseded instructions) and after the
ARI operates as a Field Activity of the Deputy Chief of Staff, G-1. As a Science and Technology (S&T) lab, ARI has the core mission of inventing for the future while maintaining an organizational culture of action in support of emerging Army needs. ARI's S&T program is focused on developing innovative measures and methods to optimize the Soldier lifecycle and talent management, developing theories and investigating new domains in the behavioral and social sciences, conducting scientific assessments, providing behavioral and social science advice to human resource authorities and informing human resource policies.
To sustain these unique capabilities, ARI must be able to hire, retain, and continuously motivate enthusiastic, innovative, and highly-educated scientists, supported by skilled business management and administrative professionals, as well as a skilled administrative and technical support staff.
The goal of the current project is to enhance the quality and professionalism of the ARI workforce through improvements in the efficiency and effectiveness of the human resource system. The project interventions will strive to achieve the best workforce for the ARI mission, adjust the workforce for change, and improve workforce satisfaction. This demonstration project extends the CCDC C5ISR/CCDC CBC/CCDC SC demonstration projects to ARI. The CCDC C5ISR/CCDC CBC/CCDC SC projects built on the concepts, and use much of the same language, as the demonstration projects developed by the CCDC Army Research Laboratory (ARL) (previously designated as the ARL); the CCDC Aviation and Missile Center (previously designated as the Aviation and Missile Research, Development, and Engineering Center); the Navy's “China Lake;” as well as other laboratories designated as an STRL. The results of this project will be evaluated by ARI within five years of implementation.
The purpose of the project is to demonstrate that the effectiveness of DoD STRLs can be enhanced by expanding opportunities available to employees and by allowing greater managerial control over personnel functions through a more responsive and flexible personnel system. Federal laboratories need more efficient, cost effective, and timely processes and methods to acquire and retain a highly creative, productive, educated, and trained workforce. This project, in its entirety, attempts to improve employees' opportunities and provide managers, at the lowest practical level, the authority, control, and flexibility needed to achieve the highest quality organization and hold them accountable for the proper exercise of this authority within the framework of an improved personnel management system.
While many aspects of a demonstration project were once considered experimental, many have been implemented in various DoD laboratories for a number of years. Modifications have been made based on the implementation experience of other DoD laboratories, best practices, and formative evaluation efforts. Additional modifications may be needed from time to time as additional experience is gained during this specific implementation based on evaluations of how the system is working to meet the goals and objectives of the personnel demonstration project.
The current Civil Service GS system has existed in essentially the same form since the 1920s. Work is classified into one of fifteen overlapping pay ranges that correspond with the fifteen grades. Base pay is set at one of those fifteen grades and the ten interim steps within each grade. The Classification Act of 1949 rigidly defines types of work by occupational series and grade, with very precise qualifications for each job. This system does not quickly or easily respond to new ways of designing work and changes in the work itself. In addition, the GS system makes it difficult for the DoD labs to recruit and retain the best and the brightest scientists.
The need to change the current hiring system is essential, as ARI must be able to recruit and retain professional scientific researchers, support staff, and other professionals and skilled technicians. ARI must be able to compete with the private sector for the best talent and be able to make job offers in a timely manner with the attendant bonuses and incentives to attract high-quality employees.
Finally, current limitations on training, retraining, and otherwise developing employees make it difficult to correct skill imbalances and to prepare current employees for new lines of research needed to meet the Army's changing missions and emerging technology requirements.
The primary benefit expected from this demonstration project is greater organizational effectiveness through increased employee satisfaction. The long-standing Department of the Navy “China Lake” and subsequent demonstration projects have produced impressive statistics on increased job satisfaction and quality of employees versus that for the Federal workforce in general. Similar results have been demonstrated in more recent STRL demonstration projects and other alternative personnel systems implemented in the DoD and other agencies.
This project will demonstrate that a human resource system tailored to the mission and needs of the ARI workforce will facilitate:
(1) Increased quality in the workforce and resultant research products and outcomes,
(2) More effective, efficient, and adaptable organizational systems required to respond to Army needs,
(3) Increased timeliness of key personnel processes,
(4) Increased retention of excellent performers,
(5) Increased success in recruitment of personnel with critical skills,
(6) Increased management authority and accountability,
(7) Simpler and more effective human resources management process, and
(8) Increased workforce satisfaction with the personnel management system.
ARI is comprised of the ARI Headquarters located at Fort Belvoir, Virginia, and ARI research, technical, and support personnel located at Fort Belvoir, with geographically dispersed research units located at key strategic locations at Fort Benning, Georgia; Fort Hood, Texas; and Fort Leavenworth, Kansas. ARI also has a small number of employees dispersed at other locations in small numbers required to meet Army needs and mission requirements. As in the past and as expected in the future, there may be modifications to organizational structure and locations based on changing needs.
This demonstration project will cover approximately 114 ARI civilian employees under Title 5 U.S.C. in the occupations listed in Appendix B. Additional employees and other occupations may be added after implementation of the project. The project plan does not cover members of the Senior Executive Service (SES), Senior Level (SL), Scientific and Professional (ST) employees, Federal Wage System (FWS) employees, and employees presently covered by the Defense Civilian Intelligence Personnel System (DCIPS).
Department of the Army, Army Command centrally funded, local interns, and Pathways Program employees (hired prior to implementation of the project) will not be converted to the demonstration project until they reach their full performance level. Pathways employees will continue to follow the Defense Performance Management and Appraisal Program (DPMAP) until they have reached their full performance level and are transitioned to the STRL personnel system.
The American Federation of Government Employees (AFGE) Local 1920 represents a small percentage of ARI's workforce located at one research location. Those represented employees may or may not participate in the personnel demonstration project depending on negotiations with the Union, specific hiring actions, and other factors. Of those employees assigned to ARI, approximately seven percent are represented by a labor union.
Upon notification of the initial authority granted by Congress designating ARI as an STRL, the ARI Director assigned an experienced and tenured leader within the organization to contact appropriate agencies to develop the project plan. Initial guidance was provided by the DoD, Defense Civilian Personnel Advisory Services (DCPAS) and HQDA, Office of the Assistant Chief of Staff, G-1, Civilian Personnel Staffing and Classification Division. As a result of those initial discussions, ARI conducted a comprehensive review of the personnel practices of existing DoD laboratories designated as STRLs. That review resulted in a detailed list of personnel flexibilities adopted by the various DoD laboratories. As a part of the initial review, the Laboratory Quality Enhancement Program (LQEP)—Personnel Subpanel was contacted. The LQEP—Personnel Subpanel (LQEP-P) consists of STRL/Personnel Management Demonstration professionals and experts. LQEP-P members provided extensive advice and example materials for consideration. Detailed discussions with LQEP-P members focused on the capabilities provided by the various flexibilities employed, lessons learned and best practices, and implementation guidance. Concurrent to the review of existing flexibilities, a review of ARI's specific organizational personnel needs and requirements was conducted. Finally, a review of innovative personnel practices used outside of the federal government was conducted.
The initial set of existing flexibilities, with descriptions, waiver requirements, and expected benefits was briefed to ARI leadership and supervisors. Detailed discussion focused on how the proposed flexibility would help ARI accomplish its personnel management goals and how it would impact the workforce. The briefing and subsequent discussions resulted in a set of flexibilities for further research and consideration that were aligned with ARI personnel management needs. Those flexibilities were then extensively researched and discussed with LQEP-P members to determine if the proposed flexibility would meet those needs and to determine the cost and benefit of implementing the specific flexibility. The LQEP-P members were invaluable in this process. This resulted in a subset of personnel demonstration flexibilities that were best matched to ARI personnel needs and requirements. A team of senior leaders reviewed the potential flexibilities and provided recommendations for further consideration.
This preparatory work resulted in a proposed IOP that fully described how the proposed personnel management program would be implemented in ARI. The IOP was reviewed by and discussed with senior managers and supervisors to determine if the proposed system would meet ARI needs and workforce expectations. Following these internal reviews, final changes were made to the IOP and the associated FRN.
ARI will create a Personnel Management Board (PMB) to oversee and monitor the fair, equitable, and consistent implementation of the provisions of the demonstration project to include establishment of internal controls and accountability. Members of the board will be senior ARI managers/supervisors and independent contributors appointed by the ARI Director. As needed, ad hoc members (such as Human Resources representatives), will serve as advisory members to the board.
Based on guidance and consistent interaction with the ARI Director, the board will execute the following:
(1) Carry out the guidance and procedures in all aspects of the personnel demonstration program in accordance with the direction given by the ARI Director.
(2) Determine the composition of the pay-for-performance pay pools in accordance with the guidelines of the IOP;
(3) Review operation of pay pools and provide guidance to pay pool managers;
(4) Oversee disputes in pay pool issues;
(5) Formulate and execute the civilian pay budget;
(6) Manage the awards pools;
(7) Determine hiring and promotion base pay as well as exceptions to pay-for-performance base pay increases;
(8) Conduct classification review and oversight, monitoring, and adjusting classification practices and deciding broad classification issues;
(9) Approve major changes in position structure;
(10) Address issues associated with multiple pay systems during the demonstration project;
(11) Establish Standard Performance Elements and Benchmarks;
(12) Assess the need for changes to demonstration project procedures and policies;
(13) Review requests for Supervisory/Team Leader Base Pay Adjustments and provide recommendations to the ARI Director;
(14) Ensure in-house personnel budget discipline;
(15) Develop policies and procedures for administering Developmental Opportunity Programs;
(16) Ensure all employees are treated in a fair and equitable manner in accordance with all policies, regulations, and guidelines covering this demonstration project; and
(17) Conduct a formative evaluation of the project.
In executing these duties and responsibilities, the board will keep in close contact and consultation with the ARI Director to ensure policies and procedures are executed consistently across the organization and aligned with the Director's guidance.
To optimize the effectiveness and efficiency of ARI during the adoption of the new STRL personnel system, the ARI Director will review and realign the organization structure to best meet mission needs and requirements. Realignment may include removing limitations in terms of supervisory ratios consistent with section 342(b) of the NDAA for FY 1995 as amended by section 1109 of the NDAA for FY 2000, and the alignment and organization of the workforce required to accomplish the mission of the STRL consistent with 10 U.S.C. 2358a.
The ARI Director will manage workforce strength, structure, positions, and compensation without regard to any limitation on appointments, positions, or funding in a manner consistent with the budget available in accordance with 10 U.S.C. 2358a.
The Under Secretary of Defense (Personnel & Readiness), may, at his/her discretion, adjust the minimum funding levels to take into account factors such as the Department's fiscal condition, guidance from the Office of Management and Budget, and equity in circumstances when funding is reduced or eliminated for GS pay raises or awards.
The design of the ARI pay banding system takes advantage of the many reviews performed by DA and DoD. The design has the benefit of being preceded by exhaustive studies of pay banding systems currently practiced in the Federal sector, to include those practiced by the Navy's “China Lake” experiment and subsequent demo/STRL demonstration projects. In addition, the pay plans, occupational families, pay bands, and general schedule equivalent grade structures for all the existing DoD laboratories were reviewed. ARI's pay banding system will replace the current GS structure. Currently, the fifteen grades of the GS are used to classify positions and, therefore, to set pay. The GS covers all white-collar work: administrative, technical, clerical and professional. Changes in this rigid structure are required to allow flexibility in hiring, developing, retaining, and motivating the workforce. The pay banding structure adopted by ARI's STRL is similar to the one employed by the U.S. Army Armament Research, Development, and Engineering Center as well as other DoD laboratories.
Occupations with similar characteristics will be grouped together into one of three occupational families with pay band levels designed to facilitate pay progression. The naming structure and other occupational family features adopted for ARI's STRL are consistent with other Army laboratories implementing a similar system. Each occupational family will be composed of pay bands corresponding to recognized advancement and career progression expected within the occupations. These pay bands will replace individual grades and will not be the same for each occupational family. Each occupational family will be divided into three to six pay bands with each pay band covering the same pay range now covered by one or more GS grades. Employees track into an occupational family based on their current series as provided in Appendix B. The upper and lower pay rate for base pay of each pay band is defined by the GS rate for the grade and step as indicated in Figure 1 except for Pay Band VI of the Engineering & Scientist (E&S) occupational family. Comparison to the GS grades was used in setting the upper and lower base pay dollar limits of the pay band levels. However, once employees are moved into the demonstration project, GS grades will no longer apply. The current occupations have been examined, and their characteristics and distribution have served as guidelines in the development of the following three occupational families: Engineering and Science (E&S), Business & Technical (B&T), and General Support (GEN).
(1) Band I is a student trainee track covering GS-1, step 1 through GS-4, step 10.
(2) Band II is a developmental track covering GS-5, step 1 through GS-11, step 10.
(3) Band III is a full-performance technical track covering GS-12, step 1 through GS-13, step 10.
(4) Band IV includes senior technical/team leader positions covering GS-14, step 1 through GS-14, step 10.
(5) Band V includes supervisor/manager/senior technical positions covering GS-15, step 1 through GS-15, step 10.
(6) Band VI includes SSTM positions. The pay range is: Minimum base pay is 120 percent of the minimum base pay of GS-15; maximum base pay is Level IV of the Executive Schedule (EX-IV); and maximum adjusted base pay is Level III of the Executive Schedule (EX-III).
(1) Band I is a student trainee track covering GS-1, step 1 through GS-4, step 10.
(2) Band II is a developmental track covering GS-5, step 1 through GS-11, step 10.
(3) Band III is a full performance track covering GS-12, step 1 through GS-13, step 10.
(4) Band IV includes first-level supervisors and senior technical personnel covering GS-14, step 1 through GS-14, step 10.
(5) Band V is a supervisor/manager track covering GS-15, step 1 through GS-15, step 10.
(1) Band I includes entry-level positions covering GS-1, step 1 through GS-4, step 10.
(2) Band II includes full-performance positions covering GS-5, step 1 through GS-8, step 10.
(3) Band III includes senior technicians/assistants/secretaries covering GS-9 step 1 through GS-10, step 10.
The pay bands for the occupational families and how they relate to the current GS framework are shown in Figure 1.
Employees will be converted into the occupational family and pay band that corresponds to their GS series and grade. Each employee converted to the demonstration project is assured, upon conversion, an initial place in the system without loss of pay. However, exceptional qualifications or other compelling reasons based on specific criteria may lead to a higher entrance base pay within a band, commensurate with the employee's experience and qualifications. As the pay rates of the GS scale are increased due to the annual general pay increases, the upper and lower base pay rates of the pay bands will also increase. Since pay progression through the bands depends directly on performance, there will be no scheduled Within-Grade Increases (WGIs) or Quality Step Increases (QSIs) for employees once the pay banding system is in place.
The pay banding plan expands the pay banding concept used at “China Lake” and other laboratories by creating Pay Band VI for the E&S occupational family. The band is designed for SSTM as authorized in 10 U.S.C. 2358a and described in 79 FR 43722. Pay Band VI will apply exclusively to positions designated as SSTMs.
The primary function of these positions is to engage in research and development in the physical, biological, medical, or engineering sciences, or another field closely related to the ARI mission and to carry out technical supervisory responsibilities.
As a part of the initial implementation of the STRL, the Director will review organizational and mission requirements to determine appropriate use of available SSTM positions and, if appropriate, will establish SSTM positions consistent with long-term organizational plans and limitations set forth by Congress (
After full implementation of the STRL, newly vacant SSTM positions will be filled competitively. Panels will be created to assist in the review of candidates for SSTM positions. Panel members typically will be SES members, ST employees, and, after full implementation, those employees designated as SSTMs. In addition, General Officers and recognized technical experts from outside ARI may serve, as appropriate. The panel will apply criteria developed largely from the OPM Research Grade Evaluation Guide for positions exceeding the GS-15 level and other OPM guidance related to positions exceeding the GS-15 level. The purpose of the panel is to ensure impartiality and a rigorous and demanding review.
Consistent with 10 U.S.C. 2358a, the demonstration project will implement SSTM flexibilities described in 79 FR 43722.
The present GS classification system has over 400 occupational series, which are divided into 23 occupational groupings. ARI currently has positions in fewer than 20 occupational series. All positions listed in Appendix B will be in the classification structure. Provisions will be made for including other occupations in response to changing missions and agency requirements.
If available, ARI will use a fully automated classification system modeled after the Navy's “China Lake” and ARL's automated systems. The Web-based automation tool is a fully
Specialty work codes (narrative descriptions) will be used to further differentiate types of work and the competencies required for particular positions within an occupational family and pay band. Each code represents a specialization or type of work within the occupation.
Fair Labor Standards Act (FLSA) exemption and non-exemption determinations will be consistent with criteria found in 5 CFR part 551. All employees are covered by the FLSA unless they meet the criteria for exemption. The duties and responsibilities outlined in the classification standards for each pay band will be compared to the FLSA criteria. As a general rule, the FLSA status can be matched to occupational family and pay band as indicated in Figure 2. For example, positions classified in Pay Band I of the E&S occupational family are typically nonexempt, meaning they are covered by the overtime entitlements prescribed by the FLSA. An exception to this guideline includes supervisors/managers whose primary duties meet the definitions outlined in the OPM GS Supervisory Guide. Therefore, supervisors/managers in any of the pay bands who meet the foregoing criteria are exempt from the FLSA. The Director/manager/or supervisor with classification authority will make the determinations on a case-by-case basis by comparing assigned duties and responsibilities to the classification standards for each pay band and the 5 CFR part 551 FLSA criteria. Additionally, the advice and assistance of the servicing Civilian Personnel Advisory Center (CPAC) will be obtained in making determinations. The benchmark position descriptions will not be the sole basis for the determination. Basis for exemption will be documented and attached to each position description. Exemption criteria will be narrowly construed and applied only to those employees who clearly meet the spirit of the exemption. Changes will be documented and provided to the CPAC.
The ARI Director will have classification authority and may, in turn, delegate this authority to appropriate levels. Any individual with delegated classification authority must complete required training. Position descriptions will be developed to assist in exercising delegated position classification authority. Those leaders with classification authority will identify the occupational family, job
Classification appeals under this demonstration project will be processed using the following procedures: An employee may appeal the determination of occupational family, occupational series, position title, and pay band of his/her position at any time. An employee must formally raise the area of concern to supervisors in the immediate chain of command, either verbally or in writing. If the employee is not satisfied with the supervisory response, he/she may then appeal to the Personnel Management Board. A final appeal may be made to the DoD appellate level. Appeal decisions rendered by DoD will be final and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the government. Classification appeals are not accepted on positions which exceed the equivalent of a GS-15 level. Time periods for cases processed under 5 CFR part 511 apply.
An employee may not appeal the accuracy of the position description, the demonstration project classification criteria, or the pay-setting criteria; the assignment of occupational series to the occupational family; the propriety of a pay schedule; or matters grievable under an administrative or negotiated grievance procedure, or an alternative dispute resolution procedure.
The evaluations of classification appeals under this demonstration project are based upon the demonstration project classification criteria. Case files will be forwarded for adjudication through the CPAC providing personnel service and will include copies of appropriate demonstration project criteria.
The purpose of the pay-for-performance system is to provide an effective, efficient, and flexible method for assessing, compensating, and managing the ARI workforce. It is essential for the development of a highly productive workforce and to provide management at the lowest practical level, the authority, control, and flexibility needed to achieve a quality organization and meet mission requirements. The pay-for-performance system allows for greater employee involvement in the assessment process, strives to increase communication between supervisor and employee, promotes a clear accountability of performance, facilitates employee career progression, and provides an understandable and rational basis for pay changes by linking pay and performance.
The pay-for-performance system uses annual performance payouts based on the employee's total performance score rather than within-grade increases, quality step increases, promotions from one grade to another where both grades are now in the same pay band (
The system will have the flexibility to be modified, if necessary, as more experience is gained under the project.
Performance objectives define a target level of activity, expressed as tangible, measurable objective statements against which actual achievement can be compared. These objectives will specifically identify what is expected of the employee during the rating period and will typically consist of three to ten results-oriented statements. Employees are encouraged to participate in developing their performance objectives with their supervisor at the beginning of the rating cycle. These are to be reflective of the employee's duties/responsibilities and pay band along with the mission/organizational goals and priorities. Objectives will be reviewed annually and revised upon changes in pay reflecting increased responsibilities commensurate with pay increases. Supervisors will make the final decision for approving their employee's performance objective. Use of generic one-size-fits-all objectives will be avoided, as performance objectives are meant to define an individual's specific responsibilities and expected accomplishments. While generic objectives will be avoided, objectives will be commensurate to the employees pay and employees at similar positions in the pay band are expected to have objectives of similar complexity, responsibility, and/or another defining characteristic. Thus, exemplar, baseline, objectives will be developed and provided to supervisors and employees to highlight appropriate performance requirements at various pay levels. These exemplars will be used to help define performance expectations commensurate to employee pay.
In contrast, performance elements as described in the next paragraph will identify generic performance characteristics, against which the accomplishment of objectives will be measured. As a part of this demonstration project, training focused on overall organizational objectives and the development of performance objectives will be held for both supervisors and employees. Performance objectives may be jointly modified, changed, or deleted as appropriate during the rating cycle. Changes initiated by employees must be approved by their supervisor. As a general rule, performance objectives should only be changed when the employee successfully meets or exceeds the original objectives or circumstances outside the employee's control prevent or hamper the accomplishment of the original objectives. It is also appropriate to change objectives when mission or workload shifts occur. Objectives will not be changed when an employee's lack of performance prevents or hinders successful performance.
Performance elements define generic performance characteristics that will be used to evaluate the employee's success in accomplishing his/her performance objectives. The use of generic characteristics for scoring purposes helps to ensure comparable scores are assigned while accommodating diverse individual objectives. This pay-for-performance system will utilize those performance elements provided in Appendix C; as adapted from the system of performance elements implemented at other DoD Labs designated as STRLs.
All elements are critical. A critical performance element is defined as an attribute of job performance that is of sufficient importance that performance below the minimally acceptable level requires remedial action and may be the basis for removing an employee from his/her position. Non-critical elements will not be used. Each of the performance elements will be assigned a weight, which reflects its importance in accomplishing an individual's performance objectives. A minimum weight (expressed as a percentage) is set for each performance element. The sum of the weights for all of the elements must equal 100.
A single set of performance elements will be used for evaluating the annual performance of all ARI personnel covered by this plan. This set of performance elements may evolve over time, based on experience gained during each rating cycle. This evolution is essential to capture the critical competencies that enable the workforce to meet individual and organizational performance objectives. The evolving nature of performance elements may be particularly necessary in an environment where mission requirements, technology, and work processes are changing at an increasingly rapid pace. Thus, the ARI Personnel Management Board will annually review the set of performance elements and set them for the entire organization before the beginning of the rating period. The following is an initial set of performance elements:
All employees will be rated against the first four (Core) performance elements. Team Leadership is mandatory for team leaders (within this document “team leader” refers to non-supervisory team leaders as determined by the OPM GS Leader Grade Evaluation Guide).
Supervision/Leadership, and Equal Employment Opportunity is mandatory for all managers/supervisors. At the beginning of the rating period, pay pool managers will review the objectives and weights assigned to employees within the pay pool, to verify consistency and appropriateness across the organization.
The most effective means of communicating job requirements, performance goals, and desired results is person-to-person discussion between supervisors and employees. Employees and supervisors alike are expected to actively participate in these discussions to clarify expectations and identify potential obstacles to meeting performance goals. To the extent possible, employees should describe what they need from their supervisors to support goal accomplishment. The timing of performance feedback and discussions will vary based on the nature of work performed, but at a minimum will occur formally at the beginning, mid-point, and end of the rating period. If employees are unsure of their performance goals or quality at any time, they are encouraged to initiate discussions with their supervisor. In addition, supervisors will initiate discussions at the earliest possible sign of unacceptable performance or as needed to maintain successful performance. The supervisor and employee will discuss job performance and accomplishments in relation to the performance objectives and performance elements. At least two reviews, normally the mid-point review and annual review, will be documented as a formal progress review. More frequent informal task-specific discussions may be appropriate in certain circumstances. In cases where work is accomplished by a team, team discussions regarding goals and expectations may also be conducted as appropriate.
Employees will provide a summary of their accomplishments to their supervisor at both the mid-point and end of the rating period and, at a minimum, will highlight the three most important performance outcomes. Space limitations may be imposed in the performance management system to limit the length of the employee's self-summary of their accomplishments. The goal of employee self-reports is to highlight significant employee accomplishments rather than to describe job processes at a granular level of detail.
At the end of the rating period and following a review of the employee's accomplishments, the supervisor will rate each performance element by assigning a score between 0 and 50. Supervisors will use benchmark performance standards that describe the level of performance associated with a score. Benchmark standards ensure the employee's performance is accurately captured and ensures different supervisors apply a similar rating standard and scoring approach to their employees during the rating process. During the rating and point assignment process, the supervisor reflects on the specific objectives for each employee and rates the individual on each performance element using specific descriptors of performance related to the benchmark performance criteria. It should be noted these scores are not discussed with the employee or considered final until scores for all employees are reconciled and approved by the Pay Pool Manager. The element scores will then be multiplied by the element-weighting factor to determine the weighted score expressed to two decimal points. The weighted scores for each element will then be totaled to determine the employee's overall appraisal score and rounded to a whole number as follows: If the digit to the right of the decimal is between five and nine, it should be rounded to the next higher whole number; if the digit to the right of the decimal is between one and four, it should be dropped.
For each performance element, a total, unweighted score of 10 or above will result in a rating of acceptable. A total, unweighted score of 9 or below will result in a rating of unacceptable, and requires the employee be placed on a Performance Improvement Plan (PIP) within 30 days of the rating. An unweighted score of nine or below in a single performance element also will result in a rating of unacceptable, and requires the employee be placed on a PIP. An out-of-cycle rating of record will be issued if the employee's performance improves to an acceptable level at the conclusion of the PIP.
Informal employee performance reviews will be a continuous process so that corrective action, to include placing an employee on a PIP, may be taken at any time during the rating cycle. Whenever a supervisor recognizes an employee's performance on one or more performance elements is unacceptable, the supervisor will immediately inform the employee. Efforts will be made to identify the possible reasons for the unacceptable performance. An employee who is on a PIP is not eligible to receive the general pay increase.
If an employee performs at an unacceptable level or has received an unacceptable rating, a PIP will be provided to the employee as well as an opportunity period for the employee to improve his/her performance. The supervisor will identify the items/actions that need to be corrected or improved, outline required time frames (generally 30 days) for such improvement, and provide the employee with available assistance as appropriate. Progress will be monitored during the PIP, and all counseling/feedback sessions will be documented.
If the employee's performance is acceptable at the conclusion of the PIP, the servicing CPAC should be contacted for additional guidance. If a PIP ends prior to the end of the annual performance cycle and the employee's performance improves to, and remains at, an acceptable level, the employee is appraised again at the end of the annual performance cycle. If the employee's performance deteriorates to an unacceptable level in any element within two years from the beginning of a PIP, follow-on actions may be initiated with no additional opportunity to improve. If an employee's performance
If the employee fails to improve at the conclusion of the PIP, the employee will be given notice of proposed appropriate action. This action can include removal from the Federal service, placement in a lower pay band with a corresponding reduction in pay (demotion), reduction in pay within the same pay band, or change in position or occupational family. In many situations, employees with an unacceptable rating will not be permitted to remain at their current pay and may be reduced in pay band.
Reductions in base pay within the same pay band or changes to a lower pay band will be accomplished with a minimum of a five-percent decrease in an employee's base pay.
Nothing in this subsection will preclude action under 5 U.S.C. chapter 75 [Adverse Actions], when appropriate.
All relevant documentation concerning a reduction in pay or removal based on unacceptable performance will be preserved and made available for review by the affected employee or a designated representative. At a minimum, the record will consist of a copy of the notice of proposed personnel action, the employee's written reply, if provided, or a summary when the employee makes an oral reply. Additionally, the record will contain the written notice of decision and the reasons therefore along with any supporting material (including documentation regarding the opportunity afforded the employee to demonstrate improved performance).
Following the initial scoring of each employee by the supervisor, a panel of rating officials and supervisors will meet in a structured review and reconciliation process panel managed by the Pay Pool Manager. In this step, each employee's performance objectives, accomplishments, preliminary scores, and pay are compared. Through discussion and consensus building, consistent and equitable ratings are reached. There will not be a prescribed distribution of total scores. The Pay Pool Manager will chair a final review with the rating officials/supervisors to validate these ratings and resolve any remaining scoring issues. If consensus on scoring cannot be reached for one or more employees in this process, the Pay Pool Manager makes all final decisions. IOPs will provide details on this process to employees and supervisors.
Given the unique organizational structure of ARI, the reconciliation process of employees who report directly to the ARI Director may be different from the procedures described above. In those cases, the ARI Director will review and resolve all ratings as pay pool manager for those direct reports. Should the organization's structure change to allow for a pay pool process comparable to the one previously described, the procedures for the ARI Director's direct reports are likely to change to incorporate pay pool panel participation and reconciliation.
After the reconciliation process is complete, scores are finalized. Payouts proceed according to each employee's final score and adjusted base pay. Information pertaining to the reconciliation process will be made available to all employees.
ARI will have one or more pay pools, and each ARI employee will be placed into one of these pools. Pay pools are combinations of organizational elements that are defined for the purpose of determining performance payouts under the pay-for-performance system. The next paragraph provides the guidelines for determining pay pools. These guidelines will normally be followed, but deviations may occur if there is a compelling need. The rationale for any deviations will be documented in writing, and final procedures will be published prior to start of the rating period.
The ARI Director will establish pay pools. A pay pool should be large enough to encompass a reasonable distribution of ratings but not so large as to compromise rating consistency. Supervisory personnel will be placed in a pay pool separate from subordinate non-supervisory personnel. Neither the Pay Pool Manager nor supervisors within a pay pool will recommend or set their own individual pay. Decisions regarding the amount of the performance payout are based on the established formal payout calculations.
Funds within a pay pool available for performance payouts are calculated from anticipated pay increases under the existing system and divided into two components, base pay and bonus. The funds within a pay pool used for base pay increases are those that would have been available from within-grade increases, quality step increases, and promotions. This amount will be defined based on historical data and will be set at no less than two percent of total adjusted base pay annually. The funds available to be used for bonus payouts are funded separately within the constraints of the organization's overall award budget. This amount will be defined based on historical data and at no less than one percent of total adjusted base pay annually. The pay pool funding percentages are the same for all pay pools. The sum of these two factors is referred to as the pay pool percentage factor.
The ARI Personnel Management Board will annually review the pay pool funding and recommend adjustments to the ARI Director to ensure cost discipline over the life of the demonstration project. The ARI Director makes the final decision on pay pool funding.
The performance payout an employee will receive is based on the total performance score from the pay for performance assessment process. An employee will receive a performance payout as a percentage of adjusted base pay. This percentage is based on the number of shares that equates to an employee's final appraisal score. Shares will be awarded on a continuum as follows:
Fractional shares will be awarded for scores that fall between these scores. For example, a score of 38 will equate to 1.8 shares, and a score of 44 will equate to 2.4 shares.
The value of a share cannot be exactly determined until the rating and reconciliation process is completed and scores for all employees are finalized. The share value is expressed as a percentage. The formula that computes the value of each share uses base pay rates and is based on (1) the sum of the base pay of all employees in the pay pool times the pay pool percentage factor, (2) the employee's base pay, (3) the number of shares awarded to each employee in the pay pool, and (4) the total number of shares awarded in the pay pool. This formula assures that each employee within the pool receives a share amount equal to other employees in the same pool who are at the same rate of base pay and receive the same score. The formula is shown in Figure 3.
An individual payout is calculated by first multiplying the shares earned by the share value and multiplying that product by base pay. An adjustment is then made to account for locality pay.
A pay pool manager is accountable for staying within pay pool limits. The pay pool manager makes the final decision on base pay increases and/or bonuses to individuals based on rater recommendation, the final score, the pay pool funds available, and the employee's pay.
The amount of money available for performance payouts is divided into two components: Base pay increases and bonuses. The base pay and bonus funds are based on the pay pool funding formula established annually. Once the individual performance amounts have been determined, the next step is to determine what portion of each payout will be in the form of a base pay increase as opposed to a bonus payment. The payouts made to employees from the pay pool may be a mix of base pay and bonus as determined by the rules set forth in this FRN and IOPs, such that all the allocated funds are disbursed. To provide performance incentives while ensuring cost discipline, base pay increases may be limited or capped.
Certain employees will not be able to receive the projected base pay increase due to base pay caps. Base pay is capped when an employee reaches the maximum rate of base pay in an assigned pay band, when the mid-point rule applies (see below) or when the Significant Accomplishment/Contribution rule applies (see below). Also, for employees receiving retained rates above the applicable pay band maximum, the entire performance payout will be in the form of a bonus payment.
When capped, the payout an employee receives will be in the form of a bonus versus the combination of base pay and bonus. Bonuses are cash payments and are not part of the base pay for any purpose (
Based on pay pool operating procedures and business rules, the organization may re-allocate a portion (up to the maximum possible amount) of the unexpended base pay funds. This re-allocation will be determined by the Pay Pool Manager. Any dollar increase in an employee's projected base pay increase will be offset, dollar for dollar, by an accompanying reduction in the employee's projected bonus payment. Thus, the employee's total performance payout is unchanged. This re-allocation could be required for a number of reasons to include the use of re-allocation of to reduce extreme pay-for-performance gaps.
In addition, the pay pool manager may request approval from the PMB for use of an Extraordinary Achievement Recognition. Such recognition grants a base pay increase and/or bonus to an employee that is higher than the one generated by the compensation formula for that employee. The funds available for an Extraordinary Achievement Recognition are separately funded within the constraints of the
To provide added performance incentives as an employee progresses through a pay band, a mid-point rule will be used to determine base pay increases. The mid-point rule dictates that any employee must receive a score of 30 or higher for his/her base pay to cross the mid-point of the base pay range for his/her pay band. Also, once an employee's base pay exceeds the mid-point, the employee must receive a score of 30 or higher to receive any additional base pay increases. Any amount of an employee's performance payout, not paid in the form of a base pay increase because of the mid-point rule, will be paid as a bonus. This rule effectively raises the standard of performance expected of an employee once the mid-point of a band is crossed. This applies to all employees in every occupational family and pay band. The performance rating of 30 is set as an initial value and may be changed by the PMB, as necessary, with a goal of continuously increasing employee and organizational performance.
The purpose of this rule is to maintain cost discipline while ensuring that employee payouts are in consonance with accomplishments and levels of responsibility. The rule will apply only to employees in E&S Pay Band III whose base pay would fall within the top 15 percent of the band. For employees meeting these criteria, the following provisions will apply:
(1) If an employee's score falls in the top third of scores received in his/her pay pool, he/she will receive the full allowable base pay increase portion of the performance payout. The balance of the payout will be paid as a lump sum bonus.
(2) If an employee's score falls in the middle third of scores received in his/her pay pool, the base pay increase portion will not exceed one percent of base pay. The balance of the payout will be paid as a lump sum bonus.
(3) If an employee's appraisal score falls in the bottom third of scores received in his/her pay pool, the full payout will be paid as a lump sum bonus.
In addition to the annual performance evaluation and payout process, the ARI Director may recognize outstanding individual or group achievements as they occur. Awards may include, but are not limited to, honorary, special act or on-the-spot monetary awards, and time-off awards. The ARI Director may re-delegate this authority. The ARI Director will have the authority to grant special act awards to covered employees of up to $10,000 IAW the criteria of AR 672-20, Incentive Awards. The funds available to be used for traditional 5 U.S.C. awards are separately funded within the constraints of the organization's budget.
Employees on a PIP at the time pay determinations are made do not receive performance payouts or the annual general pay increase. An employee who receives an unacceptable rating of record will not receive any portion of the general pay increase until such time as his/her performance improves to the acceptable level and remains acceptable for at least 90 days. When the employee has performed acceptably for at least 90 days, the general pay increase will not be retroactive but will be granted at the beginning of the next pay period after the supervisor authorizes its payment. These actions may result in a base pay that is identified in a lower pay band. This occurs because the minimum rate of base pay in a pay band increases as the result of the general pay increase (5 U.S.C. 5303). This situation (a reduction in band level with no reduction in pay) will not be considered an adverse action, nor will band retention provisions apply.
The Director, working with the PMB, may offer a retention counteroffer to retain high performing employees with critical scientific or technical skills who present evidence of an alternative employment opportunity with higher compensation. Such employees may be provided increased base pay (up to the ceiling of the payband) and/or a one-time cash payment that does not exceed 50 percent of one year of base pay. Further details will be published in the IOP. This flexibility addresses the expected benefits described in paragraph II. C, particularly “increased retention of high quality employees.” Retention allowances, either in the form of a base pay increase and/or a bonus, count toward the Executive Level I aggregate limitation on pay consistent with 5 U.S.C. 5307 and 5 CFR part 530, subpart B. Further details will be published in the IOP.
An employee may grieve the performance rating/score received under the pay-for-performance system. Non-bargaining unit employees, and bargaining unit employees covered by a negotiated grievance procedure that does not permit grievances over performance ratings, must file under administrative grievance procedures. Bargaining unit employees whose negotiated grievance procedures cover performance rating grievances must file under those negotiated procedures.
Except where specifically waived or modified in this plan, adverse action procedures under 5 CFR part 752 remain unchanged.
A candidate's basic eligibility will be determined using OPM's Qualification Standards Handbook for General Schedule Positions. Candidates must meet the minimum standards for entry into the payband. For example, if the payband includes positions in grades GS-5 and GS-7, the candidate must meet the qualifications for positions at the GS-5 level. Specific experience/education requirements will be determined based on whether a position to be filled is at the lower or higher end of the band. Selective placement factors can be established in accordance with the OPM Qualification Handbook, when judged to be critical to successful job performance. These factors will be communicated to all candidates for particular position vacancies and must be met for basic eligibility. Restructuring the examining process and providing an authority to appoint candidates meeting distinguished scholastic achievements will allow the laboratory to compete more effectively for high quality personnel and strengthen the manager's role in personnel management as well as the goals of the demonstration project.
Competitive service positions will be filled through Merit Staffing, and through direct-hire authority or under Delegated Examining. Section 1108 of the NDAA for FY 2009, as amended by section 1103 of the NDAA for FY 2012, provides for delegation of direct-hire authority for qualified candidates with an advanced degree to scientific and engineering positions within STRL
When there are no more than 15 qualified applicants and no preference eligibles, all eligible applicants are immediately referred to the selecting official without rating and ranking. Rating and ranking may occur when the number of qualified candidates exceeds 15 or there is a mix of preference and non-preference applicants. Category rating may be used to provide for a more streamlined and responsive hiring system to increase the number of eligible candidates referred to selecting officials. This provides for the grouping of eligible candidates into quality categories and the elimination of consideration according to the “rule of three.” This includes the coordination of recruitment and public notices, the administration of the examining process, the administration of veterans' preference, the certification of candidates, and selection and appointment consistent with merit principles. Specific procedures used for competitive examining authority will be detailed in the IOP.
Statutes and regulations covering veterans' preference will be observed in the selection process when rating and ranking are required. Veterans with preference will be referred ahead of non-veterans with the same score/category.
ARI will use the direct-hire authorities authorized by section 1108 of the NDAA for FY 2009, as amended by section 1103 of the NDAA for FY 2012, the direct hire authorities published in 79 FR 43722, and the direct hire authorities in 10 U.S.C. 2358a, as appropriate, to appoint the following:
(1) Candidates with advanced degrees to scientific and engineering positions;
(2) Candidates with bachelor's degrees to scientific and engineering positions;
(3) Veteran candidates to scientific, technical, engineering, and mathematics positions (STEM), including technicians; and
(4) Student candidates enrolled in a program of instruction leading to a bachelors or advanced degree in a STEM discipline.
In addition, other Direct Hire authorities, documented in FRNs and available to all DoD STRL laboratories, may be utilized, as appropriate.
For actions taken under the auspices of the demonstration project, the first legal authority code (LAC)/legal authority Z2U/Public Law 103-337 will be used. The second LAC/legal authority may identify the authority utilized (
ARI will continue to have career and career-conditional appointments and temporary appointments not to exceed one year. These appointments will use existing authorities and entitlements. Under the demonstration project, ARI will have the added authority to hire individuals under a modified term appointment, and the Flexible Length and Renewable Term Technical Appointments authorized by section 1109(b)(1) of the NDAA for FY 2016, as amended by section 1106 of the NDAA for FY 2019, and published in 82 FR 43339.
Employees hired under the modified term appointment authority are in a non-permanent status in the competitive service for up to five years. The ARI Director is authorized to extend a modified term appointment for up to one additional year. Employees on modified term appointments may be eligible for conversion to career conditional appointments. To be converted, the employee must (1) have been selected for the term position under competitive procedures, with the announcement specifically stating that the individual(s) selected for the term position may be eligible for conversion to a career-conditional appointment at a later date; (2) have served two years of continuous service in the term position; (3) be selected under merit promotion procedures for the permanent position; and (4) be performing at the acceptable level of performance with a current score of 30 or greater.
The Flexible Length and Renewable Term Technical Appointment authority will allow ARI to appoint qualified candidates who are not currently DoD civilian employees, or who are DoD civilian employees in term appointments, into any scientific, technical, engineering, and mathematic positions, including technicians, for a period of more than one year but not more than six years. The appointment of any individual under this authority may be extended without limit in up to six year increments at any time during any term of service under conditions set forth by the ARI Director. These appointments will allow ARI to dynamically shape the workforce to respond to mission requirements. Consistent with section 1109(b)(1) of the NDAA for FY 2016, as amended, employees hired under this provision will be counted as fractional employees of the laboratory for the purpose of determining workforce size of the laboratory. All waivers published in 82 FR 43339 apply to this demonstration project.
Employees appointed under Flexible Length and Renewable Term Technical Appointments may be eligible for noncompetitive conversion to a permanent appointment if the job announcement clearly states the possibility of being made permanent, in addition to any other provision in the STRL's modified term appointment authority. Unless otherwise eligible for a noncompetitive hiring authority, positions filled under this authority must be competed. Job opportunity announcements must clearly identify the type of appointment and the expected duration of initial appointment (up to six years). Appointees will also be afforded the opportunity to apply for vacancies that are otherwise limited to “status” candidates as described in 82 FR 43339.
Employees serving under term appointments will be covered by the plan's pay-for-performance system.
The current two-year probationary period (Pub. L. 114-92) for DoD employees will be extended to three years for all newly hired permanent career-conditional employees. Trial periods for term appointments will also be extended to three years. The purpose of extending the probationary period is to allow supervisors an adequate period of time to fully evaluate an employee's ability to complete cycles of work and to fully assess an employee's contribution and conduct. The three-year probationary period will apply only to new hires subject to a probationary period.
Aside from extending the time period for probationary or trial periods, all other features of the current probationary and trial period are retained including the potential to remove an employee without providing the full substantive and procedural rights afforded a non-probationary employee. Any employee appointed prior to the implementation date will not be affected.
Probationary employees may be terminated when they fail to demonstrate proper conduct, technical competency, and/or acceptable performance for continued employment, and for conditions arising before employment. When a supervisor decides to terminate an employee during the probationary period because his/her work performance or conduct is unacceptable, the supervisor will terminate the employee's services by written notification stating the reasons for termination and the effective date of the action. The information in the notice will, at a minimum, consist of the supervisor's conclusions as to the inadequacies of the employee's performance or conduct, or those conditions arising before employment that support the termination.
Supervisory probationary periods will be consistent with 5 CFR part 315, subpart I. Existing Federal employees who are competitively selected or reassigned to a supervisory position will be required to complete a two-year supervisory probationary period for initial appointment to a supervisory position. Newly appointed supervisors, new to Federal service, must complete the probationary periods in accordance with section III.D.6 of this FRN for Extended Probationary Periods. Consistent with 5 U.S.C. 3321, if, during this supervisory probationary period, the decision is made to return the employee to a non-supervisory position for reasons related to supervisory performance, the employee will be returned to a position comparable in pay and job duties to the position from which they were originally promoted or reassigned.
Supervisors hired, new to the Government, who have not demonstrated successful performance in a lower position at ARI and who do not successfully complete their probationary period may be terminated when they fail to demonstrate proper conduct, technical competency, and/or acceptable performance for continued employment, and for conditions arising before employment. As with non-supervisors and consistent with 5 U.S.C. 3321, a supervisor who is not performing at an acceptable level may be moved to another position in a different pay band. Such a move would result in a reduction of pay of no less than 6 percent or to the top of the lower pay band, whichever reduction is greater.
The ARI Director may place the supervisor on a Performance Improvement Plan (PIP) at any time during the supervisory probationary period to help improve performance to a successful level.
The ARI Director will have the authority to offer former Federal employees who have retired or separated from the Federal service, voluntary assignments in ARI. VEP assignments are not considered “employment” by the Federal government. Thus, such assignments do not affect an employee's entitlement to buyouts or severance payments based on an earlier separation from Federal service. The VEP will ensure continued quality research while reducing the overall salary line by allowing higher paid individuals to accept retirement incentives with the opportunity to retain a presence in the scientific community. The program will be of most benefit during manpower reductions as senior employees could accept retirement and return to provide valuable on-the-job training or mentoring to less experienced employees. Volunteer service will not be used to replace any employee, or interfere with career opportunities of employees. The VEP may not be used to replace or substitute for work performed by civilian employees occupying regular positions required to perform the ARI's mission.
To be accepted into the VEP, a candidate must be recommended by an ARI manager to the ARI Director. Everyone who applies is not entitled to participate in the program. The Director will document the decision process for each candidate and retain selection and non-selection documentation for the duration of the assignment or two years, whichever is longer.
To ensure success and encourage participation, the volunteer's federal retirement pay (whether military or civilian) will not be affected while serving in a volunteer capacity. Retired or separated federal employees may accept an emeritus position without a break or mandatory waiting period.
Volunteers will not be permitted to monitor contracts on behalf of the government or to participate on any contracts or solicitations where a conflict of interest exists. The same rules that currently apply to source selection members will apply to volunteers.
An agreement will be established between the volunteer and the ARI Director. The agreement will be reviewed by the servicing legal office. The agreement must be finalized before the assumption of duties and will include:
(1) A statement that the service provided is gratuitous, that the volunteer assignment does not constitute an appointment in the civil service and is without compensation or other benefits except as provided for in the agreement itself, and that, except as provided in the agreement regarding work-related injury compensation, any and all claims against the Government (stemming from or in connection with the volunteer assignment) are waived by the volunteer;
(2) a statement that the volunteer will be considered a federal employee for the purpose of:
(a) 18 U.S.C. 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913;
(b) 31 U.S.C. 1343, 1344, and 1349(b);
(c) 5 U.S.C. chapters 73 and 81;
(d) The Ethics in Government Act of 1978;
(e) 41 U.S.C. chapter 21;
(f) 28 U.S.C. chapter 171 (tort claims procedure), and any other Federal tort liability statute;
(g) 5 U.S.C. 552a (records maintained on individuals); and
(3) The volunteer's work schedule;
(4) The length of agreement (defined by length of project or time defined by weeks, months, or years);
(5) The support to be provided by ARI (travel, administrative, office space, supplies);
(6) The volunteer's duties;
(7) A provision that states no additional time will be added to a volunteer's service credit for such purposes as retirement, severance pay, and leave as a result of being a participant in the VEP;
(8) A provision allowing either party to void the agreement with 10 working days written notice;
(9) The level of security access required (any security clearance required by the assignment will be managed by ARI while the volunteer is a participant in the VEP);
(10) A provision that any written products prepared for publication that are related to VEP participation will be submitted to the ARI Director for review and must be approved prior to publication;
(11) A statement that the volunteer accepts accountability for loss or damage to Government property occasioned by the volunteer's negligence or willful action;
(12) A statement that the volunteer's activities on the premises will conform to the ARI's regulations and requirements;
(13) A statement that the volunteer will not improperly use or disclose any non-public information, to include any pre-decisional or draft deliberative information related to DoD programming, budgeting, resourcing, acquisition, procurement or other matter, for the benefit or advantage of the VEP participant or any non-Federal entities. VEP participants will handle all non-public information in a manner that reduces the possibility of improper disclosure.
(14) A statement that the volunteer agrees to disclose any inventions made in the course of work performed at ARI. The ARI Director will have the option to obtain title to any such invention on behalf of the U.S. Government. Should the Director elect not to take title, the Center will retain a non-exclusive, irrevocable, paid up, royalty-free license to practice or have practiced the invention worldwide on behalf of the U.S. Government.
(15) A statement that the VEP participant must complete either a Confidential or Public Financial Disclosure Report, whichever applies, and ethics training in accordance with office of Government Ethics regulations prior to implementation of the agreement; and
(16) A statement that the VEP participant must receive post-government employment advice from a DoD ethics counselor at the conclusion of program participation. VEP participants are deemed Federal employees for purposes of post-government employment restrictions.
A promotion is the movement of an employee to a higher pay band in the same occupational family or to another pay band in a different occupational family, wherein the band in the new family has a higher maximum base pay than the band from which the employee is moving. Positions with known promotion potential to a specific band within an occupational family will be identified when they are filled. Movement from one occupational family to another will depend upon individual competencies, qualifications, and the needs of the organization.
Progression within a pay band is based upon performance based pay increases; as such, these actions are not considered promotions and are not subject to the provisions of this section. Except as specified below, promotions will be processed under competitive procedures in accordance with Merit System Principles and requirements of the local merit promotion plan.
To be promoted competitively or non-competitively from one band to the next, an employee must meet the minimum qualifications for the job and have a current performance rating of 30 or better, or equivalent under a different performance appraisal system. The minimum performance rating of 30 is set as an initial value and may be changed by the PMB, as necessary, with a goal of continuously increasing employee and laboratory performance. If an employee does not have a current performance rating, the employee will be treated the same as an employee with an “acceptable” rating as long as there is no documented evidence of unacceptable performance.
A reassignment is the movement of an employee from one position to a different position within the same occupational family and pay band or to another occupational family and pay band wherein the band in the new family has the same maximum base pay. The employee must meet the qualifications requirements for the occupational family and pay band.
A demotion is a placement of an employee into a lower pay band within the same occupational family or placement into a pay band in a different occupational family with a lower maximum base pay. Demotions may be for cause (performance or conduct) or for reasons other than cause (
Today's environment of downsizing and workforce fluctuations mandates that the organization have maximum flexibility to assign duties and responsibilities to individuals. Pay banding can be used to address this need, as it enables the organization to have maximum flexibility to assign an employee with no change in base pay, within broad descriptions, consistent with the needs of the organization and the individual's qualifications and level. Subsequent assignments to projects, tasks, or functions anywhere within the organization requiring the same level, area of expertise, and qualifications would not constitute an assignment outside the scope or coverage of the current position description. For instance, a Research Psychologist could be assigned to any project, task, or function requiring similar expertise. Likewise, a manager/supervisor could be assigned to manage any similar function or organization consistent with that individual's qualifications. This flexibility allows broader latitude in assignments and further streamlines the administrative process and system.
Employees may be detailed or temporarily promoted to a position in the same band (requiring a different level of expertise and qualifications) or lower pay band (or its equivalent in a different occupational family) or to a position in a higher band for up to two years. Details and temporary promotions may be determined by a competitive or a non-competitive process.
The following actions are excepted from competitive procedures:
(1) Re-promotion to a position which is in the same pay band or GS equivalent and occupational family as the employee previously held on a permanent basis within the competitive service.
(2) Promotion, reassignment, demotion, transfer, or reinstatement to a position having promotion potential no greater than the potential of a position an employee currently holds or previously held on a permanent basis in the competitive service.
(3) A position change permitted by RIF procedures.
(4) Promotion without current competition when the employee was appointed through competitive procedures to a position with a documented career ladder.
(5) A temporary promotion, or detail to a position in a higher pay band, of two years or less.
(6) A promotion due to the reclassification of positions based on accretion (addition) of duties.
(7) A promotion resulting from the correction of an initial classification error or the issuance of a new classification standard.
(8) Consideration of a candidate who did not receive proper consideration in a competitive promotion action.
Pay administration policies will be established by the PMB. These policies will be exempt from Army Regulations
Grade and pay retention will follow current law and regulations at 5 U.S.C. 5362, 5363, and 5 CFR part 536, except as waived or modified in Section IX, the waiver section of this plan. The ARI Director may also grant pay retention to employees who meet general eligibility requirements, but do not have specific entitlement by law, provided they are not specifically excluded.
An demonstration project employee's total monetary compensation paid in a calendar year may not exceed the base pay of Level I of the Executive Schedule consistent with 5 U.S.C. 5307 and 5 CFR part 530 subpart B. In addition, each pay band will have its own pay ceiling, just as grades do in the GS system. Base pay rates for the various pay bands will be directly keyed to the GS rates, except as noted for the Pay Band VI of the Engineer and Scientist occupational family. Other than where retained rate applies, base pay will be limited to the maximum base pay payable for each pay band.
For initial appointments to Federal service, the individual's pay may be set at the lowest base pay in the pay band or anywhere within the band level consistent with the special qualifications of the individual, specific organizational requirements, the unique requirements of the position, or other compelling reason. These special qualifications may be in the form of education, training, experience or any combination thereof that is pertinent to the position in which the employee is being placed. Guidance on pay setting for new hires will be established by the PMB and documented in IOPs.
Highest Previous Rate (HPR) may be considered in placement actions authorized under rules similar to the HPR rules in 5 CFR 531.221. Request to use HPR must be made to the PMB and is subject to policies established by the PMB, as approved by the ARI Director. To maintain consistent application of pay setting decisions, the PMB will collect and track pay setting data, qualifications, and other relevant information.
The minimum base pay increase upon promotion to a higher pay band will be six percent or the minimum base pay rate of the new pay band, whichever is greater. The maximum amount of a pay increase for a promotion is 20 percent but will not normally exceed $10,000 or other such amount as established by the Personnel Management Board. The maximum base pay increase for promotion may be exceeded when necessary to allow for the minimum base pay increase. For employees assigned to occupational categories and geographic areas covered by special rates, the minimum base pay rate in the pay band to which promoted is the minimum base pay for the corresponding special rate or locality rate, whichever is greater. For employees covered by a staffing supplement (described in III.F.9.), the demonstration staffing supplement adjusted pay is considered base pay for promotion calculations. When a temporary promotion is terminated, the employee's pay entitlements will be re-determined based on the employee's position of record, with appropriate adjustments to reflect pay events during the temporary promotion, subject to the specific policies and rules established by the PMB. In no case may those adjustments increase the base pay for the position of record beyond the applicable pay range maximum base pay rate.
A reassignment may be effected without a change in base pay. However, a base pay increase may be granted where a reassignment significantly increases the complexity, responsibility, authority, or for other compelling reasons. Such an increase is subject to the specific guidelines established by the PMB.
Employees demoted for cause (performance or conduct) are not entitled to pay retention and will receive a minimum of a five percent decrease in base pay. Employees demoted for reasons other than cause (
Employees who receive an unacceptable rating or who are on a PIP at the time pay determinations are made do not receive performance payouts or the general pay increase. This action may result in a base pay that is identified in a lower pay band. This occurs because the minimum rate of base pay in a pay band increases as the result of the general pay increase (5 U.S.C. 5303). This situation (a reduction in band level with no reduction in pay) will not be considered an adverse action, nor will band retention provisions apply.
A supervisor who fails to successfully complete a supervisory probationary period will no longer receive a supervisory pay adjustment (supervisory differential/adjustment).
Supervisory and team leader pay adjustments may be approved by the ARI Director at his/her discretion, based on the recommendation of the PMB, to compensate employees with supervisory or team leader responsibilities. Supervisory and team leader pay adjustments are a tool that may be implemented at the discretion of the ARI Director and are not to be considered an employee entitlement due solely to his/her position as a supervisor or team leader. Only employees in supervisory or team leader positions as defined by the OPM GS Supervisory Guide or GS Leader Grade Evaluation Guide may be considered for the pay adjustment. These pay adjustments are funded separately from performance pay pools. These pay adjustments are increases to base pay, ranging up to 10 percent of that pay rate for supervisors and for team leaders. Pay adjustments are subject to the constraint that the adjustment may not cause the employee's base pay to exceed the pay band maximum base pay. Criteria to be considered in determining the pay increase percentage include:
(1) Needs of the organization to attract, retain, and motivate high-quality supervisors/team leaders;
(2) Budgetary constraints;
(3) Years and quality of related experience;
(4) Relevant training;
(5) Performance appraisals and experience as a supervisor/team leader;
(6) Unique requirements of a specific position or level of complexity compared to other positions of a similar nature;
(7) Organizational level of position; and
(8) Impact on the organization.
A pay adjustment may be considered under the following conditions:
(1) New supervisory/team leader positions will have their initial rate of base pay set within the pay range of the applicable pay band and rules established by the PMB. Request for initial rate of pay will be made to the PMB and approved by the ARI Director or delegated official. This rate of pay may include a pay adjustment determined by using the ranges and criteria outlined above.
(2) A career employee selected for a supervisory/team leader position may also be considered for a base pay adjustment. If a supervisor/team leader is already authorized a base pay adjustment and is subsequently selected for another supervisor/team leader position, then the base pay adjustment will be re-determined. Upon initial conversion into the demonstration project into the same or substantially similar position, supervisors/team leaders will be converted at their existing base rate of pay and will not be eligible for a base pay adjustment.
(3) The supervisory/team leader pay adjustment will be reviewed annually, or more often as needed, and may be increased or decreased by a portion or by the entire amount of the supervisory/team leader pay adjustment based upon the employee's performance appraisal score for the performance element, Team Project Leadership or Supervision/EEO, needs of the organization, and/or criteria outlined above. If the entire portion of the supervisory/team leader pay adjustment is to be decreased, the initial dollar amount of the supervisory/team leader pay adjustment will be removed. A decrease to the supervisory/team leader pay adjustment as a result of the annual review or when an employee voluntarily leaves a position is not an adverse action and is not subject to appeal.
Supervisory and team leader pay differentials may be used by the ARI Director to provide an incentive and reward supervisors and team leaders. Supervisory and team leader pay differentials are a tool that may be implemented at the discretion of the ARI Director and is not to be considered an entitlement due to an employee solely due to their position as a supervisor or team leader. Pay differentials are not funded from performance pay pools. A pay differential is a cash incentive that may range up to 10 percent of base pay for supervisors and for team leaders. It is paid on a pay period basis with a specified not-to-exceed (NTE) of one year or less and is not included as part of the base pay. Criteria to be considered in determining the amount of the pay differential are the same as those identified for Supervisory/Team Leader Pay Adjustments.
The pay differential may be considered, either during conversion into or after initiation of the demonstration project. The differential must be terminated if the employee is removed from a supervisory/team leader position, regardless of cause.
After initiation of the demonstration project, all personnel actions involving a supervisory/team leader differential will require a statement signed by the employee acknowledging that the differential may be terminated or reduced at the discretion of the ARI Director. The termination or reduction of the differential is not an adverse action and is not subject to appeal.
Employees assigned to occupational categories and geographic areas covered by special rates will be entitled to a staffing supplement if the maximum adjusted base pay for the banded GS grades (
The Expanded Developmental Opportunity Program will be available to all demonstration project employees. Expanded developmental opportunities complement existing developmental opportunities such as long-term training; rotational job assignments; developmental assignments to ARI, Army, or DoD; and self-directed study via correspondence courses, local colleges, and universities. Each developmental opportunity must result in a product, service, report, or study that will benefit ARI or customer organization as well as increase the employee's individual effectiveness. The PMB will provide written guidance for employees on application procedures and develop a process that will be used to review and evaluate applicants for development opportunities. These expanded developmental opportunities may be made available when there is a critical skill, need, or gap that must be filled for organizational success. Determinations for sabbaticals and critical skills training shall be made based on the needs of ARI and the relationship to the research mission, merit, organization fill rates, current, near- and mid-term workload requirements, budget, and employee performance scores.
(1) Sabbatical. The ARI Director has the authority to grant paid or unpaid sabbaticals to all career employees. The purpose of a sabbatical will be to permit employees to engage in study or uncompensated work experience that will benefit the organization and contribute to the employee's development and effectiveness. Each sabbatical must result in a product, service, report, or study that will benefit the ARI mission as well as increase the employee's individual effectiveness. Various learning or developmental experiences may be considered, such as research, self-directed or guided study, and on-the-job work experience. Limitations and eligibility requirements for sabbaticals will be published in the IOP. Employees approved for a paid sabbatical must sign a service obligation agreement to continue in service in ARI for a period of three times the length of the sabbatical. If an employee voluntarily leaves ARI before the service obligation is completed he/she is liable for repayment of expenses incurred by ARI that are associated with the sabbatical. Expenses do not include salary costs. The ARI Director has the authority to waive this requirement. Criteria for such waivers will be addressed in the operating procedures. Specific procedures will be developed for processing sabbatical applications upon implementation of the demonstration project.
(2) Critical Skills Training. The ARI Director has the authority to approve academic degree training. Training is an essential component of an organization that requires continuous acquisition of advanced and specialized knowledge. Degree training is also a tool for maintaining required knowledge and skills critical to the present and future requirements of the organization. Degree or certificate payment may not be authorized where it would result in a tax liability for the employee without the employee's express and written consent. Any variance from this policy must be rigorously determined and documented. Guidelines will be developed to ensure a fully competitive approval process for expanded critical skills training. Employees approved for degree training must sign a service obligation agreement to continue service in the ARI for a period three times the length of the training period commencing after the completion of the entire degree program. If an employee voluntarily leaves ARI before the service obligation is completed, he/she is liable for repayment of expenses incurred by
Critical to the success of the demonstration project is the training developed to promote understanding of the broad concepts and finer details needed to implement and successfully execute this project. Training will be tailored to address employee concerns and to encourage comprehensive understanding of the demonstration project. Training will be required both prior to implementation and at various times during the life of the demonstration project.
A training program will begin prior to implementation and will include modules tailored for employees, supervisors, and administrative staff. Typical modules are:
(1) An overview of the demonstration project personnel system.
(2) How employees are converted into and out of the system.
(3) Pay banding.
(4) The pay-for-performance system.
(5) Defining performance objectives.
(6) How to assign weights to performance elements.
(7) Assessing performance and giving feedback.
(8) New position descriptions.
(9) Demonstration project administration and formal evaluation.
Various types of training are being considered, including videos, video-teleconference tutorials, and train-the-trainer concepts. To the extent possible, materials already developed from other STRLs will be utilized when appropriate to reduce implementation cost and to maintain consistency in application of similar procedures across laboratories.
Conversion from current GS grade and pay into the new pay band system will be accomplished during implementation of the demonstration project. Initial entry into the demonstration project will be accomplished through a full employee-protection approach that ensures each employee an initial place in the appropriate pay band without loss of pay on conversion.
Under the GS pay structure, employees progress through their assigned grade in step increments. Since this system is being replaced under the demonstration project, employees will be awarded that portion of the next higher step they have completed up until the effective date of conversion. As under the current system, supervisors will be able to withhold these partial step increases if the employee's performance is below an acceptable level of competence.
Rules governing WGIs will continue in effect until conversion. Adjustments to the employee's base salary for WGI equity will be computed as of the effective date of conversion. WGI equity will be acknowledged by increasing base pay by a prorated share based upon the number of full weeks an employee has completed toward the next higher step. Payment will equal the value of the employee's next WGI times the proportion of the waiting period completed (weeks completed in waiting period/weeks in the waiting period) at the time of conversion. Employees at step 10, or receiving retained rates, on the day of implementation will not be eligible for WGI equity adjustments since they are already at or above the top of the step scale. Employees serving on retained grade will receive WGI equity adjustments provided they are not at step 10 or receiving a retained rate.
Employees who enter the demonstration project after initial implementation by lateral transfer, reassignment, or realignment will be subject to the same pay conversion rules as above. If conversion into the demonstration project is accompanied by a geographic move, the employee's GS pay entitlements in the new geographic area must be determined before performing the pay conversion.
If a demonstration project employee is moving to a GS position not under the demonstration project, or if the project ends and each project employee must be converted back to the GS system, the following procedures will be used to convert the employee's project pay band to a GS-equivalent grade and the employee's project rate of pay to GS equivalent rate of pay. The converted GS grade and GS rate of pay must be determined before movement or conversion out of the demonstration project and any accompanying geographic movement, promotion, or other simultaneous action. For conversions upon termination of the project and for lateral reassignments, the converted GS grade and rate will become the employee's actual GS grade and rate after leaving the demonstration project (before any other action). For employee movement from within DoD (transfers), promotions, and other actions, the converted GS grade and rate will be used in applying any GS pay administration rules applicable in connection with the employee's movement out of the project (
An employee in a pay band corresponding to a single GS grade is converted to that grade. An employee in a pay band corresponding to two or more grades is converted to one of those grades according to the following rules:
(1) The employee's adjusted rate of basic pay under the demonstration project (including any locality payment or staffing supplement) is compared with step four rates on the highest applicable GS rate range. (For this purpose, a “GS rate range” includes a rate in (1) the GS base schedule, (2) the locality rate schedule for the locality pay area in which the position is located, or (3) the appropriate special rate schedule for the employee's occupational series, as applicable.) If the series is a two-grade interval series, only odd-numbered grades are considered below GS-11.
(2) If the employee's adjusted project rate equals or exceeds the applicable step four rate of the highest GS grade in the band, the employee is converted to that grade.
(3) If the employee's adjusted project rate is lower than the applicable step four rate of the highest grade, the adjusted rate is compared with the step four rate of the second highest grade in the employee's pay band. If the employee's adjusted rate equals or exceeds step four rate of the second highest grade, the employee is converted to that grade.
(4) This process is repeated for each successively lower grade in the band until a grade is found in which the employee's adjusted project rate equals or exceeds the applicable step four rate of the grade. The employee is then converted at that grade. If the employee's adjusted rate is below the step four rate of the lowest grade in the band, the employee is converted to the lowest grade.
(5)
An employee's pay within the converted GS grade is set by converting the employee's demonstration project rate of pay to GS rate of pay in accordance with the following rules:
(1) The pay conversion is done before any geographic movement or other pay-related action that coincides with the employee's movement or conversion out of the demonstration project.
(2) An employee's adjusted rate of basic pay under the project (including any locality payment or staffing supplement) is converted to the GS adjusted rate on the highest applicable rate range for the converted GS grade. (For this purpose, a “GS rate range” includes a rate range in (1) the GS base schedule, (2) an applicable locality rate schedule, or (3) an applicable special rate schedule.)
(3) If the highest applicable GS rate range is a locality pay rate range, the employee's adjusted project rate is converted to a GS locality rate of pay. If this rate falls between two steps in the locality-adjusted schedule, the rate must be set at the higher step. The converted GS unadjusted rate of basic pay would be the GS base rate corresponding to the converted GS locality rate (
(4) If the highest applicable GS rate range is a special rate range, the employee's adjusted project rate is converted to a special rate. If this rate falls between two steps in the special rate schedule, the rates must be set at the higher step. The converted GS unadjusted rate of basic pay will be the GS rate corresponding to the converted special rate (
An employee in Pay band III of the E&S Occupational family will convert out of the demonstration project at no higher than the GS-13, step 10 level. ARI, in consultation with the CPAC, will develop a procedure to ensure that employees entering E&S Pay band III understand that if they leave the demonstration project and their adjusted pay exceeds the GS-13, step 10 rate, there is no entitlement to retained pay; their GS-equivalent rate will be deemed to be the rate for GS-13, step 10. These procedures will be documented in IOPs.
(1) If an employee is retaining a band level under the demonstration project, apply the procedures in paragraphs 1.a. and 1.b. (Grade-Setting Provisions) above, using the grades encompassed in the employee's retained band to determine the employee's GS-equivalent retained grade and pay rate. The time in a retained band under the demonstration project counts toward the 2-year limit on grade retention in 5 U.S.C. 5382.
(2) If an employee is retaining rate under the demonstration project, the employee's GS-equivalent grade is the highest grade encompassed in his or her band level. ARI will coordinate with DoD to prescribe a procedure for determining the GS-equivalent pay rate for an employee retaining a rate under the demonstration project.
All personnel laws, regulations, and guidelines not waived by this plan will remain in effect. Basic employee rights will be safeguarded and Merit System Principles will be maintained. Servicing CPAC(s) will continue to process personnel-related actions and provide consultative and other appropriate services.
ARI will use the DoD approved automated personnel system for the processing of personnel-related data. Payroll servicing will continue from the respective payroll offices.
An automated tool or other appropriate procedures will be used to support computation of performance related pay increases and awards and other personnel processes and systems associated with this project.
Constant assessment and refinement is needed to maximize the effectiveness of the system. Modifications may be made from time to time as experience is gained, results are analyzed, and conclusions are reached on how the new system is working. Modifications will be made in accordance with the provisions of DoDI 1400.37, or applicable superseding instructions.
Public Law 103-337 removed any mandatory expiration date for this demonstration project. ARI, DA, and DoD will ensure this project is evaluated for the first five years after implementation in accordance with 5 U.S.C. 4703. Modifications to the original evaluation plan or any new evaluation will ensure the project is evaluated for its effectiveness, its impact on mission, and any potential adverse impact on any employee groups.
Chapter 47 of 5 U.S.C. requires that an evaluation be performed to measure the effectiveness of the demonstration project, and its impact on improving public management. A comprehensive evaluation plan for the entire demonstration program, originally covering 24 DoD laboratories, was developed by a joint OPM/DoD Evaluation Committee in 1995. This
Data from a variety of different sources will be used in the evaluation. Information from existing management information systems supplemented with perceptual survey data from employees will be used to assess variables related to effectiveness. Multiple methods provide more than one perspective on how the demonstration project is working. Information gathered through one method will be used to validate information gathered through another. Confidence in the findings will increase as they are substantiated by the different collection methods. The following types of qualitative and/or quantitative data will be collected as part of the evaluation: (1) Workforce data; (2) personnel office data; (3) employee attitudes and feedback using surveys, structured interviews, and focus groups; (4) local activity histories; and, (5) core measures of laboratory effectiveness.
An objective of the demonstration project is to ensure in-house cost discipline. A baseline will be established at the start of the project and labor expenditures will be tracked yearly. Implementation costs (including project development, automation costs, step buy-in costs, and evaluation costs) are considered one-time costs and will not be included in the cost discipline.
The Personnel Management Board will track personnel cost changes and recommend adjustments if required to achieve the objective of cost discipline.
Costs associated with the development of the personnel demonstration project include software automation, training, and project evaluation. All funding will be provided through the organization's budget. The projected annual expenses are summarized in Table 1. Project evaluation costs are not expected to continue beyond the first five years unless the results warrant further evaluation. Additional cost may be incurred as a part of the implementation and operation of the project.
Public Law 106-398 gave the DoD the authority to experiment with several personnel management innovations. In addition to the authorities granted by the law, the following are waivers of law and regulation that will be necessary for implementation of the demonstration project. In due course, additional laws and regulations may be identified for waiver request.
The following waivers and adaptations of certain Title 5 U.S.C. provisions are required only to the extent that these statutory provisions limit or are inconsistent with the actions contemplated under this demonstration project. Nothing in this plan is intended to preclude the demonstration project from adopting or incorporating any law or regulation enacted, adopted, or amended after the effective date of this demonstration project.
Under Secretary of Defense for Research and Engineering (USD(R&E)), Department of Defense (DoD).
Notice of proposal to adopt and modify an existing personnel management demonstration project.
This
NAVFAC EXWC's personnel demonstration project proposal may not be implemented until a 30-day comment period is provided, comments addressed, and a final FRN published. To be considered, written comments must be submitted on or before December 23, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
Section 342(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 1995, Public Law (Pub. L.) 103-337; as amended, authorizes the Secretary of Defense (SECDEF), through the USD(R&E), to conduct personnel demonstration projects at DoD laboratories designated as STRLs. All STRLs authorized by section 1105(a) of the NDAA for FY 2010, Public Law 111-84, as well as any newly designated STRLs authorized by SECDEF, or future legislation, may use the provisions described in this FRN.
Many studies have been conducted since 1966 on the quality of the laboratories and personnel. Most of the studies recommended improvements in civilian personnel policy, organization, and management. Pursuant to the authority provided in section 342(b) of Public Law 103-337, as amended, a number of DoD STRL personnel demonstration projects were approved. The demonstration projects are “generally similar in nature” to the Department of Navy's China Lake Personnel Demonstration Project. The terminology, “generally similar in nature,” does not imply an emulation of various features, but rather implies a similar opportunity and authority to develop personnel flexibilities that significantly increase the decision authority of laboratory commanders and/or directors.
Section 1104 of the FY18 NDAA, Public Law 115-91 authorizes NAVFAC EXWC to implement a STRL Personnel Demonstration Project. Upon designation, NAVFAC EXWC chartered an Implementation Team (Team) to design and implement a new demonstration project plan. The Team is developing all associated deliverables, proposals and implementation details. The Team is working with the Laboratories and Personnel Office (L&PO), the Lab Quality Enhancement Program Panel on Personnel, Workforce Development, and Talent Management (LQEP-P) and organizations with ongoing demonstration projects for information and advice. NAVFAC EXWC employees are updated through ongoing communications such as fact sheets, briefings and small group meetings. This FRN is based on specific flexibilities adopted by other STRLs and global flexibilities available for use by all DoD STRLs.
NAVFAC EXWC will adopt, with some modifications, flexibilities from the following approved STRL personnel demonstration projects:
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Flexibilities published in this FRN will be available for use by the STRLs enumerated in section 1105(a) of the NDAA for FY 2010, Public Law 111-84 as amended, if they wish to adopt them in accordance with DoD Instruction 1400.37, “Science and Technology Reinvention Laboratory (STRL) Personnel Demonstration Projects” (available at
NAVFAC EXWC is a Warfare Center and distinguished DoD laboratory established in 2012. NAVFAC EXWC's dedicated workforce provides specialized facilities engineering, technology solutions, and life-cycle management of expeditionary equipment to the Navy, Marine Corps, Federal agencies, and other DoD customers. A majority of NAVFAC EXWC's civilian employees were hired in the General Schedule (GS) classification and pay scale. The GS classification and pay scale does not offer the same flexibilities and tools to attract, retain, motivate and fully compensate staff as the NAVFAC EXWC personnel demonstration project.
Through this project, NAVFAC EXWC competes with the private sector for the best talent by making timely job offers with attractive compensation packages that land high-quality employees. Once these employees are hired, NAVFAC EXWC incentivizes performance and rewards innovation and motivation through compensation directly linked to individual performance. Linking compensation to performance increases job satisfaction and retention of high performing employees and encourages continued performance because reduced performance will draw less reward.
NAVFAC EXWC's personnel demonstration project takes advantage of flexibilities to simplify and speed classification and staffing actions for employees, such as direct hire authorities, expanded details, temporary promotions, and modified/flexible term appointments.
The purpose of the project is to demonstrate that the effectiveness of DoD laboratories can be enhanced by greater managerial control over personnel functions and to expand the opportunities available to employees through a more responsive and flexible personnel system. The NAVFAC EXWC personnel demonstration project will incorporate legal authorities and adopt practices from other STRLs to meet the specific needs of this command. These tools will enable NAVFAC EXWC to dynamically shape the mix of technical skills and expertise in the laboratory workforce. As the Navy's leader in specialized facilities engineering, technology solutions, and life-cycle management of expeditionary equipment, NAVFAC EXWC must have the flexibility needed to quickly respond to changes in mission, organizational constraints, workload, and market conditions.
NAVFAC EXWC's Technical Director has overall oversight and management of these authorities. Unless specifically stated otherwise, the Technical Director of NAVFAC EXWC may delegate authority to effectively implement the provisions of this notice. NAVFAC EXWC Internal Operating Procedures (IOPs) will document any delegation, including details of implementation.
Many aspects of a demonstration project are experimental. Modifications may be made from time to time as we gain experience, analyze results, and reach conclusions on how the system is working. The provisions of Department of Defense Instruction (“DoDI”) 1400.37, “Science and Technology Reinvention Laboratory (STRL) Personnel Demonstration Projects” (including subsequently issued or superseding instructions) will be followed to modify, supplement through adoption, or otherwise change this demonstration project plan.
Using the current Federal personnel system is incompatible with NAVFAC EXWC's need for a highly specialized, quality workforce to support the DoD and the Department of the Navy's overall strategic objectives. The characteristics of the current general schedule (GS) system have remained unchanged since its inception many years ago. Under the GS system, work is classified into 15 grades with 10 interim steps within each grade. It is rigidly defined by occupational series and grade with precise qualifications for each position. This system does not enable management to respond quickly to new ways of designing work or changes in the work itself. It does not offer flexibilities to accurately capture employee performance or to quickly adjust management expectations for critical scientific, engineering, acquisition support and other professional positions, including skilled technicians. The current hiring system's inability to provide job offers in a timely manner also hampers the NAVFAC EXWC's ability to attract high quality candidates.
To remain the Department of the Navy's leader in supporting combatant capabilities and sustainable facilities, NAVFAC EXWC must compete with the private sector for the most talented, technically proficient candidates. NAVFAC EXWC must have a human resource system that fosters employee development, enhances performance and experience, and provides a strong retention incentive. This personnel demonstration project is expected to enable and enhance:
1. Recruitment of highly qualified scientific, technical, business, and support employees in today's competitive environment;
2. Selection of candidates and extension of job offers in a timely and efficient manner, with compensation sufficient to attract high quality, in-demand employees;
3. Employee satisfaction with pay setting and adjustment, recognition, and career advancement opportunities;
4. A quality workforce that rapidly adjusts to evolving requirements for the future;
5. Retention of high-level performers;
6. Simple and cost-effective HR management processes.
To effectively meet the above expectations, this notice identifies and establishes those features and flexibilities this demonstration project will use to achieve these objectives. The demonstration project primarily emphasizes streamlined hiring, a more flexible performance-based compensation system, talent acquisition and retention, and professional human capital planning and execution. Those features and flexibilities alone, however, will not ensure success. Delivering that vision requires a human resources service model that is highly proactive, expertly skilled in analytical tools, and fully engaged as a strategic partner and trusted agent of this modern multi-faceted defense laboratory.
NAVFAC EXWC has major facilities in three geographic locations: Port Hueneme, California, Gulfport, Mississippi, and Washington, DC. Additionally, the organization employs personnel at more than ten sites worldwide. The sites are diverse in employment profiles and size and have bargaining unit populations. The organization operates throughout the full spectrum of research, development, test and evaluation, engineering and fleet support delivered by five business lines and six support lines. Wage Grade positions will not be included in this personnel demonstration project; however, NAVFAC EXWC will continue to evaluate possible future inclusion. Prior to including bargaining unit employees in the personnel demonstration project, NAVFAC EXWC will fulfill its obligation to consult and/or negotiate with the labor organizations in accordance with 5 U.S.C. 4703(f) and 7117 as appropriate.
NAVFAC EXWC is predominantly a Navy Working Capital Fund (NWCF) activity. Over 60 percent of the employees to be initially included in the personnel demonstration project are funded by NWCF. Under NWCF, the cost of business and operations is built into the Stabilized Billing Rate (SBR) paid by customers for work performed; by maximizing management flexibility, NAVFAC EXWC can remain cost competitive.
There are four fundamental elements of this personnel demonstration project: (1) Hiring and staffing flexibilities, (2) simplified classification, (3) pay banding, and (4) performance-based compensation and assessment. The hiring and staffing flexibilities will help to better recruit, hire, and retain the most capable, qualified, and competent workforce in the job market today. Simplified classification will streamline the job classification process, reduce the effect of administrative processes on personnel, and allow for more flexibility in making job reassignments. The pay banding structure will create four career paths with multiple pay bands within each career path representing the phases of career progression that are typical for the respective career paths. This banding structure will enable managers to more appropriately reward and retain a diverse workforce using principles of pay equity and career progression. The performance-based compensation system is characterized by an assessment of an employee's performance and an appropriate pay allocation predicated on the assessed level of performance.
The Executive STRL Policy Board (ESPB) will oversee and monitor the fair, equitable, and consistent implementation of the provisions of the demonstration project to include establishment of internal controls and accountability. Members of the ESPB will be appointed by the Technical Director. Ad hoc members may serve in an advisory capacity to the ESPB. The ESPB duties will include the following:
• Establish policies and issue guidance on composition of pay pools in accordance with the guidelines of this proposal and internal procedures;
• Review pay pool operation and resolve pay pool disputes;
• Establish policies and issue guidance concerning the civilian pay budget, pay administration, awards and performance based pay increases;
• Establish policies and issue guidance to ensure in-house budget discipline and implement workforce staffing and budget plans;
• Develop policies and procedures for administering Developmental Opportunity Programs; ensure all employees are treated in a fair, equitable manner.
The Under Secretary of Defense (Personnel & Readiness) may, at his/her discretion, adjust the minimum funding levels to take into account factors such as the Department's fiscal condition, guidance from the Office of Management and Budget, and equity in circumstances when funding is reduced or eliminated for GS pay raises or awards.
OPM's “Qualification Standards for General Schedule Positions,” with minor modifications to address application of OPM qualifications in a pay banding environment, are used to determine qualifications for personnel demonstration project positions. “Band” is substituted for “Grade” where appropriate and time in grade requirements are eliminated.
Since the pay bands are anchored to the GS grade levels, the minimum qualification requirements for a position will be the requirements corresponding to the lowest GS grade incorporated into that pay band. For example, for a position in the S&E career path Pay Band II, individuals must meet the basic requirements for a GS-5 as specified in the OPM “Qualification Standard for Professional and Scientific Positions.”
Selective factors may be established for a position in accordance with the OPM's “Operating Manual: Qualifications Standards for General Schedule Positions,” when determined to be critical to successful job performance. These factors may become part of the minimum requirements for the position, and applicants must meet them in order to be eligible. If used, selective factors will be stated as part of the qualification requirements in vacancy announcements and recruiting bulletins.
a. NAVFAC EXWC will use the direct hire authorities authorized by section 1108 of the NDAA for FY 2009, as amended by section 1103 of the NDAA FY 2012; the direct hire authorities published in 79 FR 43722, and the direct hire authorities in 10 U.S.C. 2358a to appoint the following:
(1) Candidates with advanced degrees to scientific and engineering positions;
(2) Candidates with bachelor's degrees to scientific and engineering positions;
(3) Veteran candidates to scientific, technical, engineering, and mathematics positions (STEM), including technician positions; and
(4) Student candidates enrolled in a program of instruction leading to a bachelors or advanced degree in a STEM discipline.
b. STEM Student Employment Program (SSEP).
NAVFAC EXWC will use this direct hire authority for students in a scientific, technical, engineering, and mathematical course of study at an accredited institution of higher education. The purpose of this direct hire authority is to provide a streamlined and accelerated hiring process that allows NAVFAC EXWC to compete successfully with private industry for high quality scientific, technical, engineering, or mathematics students for filling scientific and engineering positions. Students appointed under the SSEP are afforded an opportunity for non-competitive conversion to a permanent scientific or engineering position upon graduation from an accredited institution of higher education. Use of this authority will be consistent with the merit system principles. The SSEP student employment standards will be similar to the Pathways qualification standards, which will allow students appointed
NAVFAC EXWC will use the Distinguished Scholastic Achievement Appointment Authority (DSAA) for pay banded positions. The DSAA uses an alternative examining process which provides the authority to appoint candidates possessing a bachelor's degree or higher to positions up to the equivalent of GS-12 for positions in the Science and Engineering (S&E) pay bands. This enables NAVFAC EXWC to respond quickly to hiring needs for eminently qualified candidates possessing distinguished scholastic achievements.
The alternative examining process specifies that candidates may be appointed provided they meet the minimum standards for the position as published in OPM's operating manual, “Qualification Standards for General Schedule Positions,” plus any selective placement factors stated in the vacancy announcement; the occupation has a positive education requirement; and the candidate has a cumulative grade point average of 3.5 (on a 4.0 scale) or better in their field of study (or other equivalent score) or are within the top 10 percent in their field of study in a graduate program.
NAVFAC EXWC will use the authorities provided by 5 U.S.C. 9902(g) and 82 FR 43339 to appoint reemployed annuitants, as appropriate. The laboratory director may approve the appointment of reemployed annuitants and determine the salary, to include whether the annuitant's salary will be reduced by any portion of the annuity received, up to the amount of the full annuity as a condition of employment. Use of this authority will be consistent with merit system principles.
NAVFAC EXWC Director will have the authority to offer former Federal employees who have retired or separated from the Federal service, voluntary assignments in NAVFAC EXWC. Volunteer Emeritus Program assignments are not considered “employment” by the Federal government. Thus, such assignments do not affect an employee's entitlement to buyouts or severance payments based on an earlier separation from Federal service. The Volunteer Emeritus Program will ensure continued quality research while reducing the overall salary line by allowing higher paid individuals to accept retirement incentives with the opportunity to retain a presence in the scientific community. The program will be of most benefit during manpower reductions as senior employees could accept retirement and return to provide valuable on-the-job training or mentoring to less experienced employees. Volunteer service will not be used to replace any employee, or interfere with career opportunities of employees. The Volunteer Emeritus Program may not be used to replace or substitute for work performed by civilian employees occupying regular positions required to perform the NAVFAC EXWC mission.
To be accepted into the Volunteer Emeritus Program, a candidate must be recommended by a NAVFAC EXWC manager to the Director. Everyone who applies is not entitled to participate in the program. The NAVFAC EXWC Director will document the decision process for each candidate and retain selection and non-selection documentation for the duration of the assignment or two years, whichever is longer.
To ensure success and encourage participation, the volunteer's federal retirement pay (whether military or civilian) will not be affected while serving in a volunteer capacity. Retired or separated federal employees may accept an emeritus position without a break or mandatory waiting period.
Volunteers will not be permitted to monitor contracts on behalf of the government or to participate on any contracts or solicitations where a conflict of interest exists. The same rules that currently apply to source selection members will apply to volunteers.
An agreement will be established between the volunteer and the NAVFAC EXWC Director. The agreement will be reviewed by the servicing legal office. The agreement must be finalized before the assumption of duties and will include:
a. A statement that the service provided is gratuitous, that the volunteer assignment does not constitute an appointment in the civil service and is without compensation or other benefits except as provided for in the agreement itself, and that, except as provided in the agreement regarding work-related injury compensation, any and all claims against the Government (stemming from or in connection with the volunteer assignment) are waived by the volunteer;
b. A statement that the volunteer will be considered a federal employee for the purpose of:
(1) 18 U.S.C. 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913;
(2) 31 U.S.C. 1343, 1344, and 1349(b);
(3) 5 U.S.C. chapters 73 and 81;
(4) The Ethics in Government Act of 1978;
(5) 41 U.S.C. chapter 21;
(6) 28 U.S.C. chapter 171 (tort claims procedure), and any other Federal tort liability statute;
(7) 5 U.S.C. 552a (records maintained on individuals); and
c. The volunteer's work schedule;
d. The length of agreement (defined by length of project or time defined by weeks, months, or years),
e. The support to be provided by the NAVFAC EXWC (travel, administrative, office space, supplies),
f. The volunteer's duties,
g. A provision that states no additional time will be added to a volunteer's service credit for such purposes as retirement, severance pay, and leave as a result of being a participant in the Volunteer Emeritus Program,
h. A provision allowing either party to void the agreement with 10 working days written notice;
i. The level of security access required (any security clearance required by the assignment will be managed by the NAVFAC EXWC while the volunteer is a participant in the Volunteer Emeritus Program);
j. A provision that any written products prepared for publication that are related to Volunteer Emeritus Program participation will be submitted to the NAVFAC EXWC Director for review and must be approved prior to publication;
k. A statement that the volunteer accepts accountability for loss or damage to Government property occasioned by the volunteer's negligence or willful action;
1. A statement that the volunteer's activities on the premises will conform to the NAVFAC EXWC regulations and requirements;
m. A statement that the volunteer will not improperly use or disclose any non-public information, to include any pre-decisional or draft deliberative information related to DoD programming, budgeting, resourcing, acquisition, procurement or other matter, for the benefit or advantage of the Volunteer Emeritus Program participant or any non-Federal entities. Volunteer Emeritus Program
n. A statement that the volunteer agrees to disclose any inventions made in the course of work performed at NAVFAC EXWC. The NAFVAC EXWC Director will have the option to obtain title to any such invention on behalf of the U.S. Government. Should the Director elect not to take title, the Center will retain a non-exclusive, irrevocable, paid up, royalty-free license to practice or have practiced the invention worldwide on behalf of the U.S. Government.
o. A statement that the Volunteer Emeritus Program participant must complete either a Confidential or Public Financial Disclosure Report, whichever applies, and ethics training in accordance with office of Government Ethics regulations prior to implementation of the agreement; and
p. A statement that the Volunteer Emeritus Program participant must receive post-government employment advice from a DoD ethics counselor at the conclusion of program participation. Volunteer Emeritus Program participants are deemed Federal employees for purposes of post-government employment restrictions.
NAVFAC EXWC will have an Expanded Detail and Temporary Promotion Authority providing the ability to:
(1) Effect details up to one year to specified positions at the same or similar level (positions in a pay band with the same maximum salary) without the current 120-day renewal requirement specified at 5 U.S.C. 3341; and
(2) Effect details or temporary promotions to a higher-level position up to 1 year within a 24-month period without competition. Details to higher-level positions beyond one year in a 24-month period require approval of the Technical Director and are subject to competitive procedures. The specifics of these authorities will be stipulated by NAVFAC EXWC IOPs.
NAVFAC EXWC may use the Flexible Length and Renewable Term Technical Appointments workforce shaping tool temporarily authorized by section 1109 (b) of the NDAA for FY 2016, as amended by section 1112(b) of the NDAA for FY 2019. Further details on the implementation of this authority are contained in 82 FR 43339. Until this authority expires or is rescinded, it may be used to appoint qualified candidates who are not currently DoD civilian employees, or DoD employees on term appointments into any scientific, technical, engineering, and mathematic positions, including technicians, for a period of more than one year but not more than six years. The appointment of any individual under this authority may be extended without limit in up to six-year increments at any time during any term of service under conditions set forth by the Technical Director.
The Technical Director, or designee, will establish implementing guidance and procedures on the use of this authority.
Managers will provide input to classification requests as a means of increasing managerial effectiveness and expediting the classification function. Classification authority will be delegated as follows: The NAVFAC EXWC Technical Director may delegate classification authority to the Human Resources Office (HRO) Director. The HRO Director may further delegate authority to Human Resource professionals of the immediate organization of the position being classified. If so delegated, the HRO Director will exercise oversight to ensure consistency across the organization.
The present system of OPM classification standards will be used for the identification of the proper occupational series of positions and certain occupational titles within the NAVFAC EXWC demonstration project. Current OPM position classification standards will not be used to grade positions in this project. However, the grading criteria in those standards will be used as a framework to develop new and simplified standards for the purpose of pay band determinations. The classification standard for each pay band will serve as an important component in the creation of Standard Level Descriptors (SLDs) that record the essential criteria for each pay band within each career path by stating the characteristics of the work, the responsibilities of the position, and the competencies required. SLDs replace current position descriptions. SLDs combined with the Position Requirements Document (PRD) will include position specific information such as Fair Labor Standards Act (FLSA) coverage; selective placement factors or specialized knowledge, skills and abilities; degree requirements or other professional certification requirements; staffing requirements; and other data element information pertinent to the position.
Today's environment of rapid technology development and workforce transition mandates that the organization have maximum flexibility to assign individuals. Pay banding may be used to address these needs. As a result of the assignment to a particular pay band descriptor, the organization will have maximum flexibility to assign an employee within pay band descriptors consistent with the needs of the organization, the individual's qualifications and rank, and pay band. Subsequent assignments to projects, tasks, or functions anywhere within the organization requiring the same area of expertise and qualifications would not constitute an assignment outside the scope or coverage of the employee's pay band descriptor.
A fundamental element of the NAVFAC EXWC personnel demonstration project is a simplified classification and pay component. Like other STRL demonstration projects, the proposed pay banding approach is tied to the 15 GS grade levels and the above GS-15 grade level. Career paths at NAVFAC EXWC are grouped by four career paths based on similarities in the type of work and customary requirements for formal education, training and credentials. Common patterns of advancement within the occupations as practiced at NAVFAC EXWC were considered. Current occupations and grades were examined and their characteristics and distribution were used to develop the career paths described below:
a.
b.
c.
d.
Each career path is composed of discrete pay bands (levels) corresponding to recognized advancement within these occupations. These pay bands replace grades and are not the same for all career paths. Each career path is divided into three to five pay bands; each pay band covering the same pay range formerly covered by one or more GS grades. The salary range of each band begins with step 1 of the lowest grade in that pay band and ends with step 10 of the highest grade in the pay band. The grouping of GS grades into a particular band was based on a careful examination of NAVFAC EXWC's occupations, grade levels, and career development practices. Career paths and the associated classification occupational series for each are provided in Appendix A. The distribution of the occupational series to career paths reflects only those occupational series that currently exist within NAVFAC EXWC. Additional occupational series may be added as a result of changes in mission requirements or OPM-recognized occupations. These additional occupational series will be placed in the appropriate career path consistent with the established career path definitions.
The pay banding structure is the structure in use at the CCDC ARL. The pay bands and their relation to the current GS framework are shown in Figure 1. This pay band structure allows greater flexibility to define and classify work assignments and to reward performance. A key feature is the overlap in Science and Engineering (ND) career path between bands III and IV. ND-III begins at GS-12, step 1, and ends at GS-14, step 10. ND-IV begins at GS-14, step 1, and ends at GS-15, step 10. A second noteworthy feature is the introduction of categories within the Administrative/Professional (NT) career path, Bands III and IV. These bands contain two full performance levels because not all work assignments support movement to the top of the band. The NT-III band includes Category I, where the full performance maximum salary rate is equivalent to GS-12, step 10, and Category II, where the full performance maximum salary rate is equivalent to GS-13, step 10. The NT-IV band includes Category I, where the full performance maximum salary rate is equivalent to GS-14 step 10, and Category II, where the full performance maximum salary rate is equivalent to GS-15, Step 10. In order to move beyond Category I, duties and work assignments must satisfy the highest level of the criteria in the classification for the applicable pay band.
Fair Labor Standards Act (FLSA) exemption and nonexempt determinations will be made consistent with criteria found in 5 CFR part 551. Generally, employees will be converted to the demonstration project with the same FLSA status they had previously. All employees are covered by the FLSA unless they meet the criteria for exemption. The duties and responsibilities outlined in the classification standards for each pay band will be compared to the FLSA criteria.
The SSTM program will be managed and administered by the Technical Director, consistent with the provisions 10 U.S.C. 2358a and NAVFAC EXWC IOPs. The primary function of these positions is to engage in research and development in the physical, biological, medical, or engineering sciences, or another field closely related to the NAVFAC EXWC mission and to carry out technical supervisory responsibilities. The number of such positions may not exceed two percent of the number of scientists and engineers employed at the Technical Center as of the close of the last fiscal year before the fiscal year in which any appointments subject to the numerical limitation are made. This authority is expected to provide an opportunity for career development and expansion of a pool of experienced, prominent technical candidates meeting the levels of proficiency and leadership essential to create and maintain a DoD state-of-the-art scientific, engineering and technological facility. The minimum basic pay for SSTM positions is 120 percent of the minimum rate of basic
The Technical Director and the NAVFAC EXWC Chief Engineer have non-delegable authority to designate those positions within NAVFAC EXWC requiring professional licensure. Engineering and Architectural positions requiring professional licensure will be monitored by the EXWC Chief Engineer. It is the policy of NAVFAC EXWC to recruit, hire, professionally develop, and maintain a professional workforce of the highest caliber. Professional licensing is required for any position, regardless of pay band, in responsible charge of engineering/architectural work, whether performed in-house or by contract. The specific guidelines will be documented in NAVFAC EXWC's IOPs. However, the Technical Director has final authority regarding professional licensure requirements.
Employees have the right to appeal the classification of their position at any time. A classification complaint is an employee's request for a review, at the activity level, of the pay plan, occupational series, position title, and pay band of their position. The employee must formally make a complaint which raises the area of concern to their immediate supervisor to initiate the classification complaint review process. The Human Resource Office will review the complaint and issue a determination. If the employee is dissatisfied with the outcome of the classification complaint review, the employee may appeal the classification of the position to the Technical Director. If the employee is dissatisfied with the decision rendered by the Technical Director, the employee may initiate a formal classification appeal to the DoD appellate level. Appeal decisions rendered by DoD will be final and binding on all administrative, certifying, payroll, disbursing, and accounting officials of the government. Classification appeals are not accepted on positions that exceed the equivalent of a GS-15 level. An employee may not appeal the accuracy of the position description, the demonstration project classification criteria, or the pay-setting criteria; the assignment of occupational series to the career path; the propriety of a pay schedule; command developed position titles; or matters covered by an administrative or negotiated grievance procedure or an alternative dispute resolution procedure. The evaluations of classification appeal are based upon the demonstration project classification criteria. Additional guidance will be documented in NAVFAC EXWC IOPs.
Pay administration policies are established by the ESPB. The following definitions and policies will apply to the pay setting of new hires, movement of employees within the demonstration project from one career path or pay band to another, as well as any other pay action outside the performance-based assessment system.
For initial appointments to the Federal service, base pay may be set anywhere within the pay band consistent with the special qualifications of the individual and the unique requirements of the position. These special qualifications may be in the form of education, training, and/or experience. Unique position requirements may include scarcity of qualified candidates, labor market considerations, programmatic urgency, or any combination thereof that is pertinent to the position in which the employee is being placed. Specific guidelines for application of pay setting for appointments will be contained in NAVFAC EXWC IOPs.
The minimum base pay increase upon promotion to a higher pay band will be six percent or the minimum base pay rate of the new pay band, whichever is greater. A promotion is the movement of an employee to a higher pay band in the same career path or to a higher pay band in a different career path. It also includes movement of an employee currently covered by a non-demonstration project personnel system to a demonstration project position in a pay band with a higher level of work. Positions with a known promotion potential to a specific band will be identified when they are filled. Not all positions in a career path will have promotion potential to the same band. Movement from one career path to another will depend upon individual competencies, and qualifications.
Progression within a pay band is based upon performance-based pay increases; as such, these actions are not considered promotions and are not subject to provisions of this section. Promotions will follow Merit System Principles and basic Federal Merit Staffing policy that provides for competitive and non-competitive promotions. To be promoted competitively or non-competitively, from one pay band to the next, an employee must meet the minimum qualifications for the job and have a current rating of record of “mission success” or better, or equivalent under a different appraisal system. Other specific guidelines regarding promotions will be documented in NAVFAC EXWC IOPs.
A reassignment occurs when an employee moves, voluntarily or involuntarily, to a different position or set of duties within their pay band or to a position in a comparable pay band at a comparable level of work, or from a non-demonstration project position to a demonstration project position at a comparable level of work, on either a temporary or permanent basis. Under this system, employees may be eligible for an increase to base pay upon temporary or permanent reassignment. Such an increase is subject to the specific guidelines established by the ESPB and documented in NAVFAC EXWC IOPs.
A demotion is the placement of an employee into a lower pay band or movement from a non-demonstration project position to a demonstration project position at a lower level of work. Demotions may be for cause (performance or conduct) or for reasons other than cause (
Employees will be entitled to the locality pay authorized for their official
Employees assigned to occupational categories and geographic areas where GS special rates apply may be entitled to a staffing supplement if the maximum adjusted base pay rate for the demonstration band to which the employee is assigned is exceeded by a GS special rate for the employee's occupational category and geographic area. Employees receiving a staffing supplement remain entitled to an underlying locality rate, which may over time supersede the need for a staffing supplement. If OPM discontinues or decreases a special rate schedule, retained pay provisions will be applied. If at any time after establishment of the demonstration project, special salary rates (SSRs) are deemed necessary by NAVFAC EXWC leadership, they will be implemented via a staffing supplement, and also documented in NAVFAC EXWC IOPs.
The project will eliminate retained grade under 5 CFR part 536. Pay retention will follow current law and regulations at 5 U.S.C. 5362 and 5363, and 5 CFR part 536, except as modified in the Staffing Supplements section and waived in Section IX of this plan. If an employee is receiving retained pay under the personnel demonstration project, the employee's GS-equivalent grade is the highest grade encompassed in their pay band level.
The project will continue to employ recruitment, retention, and relocation incentives as described in 5 CFR part 575. Approval for use of recruitment, retention, and relocation incentives is delegated to the Technical Director and further described in an NAVFAC EXWC IOP.
NAVFAC EXWC will employ an Extraordinary Achievement Allowance (EAA) designed to optimize organizational effectiveness. An EAA is defined as a temporary monetary allowance up to 25 percent of base pay, provided that an employee's total compensation does not exceed the rate of basic pay for Executive Level IV in effect at the end of such calendar year. It is paid on either a bi-weekly basis concurrent with normal pay days, or as a lump sum following completion of a designated contribution period, or combination of these, at the discretion of the Technical Director (or designee). It is not base pay for any purpose,
NAVFAC EXWC will establish a pay differential to be provided at the discretion of the Technical Director or assigned delegates to incentivize and reward personnel in supervisory positions. A pay differential is a cash incentive that may range up to 10 percent of the employee's base rate of pay. It is paid on a pay period basis and is not included as part of the employee's base rate of pay. The pay differential must be terminated if the employee is removed from the supervisory position (and is not placed in another supervisory position), regardless of cause. All personnel actions involving a pay differential will require a statement signed by the employee acknowledging that the differential is not part of base pay for any purpose and may be terminated or reduced as dictated by fiscal limitations, changes in assignment or scope of work, or by the Technical Director. Positions, titles, duties and responsibilities that are eligible for supervisory differential, as well as standards for differential awards, will be defined in an NAVFAC EXWC IOP. Any adjustment or termination of a supervisory pay differential will be in accordance with NAVFAC EXWC's IOPs and all applicable laws and regulations. The termination or reduction of the differential is not an adverse action and is not subject to appeal or grievance.
NAVFAC EXWC will establish an educational base pay adjustment that is separate from other incentive pay and may not exceed the top of the employee's assigned pay band. The educational base pay adjustment may be used to adjust the base pay of individuals who have acquired a level of mission-related education that would otherwise make the employee qualified for an appointment at a higher level and would be used in lieu of a new appointment. For example, this authority may be used to adjust the base pay of employees who are participating in a graduate level Student Educational Employment Program, or employees who have obtained an advanced degree, such as a Ph.D., in a field related to the work of their position or the mission of their organization.
NAVFAC EXWC will establish an Expanded Development Opportunities Program that will cover all demonstration project employees. Expanded development opportunities include: (1) Long term training, (2) one-year work experiences in an industrial setting via the Relations With Industry Program, (3) one-year work experiences in laboratories of allied nations via the Science and Engineer Exchange Program, (4) rotational job assignments within NAVFAC EXWC, (5) developmental assignments in higher headquarters within the DON and DoD, (6) self-directed study via correspondence courses and at colleges and universities, (7) details within NAVFAC EXWC and to other Federal agencies, (8) Intergovernmental Personnel Act Program Agreements, and (9) sabbaticals. Each developmental opportunity period should benefit the organization and increase the employee's individual effectiveness as well. Various learning or developmental work experiences may be considered, such as advanced academic teaching or research and sabbaticals. An expanded developmental opportunity period will not result in loss of or reduction in base pay, loss of leave to which the employee is otherwise entitled, or any loss of credit for time or service.
Program openings will be announced as opportunities arise. Instructions for application and the selection criteria will be included in the announcement. Final selection/approval for participation in the program will be made by the Technical Director. The position of an employee participating in an expanded development opportunity may be backfilled by temporary assignment of other employee or temporary redistribution of work. However, that position or its equivalent must be made available to the employee upon return from the expanded developmental opportunity. An
a. Training is essential for an organization that requires continuous development of advanced and specialized knowledge. Degree studies are also critical tools for recruiting and retaining employees with skills essential to the NAVFAC EXWC mission. The Technical Director has the authority to approve training.
b. Individual training programs may be approved based upon a complete individual study program plan. Such training programs will ensure continuous development of advanced specialized knowledge essential to the organization and enhance the ability to recruit and retain personnel critical to the present and future requirements of the organization. Tuition payment may not be authorized where it would result in a tax liability for the employee without the employee's express and written consent. Any variance from this policy must be rigorously determined and documented. Guidelines will be developed to ensure competitive approval of training and those decisions will be fully documented. Employees approved for training must sign a service obligation agreement to continue service at NAVFAC EXWC for a period three times the length of the training period commencing after the completion of the entire training program. If an employee voluntarily leaves NAVFAC EXWC before the service obligation is completed, he/she is liable for repayment of expenses incurred by NAVFAC EXWC that are related to the training. Expenses do not include salary costs. The Technical Director has the authority to waive this requirement. Criteria for such waivers will be addressed in NAVFAC EXWC IOPs.
NAVFAC EXWC will continue to utilize student training, internship programs (such as Pathways, SSEP), and career development positions under the demonstration project to recognize growth and development in the acquisition of job related competencies combined with successful performance. Promotions for such employees are limited to: (1) Employees in developmental or trainee level positions and (2) those employees in Pathways or other career training or internship programs. Promotions for those employees in developmental positions will be provided in NAVFAC EXWC IOPs.
To provide additional flexibility to motivate and reward individuals and groups, some portion of the performance award budget will be reserved for special acts and other categories as they occur. Awards may include, but are not limited to, recognition for special/extraordinary achievements, patents, inventions, suggestions, and on-the-spot awards. The funds available for awards are separately funded within the constraints of the organization's overall award budget. While not directly linked to the mission aligned objectives and performance compensation system, this additional flexibility is important to encourage outstanding accomplishments and innovation in accomplishing NAVFAC EXWC's diverse missions. Additionally, group awards may be given to foster and encourage teamwork. The Technical Director will have the authority to grant special act or achievement awards to covered employees of up to $25,000.
The purpose of mission aligned objectives and performance compensation is to link the work of the employee to the mission of the organization and to provide a mechanism for recognizing the impact of the employee's accomplishments and performance to help achieve that mission. It provides an effective, efficient, and flexible method for assessing, compensating, and managing NAVFAC EXWC's workforce. This performance management system better aligns with developing a highly productive workforce and for providing the authority, control, and flexibility to achieve a quality organization and meet mission requirements. Mission aligned objectives and performance compensation encourages more employee involvement in the assessment process, strives to increase communication between supervisor and employee and promotes performance accountability. By linking mission directly to both annual evaluations and compensation outcomes, objectives facilitate employee career progression and provide an understandable and rational basis for pay changes. The normal rating period will be one year.
Objectives, developed jointly by employees and their supervisors must be in place within 30 days from the beginning of each rating period. The minimum rating period is 90 days. Employees who do not meet the 90-day minimum requirement will be ineligible for a normal rating and will be given a presumptive rating. They may receive only the general pay increase and they may also receive Title 5 cash awards, if appropriate. First-time hires must have performance plans in place within 30 days of their demonstration project entry effective date. Current demonstration performance project employees who change positions during the performance year should have their plans updated with new objectives no later than 30 days after assignment to their new position.
Mission aligned objective and performance compensation can be in the form of increases to base pay and/or lump sum cash bonuses that are not added to base pay. The system can be modified, if necessary, as more experience is gained under the project. The flexibilities in this mission aligned objectives and performance compensation section are similar in nature to the authority granted to: (1) The Naval Ocean Systems Center and the Naval Weapons Center, China Lake, 45 FR 26504, (2) the CCDC ARL, 65 FR 3500, and (3) NAVAIR Aircraft and Weapons Divisions, 76 FR 8529.
Individual mission objectives are directly related to achieving the NAVFAC EXWC mission. Objectives identify expectations and typically consist of 3 to 10 results-oriented statements. Objectives are tangible and measurable so that achievements can be identified. These objectives incorporate important behavioral practices such as teamwork and cooperation where they are key to a successful outcome. One supervisory objective, including adherence to EEO principles, is mandatory for all managers/supervisors. The employee and their supervisor will jointly develop the employee's individual mission objectives at the beginning of the rating period. The supervisor has final approval authority of the objectives. Objectives will reflect the employee's duties/responsibilities, pay band and pay level in the pay band as well as support the NAVFAC EXWC mission, organizational goals and priorities. Objectives will be reviewed
Individual mission objectives may be jointly modified, changed, or deleted as appropriate during the rating cycle. As a general rule, objectives should only be changed when circumstances outside the employee's control prevent or hamper the accomplishment of the original objectives. It is also appropriate to change objectives when mission or workload shifts occur.
All objectives are critical. A critical mission objective is defined as an attribute of job performance that is of sufficient importance that achievement below the minimally acceptable level requires remedial action and may be the basis for removing an employee from his/her position. Each objective may be assigned a weight, which reflects its importance in accomplishing an individual's mission objectives. The minimum weight that can be assigned is 10 percent. The sum of the weights for all of the objectives must equal 100 percent. At the beginning of the rating period, higher-level managers will review the objectives and weights assigned to employees within the pay pool to verify consistency and appropriateness.
Rating benchmarks define characteristics that will be used to evaluate the employee's success in accomplishing their individual mission objectives. Scoring characteristics help to ensure comparable scores are assigned while accommodating diverse individual objectives. A single set of rating benchmarks for each band or career stage may be used for evaluating the annual performance of all NAVFAC EXWC personnel covered by this plan. An example of rating benchmarks is shown in Appendix B. The set of benchmarks used may evolve over time, based on experience gained during each rating cycle. Critical characteristics evolve as our workforce actively moves toward meeting their individual and organizational objectives. This is particularly true in an environment where technology and work processes are changing at an increasingly rapid pace. The ESPB will annually review the set of benchmarks and set them for the entire organization before the beginning of the rating period.
Employees, and supervisors, are expected to actively discuss expectations and identify potential obstacles to meeting goals. Employees should explain (to the extent possible) what they need from their supervisor to support goal accomplishment. The timing of these discussions will vary based on the nature of work performed, but will occur at least 30 days from the beginning of each rating period, at the mid-point, and at the end of the rating period. The supervisor and employee will discuss job performance and accomplishments in relation to the expectations in the mission aligned objectives. At least one review, normally the mid-point review, will be documented as a formal progress review. More frequent, task specific, discussions may be appropriate in some organizations. In cases where work is accomplished by a team, team discussions regarding goals and expectations will be appropriate. The employee may provide a statement of their accomplishments to the supervisor at both the mid-point and end of the rating period. However, this provision does not preclude an employee from providing a statement of their accomplishments to their supervisor that are outside the mid-year and year-end evaluations and rating period.
Following a review of the employee's accomplishments at the end of the rating period, the supervisor will rate each of the individual mission objectives. Benchmark performance standards will be developed that describe the level of performance associated with a score. The supervisor decides where each employee's achievements and performance most closely match the benchmarks and assigns an appropriate score. These scores are not discussed with the employee or considered final until all scores are reconciled and approved by the Pay Pool Manager. The scores will then be multiplied by the objective-weighting factor to determine the weighted score expressed to two decimal points. The weighted scores for each objective will then be totaled to determine the employee's overall appraisal score and rounded to a whole number as follows: If the first two digits to the right of the decimal are 0.51 or higher, it will be rounded to the next higher whole number; if the first two digits to the right of the decimal are 0.50 or lower, then the decimal value is truncated. The resulting score determines the rating.
NAVFAC EXWC will use a five-level rating methodology with associated payout point ranges in which level five signifies the highest level of performance. The supervisor will prepare and recommend the rating, number of payout points, and the distribution of the payout between base pay increase and bonus, as applicable, for each employee. These recommendations will then be reviewed by the pay pool panel to ensure equitable rating criteria and methodologies have been applied to all pay pool employees. The final determination of the rating, number of payout points, and payout distribution will be a function of the pay pool panel process and will be approved by the Pay Pool Manager. The criteria used to determine the number and distribution of payout points to assign an employee may include: Assessment of the employee's contribution towards achieving the mission, the employee's type and level of work, the employee's current compensation and the criticality of their contribution to mission success, consideration of specific achievements, or other job-related significant accomplishments or contributions.
The proposed rating and payout point schema is:
Employees with a rating of two or above for each mission aligned objective will receive the equivalent of the authorized GS general pay increase (GPI). An employee receiving an “Unacceptable” rating of one for any mission-aligned objective will not receive the GPI and will require administrative action to address the performance deficiency. A rating of “1” on a single objective will also result in a rating of “Unacceptable.” Supervisors of employees who are assessed to be at the “Unacceptable” level, will take appropriate action as soon as practicable. However, at the end of the performance year, employees who are assessed to be at the “Unacceptable” level will have their rating deferred until the end of a performance improvement period. If the employee's performance is found to be unacceptable following a performance improvement period a rating of record will be “1” and administrative action will be taken. If the employee's performance is found to be acceptable at the end of the improvement period, rating of record and associated payouts will be applicable to the end of the appraisal period. If an employee's performance deteriorates again in any objective within two years from the beginning of the performance improvement period, actions may be initiated to effect a performance based action with no additional opportunity to improve.
The Technical Director (or designee) of NAVFAC EXWC will establish pay pools. Typically, pay pools will have between 35 and 300 employees. A pay pool should be large enough to encompass a reasonable distribution of ratings but not so large as to compromise rating consistency. Large pay pools may use sub pay pools subordinate to the pay pool due to the size of the pay pool population, the complexity of the mission, or other similar criteria. The covered organizations' employees will be placed into pay pools. Neither the Pay Pool Manager, supervisors, or pay pool panel members within a pay pool will in any way recommend or participate in setting their own rating or individual payout except for the normal employee self-assessment process.
Each employee is initially scored by their supervisor. Next, the rating officials in an organizational unit (Directorates, Divisions, Branches, Teams, etc.), along with their next level of supervision, will review and compare recommended ratings to ensure consistency and equity of the ratings. In this step, each employee's individual mission objectives, accomplishments, preliminary scores, and pay are compared to benchmark performance standards. Through discussion and consensus building, consistent and equitable ratings are reached. Managers will not prescribe a distribution of ratings. The Pay Pool Manager will then chair a final review with the rating officials who report directly to him or her to validate these ratings and resolve any scoring issues. If consensus cannot be reached in this process, the Pay Pool Manager makes all final decisions. Ratings are finalized after this reconciliation process is complete. Decisions regarding the amount and distribution of the payouts are based on the employee's most recent rating of record for the performance year, the criteria listed above under performance feedback, the type and nature of the funding available to the pay pool, and the number of payout points assigned by the pay pool. In the case of NAVFAC EXWC attorneys, special consideration must be made relative to assigned score. To avoid conflict with state bar rules, the pay pool panel may not alter the mission aligned objective performance ratings or the overall score that NAVFAC HQ counsel assigns to an attorney; however, the pay pool panel may make independent judgments, such as pay adjustments after considering that score. A reconsideration from a NAVFAC EXWC attorney will be handled in accordance with the Office of General Counsel's grievance procedures after NAVFAC HQ counsel and the pay pool panel recommends a resolution.
Funds within a pay pool available for performance payouts are divided into two components, base pay and bonus. The funds within a pay pool used for base pay increases are those that would have been available for within-grade increases, quality step increases and promotions under the GS system (excluding the costs of promotions still provided under the pay banding system). The funds available to be used for bonus payouts are funded separately within the constraints of the organization's overall award budget. Both amounts will be defined based on historical data and will initially be set at no less than one percent of total base pay annually. As changes in the demographics of the workforce or other exigencies occur, adjustments may be made to these two factors. The sum of these two factors is referred to as the pay pool percentage factor. The ESPB will annually review the pay pool funding and recommend adjustments to the Technical Director (or designee) to ensure cost discipline over the life of the demonstration project. Additional guidance on pay pool design and composition will be included in NAVFAC EXWC IOPs.
The payout an employee will receive is based on the total performance rating from the mission aligned objectives and performance compensation assessment process. An employee will receive a payout as a percentage of base pay. This percentage is based on the number of payout points that equates to their final appraisal score. The value of a payout point cannot be determined until the rating and reconciliation process is completed and all scores are finalized. The payout point value is expressed as a percentage.
The formula that computes the value of each payout point uses base pay rates and is based on:
a. The sum of the base pay of all the employees in the pay pool times the pay pool percentage factor;
b. The employee's base pay;
c. The number of payout points awarded to each employee in the pay pool; and
d. The total number of payout points awarded in the pay pool.
This formula assures that each employee within the pool receives a payout point amount equal to all others in the same pool who are at the same rate of base pay and receiving the same score. The formula is shown in Figure 2.
An individual payout is calculated by first multiplying the payout points earned by the payout point value and multiplying that product by base pay. An adjustment is then made to account for locality pay or staffing supplement. A Pay Pool Manager is accountable for staying within pay pool limits and final decisions on base pay increases and/or bonuses to individuals based on rater recommendations, the final score, the pay pool funds available, and the employee's base pay.
The amount of money available for the performance payouts is divided into two components: Base pay increases and bonuses. The base pay and bonus funds are based on the pay pool funding formula established annually. Once the individual performance amounts have been determined, the next step is to determine what portion of each payout will be in the form of a base pay increase as opposed to a bonus payment. The payouts made to employees from the pay pool may be a mix of base pay and bonus, such that all of the allocated funds are disbursed. To continue to provide performance incentives while also ensuring cost discipline, base pay increases may be limited or capped. Certain employees will not be able to receive the projected base pay increase due to base pay caps. Base pay is capped when an employee reaches the maximum rate of base pay in an assigned pay band, category, or when a control point applies. Also, for employees receiving retained rates above the applicable pay band maximum, the entire performance payout will be in the form of a bonus payment.
When capped, the total payout an employee receives will be in the form of a bonus versus the combination of base pay and bonus. Bonuses are cash payments and are not part of the base pay for any purpose (
As a compensation management tool, NAVFAC EXWC will use salary points and categories to manage position and pay progression within each band. Salary points may be set within each band and may be used in the pay pool process to manage performance salary increases. Taking an employee's salary across a point will require review of both the position and performance of the employee. Advancement may not occur without approval of the Pay Pool Manager and the ESPB.
Employees who display exemplary performance for two consecutive years may be candidates for pay band movement to the next higher pay band. The request must be made by a Pay Pool Manager and must demonstrate that an employee's high-level of performance is commensurate with the complexities and responsibilities of a position in the next higher pay band and will continue into the future. Movement to a higher pay band level is not guaranteed. Approval of requests for movement to the next higher level pay band based on employee performance reside with the ESPB. Criteria for crossing salary points, categories, and movement to a higher pay band based on high-level performance will be contained in NAVFAC EXWC IOPs.
An employee may request reconsideration of the rating-of-record received under the mission aligned objectives and performance compensation system. A rating of record or job objective rating may be reconsidered by request of an employee only through the reconsideration process specified in an NAVFAC EXWC IOP (except for NAVFAC EXWC's attorneys, see section III.E.5.). This process will be the sole and exclusive agency administrative process for employees to request reconsideration of a rating of record and is not subject to the agency administrative grievance system, or any negotiated grievance procedures.
Consistent with this part, a Designated Management Official (DMO) will make the decision on reconsiderations of rating of record. The DMOs' decisions are final. The DMO is a senior EXWC manager who is appointed by the Technical Director to make this final determination. The DMO will not be the pay pool manager who made the decision on the subject rating. The payout point determination, payout distribution determination, or any other payout matter will not be subject to the reconsideration process, any other agency administrative grievance system or any negotiated grievance procedures.
In the event of a reconsideration that results in an adjusted rating of record, the revised rating will be referred to the Pay Pool Manager for recalculation of the employee's performance payout amount and distribution. Any adjustment to base pay will be retroactive to the effective date of the performance payout. Base pay adjustments will be based on the payout point range appropriate for the adjusted rating of record. Payout point values for the adjusted rating of record will reflect the payout point value paid to other members across the pay pool for that rating cycle. Decisions made through the reconsideration process will not result in recalculation of the payout made to other employees in the pay pool.
Appeals that contain allegations that a performance rating was based on prohibited actions that are subject to formal review and adjudication by a third party may not be processed through the reconsideration process, but instead may be processed by the employee through an applicable third party process. Such third parties include, but are not limited to: The Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the OPM, the Federal Labor Relations Authority (FLRA) and the Equal Employment Opportunity Commission (EEOC).
NAVFAC EXWC will use the modified VERA and VSIP authorities authorized by sections 1109(b)(3) and (4) of the NDAA for FY 2016. The Technical Director may use VERA and VSIP whenever such incentives will help the STRL to achieve one or more of the objectives in section 1109(a). This authority may not be delegated further. DOD has published, at 82 FR 43339, specific direction and authorization for the use of VERA and VSIP authorities by STRLs for workforce shaping. If the laboratory workforce is being downsized, VERA and VSIP incentives may be used to minimize the need for involuntary separations. VERA and VSIP may also be used to restructure the laboratory workforce without reducing the number of assigned personnel. In this restructuring scenario, incentives may be offered for the purpose of creating vacancies that will be reshaped to align with mission objectives. Details on the specific use of this authority are contained in 82 FR 43339.
Employees will be converted automatically from their current GS series and grade to the appropriate career paths and pay band levels. It is essential to the success of the project that employees, upon entering the project, know that they are not losing a pay entitlement accrued under the GS system. Employees that were covered by local or national special salary rates will no longer be considered a special salary employee under the demonstration project and thus will gain eligibility for full locality pay. To control conversion costs and to avoid a salary increase windfall for these employees, the adjusted salaries will not change. Rather, the employees will receive a new basic pay rate computed by the locality pay factor for their area. A full locality adjustment will then be added to the new basic pay rate. Adverse action provisions will not apply to the conversion process, as there will be no change to total salary. New hires, including employees transferring from other Federal activities, will be converted into the demonstration project in the career path and at the level and pay consistent with the duties and responsibilities of the position and individual qualifications.
On the date that employees are converted to the project pay plans, they will be given a prorated permanent increase in pay equal to the earned (time spent in step) portion of their next Within Grade Increase (WGI) based on the value of the WGI at the time of conversion. Employees at the 10th step or receiving a retained rate will not be eligible for the increase.
During the first 12 months following conversion, employees may receive pay increases for non-competitive promotion equivalents when the grade level of the promotion is encompassed within the same pay band, the employee's performance warrants the promotion and promotions would have otherwise occurred during that period. Employees who receive an in-pay band level promotion at the time of conversion will not receive a prorated step increase equivalent. Employees will not be eligible for a basic pay increase if their current rating of record is unacceptable at the time of conversion. The decision to grant a pay equity adjustment is at the sole discretion of management and is not subject to employee appeal procedures.
Employees who enter this demonstration project from other personnel systems (
Employees who have completed an initial probationary period prior to conversion to the NAVFAC EXWC personnel demonstration project plan will not be required to serve another probationary period. Employees who are still serving an initial probationary period upon conversion from GS to the demonstration plan will receive credit for probationary service to date, however they must serve any remaining probationary time to complete the full two-year DOD probationary period.
NAVFAC EXWC will implement an extended supervisory probationary period. The probationary period for new supervisors will be two years, rather than the normal one-year probationary period specified by 5 CFR part 315. Except for the increased length, supervisory probationary periods will be made consistent with 5 CFR part 315. Employees who have already successfully completed an initial one-year probationary period for supervisory positions will not be required to complete a two-year probationary period for initial appointment to a supervisory position. Employees who are serving an initial supervisory probationary period upon conversion into this demonstration project will serve the time remaining on their one-year supervisory probationary period. If the decision is made to return the employee to a non-supervisory position for reasons related to supervisory performance and/or conduct, the employee will be returned to a comparable position of no lower base pay that the position from which promoted or reassigned immediately prior to the supervisory assignment.
In the event employees' coverage under the NAVFAC EXWC STRL personnel demonstration project pay plans is terminated, employees move with their position to another system applicable to NAVFAC EXWC STRL employees. The grade of their demonstration project position in the new system will be based upon the position classification criteria of the gaining system. Employees may be eligible for pay retention under 5 CFR part 536 when converted to their positions classified under the new system, if applicable.
If a demonstration project employee is moving to a GS or other pay system position, the following procedures will be used to translate the employee's personnel demonstration project pay band to a GS-equivalent grade and the
An employee in a pay band corresponding to a single GS grade is provided that grade as the GS equivalent grade. An employee in a pay band corresponding to two or more grades is determined to have a GS equivalent grade corresponding to one of those grades according to the following rules:
a. The employee's adjusted base pay under the demonstration project (including any locality payment or staffing supplement) is compared with step four rates in the highest applicable GS rate range. For this purpose, a GS rate range includes a rate in:
i. The GS base schedule;
ii. The locality rate schedule for the locality pay area in which the position is located; or
iii. The appropriate special rate schedule for the employee's occupational series, as applicable.
b. If the employee's adjusted base pay under the demonstration project equals or exceeds the applicable step four adjusted base pay rate of the highest GS grade in the band, the employee is converted to that grade.
c. If the employee's adjusted base pay under the demonstration project is lower than the applicable step four adjusted base pay rate of the highest grade, the adjusted base pay under the demonstration project is compared with the step four adjusted base pay rate of the second highest grade in the employee's pay band. If the employee's adjusted base pay under the demonstration project equals or exceeds the step four adjusted base pay rate of the second highest grade, the employee is converted to that grade.
d. This process is repeated for each successively lower grade in the band until a grade is found in which the employee's adjusted base pay under the demonstration project rate equals or exceeds the applicable step four adjusted base pay rate of the grade. The employee is then converted at that grade. If the employee's adjusted base pay is below the step four adjusted base pay rate of the lowest grade in the band, the employee is converted to the lowest grade.
e. Exception: An employee will not be provided a lower grade than the grade held by the employee immediately preceding a conversion, lateral reassignment, or lateral transfer into the project, unless since that time the employee has either undergone a reduction in pay band or a reduction within the same pay band due to unacceptable performance. This provision does not apply to voluntary movement out of the demonstration project.
An employee's pay within the converted GS grade is set by converting the employee's personnel demonstration project rates of pay to GS rates of pay in accordance with the following rules:
a. The pay conversion is done before any geographic movement or other pay related action that coincides with the employee's movement or conversion out of the demonstration project.
b. An employee's adjusted base pay under the demonstration project (
i. The GS base schedule,
ii. An applicable locality rate schedule, or
iii. An applicable special rate schedule.
c. If the highest applicable GS rate range is a locality pay rate range, the employee's adjusted base pay under the demonstration project is converted to a GS locality rate of pay. If this rate falls between two steps in the locality-adjusted schedule, the rate must be set at the higher step. The converted GS unadjusted rate of base pay would be the GS base rate corresponding to the converted GS locality rate (
d. If the highest applicable GS rate range is a special rate range, the employee's adjusted base pay under the demonstration project is converted to a special rate. If this rate falls between two steps in the special rate schedule, the rate must be set at the higher step. The converted GS unadjusted rate of base pay will be the GS rate corresponding to the converted special rate (
Training to promote understanding of the broad concepts and finer details is critical to successfully implement and execute this project. A new pay banding schema and performance management system both represent significant cultural change to the organization.
Training is tailored to address employee concerns and encourage comprehensive understanding of the demonstration project. Training is required prior to implementation and at various times during the life of the demonstration project. The training program includes modules tailored for employees, supervisors, senior managers, and administrative staff. Typical modules are:
1. An overview of the demonstration project personnel system;
2. How employees are converted into and out of the system;
3. Pay banding;
4. The mission aligned objectives and performance compensation system;
5. Defining mission aligned performance objectives;
6. How weights may be used with the mission aligned performance objectives;
7. Assessing performance—giving feedback;
8. New position descriptions; and
9. Demonstration project administration and formal evaluation.
Various types of training including videos, on-line tutorials, and train-the-trainer concepts will be used.
Section 342 of the NDAA for FY 1995 (Pub. L. 103-337) does not require a mandatory expiration date for this demonstration project. The project evaluation plan addresses how each flexibility will be comprehensively evaluated for at least the first five years of the demonstration project. Changes and modifications to the interventions will be made using the provisions of DoDI 1400.37, or applicable superseding instructions.
Chapter 47 of 5 U.S.C. requires that an evaluation be performed to measure the effectiveness of the demonstration
The ultimate outcomes sought are improved organizational effectiveness, mission accomplishment, and customer satisfaction. However, the main focus of the evaluation will be on intermediate outcomes,
1. Workforce data (advanced degrees, etc.);
2. Personnel office data (hiring actions, time to hire, retention, etc.);
3. Employee attitude surveys;
4. Structured interviews and focus group data;
5. Comparison of desired results from the flexibilities implemented with actual results achieved;
6. Customer satisfaction surveys;
7. Core measures of laboratory effectiveness; and
8. Any additional data requested by Director, Defense Laboratories Office.
The evaluation effort will consist of two phases, formative and summative evaluation, covering at least five years to permit inter- and intra-organizational estimates of effectiveness. The formative evaluation phase will include baseline data collection and analysis, implementation evaluation, and interim assessments. The formal reports and interim assessments will provide information on the accuracy of project operation, and current information on impact of the project on veterans and protected groups, Merit System Principles, and Prohibited Personnel Practices. The summative evaluation will focus on an overall assessment of project outcomes after five years. The final report will provide information on how well the HR system changes achieved the desired goals, which flexibilities were most effective, and whether the results can be generalized to other Federal installations.
NAVFAC EXWC will model its demonstration project on existing demonstration projects but must assume some expanded project costs. Current cost estimates associated with implementing the demonstration project are shown in Figure 3. These include possible automation of training and project evaluation systems. The automation and training costs are startup costs. Transition costs are one-time costs. Costs for project evaluation will be ongoing for at least five years.
One of the major goals of the demonstration project is to streamline the personnel processes to increase cost effectiveness. Automation should play an integral role in achieving that goal. Without the necessary automation to support the flexibilities proposed for the demonstration project, optimal cost benefit may not be realized. In addition, adequate information to support decision-making must be available to managers if line management is to assume greater authority and responsibility for human resources management. Automation to support the demonstration project is required at the DON and DoD level (in the form of changes to the Defense Civilian Personnel Data System (DCPDS) or successor DoD personnel system) to facilitate processing and reporting of demonstration project personnel actions and may be ultimately required by the command to assist in processing a variety of personnel-related actions in order to facilitate management processes and decision making.
DCPDS is the DoD's authoritative personnel data system and program of record and as such, DCPDS or its successor system will be the system of choice for the STRL labs. The detailed specifications for required system changes will be provided in the System Change Request (SCR), Form 804, concurrent with submission of this document.
Oversight will be carried out by the command's Senior Leadership, composed of the Technical Director and Commanding Officer. The Technical Director and Commanding Officer will be assisted initially by the NAVFAC EXWC STRL Demonstration Project Implementation Team, and once established, by the NAVFAC EXWC STRL Policy Board (ESPB).
All personnel laws, regulations, and guidelines not waived by this plan will remain in effect. Basic employee rights will be safeguarded and merit system principles will be maintained. Except where specifically waived or modified in this plan, adverse action procedures under 5 CFR part 752 remain unchanged.
Many aspects of a demonstration project are experimental. Modifications may be made from time to time as experience is gained, results are analyzed, and conclusions are reached on how the new system is working. Modifications will be made in accordance with the provisions of DoDI 1400.37, or applicable superseding instructions.
Public Law 106-398 gave the DoD the authority to experiment with several personnel management innovations. In addition to the authorities granted by the law, the following are waivers of law and regulation that will be necessary for implementation of the demonstration project. In due course, additional laws and regulations may be identified for waiver request. The following waivers and adaptations of certain Title 5 U.S.C. and 5 CFR provisions are required only to the extent that these statutory provisions limit or are inconsistent with the actions contemplated under this demonstration project. Nothing in this plan is intended to preclude the demonstration project from applying, adopting or incorporating any law or OPM, DoD, or DON regulation enacted, adopted, or amended after the effective date of this demonstration project.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before December 23, 2019.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Planning, Evaluation and Policy Development (OPEPD), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.
Interested persons are invited to submit comments on or before December 23, 2019.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Jean Morrow, 202-453-7233.
The Department of Education (ED), in
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Portsmouth. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Thursday, January 9, 2020, 6 p.m.
Ohio State University, Endeavor Center, 1862 Shyville Road, Piketon, Ohio 45661.
Greg Simonton, Alternate Deputy Designated Federal Officer, U.S. Department of Energy, Portsmouth/Paducah Project Office, Post Office Box 700, Piketon, Ohio 45661, (740) 897-3737,
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility 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 November 15, 2019, Michael E. Malandro, submitted for filing, application for authority to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d (b), Part 45 of the Federal Energy Regulatory Commission's Rules of Practice and Procedure, 18 CFR part 45.8 (2019), and Order No. 664, 112 FERC 61,298 (2005).
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. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
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:
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NSPS for Magnetic Tape Coating Facilities (EPA ICR Number 1135.13, OMB Control Number 2060-0171), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through January 31, 2020. Public comments were previously requested, via the
Additional comments may be submitted on or before December 23, 2019.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2013-0318, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
In general, all NSPS standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NSPS.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), NSPS for
Additional comments may be submitted on or before December 23, 2019.
Submit your comments, referencing Docket ID Number EPA-HQ-OECA-2013-0334, to: (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute.
Patrick Yellin, Monitoring, Assistance, and Media Programs Division, Office of Compliance, Mail Code 2227A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2970; fax number: (202) 564-0050; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
In general, all NSPS standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NSPS.
Federal Communications Commission.
Notice.
The agency must receive comments on or before January 21, 2020.
Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.
Rolanda F. Smith, 202-418-2054.
The following applicants filed AM or FM proposals to change the community of license: OMNI BROADCASTING, LLC, WTKP(FM), Fac. ID No. 67579, Channel 229C3, From: YOUNGSTOWN, FL, To: PORT ST. JOE, FL, File No. 0000082907; SUN MEDIA, INC., WJLI(FM), Fac. ID No. 63817, Channel 252C1, From: PADUCAH, KY, To: METROPOLIS, IL, File No. 0000082340; HI-LINE RADIO FELLOWSHIP INC., KZLM(FM), Fac. ID No. 171025, Channel 300A, From: HARLOWTON, MT, To: LEWISTOWN, MT, File No. BPED-20190815ABG; KIZART MEDIA PARTNERSHIP, NEW(FM), Fac. ID No. 198799, FROM: Cleveland, MS, TO: Shaw, MS, File No. BNPH-20151013ADH; and SALEM COMMUNICATIONS HOLDING CORPORATION, WBZW(AM), Fac. ID No. 1185, Channel 1520 kHz, From: Apopka, FL, To: Fairview Shores, FL, File No. BP-20191114AAX.
The full text of these applications is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street SW, Washington, DC 20554 or electronically via the Media Bureau's Consolidated Data Base System,
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)).
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than December 20, 2019.
1.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Request for supplemental evidence and data submissions.
The Agency for Healthcare Research and Quality (AHRQ) is seeking scientific information submissions from the public. Scientific information is being solicited to inform our review on
Jenae Benns, Telephone: 301-427-1496 or Email:
The Agency for Healthcare Research and Quality has commissioned the Evidence-based Practice Centers (EPC) Program to complete a review of the evidence Management of Primary Headache during Pregnancy. AHRQ is conducting this systematic review pursuant to Section 902(a) of the Public Health Service Act, 42 U.S.C. 299a(a).
The EPC Program is dedicated to identifying as many studies as possible that are relevant to the questions for each of its reviews. In order to do so, we are supplementing the usual manual and electronic database searches of the literature by requesting information from the public (
This is to notify the public that the EPC Program would find the following information on Management of Primary Headache during Pregnancy helpful:
A list of completed studies that your organization has sponsored for this indication. In the list, please
Description of whether the above studies constitute
Your contribution is very beneficial to the Program. Materials submitted must be publicly available or able to be made public. Materials that are considered confidential; marketing materials; study types not included in the review; or information on indications not included in the review cannot be used by the EPC Program. This is a voluntary request for information, and all costs for complying with this request must be borne by the submitter.
The draft of this review will be posted on AHRQ's EPC Program website and available for public comment for a period of 4 weeks. If you would like to be notified when the draft is posted, please sign up for the email list at:
What is the available evidence concerning levels in maternal serum/blood, fetal/infant serum/blood, breast milk, amniotic fluid, meconium, cord blood, or child urine of drugs used to prevent or treat attacks of primary headache in women who are pregnant (or attempting to become pregnant), postpartum, or breastfeeding?
We had discussions with a Technical Expert Panel (TEP) during which we reviewed the specific eligibility criteria. As part of the discussions, we asked the TEP to provide guidance on prioritizing outcomes and selecting among harms/adverse events of interest.
Population(s):
Interventions:
Comparators:
Outcomes: (* denotes important outcomes that will be used when developing Strength of Evidence tables)
• Breastfeeding—delayed initiation, cessation, reduced frequency, reduced volume of breast milk
• Poor infant attachment/bonding
• Symptoms related to withdrawal of medication
Potential Modifiers:
Timing:
Setting:
Design:
Population(s):
Interventions:
Comparators:
Outcomes (* denotes important outcomes that will be used when developing Strength of Evidence tables):
Potential Modifiers:
Timing:
Setting:
Design:
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of charter renewal.
This gives notice under the Federal Advisory Committee Act of October 6, 1972, that the Board of Scientific Counselors, National Center for Injury Prevention and Control (BSC, NCIPC), Centers for Disease Control and Prevention, Department of Health and Human Services, has been renewed for a 2-year period through November 5, 2021.
Gwendolyn H. Cattledge, Ph.D., M.S.E.H., Deputy Associate Director for Science, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, Department of Health and Human Services, 4770 Buford Highway NE, Mailstop F-63, Atlanta, Georgia 30341, telephone (770) 488-1430l; email address
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of charter renewal.
This gives notice under (specific statutes and regulations citations and) the Federal Advisory Committee Act of October 6, 1972, that the Board of Scientific Counselors, Center for Preparedness and Response (BSC, CPR); (formerly known as the Board of Scientific Counselors, Office of Public Health Preparedness and Response (BSC, OPHPR)), Centers for Disease Control and Prevention, Department of Health and Human Services, has been renewed for a 2-year period through November 5, 2021.
Kimberly Lochner, ScD, Designated Federal Officer, BSC, CPR, Centers for Disease Control and Prevention, Department of Health and Human Services, 1600 Clifton Road NE, Mailstop H21-6, Atlanta, Georgia 30329-4027, telephone (404) 718-3420; Email address
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of charter renewal.
This gives notice under the Federal Advisory Committee Act of October 6, 1972, that the Board of Scientific Counselors, Deputy Director for Infectious Diseases (BSC, DDID); (formerly known as the Board of Scientific Counselors, Office of Infectious Diseases, (BSC, OID)), Centers for Disease Control and Prevention, Department of Health and Human Services, has been renewed for a 2-year period through October 31, 2021.
Sarah Wiley, MPH, Designated Federal Officer, BSC, DDID, Centers for Disease Control and Prevention, Department of Health and Human Services, 1600 Clifton Road NE, Mailstop H24-12, Atlanta, Georgia 30329-4027, telephone (404) 639-2100; email address
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces the following meeting.
The meeting will be closed to the public in accordance with provisions set forth in Section 552b(c) (4) and (6), Title 5 U.S.C., and the Determination of the Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, CDC, pursuant to Public Law 92-463.
The Director, Strategic Business Initiatives Unit, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by December 23, 2019.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
As an integral part of our decision making process, we are obligated under the National Environmental Policy Act of 1969 (NEPA) to consider the environmental impact of our actions, including allowing notifications for food contact substances to become effective; approving food additive petitions, color additive petitions, generally recognized as safe affirmation petitions, and requests for exemption from regulation as a food additive; and approving actions on certain food labeling citizen petitions, nutrient content claims petitions, and health claims petitions. We have provided guidance that contains sample formats to help industry submit a claim of categorical exclusion (CE) or an environmental assessment (EA) to the Center for Food Safety and Applied Nutrition (CFSAN). The document entitled “Preparing a Claim of Categorical Exclusion or an Environmental Assessment for Submission to the Center for Food Safety and Applied Nutrition” identifies, interprets, and clarifies existing requirements imposed by statute and regulation, consistent with the Council on Environmental Quality regulations (40 CFR 1507.3). It consists of recommendations that do not themselves create requirements; rather, they are explanatory guidance for our own procedures in order to ensure full compliance with the purposes and provisions of NEPA.
The guidance provides information to assist in the preparation of claims of CE and EAs for submission to CFSAN. The following questions are covered in this guidance: (1) What types of industry-initiated actions are subject to a claim of categorical exclusion? (2) What must a claim of categorical exclusion include by regulation? (3) What is an EA? (4) When is an EA required by regulation and what format should be used? (5) What are extraordinary circumstances? and (6) What suggestions does CFSAN have for preparing an EA? Although CFSAN encourages industry to use the EA formats described in the guidance because standardized documentation submitted by industry increases the efficiency of the review process, alternative approaches may be used if these approaches satisfy the requirements of the applicable statutes and regulations.
In the
We estimate the burden of this collection of information as follows:
The estimates for respondents and numbers of responses are based on the annualized numbers of petitions and notifications qualifying for CEs listed under § 25.32(i) and (q) (21 CFR 25.32(i) and (q)) that we have received in the past 3 years. To avoid counting the burden attributed to § 25.32(o) as zero, we have estimated the burden for this categorical exclusion at one respondent making one submission a year for a total of one annual submission. The burden for submitting a categorical exclusion is captured under 21 CFR 25.15(a) and (d).
To calculate the estimate for the hours per response values, we assumed that the information requested in this guidance for each of these three categorical exclusions is readily available to the submitter. For the information requested for the exclusion in § 25.32(i), we expect that the submitter will need to gather information from appropriate persons in the submitter's company and to prepare this information for attachment to the claim for categorical exclusion. We believe that this effort should take no longer than 8 hours per submission. For the information requested for the categorical exclusions in § 25.32(o) and (q), the submitters will copy existing documentation and attach it to the claim for categorical exclusion. We believe that collecting this information should take no longer than 8 hours per submission.
For the information requested for the environmental assessments in 21 CFR 25.40(a) and (c), we believe that submitters will submit an average of 57 environmental assessments annually. We estimate that each submitter will prepare an EA within 3 weeks (120 hours) and revise the EA based on Agency comments (between 40 to 60 hours), for a total preparation time of 180 hours.
Based on a current review of the information collection, we have made no adjustments to the currently approved estimate.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by January 21, 2020.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before January 21, 2020. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St. North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following additional collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Biologics Price Competition and Innovation Act of 2009 (BPCI Act) amended the Public Health Service Act (PHS Act) and other statutes to create an abbreviated licensure pathway for biological products shown to be biosimilar to, or interchangeable with an FDA-licensed reference product. Section 351(k) of the PHS Act (42 U.S.C. 262(k)), added by the BPCI Act, sets forth the requirements for an application for a proposed biosimilar product and an application or a supplement for a proposed interchangeable product. In addition to the submission requirements associated with a 351(k) application for a proposed biosimilar or interchangeable biological product, FDA is committed to meeting certain performance goals in connection with the FDA Reauthorization Act of 2017 (FDARA) and its Biosimilar User Fee (BsUFA) program. These performance goals are found in the commitment letter entitled, “Biosimilar Biological Product Reauthorization Performance Goals and Procedures Fiscal Years 2018 Through 2022” available from our website at:
We recommend that a sponsor or applicant interested in meeting with CDER or CBER submit a meeting request electronically to the sponsor's or applicant's application (
1. Application number (if previously assigned),
2. development-phase code name of the product (if prelicensure),
3. proper name (if post licensure),
4. structure (if applicable),
5. proper and proprietary names of the reference product,
6. proposed indication(s) or context of product development,
7. pediatric study plans, if applicable,
8. human factors engineering plan, if applicable,
9. combination product information (
10. meeting type being requested (the rationale for requesting the meeting type should be included),
11. proposed format of the meeting (face to face, tele-conference/video-conference/WRO),
12. a brief statement of the purpose of the meeting, including a brief background of the issues underlying the agenda. It can also include a brief summary of completed or planned studies and clinical trials or data the sponsor or applicant intends to discuss at the meeting, the general nature of the critical questions to be asked, and where the meeting fits in the overall development plans.
13. a list of specific objectives/outcomes expected from the meeting,
14. a proposed agenda, including times required for each agenda item,
15. a list of questions grouped by discipline and a brief explanation of the context and purpose of each question,
16. a list of all individuals with their titles and affiliations who will attend the requested meeting from the requestor's organization and any consultants and interpreters,
17. a list of FDA staff, if known, or disciplines asked to participate in the requested meeting, and
18. suggested dates and times for the meeting.
We recommend that a sponsor or applicant submit a meeting package to the appropriate review division with the meeting request and that the following information be included in the package:
1. Application number (if previously assigned),
2. development-phase code name of product (if pre-licensure) or proper name (if post-licensure),
3. structure (if applicable),
4. proprietary and proper names of the reference product,
5. proposed indication(s) or context of product development,
6. dosage form, route of administration, dosing regimen (frequency and duration), and presentation(s),
7. pediatric study plans, if applicable,
8. human factors engineering plan, if applicable,
9. combination product information, if applicable,
10. a list of all individuals with their titles and affiliations who will attend the requested meeting from the requestor's organization and any consultants and interpreters,
11. background that includes a brief history of the development program and the status of product development (
12. a brief statement summarizing the purpose of the meeting,
13. the proposed agenda, and
14. a list of questions for discussion grouped by discipline and with a brief summary for each question to explain the need or context for the question, and data to support discussion organized by discipline and question.
We estimate the burden of this collection of information as follows:
Since last OMB review of the information collection we have increased our burden estimate by 95 annual responses and 1,965 annual hours. This adjustment corresponds with an increase in submissions received by the Agency over the past 3 years.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of additional draft and revised draft product-specific guidances. The guidances provide product-specific recommendations on, among other things, the design of bioequivalence (BE) studies to support abbreviated new drug applications (ANDAs). In the
Submit either electronic or written comments on the draft guidance by January 21, 2020 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)). Submit written requests for single copies of the draft guidances to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Wendy Good, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 75, Rm. 4714, Silver Spring, MD 20993-0002, 240-402-1146.
In the
As described in that guidance, FDA adopted this process as a means to develop and disseminate product-specific guidances and provide a meaningful opportunity for the public to consider and comment on those guidances. Under that process, draft guidances are posted on FDA's website and announced periodically in the
FDA is announcing the availability of new draft product-specific guidances for industry for drug products containing the following active ingredients:
FDA is announcing the availability of revised draft product-specific guidances for industry for drug products containing the following active ingredients:
For a complete history of previously published
These draft guidances are being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). These draft guidances, when finalized, will represent the current thinking of FDA on, among other things, the product-specific design of BE studies to support ANDAs. They do not establish any rights for any person and are not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons with access to the internet may obtain the draft guidances at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, the Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by January 21, 2020.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before January 21, 2020. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Jonnalynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The Center for Veterinary Medicine and the Partnership for Food Protection developed a web-based tracking network (the tracking network) to allow Federal, State, and Territorial regulatory and public health Agencies to share safety information about animal food. Information is submitted to the tracking network by regulatory and public health Agency employees with membership rights. The efficient exchange of safety information is necessary because it improves early identification and evaluation of a risk associated with an animal food product. We use the information to assist regulatory Agencies to quickly identify and evaluate a risk and take whatever action is necessary to mitigate or eliminate exposure to the risk. Earlier identification and communication with respect to emerging safety information may also mitigate the potential adverse economic impact for the impacted parties associated with such safety issues. The tracking network was developed under the requirements set forth under section 1002(b) of the Food and Drug Administration Amendments Act of 2007 (FDAAA) (Pub. L. 110-085). Section 1002(b) of the FDAAA required FDA, in relevant part, to establish a pet food early warning alert system.
The tracking network collects: (1) Reports of pet food-related illness and product defects associated with dog food, cat food, and food for other pets, which are submitted via the Pet Event Tracking Network (PETNet); (2) reports of animal food-related illness and product defects associated with animal food for livestock animals, aquaculture species, and horses (LivestockNet); and (3) reports about animal food laboratory samples considered adulterated by State or FDA regulators (SampleNet).
PETNet and LivestockNet reports share the following common data elements, the majority of which are drop down menu choices: product details (product name, lot code, product form, and the manufacturer or distributor/packer (if known)), the species affected, number of animals exposed to the product, number of animals affected, body systems affected, product problem/defect, date of onset or the date product problem was detected, the State where the incident occurred, the origin of the information, whether there are supporting laboratory results, and contact information for the reporting member (
FDA estimates the burden of this collection of information as follows:
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by December 23, 2019.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
JonnaLynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 1003(d)(2) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 393(d)(2)), the Commissioner of Food and Drugs is authorized to implement general powers (including conducting research) to carry out effectively the mission of FDA.
After the events of September 11, 2001, and as part of broader counterterrorism and emergency preparedness activities, FDA's Center for Devices and Radiological Health (CDRH) began developing operational plans and interventions that would enable CDRH to anticipate and respond to medical device shortages that might arise in the context of federally declared disasters/emergencies or regulatory actions. In particular, CDRH identified the need to acquire and maintain detailed data on domestic inventory, manufacturing capabilities, distribution plans, and raw material constraints for medical devices that would be in high demand and/or would be vulnerable to shortages in specific disaster/emergency situations or following specific regulatory actions. Such data could support prospective risk assessment, help inform risk mitigation strategies, support real-time decision making by the Department of Health and Human Services during actual emergencies or emergency preparedness exercises, and mitigate or prevent harm to the public health.
The data collection process will consist of an initial telephone call to firms who have been identified as
In the
FDA estimates the burden of this collection of information as follows:
FDA based the burden estimates in table 1 on past experience with direct contact with the medical device manufacturers and anticipated changes in the medical device manufacturing patterns for the specific devices being monitored. FDA estimates that approximately 260 manufacturers would be contacted by telephone and/or electronic mail 4 times per year either to obtain primary data or to verify/validate data. Because the requested data represent data elements that are monitored or tracked by manufacturers as part of routine inventory management activities, it is anticipated that for most manufacturers, the estimated time required of manufacturers to complete the data request will not exceed 30 minutes per request cycle.
This information collection is a reinstatement without change. There is an increase (an adjustment) of 332 hours in the total estimated burden compared with that identified in the information collection request previously approved by OMB. This increase reflects changes in market demands, in which manufacturers are increasingly adopting just-in-time production methods.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by January 21, 2020.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before January 21, 2020. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
In compliance with 44 U.S.C. 3507, FDA will submit to OMB a request to review and approve a new collection of information: Collection of Information for Participation in FDA Non-Employee Fellowship and Traineeship Programs. Section 746(b) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 379
(1) To begin the program, the non-employee must submit the following information: (A) New Non-Employee Data Form; (B) Proof of Health Insurance; (C) Emergency Contact Information; (D) Unified Financial Management System (UFMS) Supplier and Site Information for Stipend Payments, Financial Information; and (E) CONCUR GOV New Traveler Profile Form.
(A) New non-employee data form to begin on-boarding process—The New Non-Employee Data form collects information that includes: (1) Name; (2) Gender; (3) Birthplace; (4) Date of Birth; (5) Email; (6) Home Address; (7) FDA Center/Organization/Supervisor; (8) Citizenship; (9) Social Security number (SSN); (10) Start Date; (11) End Date; (12) Contract Information; (13) Location; and (14) Question regarding current or previous Federal work experience.
(B) Proof of health insurance—Participants in FDA fellowship and traineeship programs will be asked for certain information to demonstrate proof of health insurance: (1) Name of Health Insurance Plan Provider; (2) Name/Contact Information of Primary Member; (3) Member Identification Number/Group Number; (4) Begin Date/Policy Expiration Date; and (5) Signature. The purpose of the health insurance information is for FDA to substantiate that participants of the program are covered by health insurance.
(C) Emergency contact information—Participants in FDA fellowship and traineeship programs will be asked for certain information about emergency contact demographics: (1) Name of Fellow/Trainee; (2) Center; (3) Name of Emergency Contact; (4) Telephone Number of Emergency Contact; and (5) Relationship to Contact. The purpose of emergency contact information of Fellows/Trainees is to ensure there is a primary contact should emergencies arise.
(D) UFMS supplier and site information for stipend payments, financial information—Participants in FDA fellowship and traineeship programs will be asked for their financial institution routing number and account information for direct deposit of stipend payments: (1) Name; (2) Taxpayer ID or SSN; (3) Classification/Vendor type; (4) Payment Options (Electronic Payment Only); (5) Mailing Address; (6) Bank/Financial Institution Information (Name, Routing Number, Account Number, Account type); and (7) Signature. The purpose of the financial information is for FDA to process a direct deposit transaction for a monthly stipend payment.
(E) CONCUR GOV new traveler profile form—Participants in FDA's Non-Employee Scientist programs may be asked to travel and will need to complete an online profile for the Concur Government Edition (CGE) System, which requires the following information: (1) Personal Information (Name, Agency, Office/Operating Division, Residence City, Residence State, Signatures); (2) Agency Information (ID #, Title, CAN); (3) Business Contact Information; (4) Email Addresses; Emergency Contact; (5) Travel Preferences (Preferred Airline, Hotel, Airline Seats, Frequent Flyer Number); (6) Credit Card Number; (7) Banking Account for Reimbursement; and (8) Approving Signatures. The CGE Profile provides assistance to travel preparers who are booking travel for FDA program participants.
(2) To administer the program, non-employee scientists must submit information for: (A) Absence Recording Form, (B) Personal Custody Property Record, (C) FDA Health Summary, and (D) Discovery and Invention.
(A) Absence recording form—Participants in FDA fellowship and traineeship programs will be asked for certain information about tracking attendance and absences: (1) Name of Fellow/Trainee; (2) Office/Division of Placement; (3) Mentor/Sponsor Name; (4) Type of Absence; (5) Dates of Absence; (6) Reason for Absence; and (7) Mentor/Sponsor Approval. The purpose of tracking attendance and absences for Fellows/Trainees is to determine the monthly stipend payment and potential modifications to purchase orders for extended absences.
(B) Personal custody property record—Participants in FDA fellowship and traineeship programs will be required to sign the property request, acknowledging personal responsibility for government property. The plan collects the following information: (1) Fellow Name; (2) Operative Division/Division; (3) Location; (4) Telephone; (5) Description of Items; (6) Items to be Returned; (7) Return Date; (8) Fellow Signature; (9) Custodial Officer Signature; and (10) Issuing Office. The purpose of this record is to acknowledge that an individual has received government property and accepts personal responsibility for items issued to perform their roles.
(C) FDA health summary—Participants in FDA fellowship and traineeship programs will be asked for information about health for laboratory activities. The FDA Occupational Health Services Health Summary form collects information that includes: (1) Name; (2) Program; (3) Email; (4) Work Phone; (5) FDA Mentor; (6) Center/Office Division; (7) Location; (8) Date; (9) Primary Care Physician and Contact Information; (10) Immunizations; (11) Social History; (12) Relationship History; (13) Allergies; and (14) Medical History.
(D) Discovery and invention—Participants in FDA fellowship and traineeship programs will be asked for information about discoveries and inventions at FDA. The Discovery and Invention Report collects information that includes: (1) Title of Discovery; (2) Description of Discovery; (3) Identification of collaborators, Cooperative Research and Development Agreement (CRADA), and human materials or subjects; (4) Publications; (5) Technology Stage; (6) Commercial Potential; and (7) Competition, Potential Users, and Manufacturers.
(3) For the coordination of training, non-employee scientists must complete information for the: (A) Training Development Plan; (B) Final Project Report; (C) Training Request; (D) Travel Request; (E) Learning Management System (LMS) Request; (F) Standard Operating Procedures (SOP) Verification; and (G) Program Evaluation.
(A) Training development plan—Participants in FDA fellowship and traineeship programs will be required to develop the individual plan in partnership with their Mentor. The plan collects the following information: (1) Fellow Name; (2) Mentor(s)/Preceptor(s) Name; (3) Sign-On Date; (4) Year 1 Goals, Courses/Training, Regulatory Activities, and Completion Date; (5) Year 2 Goals, Courses/Trainings, Regulatory Activities, and Completion Date; (6) Fellow Signature; and (7) Mentor(s)/Preceptor(s) Signature. The purpose of this individual development/training plan is to have a record of mandatory training and specific goals and tasks for the contributions and/or completion of a project.
(B) Final project report—Participants in FDA fellowship and traineeship programs will be required to complete the final report in partnership with their Mentor. The plan collects the following information: (1) Fellow Name; (2) Mentor/Preceptor Name; (3) Goals; (4) Objectives; (5) Alignment with Center or FDA Goals; (6) Project Summary/Abstract; (7) Accomplishments; and (8) Impact on Public Health. The purpose of this report is to acknowledge the contributions to the overall project and identify performance successes or challenges. The collection of information is mandatory to participate in FDA's fellowship and traineeship programs.
(C) Training request—Participants in FDA fellowship and traineeship programs will be asked to identify the following for external training requests: (1) Name of Fellow/Trainee; (2) Operating Office/Staff Division; (3) Title and Topic of Training; (4) Name of Hosting Agency/Organization; (5) Purpose/Justification for External Training; (6) Dates; (7) Location; and (8) Approving Signatures. The purpose of the External Training Request is to provide justification substantiating the benefits to the Operating Office/Staff Division and/or benefits to the Fellows/Trainee professional development and training. The collection of information is mandatory to participate in FDA's fellowship and traineeship programs.
(D) Travel request—Participants in FDA fellowship and traineeship programs will be asked for certain information about travel requests and authorizations/approvals: (1) Office/Division; (2) Research Project Title; (3) Mentor/Sponsor Name; (4) Mentor/Sponsor Email and Telephone; (5) Fellow's Name; (6) Appointment Period; (7) Funding Source and Fiscal Year; (8) Brief Description of Travel; (9) Anticipated Travel Dates; and (10) Travel Justification and Relation to Project. The purpose of authorization for travel of Fellows/Trainees is to determine if the travel has been approved by the Sponsor/Mentor and if the travel is a mission-related activity to the Fellow/Trainee training plan or appointment/assignment. The collection of information is mandatory to participate in FDA's fellowship and traineeship programs.
(E) Learning Management System (LMS) access—Participants in FDA fellowship and traineeship programs will be asked for information to obtain access to the LMS: (1) Name, (2) Location, (3) Organizational Unit, and (4) Email Address. The purpose of LMS Access Request is to obtain information of Non-Employee Scientists to ensure they have access to receive training and educational opportunities offered in the Health and Human Services LMS System.
(F) SOP verification—Participants in FDA fellowship and traineeship programs will be asked for certain information to verify that they have read and received instructional training on the SOPs for said program. The form collects the following: (1) Name; (2) Signature; (3) Date; and (4) Center.
(G) Program Evaluation—Participants in FDA fellowship and traineeship programs will be asked to complete an evaluation providing program data that will be synthesized into program reports on the overall effectiveness of the
(4) To end the program, a non-employee must submit the Exit Check List—Participants in FDA fellowship and traineeship programs may be asked to complete the exit check list to manage the exit process and return of FDA property. The Exit Checklist guides the exit process for the following operations components: (1) Access Key/Pass; (2) Accountable Property; (3) System Applications inactive; (4) Library Materials; (5) Government Issued Documents (
All exit information will be entered to terminate access to any FDA information.
FDA estimates the burden of this collection of information as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by January 21, 2020.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before January 21, 2020. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports Form FDA 3975 entitled “Certification of Identity,” which is used by FDA to identify an individual requesting a particular record under the Freedom of Information Act (FOIA) and the Privacy Act. The form is available from our website at:
The FOIA grants the public a right to access Federal records not normally prepared for public distribution. The Privacy Act grants a right of access to members of the public who seek access to one's own records that are maintained in an Agency's system of records (
We estimate the burden of this collection of information as follows:
Based on Agency data, we have received no more than 50 submissions since establishing the collection in 2017.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a temporary permit has been issued to Barry Callebaut U.S.A. LLC (the applicant) to market test a product identified as “ruby chocolate” that deviates from the U.S. standards of identity for chocolate products. The temporary permit will allow the applicant to evaluate commercial viability of the product and to collect data on consumer acceptance of the product.
This permit is effective for 15 months, beginning on the date the applicant introduces or causes introduction of the test product into interstate commerce, but not later than February 20, 2020.
Marjan Morravej, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2371.
We are giving notice that we have issued a temporary permit to Barry Callebaut U.S.A. LLC. We are issuing the temporary permit in accordance with 21 CFR 130.17, which addresses temporary permits for interstate shipment of experimental packs of food varying from the requirements of definitions and standards of identity issued under section 401 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 341).
The permit covers the interstate market testing of the product identified as “ruby chocolate.” The test product deviates from the U.S. standards of identity for chocolates (21 CFR 163.111, 163.123, 163.124, 163.130, 163.135, 163.140, and 163.145).
For the purpose of this permit, “ruby chocolate” is the solid or semiplastic food prepared by mixing and grinding cacao fat with one or more of the cacao ingredients (namely, chocolate liquor, breakfast cocoa, cocoa, and lowfat cocoa), citric acid, one or more of optional dairy ingredients, and one or more optional nutritive carbohydrate sweeteners. “Ruby chocolate” contains not less than 1.5 percent nonfat cacao solids, not less than 20 percent by weight of cacao fat, not less than 2.5 percent by weight of milk fat, not less than 12 percent by weight of total milk solids, not more than 1.5 percent of emulsifying agents, and not more than 5 percent of whey or whey products. It may also contain other ingredients such as antioxidants approved for food use, spices, natural and artificial flavorings, and other seasonings. However, these other ingredients cannot imitate the flavor of chocolate, milk or butter, berry or another fruit. Additionally, “ruby chocolate” contains no added coloring. The test product “ruby chocolate” contains the principal ingredients used in most of the current standards for cacao products under 21 CFR part 163; however, it deviates from the current standards of identity for chocolate products in terms of its final composition, taste, and color.
The purpose of the temporary permit is to allow the applicant to market test the product throughout the United States. The permit will allow the applicant to evaluate commercial viability of the product and to collect data on consumer acceptance of the product.
The permit provides for the temporary marketing of approximately 60 million pounds (27,215,540 kilograms) of the test product. The test product will be manufactured at the Barry Callebaut facilities located at Aalstersestraat 122, 9280 Lebbeke, Belgium; 400 Industrial Park Rd., St. Albans, VT 05478; and 1175 Commerce Blvd., American Canyon, CA 94503.
Barry Callebaut U.S.A. LLC will distribute the test product to various manufacturers throughout the United States for further manufacturing and market testing. Each ingredient used in the food must be declared on the label as required by 21 CFR part 101. The permit is effective for 15 months, beginning on the date the applicant introduces or causes the introduction of the test product into interstate commerce, but not later than February 20, 2020.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, the Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by December 23, 2019.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports recommendations found in the Agency guidance document entitled “Dear Health Care Provider Letters: Improving Communication of Important Safety Information.” The guidance provides instruction to industry and FDA staff on the content and format of Dear Health Care Provider (DHCP) letters. These letters are sent by manufacturers or distributors to health care providers to communicate an important drug warning, a change in prescribing information, or a correction of misinformation in prescription drug promotional labeling or advertising. The guidance is available from our website at:
The guidance document gives specific instruction on what should and should not be included in DHCP letters. Some DHCP letters have been too long, have contained promotional material, or otherwise have not met the goals set forth in the applicable regulation (21 CFR 200.5). In some cases, health care providers have not been aware of important new information, and have been unable to communicate it to patients, because the letters' content and length have made it difficult to find the relevant information. In addition, letters have sometimes been sent for the wrong reasons.
In addition to content and format recommendations for each type of DHCP letter, the guidance also includes recommendations on consulting with FDA on how to develop a DHCP letter, when to send a letter, what type of letter to send, and how to assess the letter's impact. Based on a review of FDA's Document Archiving, Reporting, and Regulatory Tracking System for 2016—2018, we identified 38 DHCP letters that were sent by 24 distinct sponsors during the 3-year timeframe. We estimate that we will receive approximately 13 DHCP letters annually from approximately 8 application holders. FDA professionals familiar with DHCP letters, and with the recommendations in the guidance, estimate that it should take an application holder approximately 100 hours to prepare and send DHCP letters in accordance with the guidance.
In the
We estimate the annual reporting burden of this collection of information as follows:
Based on a review of the information collection, we have reduced our burden estimate by 17 respondents with a corresponding decrease in annual hours by 1,200. We attribute the decrease to the effectiveness of the guidance.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Mental Health Special Emphasis Panel, November 25, 2019, 11:00 a.m. to November 25, 2019, 4:00 p.m., National Institutes of Health Neuroscience Center Building (NSC), 6001 Executive Boulevard, Rockville, MD 20852, which was published in the
This notice is to amend the date of the NIMH HIV/AIDS Review meeting from November 25, 2019, from 11:00 a.m.-4:00 p.m. to December 17, 2019, from 1:00 p.m.-5:00 p.m. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Cures Acceleration Network Review Board.
The meeting will be open to the public, viewing virtually by WebEx. Individuals can register to view and access the meeting by the link below.
1. Click “Register”. On the registration form, enter your information and then click “Submit” to complete the required registration.
2. You will receive a personalized email with the live event link.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The 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 contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The cooperative agreement applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the cooperative agreement applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Office of the General Counsel, HUD.
Notice.
Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (the HUD Reform Act) requires HUD to publish quarterly
For general information about this notice, contact Aaron Santa Anna, Acting Associate General Counsel for Legislation and Regulations, Department of Housing and Urban Development, 451 7th Street SW, Room 10282, Washington, DC 20410-0500, telephone 202-708-5300 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
For information concerning a particular waiver that was granted and for which public notice is provided in this document, contact the person whose name and address follow the description of the waiver granted in the accompanying list of waivers that have been granted in the third quarter of calendar year 2019.
Section 106 of the HUD Reform Act added a new section 7(q) to the Department of Housing and Urban Development Act (42 U.S.C. 3535(q)), which provides that:
1. Any waiver of a regulation must be in writing and must specify the grounds for approving the waiver;
2. Authority to approve a waiver of a regulation may be delegated by the Secretary only to an individual of Assistant Secretary or equivalent rank, and the person to whom authority to waive is delegated must also have authority to issue the particular regulation to be waived;
3. Not less than quarterly, the Secretary must notify the public of all waivers of regulations that HUD has approved, by publishing a notice in the
a. Identify the project, activity, or undertaking involved;
b. Describe the nature of the provision waived and the designation of the provision;
c. Indicate the name and title of the person who granted the waiver request;
d. Describe briefly the grounds for approval of the request; and
e. State how additional information about a particular waiver may be obtained.
Section 106 of the HUD Reform Act also contains requirements applicable to waivers of HUD handbook provisions that are not relevant to the purpose of this notice.
This notice follows procedures provided in HUD's Statement of Policy on Waiver of Regulations and Directives issued on April 22, 1991 (56 FR 16337). In accordance with those procedures and with the requirements of section 106 of the HUD Reform Act, waivers of regulations are granted by the Assistant Secretary with jurisdiction over the regulations for which a waiver was
This notice covers waivers of regulations granted by HUD from July 1, 2019 through September 30, 2019. For ease of reference, the waivers granted by HUD are listed by HUD program office (for example, the Office of Community Planning and Development, the Office of Housing, and the Office of Public and Indian Housing, etc.). Within each program office grouping, the waivers are listed sequentially by the regulatory section of title 24 of the Code of Federal Regulations (CFR) that is being waived. For example, a waiver of a provision in 24 CFR part 58 would be listed before a waiver of a provision in 24 CFR part 570.
Where more than one regulatory provision is involved in the grant of a particular waiver request, the action is listed under the section number of the first regulatory requirement that appears in 24 CFR and that is being waived. For example, a waiver of both § 58.73 and § 58.74 would appear sequentially in the listing under § 58.73.
Waiver of regulations that involve the same initial regulatory citation are in time sequence beginning with the earliest-dated regulatory waiver.
Should HUD receive additional information about waivers granted during the period covered by this report (the third quarter of calendar year 2019) before the next report is published (the fourth quarter of calendar year 2019), HUD will include any additional waivers granted for the third quarter in the next report.
Accordingly, information about approved waiver requests pertaining to HUD regulations is provided in the Appendix that follows this notice.
The regulatory waivers granted appear in the following order:
I. Regulatory waivers granted by the Office of Community Planning and Development.
II. Regulatory waivers granted by the Office of Housing.
III. Regulatory waivers granted by the Office of Public and Indian Housing.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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Office of the Assistant Secretary for Policy Development and Research (PD&R), Department of Housing and Urban Development (HUD).
Request for Information.
Consistent with President Trump's Executive Order 13878, “Establishing a White House Council on Eliminating Regulatory Barriers to Affordable Housing,” dated June 25, 2019, this document informs the public that HUD requests public comment on Federal, State, local, and Tribal laws, regulations, land use requirements, and administrative practices that artificially
Interested persons are invited to submit comments responsive to this request for information (RFI) to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at
To receive consideration as public comments, responses must be submitted through one of the two methods specified above. It is not acceptable to submit comments by facsimile (fax) or electronic mail. Again, all submissions must refer to the docket number and title of the notice.
Public Inspection of Public Comments. All properly submitted comments and communications submitted to HUD will be available for public inspection and downloading at
Contact Pamela Blumenthal, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street SW, Room 8138, Washington, DC 20410-0500; telephone number 202-402-7012 (this is not a toll-free number). Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 1-800-877-8339.
President Donald J. Trump established a White House Council on Eliminating Regulatory Barriers to Affordable Housing
Driving the rise in housing costs is a lack of housing supply to meet rising demand. Research has provided evidence that a major driver of high-cost housing is compliance with overly prescriptive construction and development requirements or regulations.
As the Executive Order states, “Increasing the supply of housing by removing overly burdensome regulatory barriers will reduce housing costs, boost economic growth, and provide more Americans with opportunities for economic mobility. In addition, it will strengthen American communities and the quality of services offered in them by allowing hardworking Americans to live in or near the communities they serve.”
As referenced in the Executive Order, common examples of regulatory barriers include: overly restrictive zoning and growth management controls; rent controls; cumbersome building and rehabilitation codes; excessive energy and water efficiency mandates; unreasonable maximum-density allowances; historic preservation requirements; overly burdensome wetland or environmental regulations; outdated manufactured-housing regulations and restrictions; undue parking requirements; cumbersome and time-consuming permitting and review procedures; tax policies that discourage investment or reinvestment; overly complex labor requirements; and inordinate impact or developer fees. These regulatory barriers increase the costs associated with development, and, as a result, restrict the supply of housing, particularly unsubsidized middle market housing affordable to working families.
Many of the markets with the most severe shortages in affordable housing contend with the most restrictive regulatory barriers to housing development.
The Executive Order directs the Secretary of HUD, or his designee, to chair the Council, in tandem with the Assistant to the President for Domestic Policy and the Assistant to the President for Economic Policy, or their designees, as Vice Chairs. In addition to the Chair and Vice Chairs, the Council consists of the following officials, or their designees: The Secretaries of the Treasury, Interior, Agriculture, Labor, Transportation, Energy; the Administrator of the Environmental Protection Agency; the Director of the Office of Management and Budget; the Chairman of the Council of Economic Advisors; the Deputy Assistant to the President and Director of Intergovernmental Affairs; and the heads of such other executive departments and agencies (agencies) and offices as the President, Chair, or Vice Chairs may, from time to time, designate or invite, as appropriate.
The Executive Order directs the Council to:
(a) Solicit feedback from State, local, and Tribal government officials, as well as relevant private-sector stakeholders, developers, homebuilders, creditors, real estate professionals, manufacturers, academic researchers, renters, advocates, and homeowners, to:
i. Identify Federal, State, local, and Tribal laws, regulations, and administrative practices that artificially raise the costs of housing development and contribute to shortages in housing supply, and
ii. Identify practices and strategies that most successfully reduce and remove burdensome Federal, State, local, and Tribal laws, regulations, and administrative practices that artificially raise the costs of housing development, while highlighting actors that successfully implement such practices and strategies;
(b) Evaluate and quantify the effect that various Federal, State, local, and Tribal regulatory barriers have on affordable-housing development, and the economy in general, and identify ways to improve the data available to the public and private researchers who evaluate such effects, without violating privacy laws or creating unnecessary burdens;
(c) Identify and assess the actions each agency can take under existing authorities to minimize Federal regulatory barriers that unnecessarily raise the costs of housing development;
(d) Assess the actions each agency can take under existing authorities to align, support, and encourage State, local, and Tribal efforts to reduce regulatory barriers that unnecessarily raise the costs of housing development; and
(e) Recommend Federal, State, local, and Tribal actions and policies that would:
i. Reduce and streamline statutory, regulatory, and administrative burdens at all levels of government that inhibit the development of affordable housing; and
ii. Encourage state and local governments to reduce regulatory barriers to the development of affordable housing.
The purpose of this Request for Information (RFI) is to solicit feedback that will assist the Council in identifying Federal, State, local, and Tribal laws, regulations, and administrative practices that artificially raise the costs of affordable-housing development and contribute to shortages in housing supply. It also seeks data, other information, analyses, and recommendations on methods for reducing these regulatory barriers.
The Council encourages participation from Federal, State, local, and Tribal government officials, as well as relevant stakeholders, including developers, homebuilders, real estate professionals, affordable housing advocates, manufacturers, architects, engineers, fair housing professionals, urban planners, economists, academic researchers, renters, homeowners, creditors, multifamily-housing owners, and public-housing agencies.
While HUD welcomes comments on all aspects of developing a plan for reducing barriers to affordable housing development, HUD is particularly interested in receiving information, data, analyses, and recommendations on the following:
(1) Federal Barriers to Affordable Housing Development. HUD requests comments that identify
a. Federal laws, regulations, and administrative practices of HUD programs that directly or indirectly artificially raise the costs of housing development and contribute to shortages in housing supply, in HUD's program implementation itself, or because of their impact on State, local, and Tribal government policymaking. Do these laws, regulations, or administrative practices produce any benefits to the resident, homeowner, state, or locality that would be eliminated if the requirement were reduced or eliminated?
b. Recommendations, strategies, solutions or best practice models that have been established to streamline, reduce or eliminate overly restrictive construction and development regulations, requirements or administrative practices identified above.
c. What are the policy interventions, solutions or strategies available to federal decision makers for incentivizing state and local governments to review their regulatory environment? To aid them in streamlining, reducing or eliminating the negative impact of state and local laws, regulations, and administrative practices identified in the questions below?
d. What is the potential impact, positive or negative, of streamlining, reducing, or eliminating the identified regulations, requirements or administrative practices?
(2) State Barriers to Affordable Housing Development. Since the 1920s States have given ultimate zoning authority to their local government units. Additionally, States have left it to the local jurisdictions to create their own governing structure and to delegate further authority across local government silos, often leading to fragmented, overlapping or duplicative review processes of construction projects. Finally, States almost always impose a bifurcated review process for larger scale infrastructure projects that require environmental review. However, States, by their regional nature, are more attuned with how local policies have larger economic consequences to regional economies. In thinking about the role of the state in the building construction industry, consider the following questions:
a. In what ways do State-level laws, practices, and programs contribute to delays in the construction industry? Are there particular laws, practices and programs that could be reviewed for potential barriers?
b. What are the policy interventions, solutions or strategies available to State decision makers for incentivizing local governments to review their regulatory environment? To aid them in streamlining, reducing or eliminating the negative impact of local and State laws, regulations, and administrative practices identified in the question above?
(3) Local Barriers to Affordable Housing Development. While a traditional characterization for the adoption and maintenance of some barriers to affordable housing development is that they reflect a “Not in My Back Yard” (“NIMBY”) disposition, their widespread and long-term prevalence suggests some substantive bases for their existence. For the purposes of this RFI, we define “local” to include all local government units that have constitutional authority given by the State to make decisions on land use planning and growth management, including cities, towns, parishes, designated places, counties, and rural communities, as well as regional entities that have decision-making authority on these land-use issues under State statutes. When identifying regulatory barriers and understanding the impacts on housing costs, there are several issues to consider:
a. What are the common motivations or factors that underlie the adoption of laws, regulations, and practices that demonstrably raise the cost of housing development? Do these considerations vary geographically?
b. How do local decision makers determine whether laws, regulations, or practices artificially or unnecessarily
c. What are the policy interventions, solutions or strategies available to local decision makers for streamlining, reducing or eliminating the negative impact of these laws, regulations, and administrative practices identified in the question above?
(4) Basis for Reducing Barriers to Affordable Housing Development. In thinking about streamlining, reducing or eliminating barriers to affordable housing development, please consider the following:
a. What are the economic and social benefits to American families and individuals, the local community, the State or Tribe, and the nation that would be realized by reducing regulatory barriers to affordable housing development?
i. To what extent is there agreement that specific regulations and administrative practices result in higher cost or reduced availability of affordable market rate housing for potential homeowners and renters?
ii. Assuming agreement that specific regulations and administrative practices create impediments to affordable housing development by increasing the costs of either construction of housing or preservation of housing supply, are these costs of such regulation and practices quantifiable? What evidence is there to support this finding?
b. Are there regulations that may delay the process of building affordable housing but are necessary to ensure a certain level of quality is achieved in the construction?
c. How should one evaluate the cost of burdensome regulations on the local housing market? How should one determine the benefits of reducing those costs?
i. If you have knowledge of jurisdictions that have successfully implemented creative solutions to reduce regulatory barriers, please describe specific land use requirements that were demonstrated to have raised the cost of housing.
ii. In responding to item (i) above, please discuss how these jurisdictions offered incentives, sanctions or implemented policies that effectively reduced or eliminated overly restrictive, outdated, or otherwise burdensome land use regulations.
iii. For jurisdictions that considered reducing the barriers but ultimately did not take action to do so, what was the basis for that inaction?
(5) Plan Development and Implementation. In general, HUD is interested in what actions it should recommend or implement to assist States, Tribes, and local governments in reducing or eliminating barriers to affordable housing development.
a. Regarding HUD's rules, regulations, and statutes, what actions can the Department take to significantly reduce (or eliminate) barriers to affordable housing development while remaining committed to its mission to expand affordable housing options and support decent, safe and sanitary housing for all Americans? Please provide detailed examples, if possible.
b. Regarding the recommendations provided to HUD above, what actions could the Department implement to create incentives for States, Tribes, or local jurisdictions to encourage regulatory review and reform? For communities that have achieved regulatory reform, how might the Department learn from successful policies that were adopted at the State, Tribal, or local level? How might the Department create guidance for other jurisdictions looking to achieve reform?
(6) Research Questions.
a. What peer-reviewed research and/or representative surveys provide quantitative analyses on the impact of regulations on cost of affordable housing development? Do these analyses demonstrate evidence on the degree or severity of impact? How strongly supported are the conclusions of the research? Provide citations for research referenced.
b. What performance measures, quantitative and/or qualitative, should the Council consider in assessing the reduction of barriers nationally or regionally? What are the advantages and disadvantages of each measure? Among the measures recommended above, how should they be prioritized? Such measures could include, but would not be limited to, the following:
i. The rate of housing production, considering a range of cofactors, including domestic and international migration patterns and rates of family formation;
ii. The number of housing construction permits, construction starts, and completions;
iii. The number of burden-reducing legislative or regulatory actions, considering suitable baselines;
iv. A list of best practice models based on recommendations from stakeholders and the public and reviewed by subject matter experts;
v. Housing development processing times and costs, considering a range of cofactors;
vi. Whether jurisdictions' barrier reduction was temporary (
vii. Whether there are fair housing barriers to the development of affordable housing; and
viii. Whether the permitting process poses a greater, comparable, or smaller barrier to building housing than do the regulations, such as regarding timeliness and consistency of permitting decisions.
c. HUD's Regulatory Barriers Clearinghouse (RBC)
If you submit comments by mail, your response should be no longer than 50 pages. Please provide the following information at the start of your response to this RFI: Company/institution name (if applicable); contact information, including address, phone number, and email address. Do not submit Confidential Business Information (CBI) in your response to this RFI. Responses identified as containing CBI will not be reviewed and will be discarded.
Please identify each answer by responding to a specific question or topic if applicable. You may answer as many or as few questions as you wish. HUD will not respond to individual
To help you prepare your comments, please see the How Do I Prepare Effective Comments segment of the Commenting on HUD Rules web page,
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
This notice establishes operating cost adjustment factors (OCAFs) for project-based assistance contracts issued under Section 8 of the United States Housing Act of 1937 and renewed under the Multifamily Assisted Housing Reform and Affordability Act of 1997 (MAHRA) for eligible multifamily housing projects having an anniversary date on or after February 11, 2020. OCAFs are annual factors used to adjust Section 8 rents renewed under section 515 or section 524 of MAHRA.
Carissa Janis, Program Analyst, Office of Asset Management and Portfolio Oversight, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; telephone number 202-402-2487 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
Section 514(e)(2) and section 524(c)(1) of MAHRA (42 U.S.C. 1437f note) require HUD to establish guidelines for the development of OCAFs for rent adjustments. Sections 524(a)(4)(C)(i), 524(b)(1)(A), and 524(b)(3)(A) of MAHRA, all of which prescribe the use of the OCAF in the calculation of renewal rents, contain similar language. HUD has therefore used a single methodology for establishing OCAFs, which vary among states and territories.
MAHRA gives HUD broad discretion in setting OCAFs, referring, for example, in sections 524(a)(4)(C)(i), 524(b)(1)(A), 524(b)(3)(A) and 524(c)(1) simply to “an operating cost adjustment factor established by the Secretary.” The sole limitation to this grant of authority is a specific requirement in each of the foregoing provisions that application of an OCAF “shall not result in a negative adjustment.” Contract rents are adjusted by applying the OCAF to that portion of the rent attributable to operating expenses exclusive of debt service.
The OCAFs provided in this notice are applicable to eligible projects having a contract anniversary date of February 11, 2020 or after and were calculated using the same method as those published in HUD's 2019 OCAF notice published on November 23, 2018 (83 FR 59404). Specifically, OCAFs are calculated as the sum of weighted component cost changes for wages, employee benefits, property taxes, insurance, supplies and equipment, fuel oil, electricity, natural gas, and water/sewer/trash using publicly available indices. The weights used in the OCAF calculations for each of the nine cost component groupings are set using current percentages attributable to each of the nine expense categories. These weights are calculated in the same manner as in the November 23, 2018 notice. Average expense proportions were calculated using three years of audited Annual Financial Statements from projects covered by OCAFs. The expenditure percentages for these nine categories have been found to be very stable over time but using three years of data increases their stability. The nine cost component weights were calculated at the state level, which is the lowest level of geographical aggregation with enough projects to permit statistical analysis. These data were not available for the Western Pacific Islands, so data for Hawaii were used as the best available indicator of OCAFs for these areas.
The best current price data sources for the nine cost categories were used in calculating annual change factors. State-level data for fuel oil, electricity, and natural gas from Department of Energy surveys are relatively current and continue to be used. Data on changes in employee benefits, insurance, property taxes, and water/sewer/trash costs are only available at the national level. The data sources for the nine cost indicators selected used were as follows:
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The sum of the nine cost component percentage weights equals 100 percent of operating costs for purposes of OCAF calculations. To calculate the OCAFs, state-level cost component weights developed from AFS data are multiplied by the selected inflation factors. For instance, if wages in Virginia comprised 50 percent of total operating cost expenses and increased by 4 percent from 2018 to 2019 the wage increase component of the Virginia OCAF for 2020 would be 2.0 percent (50% * 4%). This 2.0 percent would then be added to the increases for the other eight expense categories to calculate the 2020 OCAF for Virginia. For states where the calculated OCAF is less than zero, the OCAF is floored at zero. The OCAFs for 2020 are included as an Appendix to this Notice.
Sections 514 and 515 of MAHRA, as amended, created the Mark-to-Market program to reduce the cost of federal housing assistance, to enhance HUD's administration of such assistance, and to ensure the continued affordability of units in certain multifamily housing projects. Section 524 of MAHRA authorizes renewal of Section 8 project-based assistance contracts for projects without restructuring plans under the Mark-to-Market program, including projects that are not eligible for a restructuring plan and those for which the owner does not request such a plan. Renewals must be at rents not exceeding comparable market rents except for certain projects. As an example, for Section 8 Moderate Rehabilitation projects, other than single room occupancy projects (SROs) under the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11301
This notice sets forth rate determinations and related external administrative requirements and procedures that do not constitute a development decision affecting the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this notice is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
This notice does not impact the information collection requirements already submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
The Catalog of Federal Domestic Assistance Number for this program is 14.195.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service), are proposing to renew an information collection with revisions.
Interested persons are invited to submit comments on or before December 23, 2019.
Send written comments on this information collection request (ICR) to the Office of Management and
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, 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.
On March 15, 2019, we published a
We are again 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 Service; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Service enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Service 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 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.
The Electronic Duck Stamp Act of 2005 (Pub. L. 109-266) required the Secretary of the Interior to conduct a 3-year pilot program, under which States could issue electronic Federal Duck Stamps. This pilot program is now permanent with the passage of the Permanent Electronic Duck Stamp Act of 2013 (Pub. L. 113-239). Anyone, regardless of State residence, is able to purchase an electronic Duck Stamp through any State that participates in the program. The electronic stamp is valid from the date of purchase through up to 45 days after the date of purchase, and thus is available for immediate use by the purchaser while he or she waits to receive the actual physical stamp in the mail. After 45 days, the purchaser must carry the signed physical Federal Duck Stamp while hunting or to gain fee-free access to national wildlife refuges.
Eight States participated in the pilot. At the end of the pilot, we provided a report to Congress outlining the successes of the program. The program improved public participation by increasing the ability of the public to obtain required Federal Duck Stamps.
Under our authorities in 16 U.S.C. 718
• Information verifying the current systems the State uses to sell hunting, fishing, and other associated licenses and products.
• Applicable State laws, regulations, or policies that authorize the use of electronic systems to issue licenses.
• Examples and explanations of the codes the State proposes to use to create and endorse the unique identifier for the individual to whom each stamp is issued.
• Mockup copy of the printed version of the State's proposed electronic stamp, including a description of the format and identifying features of the licensee to be specified on the stamp.
• Description of any fee the State will charge for issuance of an electronic stamp.
• Description of the process the State will use to account for and transfer the amounts collected by the State that are required to be transferred under the program.
• Manner in which the State will transmit electronic stamp customer data.
Each State approved to participate in the program must provide the following information, on a weekly basis, to the Service-approved stamp distribution company, to enable that company to issue the actual stamp within the required 45-day period:
• Full name (first, middle, last, and any prefixes/suffixes), and complete mailing address of each individual who purchases an electronic stamp from the State.
• Date of e-stamp purchase.
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
Bureau of Indian Affairs, Interior.
Notice of availability.
This notice advises the public that the Bureau of Indian Affairs (BIA), as the lead Federal agency, and the Osage Nation, Osage Minerals Council, U.S. Geological Survey (USGS), and Environmental Protection Agency (EPA), as cooperating agencies, have prepared a Draft Environmental Impact Statement. The Osage County Oil and Gas Draft Environmental Impact Statement (DEIS) analyzes the potential impacts that future oil and gas development will have on the surface estate and subsurface mineral estate in Osage County, Oklahoma. This notice announces that the DEIS is available for public review and that the BIA will hold a public meeting to receive comments.
A public meeting will be held at location and time to be announced. Notice of the public meeting will be made in local news media at least 15 days prior to the meeting. In order for written comments on the DEIS to be considered, the BIA must receive them within 45 days following the date the EPA publishes its Notice of Availability in the
Information regarding the public comment period and public meeting will be posted on the project website:
The DEIS may be examined at the BIA Osage Agency, 813 Grandview Avenue, Pawhuska, Oklahoma. The DEIS is also available for review online at the project website listed above.
Mr. Mosby Halterman, Supervisory Environmental Specialist, telephone: 918-781-4660; email:
The Osage Allotment Act of 1906 (1906 Act), as amended, reserved all rights to the subsurface mineral estate underlying Osage County, Oklahoma (Osage Mineral Estate) to the Osage Nation. In accordance with the 1906 Act, the Osage Mineral Estate is held in trust by the United States for the benefit of the Osage Nation. All leases, applications for permits to drill, and other site-specific permit applications in Osage County are approved under the authority of the 1906 Act, as amended, and 25 Code of Federal Regulations (CFR), part 226, Leasing of Osage Reservation Lands for Oil and Gas Mining.
The purpose of the BIA's action is to administer leasing and development of the Osage Mineral Estate in the best interest of the Osage Nation, in accordance with the 1906 Act, as amended, balancing resource conservation and maximization of oil and gas production in the long term. The BIA is required, under more generally applicable statutes, to include in the best interest calculation the protection of the environment in Osage County to enhance conservation of resources and protection of the health and safety of the Osage people. Based on these considerations, the BIA's action promotes the maximization of oil and gas production from the Osage Mineral Estate in a manner that is economic, efficient, and safe; prevents pollution; and is consistent with the mandates of Federal law.
The DEIS analyzes the following four alternatives for managing oil and gas development in Osage County:
Alternative 1, No Action Alternative.
Alternative 2, Emphasize Oil and Gas Development. Minimize the number of permit Conditions of Approval (COAs) to allow producers wider latitude in determining the methods by which they will comply with applicable laws and regulations, such as the Endangered Species Act of 1973 and Clean Water Act of 1972.
Alternative 3, Hybrid Development. A hybrid approach, by applying additional protective COAs in sections with low levels of historical oil and gas development minimizing the number of COAs in sections with high levels of historical oil and gas development. The BIA would not approve permits for new ground-disturbing oil and gas development activities in certain sensitive areas.
Alternative 4, Enhanced Resource Protection. Apply additional protective COAs in all areas and implement well-spacing requirements. The BIA would not approve permits for new ground-disturbing oil and gas development activities in certain sensitive areas.
The alternatives represent the range of reasonable actions that could be taken to satisfy the purpose of and need for the BIA's action. All alternatives incorporate measures necessary to address impacts on air quality, water resources, cultural resources, public health and safety, threatened and endangered species, and socioeconomics among other things. Additional alternatives were considered but eliminated from detailed analysis.
The Notice of Intent to prepare an EIS was published in the
The Supplemental Notice of Intent to Revise the Osage County Oil and Gas EIS was published in the
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended, the Bureau of Land Management (BLM) has prepared the San Juan Islands National Monument Proposed Resource Management Plan (RMP) and Final Environmental Impact Statement (EIS) and by this notice is announcing its availability and the opening of a 30-day protest period concerning the Proposed RMP. In accordance with the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019, this notice also announces the opening of a 60-day public comment period regarding the proposed closure of the Monument (which encompasses scattered parcels totaling approximately 1,000 acres) to recreational target shooting (referred to as “discharge of firearms” in the RMP).
The BLM planning regulations state that any person who meets the conditions as described in the regulations may protest the BLM's Proposed RMP and Final EIS. A person who meets the conditions and files a protest must file the protest within 30 days of the date that the Environmental Protection Agency publishes its Notice of Availability in the
To ensure that comments on the proposed target shooting closure will be considered, the BLM must receive written comments by January 21, 2020.
The Proposed RMP and Final EIS is available on the BLM ePlanning project website at
Instructions for filing a protest with the Director of the BLM regarding the Proposed RMP may be found online at
You may submit comments on the proposed target shooting closure using either of the following methods:
Lauren Pidot, Planner, 503-808-6297; Lopez Island BLM Office, P.O. Box 3, Lopez, Washington 98261;
The BLM has prepared the San Juan Islands National Monument Proposed RMP/Final EIS to evaluate and revise potential management strategies for the San Juan Islands National Monument. Presidential Proclamation 8947 designated the monument on March 25, 2013. The lands included in the monument are not now, and have never been, covered by an RMP. The BLM currently administers these lands using a custodial management approach focused on meeting legal mandates.
The decision area for this planning process comprises the approximately 1,021 acres of lands administered by the BLM. The decision area does not include private lands, State lands, or Federal lands not administered by the BLM, with the exception of approximately 189 acres of land currently withdrawn to the U.S. Coast
The monument includes headlands, islands, and rocks scattered across the San Juan Islands. As a whole, the San Juan Islands are comprised of private lands and an array of Federal, State, and local public lands. Non-BLM public lands include the San Juan Island National Historical Park, the San Juan Islands National Wildlife Refuge (a portion of which is designated as the San Juan Wilderness), and a variety of State and county parks.
Major issues considered in the Proposed RMP/Final EIS include the protection and restoration of the ecological and cultural resources identified in Presidential Proclamation 8947, as well as the management of recreation, transportation, visual resources, and wilderness characteristics.
The San Juan Islands National Monument Draft RMP and EIS 90-day public comment period began on October 5, 2018. The BLM held five public meetings across the San Juan Islands and on the mainland during the public comment period. The BLM considered and incorporated in the Proposed RMP/Final EIS, as appropriate, comments received from the public, consulting Tribes, cooperating agencies, and internal BLM review. Public comments resulted in the addition of clarifying text, minor changes to the existing alternatives, and a Proposed RMP that is within the range of alternatives and effects analyzed in the Draft RMP and EIS. In addition to the Proposed RMP, the Final EIS analyzes the four action alternatives (Alternatives A, B, C, and D), one sub-alternative (Sub-Alternative C), and the No Action Alternative analyzed in the Draft EIS.
Under the Proposed RMP, the BLM would focus on promoting ecological resistance and resilience to threats including fire, drought, and other potential disturbances by restoring existing plant communities and enhancing the extent of grasslands and shrublands, which are relatively scarce within the San Juan Islands. The BLM would allow mechanical, manual, biological control, chemical, and fire treatments to achieve objectives. Recreational opportunities would include hiking, hunting, designated site camping, dispersed camping with a permit, trail-based equestrian use, and road-based equestrian and bicycling use. Current hunting opportunities (firearm and non-firearm based) will continue; discharge of firearms and use of bows would be allowed during state-established hunting seasons, but otherwise prohibited within the Monument (see below for more information). Within maritime heritage areas, the BLM would restore historic structures and allow the rebuilding of previously existing structures and the building of new structures to support education and interpretation.
Under the No Action Alternative, the BLM would continue to manage the monument using a custodial approach with no RMP. There would continue to be no plan-level objectives, direction, or allocations, except for the limited decisions made in the 1990 decision record creating the Iceberg Point and Point Colville Areas of Critical Environmental Concern (ACEC) (described below). Custodial management of the monument would continue to focus on meeting legal and policy mandates and preventing unnecessary and undue degradation. The BLM would make decisions about taking management actions on a case-by-case basis after completing the appropriate level of NEPA analysis and ensuring that actions are consistent with Presidential Proclamation 8947 and FLPMA.
Alternative A would undertake a generally passive approach to vegetation management and would prohibit recreation while facilitating scientific, educational, cultural, and spiritual uses of the monument. Under both alternatives B and C, the BLM would pursue ambitious vegetation restoration objectives. Under Alternative B, which was the preferred alternative in the Draft RMP and EIS, recreational opportunities would include hiking, hunting, designated site and dispersed camping, and opportunities for pursuing solitude and quiet, which would be provided by expanding the existing trail network, requiring permits to access 167 acres of the monument, and providing dispersed camping by permit. Under Alternative C, recreational opportunities would include hiking, equestrian use, and designated site camping; portions of the monument would be closed to the discharge of firearms except for half of the firearm-based hunting season. Sub-Alternative C is identical to Alternative C, except the BLM would not allow the use of chemical treatments and would close the monument to the discharge of firearms. Under Alternative D, the BLM would maintain the current extent and condition of plant communities; recreational opportunities would include hunting and increased camping and hiking, biking, and equestrian use on an expanded trail network. The BLM is undertaking concurrent implementation-level travel and transportation planning.
There has been no recent history of uses such as grazing, logging, or mining within the monument. The proclamation designating the monument withdrew it from entry, location, selection, sale, leasing, or other disposition under public land and mining laws other than by exchange that furthers the protective purposes of the proclamation. Except for emergencies, federal law enforcement use, or authorized administrative purposes, the proclamation also restricts motorized vehicle use to designated roads and mechanized vehicle use (
The 1990 Iceberg Point and Point Colville ACEC Decision Record designated the lands administered by the BLM at Iceberg Point and Point Colville as ACECs. These ACECs were later extended to Watmough Bay and Chadwick Hill after the BLM acquired those areas; they now apply to approximately 500 acres of land included in the monument. The 1990 decision record and the 1988 draft planning analysis of the ACECs generally discuss protecting the areas' “natural values” but do not identify specific relevant and important values.
The BLM technical specialists on the planning team considered whether the monument encompasses values that meet the relevance and importance criteria described in the BLM Manual 1613. They determined that the whole of the monument contains historic and cultural, fish and wildlife, and scenic values that meet the relevance and importance criteria for an ACEC. The planning team also determined that the Proposed RMP and the action alternatives, which meet the purpose and need of protecting the objects for which the monument was designated, would protect these relevant and important values. Since the values do not require special management to protect them from the potential effects of actions permitted by the alternatives, the action alternatives do not include ACECs.
In the Proposed RMP, the BLM proposes that recreational target shooting (referred to as “discharge of firearms” in the RMP) shall not be allowed within the approximately 1,000
All protests must be in writing and submitted as set forth in the
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.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2, 43 CFR 1610.5.
National Park Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the National Park Service (NPS) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before December 23, 2019.
Send written comments on this information collection request (ICR) to the Office of Management and Budget's (OMB) Desk Officer for the Department of the Interior by email at
To request additional information about this ICR contact Diane Miller, National Program Manager, National Underground Railroad Network to Freedom Program, National Park Service, Harriet Tubman Underground Railroad Visitor Center, 4068 Golden Hill Road, Church Creek, Maryland 21622; or 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.
On May 28, 2019, we published a
We are again 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 NPS; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the NPS enhance the quality, utility, and clarity of the information to be collected; and (5) how might the NPS minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you 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.
All entities that apply to join the Network must have a verifiable association with the historic Underground Railroad movement and complete NPS Form 10-946, “National
Network to Freedom Program Partners work with the NPS to help validate the efforts of local and regional organizations, making it easier for them to share their expertise and communicate with us and each other. Prospective partners must submit a letter with the following information:
• Name and address of the agency, company or organization;
• Name, address, and phone, fax, and email information of principal contact;
• Abstract not to exceed 200 words describing the partner's activity or mission statement; and
• Brief description of the entity's association to the Underground Railroad.
With this submission, we are requesting one change on page 2 of form 10-946. The change is to clarify the contact information to distinguish between the owner/manager and the person completing the application (if they are different).
We are reporting 400 fewer burden hours, due to a decrease in responses. The burden hour per response remains the same. Due to staffing shortages and decreased activity in the program, the resulting annualized cost for administering the program are lower than the last reporting period. When vacant positions are filled, the number of responses and costs are expected to rise to previous levels.
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
Bureau of Ocean Energy Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Ocean Energy Management (BOEM) is proposing to renew an information collection request with revisions.
Interested persons are invited to submit comments on or before December 23, 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 Anna Atkinson by email, or by telephone at 703-787-1025. You may also view the ICR at
In accordance with the Paperwork Reduction Act of 1995, BOEM provides the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps BOEM assess the impact of the information collection requirements and minimize the public's reporting burden. It also helps the public understand BOEM's information collection requirements and provide the requested data in the desired format.
A
BOEM is again soliciting comments on the proposed ICR that is described below. BOEM is especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of BOEM; (2) what can BOEM do to ensure
Comments that you submit in response to this notice are a matter of public record. BOEM will include or summarize each comment in its request to the Office of Management and Budget (OMB) for approval of this ICR. You should be aware that your entire comment—including your address, phone number, email address, or other personal identifying information—may be made publicly available at any time. In order for BOEM to withhold from disclosure your personally identifiable information, you must identify any information contained in the submittal of your comments that, if released, would clearly constitute an unwarranted invasion of your personal privacy. You must also briefly describe any possible harmful consequences of the disclosure of your information, such as embarrassment, injury, or other harm. While you can ask BOEM in your comment to withhold your personally identifiable information from public review, BOEM cannot guarantee that it will be able to do so.
BOEM protects proprietary information in accordance with the Freedom of Information Act (5 U.S.C. 552) and the Department of the Interior's implementing regulations (43 CFR part 2), and under regulations at 30 CFR parts 550 and 552 promulgated pursuant to the Outer Continental Shelf Lands Act (OCSLA) at 43 U.S.C. 1352(c).
BOEM uses forms to collect information to ensure proper and efficient administration of Oil Spill Financial Responsibility. BOEM collects information to:
• Provide a standard method for establishing eligibility for oil spill financial responsibility for offshore facilities;
• Identify and maintain a record of those offshore facilities that have a potential oil spill liability;
• Establish and maintain a continuous record of financial evidence accepted to assure payment of claims for oil spill cleanup and damages resulting from operations conducted on covered offshore facilities and the transportation of oil from covered offshore facilities;
• Establish and maintain a continuous record of responsible parties, as defined in Title I of the Oil Pollution Act of 1990, and their agents or Authorized Representatives for oil spill financial responsibility for covered offshore facilities; and
• Establish and maintain a continuous record of persons to contact and U.S. Agents for Service of Process for claims associated with oil spills from covered offshore facilities.
• BOEM-1016, Designated Applicant Information Collection;
• BOEM-1017, Appointment of Designated Applicant;
• BOEM-1018, Self-Insurance Information;
• BOEM-1019, Insurance Certificate,
• BOEM-1020, Surety Bond;
• BOEM-1021, Covered Offshore Facilities;
• BOEM-1022, Covered Offshore Facility Changes;
• BOEM-1023, Financial Guarantee; and
• BOEM-1025, Independent Designated Applicant Information Certification.
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
United States International Trade Commission.
December 6, 2019 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1.
2. Minutes.
3. Ratification List.
4. Vote on Inv. Nos. 701-TA-631 and 731-TA-1463-1464 (Preliminary) (Forged Steel Fittings from India and Korea). The Commission is currently scheduled to complete and file its determinations on December 9, 2019; views of the Commission are currently scheduled to be completed and filed on December 16, 2019.
5.
The Commission is holding the meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b). In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before December 23, 2019. Such persons may also file a written request for a hearing on the application on or before December 23, 2019.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on October 9, 2019, Janssen Pharmaceuticals, Inc., 1440 Olympic Drive, Athens, Georgia 30601-1645 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import intermediate forms of tapentadol (9780) and thebaine (9333) for further manufacturing prior to distribution to its customers. The company plans to import concentrate of poppy straw (9670) to bulk manufacture other controlled substances. No other activity for these drug codes is authorized for this registration.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before December 23, 2019. Such persons may also file a written request for a hearing on the application on or before December 23, 2019.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on September 13, 2019, Epic Pharma, LLC, 227-15 North Conduit Avenue, Laurelton, New York 11413, applied to be registered as an importer of the following basic class of controlled substance:
The company plans to import the listed controlled substance for research and analytical purposes.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before December 23, 2019. Such persons may also file a written request for a hearing on the application on or before December 23, 2019.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on August 7, 2019 Fresenius Kabi USA, LLC, 3159 Staley Road, Grand Island, New York 14072-
The company plans to import the listed controlled substance for bulk manufacture.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before December 23, 2019. Such persons may also file a written request for a hearing on the application on or before December 23, 2019.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on July 15, 2019, GE Healthcare, 3350 North Ridge Avenue, Arlington Heights, Illinois 60004-1412 applied to be registered as an importer of the following basic class of controlled substance:
The company plans to import small quantities of Ioflupane, in the form of three separate analogues of cocaine, to validate production and quality control systems, for a reference standard, and for producing material for a future investigational new drug (IND) submission. Supplies of this particular controlled substance are not available in the form needed within the current domestic supply of the United States.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before January 21, 2020.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on March 15, 2019, Patheon API Manufacturing, Inc., 309 Delaware Street, Greenville, South Carolina 29605 applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to bulk manufacture the listed controlled substances as an Active Pharmaceutical Ingredient for supply to its customers.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed on or before January 21, 2020.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this
The company plans to manufacture the listed controlled substances in bulk for use in product development and for commercial sales to its customers. In reference to drug code 7360 (marihuana) and 7370 (tetrahydrocannabinois), the company plans to bulk manufacture both as synthetic substances. No other activity for these dug codes is authorized for this registration.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before December 23, 2019. Such persons may also file a written request for a hearing on the application on or before December 23, 2019.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on October 16, 2019, Mylan Technologies Inc., 110 Lake Street, Saint Albans, Vermont 054780 applied to be registered as an importer of the following basic classes of controlled substances:
The company plans to import the listed controlled substances in finished dosage form (FDF) from foreign sources for analytical testing and clinical trials in which the foreign FDF will be compared to the company's own domestically-manufactured FDF. This analysis is required to allow the company to export domestically manufactured FDF to foreign markets.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before January 21, 2020.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on May 17, 2019, Chattem Chemicals, 3801 Saint Elmo Avenue, Chattanooga, Tennessee 37409 applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacturer the listed controlled substances in bulk for distribution and sale to its customers.
In reference to drug codes 7360 (marihuana) and 7370 (tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetics. No other activities for these drug codes are authorized for this registration.
Department of Justice, Drug Enforcement Administration.
30-Day notice.
The Department of Justice (DOJ), Drug Enforcement Administration (DEA), 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 proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 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 Chiwoniso S. Gurira (Choni), Senior Personnel Psychologist, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, VA 22152. Written comments and/or suggestions may 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 send to
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
Drug Enforcement Administration, Department of Justice.
Notice; correction.
The Department of Justice, Drug Enforcement Administration, submitted a 60-day notice for publishing in the
Chiwoniso S. Gurira, Senior Personnel Psychologist, Research and Analysis Staff, Drug Enforcement Administration, 8701 Morrissette Dr., Springfield, VA 22152.
Foreign Claims Settlement Commission, Department of Justice.
30-Day notice.
The Foreign Claims Settlement Commission (Commission), Department of Justice (DOJ), 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 30 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 Jeremy LaFrancois, Foreign Claims Settlement Commission, (202) 616-6975, 441 G St. NW, Room 6232, Washington, DC 20579.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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Coordinating Council on Juvenile Justice and Delinquency Prevention, DOJ.
Notice of meeting.
The Coordinating Council on Juvenile Justice and Delinquency Prevention announces its next meeting.
Tuesday December 10th, 2019 at 1 p.m. EST.
The meeting will take place in the third floor main conference room at the U.S. Department of Justice, Office of Justice Programs, 810 7th St. NW, Washington, DC 20531.
Visit the website for the Coordinating Council at
The Coordinating Council on Juvenile Justice and Delinquency Prevention (“Council”), established by statute in the Juvenile and Delinquency Prevention Act of 1974 section 206 (a) (42 U.S.C. 5616(a)), will meet to carry out its advisory functions. Information regarding this meeting will be available on the Council's web page at
Although designated agency representatives may attend in lieu of members, the Council's formal membership consists of the following secretaries and/or agency officials; Attorney General (Chair), Administrator of the Office of Juvenile Justice and Delinquency Prevention (Vice Chair), Secretary of Health and Human Services (HHS), Secretary of Labor (DOL), Secretary of Education (DOE), Secretary of Housing and Urban Development (HUD), Director of the Office of National Drug Control Policy, Chief Executive Officer of the Corporation for National and Community Service and the Assistant Secretary of Homeland Security for the U.S. Immigration and Customs Enforcement. Nine additional members are appointed by the Speaker of the U.S. House of Representatives, the U.S. Senate Majority Leader and the President of the United States. Further agencies that take part in Council activities include, the Departments of Agriculture, Defense, Interior and the Substance and Mental Health Services Administration of HHS.
Council meeting agendas are available on
For security purposes and because space is limited, members of the public who wish to attend must register in advance of the meeting online at the meeting registration site, no later than Friday December 6th, 2019. Should issues arise with online registration, or to register by fax or email, the public should contact Maegen Barnes, Senior Program Manager/Federal Contractor (see above for contact information). If submitting registrations via fax or email, attendees should include all of the following: Name, Title, Organization/Affiliation, Full Address, Phone Number, Fax and Email. The meeting will also be available to join online via Webex, a video conferencing platform. Registration for this is also found online at
Photo identification will be required to attend the meeting at the OJP 810 7th Street Building.
Interested parties may submit written comments and questions in advance to Elizabeth Wolfe (DFO) for the Council, at the contact information above. If faxing, please follow up with Maegen Barnes, Senior Program Manager/Federal Contractor (contact information above) in order to assure receipt of submissions. All comments and questions should be submitted no later than 5 p.m. EST on Friday December 6th, 2019.
The Council will limit public statements if they are found to be duplicative. Written questions submitted by the public while in attendance will also be considered by the Council.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Office of Workers' Compensation Programs is soliciting comments concerning the proposed collection: Certification by School Official (CM-981). A copy of the proposed information collection request can be obtained by contacting the office listed below in the addresses section of this Notice.
Written comments must be submitted to the office listed in the addresses section below on or before January 21, 2020.
You may submit comments by mail, delivery service, or by hand to Ms. Anjanette C. Suggs, U.S. Department of Labor, 200 Constitution Ave. NW, Room S-3323, Washington, DC 20210; by fax (202) 354-9660; or by Email to
This information collection is being classified as an extension of an existing collection. 30 U.S.C. 902(g); 20 CFR 725.209, 725.218 require that all relevant medical evidence be considered before a decision can be made regarding a claimant's eligibility for benefits. By signing the CM-981 form, the claimant authorizes physicians, hospitals, medical facilities or organizations, and the National Institute for Occupational Safety and Health to release medical information about the miner to the Department of Labor's Office of Workers' Compensation Programs. The form contains information required by medical institutions and private physicians to enable them to release pertinent medical information. This information collection is currently approved for use through September 30, 2019.
* Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
* evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
* enhance the quality, utility and clarity of the information to be collected; and
* minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments 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 will also become a matter of public record.
November 18, 2019 (84 FR 63680).
11:30 a.m., Thursday, November 21, 2019.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed
Pursuant to the provisions of the “Government in Sunshine Act” notice is hereby given that the NCUA Board gave notice on November 18, 2019 (84 FR 63680) of the closed meeting of the NCUA Board scheduled for November 21, 2019. Prior to the meeting, on November 19, 2019, the NCUA Board unanimously determined that agency business required removal of an item on the agenda with less than seven days' notice to the public, and that no earlier notice of the addition was possible.
1. Personnel Action. Closed pursuant to Exemptions (2), and (6).
Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.
OPIC's Sunshine Act notice of its Public Hearing in Conjunction with its Board meeting was published in the
Information on the hearing cancellation may be obtained from Catherine F.I. Andrade at (202) 336-8768, or via email at
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 July 1, 2019 to July 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
No Schedule A Authorities to report during July 2019.
No Schedule B Authorities to report during July 2019.
The following Schedule C appointing authorities were approved during July 2019.
The following Schedule C appointing authorities were revoked during July 2019.
5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable
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This Notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is acknowledging a recent Postal Service filing concerning product description changes to the Mail Classification Schedule related to International Mail. This document informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
On November 15, 2019, the Postal Service filed a notice of changes to product descriptions pursuant to Commission rule 39 CFR 3020.90.
The Postal Service states that the purpose of the minor modifications to the country price list is “to conform to official sources and improve the accuracy of the product descriptions in the MCS.”
Pursuant to 39 CFR 3020.91, the Commission has posted the Notice on its website and invites comments on whether the Postal Service's filings are consistent with 39 CFR part 3020, subpart E. Comments are due no later than December 3, 2019. The filing can be accessed via the Commission's website (
The Commission appoints Stephanie A. Quick to represent the interests of the general public (Public Representative) in this docket.
1. The Commission establishes Docket No. MC2020-27 to consider matters raised by the Notice.
2. Comments by interested persons are due by December 3, 2019.
3. Pursuant to 39 U.S.C. 505, Stephanie A. Quick is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
4. The Commission directs the Secretary of the Commission to arrange for prompt publication of this notice in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
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 November 18, 2019, it filed with the Postal Regulatory Commission a
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 November 18, 2019, it filed with the Postal Regulatory Commission a
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 November 18, 2019, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
The Exchange proposes to adopt new Nasdaq Rule 5704 to list and trade shares of securities issued by an exchange-traded fund as defined herein, as well as amendments to Nasdaq Rule 4120 (Limit Up-Limit Down Plan and Trading Halts) and Nasdaq Rule 5615 (Exemptions from Certain Corporate Governance Requirements), and to discontinue the quarterly reports currently required with respect to Managed Fund Shares under Nasdaq Rule 5735(b).
The Exchange requests that the Commission approve the proposed rule change on an accelerated basis so that it may become operative as soon as practicable, particularly given that Rule 6c-11 under the Investment Company Act of 1940, as amended, becomes effective on December 23, 2019.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes Nasdaq Rule 5704 to establish generic listing standards that permit the listing and trading of shares (“Exchange Traded Fund Shares”) of exchange-traded funds (“ETFs” as defined below) that meet the criteria established by the Commissions in its adoption of Rule 6c-11
Nasdaq believes that the proposed generic listing rules for Exchange Traded Fund Shares, described below, will facilitate efficient procedures for ETFs that are permitted to operate in reliance on Rule 6c-11. The Exchange also believes that proposed Nasdaq Rule 5704 is consistent with, and will further, the Commission's goals in adopting Rule 6c-11. Exchange Traded Fund Shares that are permitted to operate in reliance on Rule 6c-11 will be permitted to be listed and traded on the Exchange without a prior Commission approval order or notice of effectiveness pursuant to Section 19(b) of the Act. This will significantly reduce the time frame and costs associated with bringing Exchange Traded Fund Shares to market, which, in turn, will promote competition among issuers of Exchange Traded Fund Shares, to the benefit of investors.
The Exchange also proposes to amend Nasdaq Rule 4120 (Limit Up-Limit Down Plan and Trading Halts) and Nasdaq Rule 5615 (Exemptions from Certain Corporate Governance Requirements), and to discontinue the quarterly reports currently required with respect to Managed Fund Shares under Nasdaq Rule 5735(b).
Proposed Nasdaq Rule 5704 will enable ETFs, whether index-based or actively managed, to qualify for listing and trading on the Exchange both on an initial and continued basis by meeting and maintaining compliance with the criteria set forth in Rule 6c-11.
Proposed Nasdaq Rule 5704(a)(1)(C) defines the term “Exchange Traded Fund Share” as having the same meaning as the term is defined as having in Rule 6c-11.
Proposed Nasdaq Rule 5704(a)(1)(D) defines the term “Reporting Authority” in respect of a particular series of Exchange Traded Fund Share means Nasdaq, a wholly-owned subsidiary of Nasdaq, or an institution or reporting service designated by Nasdaq or its subsidiary as the official source for calculating and reporting information relating to such series, including, but not limited to, any current index or portfolio value; the current value of the portfolio of any securities required to be deposited in connection with issuance of Exchange Traded Fund Shares; the amount of any dividend equivalent payment or cash distribution to holders of Exchange Traded Fund Shares, net asset value, and other information relating to the issuance, redemption or trading of Exchange Traded Fund Shares. The definition also notes that it does not imply that an institution or reporting service that is the source for calculating and reporting information relating to Exchange Traded Fund Shares must be designated by Nasdaq; the term “Reporting Authority” does not refer to an institution or reporting service not so designated.
Proposed Nasdaq Rule 5704(b)(1) says that for a Derivative Securities Product listed under this rule, it does not need to separately meet either the initial or continued listing requirements of any other Exchange rules. For example, an ETF that satisfies the requirements of Rule 6c-11 and therefore is listed pursuant to proposed Nasdaq Rule 5704 and is also, for example, an Index Fund Share, would not need to separately meet the initial or continued listing requirements of Nasdaq Rule 5705(b).
Proposed Nasdaq Rule 5704(b)(2), [sic] except for paragraph (A) below which only applies on an initial listing basis, such securities must also satisfy the follow criteria on an initial and continued listing basis:
Proposed Nasdaq Rule 5704(b)(2)(A) states that for each series of Exchange Traded Fund Shares, Nasdaq will establish a minimum number of Exchange Traded Fund Shares required to be outstanding at the time of commencement of trading on Nasdaq.
Proposed Nasdaq Rule 5704(b)(2)(B) sets for the requirements regarding index calculation and dissemination that must be satisfied on both an initial and continued listing basis. Proposed Nasdaq Rule 5704(b)(2)(i) [sic] states that if the underlying index is maintained by a broker-dealer or fund advisor, the broker-dealer or fund advisor will erect and maintain a “fire wall” around the personnel who have access to information concerning changes and adjustments to the index and the index will be calculated by a third party who is not a broker-dealer or fund advisor. Proposed Nasdaq Rule 5704(b)(2)(ii) [sic] states that any advisory committee, supervisory board, or similar entity that advises a Reporting Authority or that makes decisions on the index composition, methodology and related matters, must implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the applicable index.
Proposed Nasdaq Rule 5704(b)(2)(C) states that regular market session trading will occur between 9:30 a.m. and either 4:00 p.m. or 4:15 p.m. for each series of Exchange Traded Fund Shares, as specified by Nasdaq. In addition, Nasdaq may designate a series of Exchange Traded Fund Shares for trading during a pre-market session beginning at 4:00 a.m. and/or a post-market session ending at 8:00 p.m.
Proposed Nasdaq Rule 5704(b)(2)(D) states that Nasdaq may list and trade a series of Exchange Traded Fund Shares based on one or more foreign or domestic indexes or portfolios. Each series of Exchange Traded Fund Shares based on each particular index or portfolio, or combination thereof, will be designated as a separate series and will be identified by a unique symbol. The components that are included in an index or portfolio on which a series of Exchange Traded Fund Shares is based will be selected by such person, which may be Nasdaq or an agent or wholly-owned subsidiary thereof, as will have authorized use of such index or portfolio. Such index or portfolio may be revised from time to time as may be deemed necessary or appropriate to maintain the quality and character of the index or portfolio.
Proposed Nasdaq Rule 5704(b)(2)(E) states that Nasdaq will obtain a representation from the ETF that the net asset value per share for each series of Exchange Traded Fund Shares will be calculated daily and will be made available to all market participants at the same time.
Proposed Nasdaq Rule 5704(b)(3) sets forth the circumstances under which Nasdaq will consider the suspension of trading and removal in, and will initiate delisting proceedings under the Rule
Proposed Nasdaq Rule 5704(c) states that Nasdaq will maintain written surveillance procedures for Exchange Traded Fund Shares.
Proposed Nasdaq Rule 5704(d) states that upon termination of an ETF, Nasdaq requires that each series of Exchange Traded Fund Shares issued in connection with such entity be removed from listing.
Proposed Nasdaq Rule 5704(e) states that Nasdaq requires that members provide to all purchasers of a series of Exchange Traded Fund Shares a written description of the terms and characteristics of such securities, in a form prepared by the open-end management investment company issuing such securities, not later than the time a confirmation of the first transaction in such series is delivered to such purchaser. In addition, members will include such a written description with any sales material relating to an ETF that is provided to customers or the public. Any other written materials provided by a member to customers or the public making specific reference to an Exchange Traded Fund Shares as an investment vehicle must include a statement in substantially the following form: “A circular describing the terms and characteristics of [a series of Exchange Traded Fund Shares] has been prepared by the [open-end management investment company name] and is available from your broker or Nasdaq. It is recommended that you obtain and review such circular before purchasing [a series of Exchange Traded Fund Shares]. In addition, upon request you may obtain from your broker a prospectus for [a series of Exchange Traded Fund Shares].”
Additionally, a member carrying an omnibus account for a non-member broker-dealer is required to inform such non-member that execution of an order to purchase a series of Exchange Traded Fund Shares for such omnibus account will be deemed to constitute agreement by the non-member to make such written description available to its customers on the same terms as are directly applicable to members and member organizations under this rule. Upon request of a customer, a Member shall also provide a prospectus for the particular series of Exchange Traded Fund Shares.
Proposed Nasdaq Rule 5704(f) states that neither Nasdaq, the Reporting Authority, nor any agent of Nasdaq will have any liability for damages, claims, losses or expenses caused by any errors, omissions, or delays in calculating or disseminating any current index or portfolio value, the current value of the portfolio of securities required to be deposited to the open-end management investment company in connection with issuance of a series of Exchange Traded Fund Shares; the amount of any dividend equivalent payment or cash distribution to holders of a series of Exchange Traded Fund Shares; net asset value; or other information relating to the purchase, redemption or trading of a series of Exchange Traded Fund Shares, resulting from any negligent act or omission by Nasdaq, the Reporting Authority or any agent of Nasdaq, or any act, condition or cause beyond the reasonable control of Nasdaq, its agent, or the Reporting Authority, including, but not limited to, an act of God; fire; flood; extraordinary weather conditions; war; insurrection; riot; strike; accident; action of government; communications or power failure; equipment or software malfunction; or any error, omission or delay in the reports of transactions in one or more underlying securities.
Proposed Nasdaq Rule 5704(g) states that Nasdaq may approve a series of Exchange Traded Fund Shares for listing and trading pursuant to Rule 19b-4(e) under the Act that is not eligible to operate in reliance on Rule 6c-11 provided the series of Exchange Traded Fund Shares satisfies the requirements of Rule 5705(b) or Rule 5735, as applicable, and the ETF has received an exemptive relief order under the 1940 Act.
Proposed Nasdaq Rule 5704(h) states that Nasdaq may submit a rule filing pursuant to Section 19(b) of the Act to permit the listing and trading of a series of Exchange Traded Fund Shares that is not eligible to operate in reliance on Rule 6c-11 and does not satisfy the requirements of Rule 5705(b) or Rule 5735, as applicable. Any of the statements or representations regarding (a) the index composition; (b) the description of the portfolio; (c) limitations on portfolio holdings or reference assets; (d) dissemination and availability of the index or intraday indicative values; or (e) the applicability of Nasdaq listing rules specified in such proposals constitute continued listing standards.
Proposed Nasdaq Rule 5704(i) states that a Derivative Securities Product that has previously been approved for listing on the Exchange pursuant to the generic listing requirements specified in Rule 5705(b) or Rule 5735(b)(1), or pursuant to a proposed rule change filed and approved or subject to a notice of effectiveness by the Commission, will be deemed to be considered approved for listing under this Rule if such Derivative Securities Product is both (1) permitted to operate in reliance on Rule 6c-11 under the 1940 Act, and (2) the prior exemptive relief under the 1940 Act for such Derivative Securities Product has been rescinded. At such time, the continued listing requirements applicable to such previously-listed Derivative Securities Products will be those specified in paragraph (b) of this Rule. Any requirements for listing as specified in Rule 5705(b) or 5735(b)(1), or an approval order or notice of effectiveness of a separate proposed rule change that differ from the requirements of this Rule will no longer be applicable to such Derivative Securities Products.
The Exchange proposes to amend Nasdaq Rule 4120 to include Exchange Traded Fund Shares within the definition of “Derivative Securities Product” as defined in Nasdaq Rule 4120(b)(4)(A). This will ensure the applicability of trading halts to the trading of Exchange Traded Fund Shares on Nasdaq pursuant to unlisted trading privileges.
The Exchange also proposes to amend the definition of “Derivative Securities” in Nasdaq Rule 5615 to incorporate to incorporate Exchange Traded Fund Shares so Rule 5615 and its exemptions from certain corporate governance requirements are applicable to Exchange Traded Fund Shares.
On September 23, 2016, the SEC approved Nasdaq Rule 5735(b)(1), adopting generic listing standards for Managed Fund Shares.
Nasdaq believes such quarterly reports are no longer necessary in light of the requirements set forth in Rule 6c-11(d). As a result, the Exchange proposes to discontinue such reporting going forward. Rule 6c-11(d) includes specific ongoing reporting requirements for ETFs, such as written agreements between an authorized participant and a fund allowing purchase or redemption of creation units, information regarding the baskets exchanged with authorized participants, and the identity of authorized participants transacting with a fund.
Nasdaq believes that the quarterly reports as currently are duplicative of the new Rule 6c-11(d) requirements. To avoid unnecessary overlap and potential inconsistency, as well as to avoid unnecessary, duplicative burdens on authorized participants and their firms in providing and maintaining information regarding creation and redemption activity, the Exchange proposes to discontinue the filing of quarterly reports with respect to Managed Fund Shares under Nasdaq Rule 5735(b).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest because it would facilitate the listing and trading of additional Exchange Traded Fund Shares, which would enhance competition among market participants, to the benefit of investors and the marketplace.
The generic listing rules in proposed Nasdaq Rule 5704, as described above, will facilitate efficient procedures for listing ETFs that are permitted to operate in reliance on Rule 6c-11 and are consistent with and will further the SEC's goals in adopting Rule 6c-11. Additionally, by allowing Exchange Traded Fund Shares to be listed and traded on the Exchange without a prior SEC approval order or notice of effectiveness pursuant to Section 19(b) of the Act, proposed Nasdaq Rule 5704 will significantly reduce the time frame and costs associated with bringing Exchange Traded Fund Shares to market, thereby promoting market competition among issuers of these securities, to the benefit of the investors. Also, the proposed change would fulfill the intended objective of Rule 19b-4(e) under the Act by permitting Exchange Traded Fund Shares that satisfy the proposed listing standards to be listed and traded without separate SEC approval.
With respect to proposed Nasdaq Rule 5704(a)(1)(A), which defines the term “Derivative Securities Product” to mean a security that meets the definition of “derivative securities product” in Rule 19b-4(e) under the Act will increase the clarity of the Nasdaq rules to the benefit of investors and the marketplace.
With respect to both proposed Nasdaq Rule 5704(a)(1)(B), which defines the term “Exchange Traded Fund”, and proposed Nasdaq Rule 5704(a)(1)(C), which defines the term “Exchange Traded Fund Share”, the Exchange believes these definitions will increase the clarity to the benefit of investors and the marketplace. Additionally, these terms mirror the definitions as set forth in Rule 6c-11.
With respect to proposed Nasdaq Rule 5704(a)(1)(D), which defines the term “Reporting Authority”, the Exchange believes that defining the term generally consistent with how it is defined in Nasdaq Rule 5705
With respect to proposed Nasdaq Rule 5704(b), Exchange Traded Fund Shares will be listed and traded on the Exchange subject to the requirement that each series of Exchange Traded Fund Shares is eligible to operate in reliance on Rule 6c-11
With respect to proposed Nasdaq Rule 5704(b) and subparagraphs (1)-(6) [sic] thereunder (with the exception that subparagraph (1) [sic] only applies on an initial listing basis),
The Exchange believes this also fulfills the intended objective of Rule 19b-4(e) under the Act by allowing Exchange Traded Fund Shares to be listed and traded without requiring separate Commission approval and this will provide investors with additional investment choices that they may choose to invest in.
With respect to proposed Nasdaq Rule 5704(c), the Exchange will implement written surveillance procedures for Exchange Traded Fund Shares and represents that its surveillance procedures are adequate to properly monitor such trading in all trading sessions and to deter and detect violations of Nasdaq rules. Specifically, the Exchange intends to utilize its existing surveillance procedures applicable to derivative products, which will include Exchange Traded Fund Shares, to monitor trading in the Exchange Traded Fund Shares (additional surveillance processes and procedures are described infra). These surveillance procedures promote just and equitable principles of trade, to remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, to protect investors and the public interest.
With respect to proposed Nasdaq Rule 5704(d), which states that upon termination of an ETF that Nasdaq will remove from listing the Exchange Traded Fund Shares issued in connection with such entity. The Exchange believes that adopting language similar to language already included in Nasdaq Rule 5705(b)(9)(B)f. [sic] and in Nasdaq Rule 5735(d)(2)(E) makes for consistency among Nasdaq's rules and benefits investors and the marketplace by making clear rules that lessen potential confusion.
With respect to proposed Nasdaq Rule 5704(e), which states that Nasdaq requires that members provide to all purchasers of Exchange Traded Fund Shares a written description of the terms and characteristics of such securities and a written description with any sales material relating to an ETF that is provided to customers or the public, the Exchange believes that requiring similar written disclosure to that already required under Nasdaq Rule 5705(b)(2) and Nasdaq Rule 5735(f) makes for consistency among Nasdaq's rules and benefits investors and the marketplace by making clear rules that lessen potential confusion.
With respect to proposed Nasdaq Rule 5704(f), which sets forth the limitation of liability applicable to Nasdaq, the Reporting Authority, or any agent of Nasdaq, the Exchange believes that requiring similar written disclosure to that already required under Nasdaq Rule 5707(b)(11) and Nasdaq Rule 5735(e) makes for consistency among Nasdaq's rules and benefits investors and the marketplace by reducing potential confusion.
With respect to proposed Nasdaq Rule 5704(g), which states that Nasdaq may approve an ETF for listing and trading pursuant to Rule 19b-4(e) under the Act that is not eligible to operate in reliance on Rule 6c-11 provided the ETF satisfies the requirements of Rule 5705(b) or Rule 5735, as applicable, the Exchange believes will benefit of investors and the marketplace by providing them with additional investment products that qualify as Index Fund Shares or Managed Fund Shares that they may choose to invest in.
With respect to proposed Nasdaq Rule 5704(h), which allows Nasdaq to submit a rule filing pursuant to Section 19(b) of the Act to permit the listing and trading of an ETF that is not eligible to operate in reliance on Rule 6c-11 and does not satisfy the requirements of Rule 5705(b) or Rule 5735, as applicable, the Exchange believes will benefit of investors and the marketplace by providing them with innovative additional investment products that do not qualify as Exchange Traded Fund Shares, Index Fund Shares or Managed Fund Shares but that investors and the marketplace may choose to invest in.
With respect to proposed Nasdaq Rule 5704(i), which states that a Derivative Securities Product that has previously been approved for listing on the Exchange pursuant to the generic listing requirements specified in Rule 5705(b) or Rule 5735(b)(1), or pursuant to a proposed rule change filed and approved or subject to a notice of effectiveness by the Commission, will be deemed to be considered approved for listing under this Rule if such Derivative Securities Product is both (1) permitted to operate in reliance on Rule 6c-11 under the 1940 Act, and (2) the prior exemptive relief under the 1940 Act for such Derivative Securities Product has been rescinded, the Exchange believes makes for consistency among Nasdaq's rules and benefits investors and the marketplace by making clear rules that lessen potential confusion. The Exchange believes the rest of proposed Nasdaq Rule 5704(i), which states any requirements for listing as specified in Rule 5705(b) or 5735(b)(1), or an approval order or notice of effectiveness of a separate proposed rule change that differ from the requirements of this Rule will no longer be applicable to such Derivative Securities Products will streamline the listing process for such securities, consistent with the regulatory
The Exchange believes that proposed Nasdaq Rule 5704, as well as amendments to Nasdaq Rules 4120 and 5615 will facilitate the listing and trading of additional types of exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace.
Proposed Nasdaq Rule 5704 and related amendments to other Nasdaq rules are also designed to protect investors and the public interest because Exchange Traded Fund Shares listed and traded pursuant to Rule 5704 and that rely on the conditions and requirements of Rule 6c-11 will continue to be subject to the full panoply of Exchange rules and procedures that currently govern the trading of equity securities on the Exchange.
Nasdaq believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices. The Exchange has in place written surveillance procedures that are adequate to properly monitor trading in the Exchange Traded Fund Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The surveillance procedures for monitoring compliance with Rule 6c-11 will be consistent with the manner in which the Exchange conducts its trading surveillance for ETFs. The Exchange will also require that issuers of Exchange Traded Fund Shares listed under the Nasdaq Rule 5704 must notify the Exchange regarding instances of non-compliance. Additionally, the Exchange will require periodic certifications from the issuer that it has maintained compliance with Rule 6c-11. Nasdaq will also check the ETF's website on a periodic basis for the inclusion of proper disclosure in compliance with Rule 6c-11.
The Exchange believes that the proposed rule changes enumerated above that seek to incorporate Rule 6c-11 into Nasdaq's rules will promote just and equitable principles of trade, to remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, to protect investors and the public interest. As the SEC noted in its Adopting Release, Rule 6c-11 may to allow ETFs to operate are in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act,
The Exchange believes that the discontinuance of quarterly reports currently required for Managed Fund Shares under Nasdaq Rule 5735(b) are no longer necessary in light of the requirements of Rule 6c-11(d).
As discussed above, Rule 6c-11(d) includes specific ongoing reporting requirements for exchange-traded funds, including written agreements between an authorized participant and a fund allowing purchase or redemption of creation units, information regarding the baskets exchanged with authorized participants, and the identity of authorized participants transacting with a fund. The SEC has stated that the information required by Rule 6c-11(d) will provide the SEC's examination staff with information to determine compliance with Rule 6c-11 and applicable federal securities laws.
As a result, Nasdaq believes it should discontinue the filing of quarterly reports with respect to Managed Fund Shares under Nasdaq Rule 5735(b). This will avoid unnecessary overlap and potential inconsistency between the quarterly reports and the reporting requirements of Rule 6c-11(d). It will also avoid unnecessary, duplicative burdens on authorized participants and their firms in providing and maintaining information regarding creation and redemption activity.
For the above reasons, the Exchange believes that the proposal is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, as amended. Rather, the Exchange believes that the proposed rule change would facilitate the listing and trading of Exchange Traded Fund Shares and result in a significantly more efficient process surrounding the listing and trading of ETFs, which will enhance competition among market participants, to the benefit of investors and the marketplace.
The Exchange believes that this would reduce the time frame for bringing ETFs to market, thereby reducing the burdens on issuers and other market participants and promoting competition. In turn, the Exchange believes that the proposed change would make the process for listing Exchange Traded Fund Shares more competitive by applying uniform listing standards with respect to Exchange Traded Fund Shares.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to amend FINRA Rules 12100, 12202, 12214, 12309, 12400, 12601, 12702, 12801, and 12900 of the Code of Arbitration Procedure for Customer Disputes (“Customer Code” or “Code”) to expand a customer's options to withdraw an arbitration claim if a member or an associated person becomes inactive before a claim is filed or during a pending arbitration. In addition, the proposed amendments would allow customers to amend pleadings, postpone hearings, request default proceedings and receive a refund of filing fees in these situations.
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Most unpaid customer arbitration awards are rendered against firms or individuals whose FINRA registration has been terminated, suspended, cancelled, or revoked, or who have been expelled from FINRA. These firms and individuals are generally referred to as “inactive,” and are no longer FINRA members or associated with a FINRA member, although they may continue to operate in another area of the financial services industry where FINRA registration is not required. Firms and individuals can become inactive prior to an arbitration claim being filed, during an arbitration proceeding, or subsequent to an arbitration award, and this status can be caused by FINRA's action, such as when a firm or individual is suspended for failing to pay an award, or by the firm's or individual's own voluntary action.
FINRA has implemented a number of changes to its arbitration program that expand the options available to a customer when dealing with those members or associated persons that are inactive either at the time the claim is filed or at the time of the award. For example, when a customer claimant first files an arbitration claim, FINRA alerts, by letter, the customer claimant if the respondent, whether a member or an associated person, is inactive. FINRA also informs the claimant that awards against such members or associated persons have a much higher incidence of non-payment and that FINRA has limited disciplinary leverage over inactive members or associated persons that fail to pay arbitration awards. Thus, the customer knows before pursuing the claim in arbitration that collection of an award may be more difficult. In addition, upon learning that the member or associated person is inactive, a customer may determine to amend his or her claim to add other respondents from whom the customer may be able to collect should the claim go to award.
FINRA is proposing to amend the Customer Code
Currently, under FINRA Rule 12202 (Claims Against Inactive Members), a customer's claim against a firm whose membership is terminated, suspended, cancelled or revoked, or that has been expelled from FINRA, or that is
The Code does not address situations, however, where a member firm becomes inactive during a pending arbitration. In addition, the Code does not provide specific procedures for a customer to withdraw, and file in court, a claim against an associated person who becomes inactive before the customer files a claim or during a pending arbitration.
Accordingly, FINRA is proposing to amend FINRA Rule 12202 to expand a customer's option to withdraw a claim to situations where a member becomes inactive during a pending arbitration, or where an associated person becomes inactive either before a claim is filed or during a pending arbitration. Under the proposal, FINRA Rule 12202 would specify that a customer's claim against an associated person who is inactive at the time the claim is filed is ineligible for arbitration unless the customer agrees in writing to arbitrate after the claim arises. In addition, FINRA Rule 12202 would specify that if a member or an associated person becomes inactive during a pending arbitration, FINRA would notify the customer of the status change, and provide the customer with 60 days to withdraw the claim(s) with or without prejudice.
Similar to the current rules and procedures relating to claims filed against inactive members, the proposed amendments would allow the customer to evaluate the likelihood of collecting on an award and make an informed decision whether to proceed in arbitration, to file the claim in court or to take no action, regardless of whether the customer signed a predispute arbitration agreement.
In addition, FINRA is proposing to amend FINRA Rule 12100 (Definitions) to add definitions of “inactive member” and “inactive associated person.” Consistent with current Rule 12202, FINRA is proposing to define an “inactive member” as a member whose membership is terminated, suspended, cancelled or revoked; that has been expelled or barred
An “inactive associated person” would be defined as a person associated with a member whose registration is revoked, cancelled, or suspended, who has been expelled or barred from FINRA,
FINRA believes the 365-day minimum termination
FINRA Rule 12309 (Amending Pleadings) limits a party's ability to amend a statement of claim, among other pleadings, after FINRA has appointed a panel to the case. Specifically, once FINRA appoints a panel to a case, a party can amend a pleading only if the arbitrators grant a party's motion to do so. FINRA Rule 12309 also provides that a party cannot add a new party to the case after arbitrator ranking lists are due to the Director of Arbitration until FINRA appoints the panel and the arbitrators grant a party's motion to add the new party.
FINRA believes that a customer should be able to change his or her litigation strategy during a pending case once the customer learns that a firm or an associated person has become inactive. Accordingly, FINRA is proposing to amend FINRA Rule 12309 to provide that if FINRA notifies a customer that a firm or an associated person has become inactive during a pending arbitration, the customer may amend a pleading, including adding a new party, within 60 days of receiving such notice.
FINRA Rule 12601 (Postponement of Hearings) addresses when a scheduled hearing date can be postponed. The parties can agree to postpone a hearing. Absent an agreed upon postponement, a hearing can be postponed by FINRA in extraordinary circumstances, by the arbitrators at their discretion, or by the arbitrators upon a party's motion. FINRA is proposing to amend FINRA Rule 12601 to provide that if FINRA notifies a customer that a firm or an associated person has become inactive and the scheduled hearing date is within 60 days of the date the customer receives the notice from FINRA, the customer may postpone the hearing date. Since the proposed amendment would provide a customer with 60 days to determine how to proceed after FINRA notifies the customer of the status change to inactive, it would be appropriate to allow the customer to postpone a scheduled hearing that falls within that time period.
In addition, FINRA assesses postponement fees against the parties for each postponement agreed to by the parties, or granted upon the request of
FINRA is also proposing to amend FINRA Rule 12214 to make it clear that it would continue to pay the $600 honoraria to the arbitrators to compensate them for their time if a customer chooses to postpone a scheduled hearing within 10 days before it is scheduled because the customer learns that the firm or associated person has become inactive.
FINRA Rule 12801 (Default Proceedings) permits a claimant to request default proceedings against any respondent whose registration is terminated, revoked or suspended, and who failed to file an answer
As noted, the proposed amendments would define an inactive associated person as a person associated with a member whose registration is revoked, cancelled, or suspended, who has been expelled or barred from FINRA, or whose registration has been terminated for a minimum of 365 days. In the context of a default proceeding, FINRA believes that it would be appropriate to continue to allow a customer to request default proceedings against any terminated associated person who fails to answer a claim, regardless of how long the associated person has been terminated, consistent with the existing rule. Accordingly, FINRA is proposing to amend FINRA Rule 12801(a) to specify that a claimant may request a default proceeding against a terminated associated person who fails to file an answer within the time provided in the Code regardless of the number of days since termination.
FINRA Rule 12900 (Fees Due When a Claim is Filed) specifies that if a claim is settled or withdrawn more than 10 days before the date that the hearing is scheduled to begin, a party paying a filing fee will receive a partial refund of the filing fee. The rule also provides that FINRA will not refund any portion of the filing fee if a claim is settled or withdrawn within 10 days of the date that the hearing is scheduled to begin.
FINRA is proposing to amend FINRA Rule 12900 to provide that FINRA would refund a customer's full filing fee if FINRA notifies a customer that a firm or an associated person has become inactive during a pending arbitration, and the customer withdraws the case against all parties within 60 days of the notification. FINRA would refund the filing fee even if the customer withdraws the case within 10 days of the date that the hearing is scheduled to begin.
In addition to amending FINRA Rules 12100, 12202, 12214, 12309, 12400, 12601, 12702, 12801, and 12900 to expand a customer's options to withdraw an arbitration claim if a member or an associated person becomes inactive before a claim is filed or during a pending arbitration, FINRA is also proposing to amend the Code to update cross-references and make other non-substantive, technical changes to the rules impacted by the proposal.
If the Commission approves the proposed rule change, FINRA will announce the effective date of the proposed rule change in a
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA believes that the proposed rule change would protect investors and the public interest by expanding the options available to customers with claims against respondents who are unlikely to be able to pay. The proposed rule change would extend the concept of what it means to be inactive to expressly include associated persons, so that customers would have the same options during a case against inactive associated persons as they would against inactive members. The proposed change, therefore, would add consistency to FINRA rules.
Further, FINRA believes that the proposed amendments would provide customers with expanded options and flexibility to change case strategy if FINRA notifies them that a member or associated person has become inactive during a pending arbitration. In particular, the proposed rule change would permit a customer to amend his or her pleading or to add parties without arbitrator intervention. FINRA rules, however, permit the newly-added party to respond to the amended pleading and to have the panel or arbitrator consider any objections.
The proposed rule change would also clarify the default rule to include an inactive associated person who does not answer a claim, regardless of the number of days since termination. FINRA believes that the proposed rule change would add consistency to FINRA's default rule so that the procedures would apply to inactive members and inactive associated persons equally. As a result, investors would know that they have the same options and rights in default proceedings against any inactive respondent under the Customer Code. FINRA believes this could help expedite these arbitration cases, as any ambiguity about how the rule should be applied would be removed. Moreover, FINRA believes that exempting the minimum-day termination requirement would prevent an associated person from using the 365-day requirement as a shield to delay the arbitration case.
FINRA believes that the proposed amendments provide customers with more options and flexibility in how they choose to resolve claims against respondents who are unlikely to pay, and, thus, give them more control over the arbitration case when they are notified that a member or associated person has become inactive. Moreover, by eliminating the postponement fees and refunding filing fees in certain circumstances, the proposed amendments eliminate these costs as a potential barrier for customers who may opt to pursue their claims in other forums. For these reasons, FINRA believes that the proposed rule change protects investors and the public interest.
FINRA does not believe that the proposed amendments will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. A discussion of the economic impacts of the proposed amendments follows.
The Code addresses situations where customers bring claims against inactive members. The Code does not address situations, however, where a member firm becomes inactive during a pending arbitration or where an associated person becomes inactive before a claim is filed or during a pending arbitration. This may limit the options available to customers to seek redress, as well as their ability to collect an award.
The economic baseline for the proposed amendments is the current rules under the Code that address customer disputes in arbitration. The proposed amendments are expected to affect the parties to an arbitration, including customers, member firms, associated persons, and arbitrators.
FINRA is able to identify 2,054 customer cases closed by hearing, on the papers, or by stipulated award from 2014 to 2018. Among these cases, FINRA is able to identify 128 cases (six percent) where a member firm would have been defined as inactive (under the proposed amendments) before an arbitration. In these instances, the current rules under the Code provide customers the option to proceed in arbitration, to file the claim in court, or to take no action regardless of whether the customer signed a pre-dispute arbitration agreement. Customers are therefore able to evaluate the likelihood of collecting on an award and to choose the forum in which to proceed.
FINRA is also able to identify 427 cases (21 percent of 2,054) where a firm became inactive during a pending arbitration, or where an associated person would have been identified as inactive (under the proposed amendments) either before or during a pending arbitration. The current rules do not provide similar options to customers in these instances, and customers may be less able to choose the forum in which to proceed or to change their litigation strategy during a pending case.
The proposed amendments would expand customers' options under the Code where a member becomes inactive during a pending arbitration or where an associated person becomes inactive before a claim is filed or during a pending arbitration. The benefits and costs of the proposed amendments are discussed below.
In general, the benefits of the proposed amendments arise from the expansion of customer options under the Code when a member becomes inactive during a pending arbitration, or when an associated person becomes inactive before a claim is filed or during a pending arbitration. In these instances, the proposed amendments would increase the flexibility of customers to determine whether and how to proceed in arbitration. Customers would exercise the options under the proposed amendments if they believe it would increase their ability to seek redress, and may increase the amount of monetary compensation they expect to receive.
The expansion of customer options under the Code would arise from the reduction of the restrictions and penalties to alter their litigation strategy in arbitration or to withdraw their claims from arbitration. For example, customers who proceed in arbitration may amend a pleading without arbitrators granting the motion. This includes the addition of a new respondent from whom the customer may be able to collect should the claim go to award. Customers who proceed in arbitration may also postpone a scheduled hearing without penalty to assess the options and gain additional time to prepare.
Customers who exercise the options under the proposed amendments, and the member firms and associated persons who are also parties to the arbitration, may incur additional costs. For example, if customers withdraw their claims from arbitration and restart the case in another venue, then the parties may incur additional legal expense and time to resolve the dispute. If instead customers amend their pleadings but remain in arbitration, the parties (including member firms and associated persons who are newly-named in the amended pleadings) may also incur additional legal expense to alter their litigation strategy, time to resolve the dispute, and forum fees (
The proposed amendments would provide no significant benefits and impose no material costs on customers who would not change their behavior when notified of an associated person's or firm's change of status during arbitration in the presence of the amendments, nor on the members and associated persons who are party to their claims. In FINRA's experience, customers typically proceed in arbitration when notified that a member is inactive at the time of filing, and typically remain in arbitration when a member or an associated person leaves
Based on this experience, FINRA believes that few customers would withdraw claims from the forum in the presence of the proposed rules, but would instead remain in arbitration. Customers are, therefore, more likely to exercise their new options under the proposed amendments to amend pleadings or to postpone hearings. The benefits and costs of the proposed amendments, therefore, may result more from the amendment of pleadings or the rescheduling of hearings than the withdrawal of claims.
FINRA exercised discretion in setting the minimum number of days for a terminated associated person to be considered inactive (365). FINRA also exercised discretion when setting the maximum number of days for customers to exercise the options under the proposed amendments after they receive notification of the inactive status of a member or an associated person (60).
The minimum-day requirement for a terminated associated person to be considered inactive affects the length of time that customers must wait before being able to exercise the options under the proposed amendments. A longer minimum-day requirement decreases the number of customers who may have access to the options under the proposed amendments, and therefore decreases their ability to seek redress.
The 60-day maximum requirement for customers after receiving notice that a firm or an associated person has become inactive to withdraw their claims without prejudice or to amend a pleading would also limit their ability to exercise the options and decrease its associated benefits. The requirement, however, would also limit the effect of an inactive member or associated person on a pending arbitration, and provide certainty that the arbitration would continue after the time period had elapsed. FINRA believes that the 60-day maximum requirement would reduce the potential number of disruptions to the arbitration process, while still providing customers access to the proposed options.
On October 18, 2017, FINRA published
Four commenters stated that the proposed rule change is not as effective as it could be.
NASAA stated that when awards go unpaid, members and associated persons are not held responsible for their misconduct and investors are left without recourse. Under the Code, a respondent must pay a monetary award within 30 days of receipt.
The remaining two commenters in this group advocated for FINRA to create a monetary solution to address unpaid awards. PIABA stated that FINRA should establish a national investor recovery pool. Caruso suggested a “viable economic solution,” stating “very few investors would be able to actually recover their losses” under the proposed amendments.
As noted above, six commenters suggested modifications to the proposed amendments.
Three commenters stated that FINRA should revise the proposed amendment to FINRA Rule 12309(c) to require that a customer's right to add parties to an arbitration case should be subject to the arbitration panel's approval.
Currently, FINRA Rule 12309 permits a party to amend a pleading any time before the panel is appointed.
In this scenario, FINRA would provide the arbitrator disclosure reports
FINRA does not believe that the proposed amendments would encourage claimants to add members or associated persons who have no nexus to the arbitration case as some commenters fear. While the proposed amendments to FINRA Rule 12309 would remove the requirement for arbitrator or panel approval prior to adding a claim or party, FINRA Rule 12309(d) permits any party, whether existing or newly-added, to respond to an amended pleading after it is filed by filing an answer and raising any available defenses.
FSI suggested that if the arbitrator or panel no longer has the right to approve adding a new claim or new parties, the proposed amendments could result in orphaned accounts. FSI commented that FSI's members may no longer accept customer accounts from inactive firms to minimize service interruptions because the proposed amendments would “make it easier for, and likely encourage, customers to pursue claims against the firm that accepts the customer accounts.”
FINRA believes it is unlikely that a customer would add the firm that accepted his or her accounts from an inactive firm as a party to an arbitration case against the inactive firm because the rules permit the customer to add new parties without pre-approval of the arbitrator or panel. If the customer's new firm has no connection to the dispute involving the inactive firm, yet the customer adds the new firm to the case, the customer risks jeopardizing the business relationship with the new firm, increasing his or her costs to support a frivolous claim, and alienating the panel by adding a member that was not associated with the account or conduct at issue
In the Notice, FINRA proposed to define an “inactive associated person” as a person associated with a member whose registration is revoked or suspended, or whose registration has been terminated for a minimum of 365 days. Three commenters stated that the timeframe should be shortened to 6 months,
FINRA recognizes the commenters' concerns, but believes that the 365-day minimum termination requirement for associated persons would help ensure that enough time has elapsed to assume reasonably that the associated person has permanently left the securities industry. FINRA believes the requirement would benefit those customers who would exercise the option to withdraw the case from the arbitration forum and move it to an alternate venue, because they would have more certainty that the associated person would not return to the securities industry to exercise his or her rights under the predispute arbitration agreement. Further, the 365-day requirement could reduce potential costs to these customers, as they would save money on filing fees and avoid procedural delays, such as staying the case in an alternate venue and re-starting it in FINRA's arbitration forum, which could result if the associated person is only temporarily out of the industry.
Under the proposed amendments to FINRA Rule 12202(b), if a member or an associated person becomes inactive during a pending arbitration, FINRA would notify the customer about the status change. The customer would be permitted to withdraw the claim against the inactive member or inactive associated person with or without prejudice within 60 days of receiving notice of a status change.
The proposed amendments would apply to customer cases only. SIFMA contended that the proposed amendments should apply also to intra-industry cases (
FINRA acknowledges SIFMA's concerns. At this time, however, FINRA has decided to apply the proposed amendments to customer cases only because providing customers with more control over the arbitration process when faced with a respondent that likely will not be able to pay an award furthers FINRA's goal of investor protection.
Under the proposed amendments to FINRA Rule 12202, claims against inactive firms or inactive associated persons would not be eligible for arbitration, unless the customer agrees in writing to arbitrate after the claim arises. FSI expressed concern that, under the proposed rule change, customers could proceed against a member in arbitration and an associated person in court. In this scenario, FSI stated that the discovery in the customer's case against the associated person in court could reveal additional facts that the customer could use against the firm in its arbitration case. FSI suggested that the member would not have the opportunity to seek comparable information from the customer during the arbitration case. FSI requested, therefore, that FINRA clarify in the proposed amendments that customers be required to pursue related claims (
FINRA notes that the goal of the proposed amendments is to provide customers with the same options against an associated person who is inactive at the time of filing as those that currently exist against an inactive member. By providing a customer with the option to pursue his or her claim in court against an inactive associated person, the proposed amendments could result in customers filing claims based on the same facts and circumstances in FINRA arbitration and in court at the same time. FINRA notes that this approach would increase the parties' costs, but would have little effect on a member's access to information during its case with the customer.
FINRA provides the Discovery Guide for customer cases only, which outlines documents that the parties should exchange without arbitrator intervention. The Discovery Guide contains two document production lists of presumptively discoverable documents: one for the firm/associated persons to produce and one for the customer to produce.
PIABA requested that FINRA release the data and other statistical information FINRA used to support the proposed amendments. FINRA has made available data on which it relied in its discussion of the economic impacts of the proposed amendments.
PIABA expressed concern that newly‐named respondents may demand extended delays and postponements of scheduled hearing dates. PIABA urged FINRA to consider adopting arbitrator training and guidelines to instruct arbitrators to balance carefully the interests of all the parties to the arbitration when considering newly‐added respondent requests to extend deadlines or hearings.
When FINRA receives approval of proposed rule changes that involve arbitration practices and procedures, FINRA's Office of Dispute Resolution (“ODR”) will include articles on the new rules in
Under the proposed amendments, an “inactive member” would be defined as a member whose membership has been terminated, suspended, cancelled, revoked, the member has been expelled from FINRA, or the member is otherwise defunct. An “inactive associated person” would be defined as a person whose registration is revoked or suspended, who has been expelled or barred from FINRA, or has been terminated for a minimum of 365 days. NASAA suggested that the withdrawal statistic that ODR publishes
NASAA also suggested that FINRA create and make public a separate report to capture the members and associated persons who become inactive due to unpaid arbitration awards or judgments in favor of customers. NASAA stated that such a report would provide transparency on industry participants that leave the industry due to customer complaints and would provide customers with additional information when making a decision about whether to work with a specific FINRA member or associated person.
FINRA is committed to providing customers with information on the state of unpaid customer arbitration awards in the forum, so that they may make informed decisions about whom to entrust with their money and, therefore, has made data on unpaid customer arbitration awards available on its website.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
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 listing and trading of shares under NYSE Arca Rule 8.600-E of the Nationwide Risk-Managed Income ETF, a series of ETF Series Solutions, notwithstanding that the fund does not meet the requirements of Commentary .01(d)(2) to Rule 8.600-E. The proposed rule change is available on the
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 listing and trading under NYSE Arca Rule 8.600-E (“Managed Fund Shares”)
The Shares are offered by the Trust, which is registered with the Commission as an open-end management investment company consisting of multiple investment series.
Commentary .06 to Rule 8.600-E provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect and maintain a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the investment objective of the Fund is current income with downside protection. The Fund is an actively-managed exchange-traded fund (“ETF”)
The Nasdaq-100 is a market capitalization weighted index comprised of the securities of 100 of the largest non-financial companies listed on The Nasdaq Stock Market LLC based on market capitalization. Such securities may include companies domiciled domestically or internationally (including in emerging markets), and may include common stocks, ordinary shares, depositary
The Fund may hold cash and cash equivalents.
According to the Registration Statement, the Fund's Options Collar strategy consists of two components: (1) Selling call options on the Nasdaq-100 on up to 100% of the value of the equity securities held by the Fund to generate premium from such options, while (2) simultaneously reinvesting a portion of such premium to buy put options on the same reference asset to “hedge” or mitigate the downside risk associated with owning equity securities.
The Fund will use a portion of the premium received from writing call options to purchase put options. Both the Fund's call and put options will be traded on a national securities exchange and settled in cash.
In addition to the principal investments described above, the Fund may invest in U.S. exchange-listed options on reference assets other than the Nasdaq-100 that will comply with Commentary .01(d)(2) to Rule 8.600-E, including but not limited to the NASDAQ-100 Equal Weight Index, Invesco QQQ Trust, Series 1, S&P 500 Index, and the individual equity securities comprising the Nasdaq-100 or S&P 500 Index.
The Fund may also invest in U.S. exchange-listed common stocks, ordinary shares, and American Depositary Receipts representing interests in non-U.S. companies, and tracking stocks that are not included in the Nasdaq-100. The Fund may also invest in the securities of other investment companies registered under the 1940 Act, including money market funds, exchange traded funds (“ETFs”), and Real Estate Investment Trusts (“REITS”). The Fund may also invest in exchange-traded rights and warrants.
The Fund may also invest in U.S. Government securities, including bills, notes and bonds, which are either issued or guaranteed by the U.S. Treasury or by U.S. Government agencies or instrumentalities, with maturities 3 months or longer.
The Exchange submits this proposal in order to list and trade Shares of the Fund and to allow the Fund to hold listed derivatives, in particular put and call options on the Nasdaq-100 Index, in a manner that may not comply with Commentary .01(d)(2) to Rule 8.600-E.
The market for options contracts on the Nasdaq-100 Index (“Nasdaq-100 Index Options”) is deep and liquid. In 2018, more than 15,000 options contracts on the Nasdaq-100 Index were traded per day, which is more than $10 billion in notional volume traded on a daily basis. The Exchange believes that the liquidity in Nasdaq-100 Index Options markets mitigates the concerns that Commentary .01(d)(2) to Rule 8.600-E is intended to address and that such liquidity would discourage manipulation of the Shares.
In addition, the Exchange believes that sufficient protections are in place to protect against market manipulation of the Shares and Nasdaq-100 Index Options for several reasons: (i) The diversity, liquidity, and market cap of the securities underlying the Nasdaq-100 Index; and (ii) surveillance by the Exchange, other options exchanges,
As noted above, options on the Nasdaq-100 Index are among the most liquid options in the world and derive their value from the actively traded Nasdaq-100 Index components. The contracts are cash-settled with no delivery of stocks or ETFs, and trade in competitive auction markets with price and quote transparency. The Exchange believes the highly regulated options markets and the broad base and scope of the Nasdaq-100 Index make securities that derive their value from that index would discourage market manipulation in view of market capitalization and liquidity of the Nasdaq-100 Index components, price and quote transparency, and arbitrage opportunities, and that any potential manipulation would be more easily identified.
The Exchange believes that the liquidity of the markets for securities in the Nasdaq-100 Index, Nasdaq-100 Index Options, and other related derivatives is sufficiently great to deter fraudulent or manipulative acts associated with the Fund's Shares price. The Exchange also believes that such liquidity is sufficient to support the creation and redemption mechanism. Coupled with the extensive surveillance programs of the SROs described above, the Exchange does not believe that trading in the Shares would present manipulation concerns.
The Fund's website (
On a daily basis, the Fund will disclose the information required under NYSE Arca Rule 8.600-E(c)(2) to the extent applicable. The website information will be publicly available at no charge.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and the Fund's Forms N-CSR and Forms N-CEN. The Fund's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N-CSR, Form N-PX, Form N-PORT and Form N-CEN may be viewed on-screen or downloaded from the Commission's website at
The intra-day, closing and settlement prices of exchange-traded options will be readily available from the Options Price Reporting Authority (“OPRA”), the options exchanges, automated quotation systems, published or other public sources, or online information services such as Bloomberg or Reuters.
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. Information regarding the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers.
Quotation and last sale information for the Shares, the stocks included in the Nasdaq-100, and for portfolio holdings that are U.S. exchange-listed, including common stocks, rights, warrants, ETFs, REITS and ADRs will be available via the Consolidated Tape Association (“CTA”) high-speed line. In addition, the Portfolio Indicative Value (“PIV”), as defined in NYSE Arca Rule 8.600-E(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session. The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), deemed illiquid by the Adviser or Sub-Adviser, consistent with Commission guidance.
Price information regarding U.S. government securities and other cash equivalents may be obtained from brokers and dealers who make markets in such securities or through nationally recognized pricing services through subscription agreements.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m., E.T. in accordance with NYSE Arca Rule 7.34-E (Early, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Rule 7.6-E, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
With the exception of the requirements of Commentary .01(d)(2) (with respect to listed derivatives) as described above, the Shares of the Fund will conform to the initial and continued listing criteria under NYSE Arca Rule 8.600-E. Consistent with Commentary .06 of NYSE Arca Rule 8.600-E, the Adviser or Sub-Adviser will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the Fund's portfolio. The Exchange represents that, for initial and continued listing, the Fund will be in compliance with Rule 10A-3
The Exchange believes that its surveillance procedures are adequate to properly monitor the trading of the Shares on the Exchange during all trading sessions and to deter and detect violations of Exchange rules and the applicable federal securities laws. The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, or by regulatory staff of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, options and ETFs with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in such securities and financial instruments from such markets and other entities. The Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio or reference assets, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange listing rules specified in this rule filing shall constitute continued listing requirements for listing the Shares of the Fund on the Exchange.
The issuer must notify the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Rule 5.5-E(m).
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Rule 9.2-E(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Early and Late Trading Sessions when an updated PIV will not be calculated or publicly disseminated; (4) how information regarding the PIV and the Disclosed Portfolio is disseminated; (5) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund are subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m., Eastern time each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system and, in general, to protect investors and the public interest in that the Shares will meet each of the initial and continued listing criteria in Commentary .01 to NYSE Arca Rule 8.600-E, with the exception of Commentary .01(d)(2) to NYSE Arca Rule 8.600-E, which requires that the aggregate gross notional value of listed derivatives based on any five or fewer underlying reference assets shall not exceed 65% of the weight of the portfolio (including gross notional exposures), and the aggregate gross notional value of listed derivatives based on any single underlying reference asset shall not exceed 30% of the weight of the portfolio (including gross notional exposures).
The market for Nasdaq-100 Index Options is deep and liquid. In 2018, more than 15,000 options contracts on the Nasdaq-100 Price Index were traded per day, which is more than $10 billion in notional volume traded on a daily basis. The Exchange believes that the liquidity in the Nasdaq-100 Index Options markets mitigates the concerns that Commentary .01(d)(2) to Rule 8.600-E is intended to address and that such liquidity would discourage manipulation of the Shares.
In addition, the Exchange believes that sufficient protections are in place to protect against market manipulation of the Shares and Nasdaq-100 Index Options for several reasons: (i) The diversity, liquidity, and market cap of the securities underlying the Nasdaq-100 Index; and (ii) surveillance by the Exchange, other options exchanges, and FINRA designed to detect violations of the federal securities laws and SRO rules. The Exchange has in place a surveillance program for transactions in
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, options and ETFs with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in such securities and financial instruments from such markets and other entities.
The Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
As noted above, Nasdaq-100 Index Options are liquid and derive their value from the actively traded Nasdaq-100 Index components. The Exchange believes the highly regulated options markets and the broad base and scope of the Nasdaq-100 Index make securities that derive their value from the Nasdaq-100 Index would discourage market manipulation in view of market capitalization and liquidity of the Nasdaq-100 Index components, price and quote transparency, and arbitrage opportunities, and that any potential manipulation would be more easily identified.
The Exchange believes that the liquidity of the markets for securities in the Nasdaq-100 Index Options and other related derivatives is sufficiently great to deter fraudulent or manipulative acts associated with the Fund's Shares price. The Exchange also believes that such liquidity is sufficient to support the creation and redemption mechanism. Coupled with the extensive surveillance programs of the SROs described above, the Exchange does not believe that trading in the Fund's Shares would present manipulation concerns.
All of the options contracts held by the Fund will trade on markets that are a member of ISG or affiliated with a member of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
The Exchange represents that, except as described above, the Fund will meet and be subject to all other requirements of the Generic Listing Standards and other applicable continued listing requirements for Managed Fund Shares under Rule 8.600-E, including those requirements regarding the Disclosed Portfolio, Portfolio Indicative Value, suspension of trading or removal, trading halts, disclosure, and firewalls. The Trust is required to comply with Rule 10A-3 under the Act for the initial and continued listing of the Shares of the Fund.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will permit the listing and trading of an additional type of Managed Fund Shares that holds U.S. exchange-traded options and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
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 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.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order under section 17(d) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by section 17(d) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment funds.
AMG Pantheon Master Fund, LLC (the “Existing Registered Fund” or the “Fund”), AMG Pantheon Subsidiary Fund, LLC (the “Wholly-Owned Subsidiary”), Pantheon Ventures (US) LP, Pantheon Ventures (UK) LLP (individually or collectively, “Pantheon”), Pantheon Asia Fund VI, L.P., Pantheon Emerging Asia Fund VI, L.P., Pantheon Emerging Markets Fund (Ex-Asia), L.P., Pantheon Global Infrastructure Fund II, L.P., Pantheon Global Secondary Fund IV, L.P., Pantheon Global Secondary Fund V, L.P., Pantheon USA Fund VIII, L.P., Pantheon USA Fund IX, L.P., Pantheon USA Small Funds Program IX, L.P., Pantheon Global Co-Investment Opportunities Fund II, L.P., Pantheon Global Co-Investment Opportunities Fund III, L.P., Pantheon Access (US), L.P., Pantheon Access (ERISA), L.P., Pantheon Multi-Strategy Program 2014 (US), L.P., Pantheon Multi-Strategy Program 2014 (ERISA), L.P., BVK Private Equity 2011, L.P., BVK Private Equity 2014, L.P., Industriens Vintage Infrastructure, L.P., Industriens Vintage Infrastructure II, L.P., Pantheon Global Secondary Fund IV OPERS, L.P., Pantheon Global GT Fund, L.P., Pantheon Global HO Fund, L.P., Pantheon Global Secondary Fund IV KSA, L.P., Pantheon Global Real Assets GT Fund, L.P., Pantheon Global Real Assets HO Fund, L.P., Global Infrastructure 2015-K, L.P., Pantheon Global Infrastructure Fund II NPS, L.P., Pantheon Global Infrastructure Fund III NPS, L.P., Psagot-Pantheon 1, L.P., Sacramento County Employees' Retirement System Secondary Infrastructure and Real Assets Fund, LLC, KFH Strategic Private Investments, L.P., KGT Strategic Private Investments, L.P., Pantheon Real Assets Opportunities Fund, L.P., Pantheon/VA NRP, LP, Pantheon Global Infrastructure EUR Investments Unit Trust, Pantheon Global Infrastructure USD Investments Unit Trust, Pantheon Global Infrastructure Investments Fund (Cayman) LP, PGIF III Co-mingled Fund, L.P., VA-Pantheon Infrastructure II, LP, Pantheon G Infrastructure Opportunities LP, Amalienborg Vintage Infrastructure K/S, Global Infrastructure 2015-K Holdings, L.P., Pantheon Global Co-Investment Opportunities Fund, L.P., Pantheon Global Co-Investment Opportunities Fund II (Sidecar), L.P., Pantheon Global Secondary Holdings, L.P., Pantheon Global Secondary Holdings II, L.P., Pantheon GT Holdings, L.P., Pantheon HO Holdings, L.P., SCERS SIRF (Holdings), LLC, Pantheon Multi-Strategy Primary Program 2014, L.P., Pantheon Multi-Strategy Secondary Program 2014, L.P., Pantheon Multi-Strategy Co-Investment Program 2014, L.P., Pantheon Access Primary Program, L.P., Pantheon Access Secondary Program, L.P., Pantheon Access Co-Investment Program, L.P., Pantheon Strategic Investments A, L.P., Pantheon G Infrastructure Holdings LP, BVK Private Equity 2018, L.P., Lincoln Brook Opportunities Fund, L.P., Pantheon Global Infrastructure Fund II (Luxembourg) SCSP, Pantheon Access (Luxembourg) SLP SICAV SIF, Pantheon Multi-Strategy Program 2014 (Luxembourg) SLP SICAV SIF, PGCO IV Co-Mingled Fund SCSP, ASGA Global Infrastructure L.P., CPEG-Pantheon Infrastructure L.P., Solutio Premium Private Equity VI Master SCSP, Solutio Premium Private Equity VII Master SCSP, Solutio Premium Private Debt I SCSP and Pantheon Global Secondary Fund VI SCSP (the “Existing Affiliated Funds,” and together with the Existing Registered Fund, the Wholly-Owned Subsidiary and Pantheon, the “Applicants”).
The application was filed on March 15, 2016, and amended on December 29, 2017, December 27, 2018, September 5, 2019 and October 30, 2019.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on December 12, 2019, and
Secretary, U.S. Securities and Exchange Commission, 100 F St. NE, Washington, DC 20549-1090. Applicants: 600 Steamboat Road, Suite 300, Greenwich, CT 06830.
Bruce R. MacNeil, Senior Counsel, at (202) 551-6817, or Kaitlin C. Bottock, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. The Existing Registered Fund
2. Each of the Existing Affiliated Funds would be an investment company but for section 3(c)(1) or 3(c)(7) of the Act.
3. Pantheon Ventures (US) LP is a limited partnership organized under the laws of the State of Delaware and is registered with the Commission as an investment adviser under the Advisers Act. Affiliated Managers Group, Inc. (“AMG”), a publicly-traded company, indirectly owns a majority of the interests of Pantheon Ventures (US) LP. Pantheon Ventures (US) LP serves as the investment adviser to the Existing Registered Fund pursuant to an investment advisory agreement and as the investment adviser of many of the Existing Unregistered Funds.
4. Pantheon Ventures (UK) LLP is a limited liability partnership organized under the laws of England and Wales and is an exempt reporting adviser under the Advisers Act. AMG indirectly owns a majority of the interests of Pantheon Ventures (UK) LLP. Pantheon Ventures (UK) LLP serves as the investment adviser of many of the Existing Unregistered Funds.
5. Applicants seek an order (“Order”) to permit a Registered Fund and one or more other Registered Funds and/or Unregistered Funds
6. Applicants state that a Registered Fund may, from time to time, form one or more Wholly-Owned Investment Subsidiaries.
7. When considering Potential Co-Investment Transactions for any Registered Fund, an Investment Adviser will consider only the Objectives and
8. With respect to participation in a Potential Co-Investment Transaction by a Registered Fund, the applicable Investment Adviser will present each Potential Co-Investment Transaction and the proposed allocation of each investment opportunity to the Eligible Directors. The Required Majority of a Registered Fund will approve each Co-Investment Transaction prior to any investment by the Registered Fund.
9. With respect to the pro rata dispositions and Follow-On Investments provided in conditions 7 and 8, a Registered Fund may participate in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things: (i) The proposed participation of each Co-Investment Affiliate and a Registered Fund and each Affiliated Account in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the Board has approved the Registered Fund's participation in pro rata dispositions and Follow-On Investments as being in the best interests of the Registered Fund. If the Board does not so approve, any such disposition or Follow-On Investment will be submitted to the Eligible Directors. The Board may at any time rescind, suspend or qualify its approval of pro rata dispositions and Follow-On Investments with the result that all dispositions and/or Follow-On Investments must be submitted to the Eligible Directors.
10. No Independent Director of any Registered Fund will have a direct or indirect financial interest in any Co-Investment Transaction (other than indirectly through share ownership in one of the Registered Funds), including any interest in any issuer whose securities would be acquired in a Co-Investment Transaction.
11. If the Investment Adviser, the principal owners of the Investment Adviser (“Principals”), or any person controlling, controlled by, or under common control with the Investment Adviser or the Principals, and the Co-Investment Affiliates (collectively, the “Holders”) own in the aggregate more than 25 percent of the outstanding voting shares of a Registered Fund (the “Shares”), then the Holders will vote such Shares as required under the condition 14. Applicants believe that this condition will ensure that the Independent Directors will act independently in evaluating the Co-Investment Transactions, because the ability of the Investment Adviser or the Principals to influence the Independent Directors by a suggestion, explicit or implied, that the Independent Directors can be removed will be limited significantly. The Independent Directors shall evaluate and approve the independent third party, taking into account its qualifications, reputation for independence, cost to the investors, and other factors that they deem relevant.
1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit affiliated persons of a registered investment company from participating in joint transactions with the company unless the Commission has granted an order permitting such transactions. In passing upon applications under rule 17d-1, the Commission considers whether the company's participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
2. Applicants state that they expect that participation in Potential Co-Investment Transactions by any of the Registered Funds and the Co-Investment Affiliates may increase favorable investment opportunities for the Registered Funds and the Co-Investmant Affiliates. The conditions are designed to ensure that the Investment Advisers would not be able to favor a Co-Investment Affiliate over a Registered Fund through the allocation of investment opportunities between them. Applicants state that the Regulated Fund's participation in the Co-Investment Transactions will be consistent with the provisions, policies, and purposes of the Act and on a basis that is not different from, or less advantageous than, the other participants.
Applicants agree that any Order granting the requested relief shall be subject to the following conditions:
1. Each time an Investment Adviser considers a Potential Co-Investment Transaction for an Unregistered Fund or another Registered Fund that falls within a Registered Fund's then-current Objectives and Strategies, the Investment Adviser to the Registered Fund will make an independent determination of the appropriateness of the investment for such Registered Fund in light of the Registered Fund's then-current circumstances.
2.(a). If the Investment Adviser to a Registered Fund deems the Registered Fund's participation in any Potential Co-Investment Transaction to be appropriate for the Registered Fund, it will then determine an appropriate level of investment for the Registered Fund.
(b). If the aggregate amount recommended by the applicable Investment Adviser to be invested by the applicable Registered Fund in the Potential Co-Investment Transaction, together with the amount proposed to be invested by the other participating Registered Funds and Unregistered Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, the amount of the investment opportunity will be allocated among them pro rata based on each participant's Available Capital for investment in the asset class being allocated, up to the amount proposed to be invested by each. The applicable
(c). After making the determinations required in conditions 1 and 2(a), the applicable Investment Adviser will distribute written information concerning the Potential Co-Investment Transaction, including the amount proposed to be invested by each participating Registered Fund and Unregistered Fund, to the Eligible Directors of each participating Registered Fund for their consideration. A Registered Fund will co-invest with one or more other Registered Funds and/or one or more Unregistered Funds only if, prior to the Registered Fund's participation in the Potential Co-Investment Transaction, a Required Majority concludes that:
(i). The terms of the Potential Co-Investment Transaction, including the consideration to be paid, are reasonable and fair to the Registered Fund and its shareholders and do not involve overreaching in respect of the Registered Fund or its shareholders on the part of any person concerned;
(ii). the Potential Co-Investment Transaction is consistent with:
(A). The interests of the shareholders of the Registered Fund; and
(B). the Registered Fund's then-current Objectives and Strategies;
(iii). the investment by any other Registered Funds or Unregistered Funds would not disadvantage the Registered Fund, and participation by the Registered Fund would not be on a basis different from or less advantageous than that of other Registered Funds or Unregistered Funds; provided, that if any other Registered Fund or Unregistered Fund, but not the Registered Fund itself, gains the right to nominate a director for election to a portfolio company's board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from reaching the conclusions required by this condition (2)(c)(iii), if:
(A). The Eligible Directors will have the right to ratify the selection of such director or board observer or participant, if any;
(B). the applicable Investment Adviser agrees to, and does, provide periodic reports to the Registered Fund's Board with respect to the actions of such director or the information received by such board observer or obtained through the exercise of any similar right to participate in the governance or management of the portfolio company; and
(C). any fees or other compensation that any Unregistered Fund or any Registered Fund or any affiliated person of any Unregistered Fund or any Registered Fund receives in connection with the right of an Unregistered Fund or a Registered Fund to nominate a director or appoint a board observer or otherwise to participate in the governance or management of the portfolio company will be shared proportionately among the participating Unregistered Funds (who each may, in turn, share its portion with its affiliated persons) and the participating Registered Funds in accordance with the amount of each party's investment; and
(iv). the proposed investment by the Registered Fund will not benefit the Investment Advisers, the Unregistered Funds or the other Registered Funds or any affiliated person of any of them (other than the parties to the Co-Investment Transaction), except
(A). to the extent permitted by condition 13,
(B). to the extent permitted by Section 17(e) of the Act, as applicable,
(C). indirectly, as a result of an interest in the securities issued by one of the parties to the Co-Investment Transaction, or
(D). in the case of fees or other compensation described in condition 2(c)(iii)(C).
3. Each Registered Fund has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The applicable Investment Adviser will present to the Board of each Registered Fund, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any of the other Registered Funds or Unregistered Funds during the preceding quarter that fell within the Registered Fund's then-current Objectives and Strategies that were not made available to the Registered Fund, and an explanation of why the investment opportunities were not offered to the Registered Fund. All information presented to the Board pursuant to this condition will be kept for the life of the Registered Fund and at least two years thereafter, and will be subject to examination by the Commission and its staff.
5. Except for Follow-On Investments made in accordance with condition 8,
6. A Registered Fund will not participate in any Potential Co-Investment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights will be the same for each participating Registered Fund and Unregistered Fund. The grant to an Unregistered Fund or another Registered Fund, but not the Registered Fund, of the right to nominate a director for election to a portfolio company's board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this condition 6, if conditions 2(c)(iii)(A), (B) and (C) are met.
7.(a). If any Unregistered Fund or any Registered Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired in a Co-Investment Transaction, the applicable Investment Adviser will:
(i). Notify each Registered Fund that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii). formulate a recommendation as to participation by each Registered Fund in the disposition.
(b). Each Registered Fund will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to the participating Unregistered Funds and Registered Funds.
(c). A Registered Fund may participate in such disposition without obtaining prior approval of the Required Majority if:
(i). The proposed participation of each Registered Fund and each Unregistered Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition;
(ii). the Board of the Registered Fund has approved as being in the best interests of the Registered Fund the ability to participate in such dispositions on a pro rata basis (as
(iii). the Board of the Registered Fund is provided on a quarterly basis with a list of all dispositions made in accordance with this condition. In all other cases, the Investment Adviser will provide its written recommendation as to the Registered Fund's participation to the Eligible Directors, and the Registered Fund will participate in such disposition solely to the extent that a Required Majority determines that it is in the Registered Fund's best interests.
(d). Each Unregistered Fund and each Registered Fund will bear its own expenses in connection with any such disposition.
8.(a). If any Unregistered Fund or any Registered Fund desires to make a Follow-On Investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the applicable Investment Adviser will:
(i). Notify each Registered Fund that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii). formulate a recommendation as to the proposed participation, including the amount of the proposed Follow-On Investment, by each Registered Fund.
(b). A Registered Fund may participate in such Follow-On Investment without obtaining prior approval of the Required Majority if:
(i). The proposed participation of each Registered Fund and each Unregistered Fund in such investment is proportionate to its outstanding investments in the issuer immediately preceding the Follow-On Investment; and
(ii). the Board of the Registered Fund has approved as being in the best interests of the Registered Fund the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in the application). In all other cases, the Investment Adviser will provide its written recommendation as to the Registered Fund's participation to the Eligible Directors, and the Registered Fund will participate in such Follow-On Investment solely to the extent that a Required Majority determines that it is in the Registered Fund's best interests.
(c). If, with respect to any Follow-On Investment:
(i). The amount of the opportunity is not based on the Registered Funds' and the Unregistered Funds' outstanding investments immediately preceding the Follow-On Investment; and
(ii). the aggregate amount recommended by the applicable Investment Adviser to be invested by the applicable Registered Fund in the Follow-On Investment, together with the amount proposed to be invested by the other participating Registered Funds and Unregistered Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, then amount invested by each such party will be allocated among them pro rata based on each participant's Available Capital for investment in the asset class being allocated, up to the amount proposed to be invested by each.
(d). The acquisition of Follow-On Investments as permitted by this condition will be considered a Co-Investment Transaction for all purposes and subject to the other conditions set forth in the application.
9. The Independent Directors of each Registered Fund will be provided quarterly for review all information concerning Potential Co-Investment Transactions and Co-Investment Transactions, including investments made by other Registered Funds or Unregistered Funds that the Registered Fund considered but declined to participate in, so that the Independent Directors may determine whether all investments made during the preceding quarter, including those investments that the Registered Fund considered but declined to participate in, comply with the conditions of the Order. In addition, the Independent Directors will consider at least annually the continued appropriateness for the Registered Fund of participating in new and existing Co-Investment Transactions.
10. Each Registered Fund will maintain the records required by Section 57(f)(3) of the Act as if each of the Registered Funds were a business development company and each of the investments permitted under these conditions were approved by the Required Majority under Section 57(f) of the Act.
11. No Independent Director of a Registered Fund will also be a director, general partner, managing member or principal, or otherwise an “affiliated person” (as defined in the Act) of an Unregistered Fund.
12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the Securities Act) will, to the extent not payable by the Investment Advisers under their respective investment advisory agreements with Unregistered Funds and the Registered Funds, be shared by the Registered Funds and the Unregistered Funds in proportion to the relative amounts of the securities held or to be acquired or disposed of, as the case may be.
13. Any transaction fee
14. If the Holders own in the aggregate more than 25% of the Shares of a Registered Fund, then the Holders will vote such Shares as directed by an independent third party when voting on (1) the election of directors; (2) the removal of one or more directors; or (3) any other matter under either the Act or applicable State law affecting the Board's composition, size or manner of election.
15. Each Registered Fund's chief compliance officer, as defined in Rule 38a-1(a)(4) of the Act, will prepare an annual report for its Board that evaluates (and documents the basis of that evaluation) the Registered Fund's
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe BZX Exchange, Inc. (the “Exchange” or “BZX Options”) proposes to amend the fat finger check in Rule 21.17 as it applies to Stop Limit Orders. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fat finger check under Rule 21.17(b) as it applies to Stop Limit Orders. Currently, Rule 21.17(b) provides that if a User submits a buy (sell) limit order to the System with a price that is more than an Exchange-determined buffer amount above (below) the NBO (NBB), the System will reject or cancel back to the User the limit order (
The Exchange proposes to add Stop Limit Orders to Rule 21.17(b) as an additional order type to which the fat finger check does not apply. A Stop Limit Order is an order that becomes a limit order when the stop price (selected by the User) is elected. A Stop Limit Order to buy is elected and becomes a buy limit order when the consolidated last sale in the option occurs at or above, or the NBB is equal to or higher than, the specified stop price. A Stop Limit Order to sell is elected and becomes a sell limit order when the consolidated last sale in the option occurs at or below, or the NBO is equal to or lower than, the specified stop price.
The primary purpose of the fat finger check is to prevent limit orders from executing at potentially erroneous prices upon entry, because the limit prices are “too far away” from the then-current NBBO. As noted above, a Stop Limit Order is not intended to execute upon entry. Currently, because a Stop Limit Order does not “become” a limit order until activated, the limit order fat finger check applies to a Stop Limit Order at the time the order is activated. As noted above, at that time, the limit price may cross the NBO, and thus may be cancelled due to the fat finger check if the limit price crosses the NBO by more than the buffer. Therefore, the manner in which the fat finger check cancels/rejects a Stop Limit Order may conflict with the intended purpose of a Stop Limit Order and a User's control over the time when and the price at which it executes. For example, assume that when the NBBO is 8.00 × 8.05, a User submits a Stop Limit Order to buy at 9.25 and a stop price of 8.15 and the Exchange has set the fat finger buffer to $1.00. Assume the NBBO then updates to 8.15 × 8.20. The updated NBB equals the stop price of the order will activate the stop price of the Stop Limit Order, converting it into a limit order to buy at 9.25, which would be more than the fat finger buffer of $1.00 above the current NBO, thus canceled/rejected by the System in accordance with the fat finger check. The Exchange also notes that the System is currently able to apply only one buffer amount across multiple order types. Therefore, the Exchange would not be able to expand the buffer amount to accommodate Stop Limit Orders without potentially over-expanding the buffer amount for other limit orders that execute upon entry.
The Exchange notes that a User's Stop Limit Orders would still be subject to other price protections already in place on the Exchange. In particular, drill-through price protections are in place pursuant to Rule 21.17(d), such that, if a buy (sell) order would execute (
The Exchange believes that allowing a Stop Limit Order, once activated, with a limit price outside of the NBBO (notwithstanding any fat finger buffer) to execute at that limit price (up to the drill-through buffer amount) is
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed rule change benefits market participants by ensuring that they are able to use Stop Limit Orders to achieve their intended purpose. As stated, Stop Limit Orders are intended to increase User price control and flexibility, particularly in the face of price swings and market volatility, by resting in the System until the market reaches a certain price level. Thus, they are not intended to execute upon entry. Conversely, the primary purpose of the fat finger check is to prevent limit orders from executing at potentially erroneous prices upon entry, because the limit prices are “too far away” from the then-current NBBO. By excluding Stop Limit Orders from the fat finger check, which would currently cancel/reject a Stop Limit Order if its buy (sell) limit price was above (below) the NBO (NBB) upon activation of its stop limit price, the proposed rule change removes impediments to and perfects the mechanism of a free and open market and national market system by allowing Users the control and flexibility to set the limit prices on Stop Limit Orders so as to capture significant market fluctuations, which, as stated, result in corresponding significant adjustments in the NBBO. Therefore, the proposed rule change is designed to protect investors by allowing their Stop Limit Orders to execute as intended without being canceled or rejected in connection with the NBBO that existed at the time of their activation, and instead to consider rapid price movements and corresponding NBBO adjustments. The Exchange notes that the proposed rule change will not affect the protection of investors or the maintenance of a fair and orderly market because the drill-through price controls would apply to Stop Limit Orders when their stop prices are activated and they become limit orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change will not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because all Users' Stop Limit Orders will be excluded from the fat finger check in the same manner. Also, all Users' Stop Limit Orders will continue to be subject to other specific price controls in place once their stop prices are activated and they become limit orders. The proposed rule change will not impose any burden on intermarket competition that that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change is merely designed to allow Users' Stop Limit Orders to execute in a manner that achieves their intended purpose by updating a price protection mechanism already in place on the Exchange and applicable only to trading on the Exchange.
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
The Commission believes that waiver of the 30-day operative delay is consistent with the protection of
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the proposed amendments is for ICE Clear Europe to amend its Clearing Rules (the “Rules”)
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 Rules in order to provide clearing services to IFAD, an affiliated newly established futures exchange which will form part of the Intercontinental Exchange, Inc. global network of exchanges.
IFAD has stated that it may in the future list other crude oil and crude-oil related products and other financial futures or options contracts on such futures contracts, subject to applicable regulatory authorizations.
In Rule 101, new defined terms would be added to reference IFAD itself, its rules and the various types of IFAD transactions, in a manner generally consistent with the defined terms applicable to other F&O energy markets (and transactions thereon) cleared by ICE Clear Europe. These defined terms include “IFAD,” “IFAD Block Contract,” “IFAD Block Trade Facility,” “IFAD Block Transaction,” “IFAD Contract,” “IFAD Matched Contract,” “IFAD Matched Transaction,” “IFAD Rules” and “IFAD Transaction”. In addition, defined terms would be added for relevant regulatory matters, including “FSMR” (the Financial Services and Markets Regulations 2015 of the Abu Dhabi Global Market), “FSRA” (the Abu Dhabi Global Market's Financial Services Regulatory Authority) and “FSRA Rules” (the rules and similar materials of the FSRA).
Certain existing definitions would be updated to reference IFAD and the new defined terms (consistent with existing references to other cleared markets), including: “Applicable Law” to include references to the FSMR and the FSRA Rules; “Regulatory Authority” to include the FSRA; “Energy” to also refer to the clearing of IFAD Markets; “Energy Transaction” to include IFAD Transactions; “Market” to include IFAD; and “Non-DCM/Swap” to include an IFAD Transaction and an IFAD Contract.
The introductions to Part 9 (Default Rules) and Part 12 (Settlement Finality Regulations and Companies Act 1989) of the Rules would also be amended to reference the FSMR among other relevant Applicable Laws on which the Clearing House may rely for purposes of default management.
A new Rule 1208 would be added to address specifically settlement finality under ADGM laws. Pursuant to the proposed rule, Clearing Members and other Participants would acknowledge that modifications to Applicable Laws in the Abu Dhabi Global Market related to insolvency, which may affect Clearing Members, the Clearing House and other Participants, may apply pursuant to the FSMR as a matter of ADGM law. The rule would give notice to Clearing Members and other Participants that these modifications may apply in relation to a broader range of circumstances than those set out in Part 12 itself, and may provide expanded settlement finality protections as a matter of ADGM law compared to those which are available under English and European law, particularly as regards the settlement finality upon delivery of non-securities products such as oil.
ICE Clear Europe would also make a conforming change to its General Contact Terms to include a reference to the IFAD rules, which set out certain contract terms for IFAD contracts.
Section 17A(b)(3)(F) of the Act
The amendments are also consistent with relevant requirements under Rule 17Ad-22.
(2) Use margin requirements to limit its credit exposures to participants under normal market conditions and use risk-based models and parameters to set margin requirements and review such margin requirements and the related risk-based models and parameters at least monthly.
(3) Maintain sufficient financial resources to withstand, at a minimum, a default by the participant family to which it has the largest exposure in extreme but plausible market conditions; provided that a registered clearing agency acting as a central counterparty for security-based swaps shall maintain additional financial resources sufficient to withstand, at a minimum, a default by the two participant families to which it has the largest exposures in extreme but plausible market conditions, in its capacity as a central counterparty for security-based swaps. Such policies and procedures may provide that the additional financial resources may be maintained by the security-based swap clearing agency generally or in separately maintained funds.
(i) Maintaining sufficient financial resources to cover its credit exposure to each participant fully with a high degree of confidence;
(ii) To the extent not already maintained pursuant to paragraph (e)(4)(i) of this section, for a covered clearing agency providing central counterparty services that is either systemically important in multiple jurisdictions or a clearing agency involved in activities with a more complex risk profile, maintaining additional financial resources at the minimum to enable it to cover a wide range of foreseeable stress scenarios that include, but are not limited to, the default of the two participant families that would potentially cause the largest aggregate credit exposure for the covered clearing agency in extreme but plausible market conditions;
(iii) To the extent not already maintained pursuant to paragraph (e)(4)(i) of this section, for a covered clearing agency not subject to paragraph (e)(4)(ii) of this section, maintaining additional financial resources at the minimum to enable it to cover a wide range of foreseeable stress scenarios that include, but are not limited to, the default of the participant family that would potentially cause the largest aggregate credit exposure for the covered clearing agency in extreme but plausible market conditions;
(iv) Including prefunded financial resources, exclusive of assessments for additional guaranty fund contributions or other resources that are not prefunded, when calculating the financial resources available to meet the standards under paragraphs (e)(4)(i) through (iii) of this section, as applicable;
(v) Maintaining the financial resources required under paragraphs (e)(4)(ii) and (iii) of this section, as applicable, in combined or separately maintained clearing or guaranty funds; . . .”
(i) Identifying the plausible sources of operational risk, both internal and external, and mitigating their impact through the use of appropriate systems, policies, procedures, and controls;
(ii) Ensuring that systems have a high degree of security, resiliency, operational reliability, and adequate, scalable capacity; and
(iii) Establishing and maintaining a business continuity plan that addresses events posing a significant risk of disrupting operations.
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 changes are being proposed in connection with the addition of clearing services for contracts traded on IFAD, a new energy futures and options market. ICE Clear Europe believes that its clearing of IFAD contracts would provide additional opportunities for interested market participants to engage in cleared trading activity in the energy derivatives markets market, and will not adversely affect its existing cleared markets or participants in them. Specifically, ICE Clear Europe does not believe the amendments would adversely affect competition among Clearing Members, materially affect the cost of clearing, adversely affect access to clearing in Contracts for Clearing Members or their customers, or otherwise adversely affect competition in clearing services. Accordingly, ICE Clear Europe does not believe that the amendments would impose any impact or burden on competition that is not appropriate in furtherance of the purpose of the Act.
ICE Clear Europe has conducted a public consultation with respect to the proposed amendments.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, security-based swap submission or advance notice 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-2019-025 and should be submitted on or before December 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 C2 Exchange, Inc. (the “Exchange” or “C2”) proposes to amend the fat finger check in Rule 6.14 as it applies to Stop-Limit orders. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fat finger check under Rule 6.14(c)(1) as it applies to Stop-Limit orders. Currently, Rule 6.14(c)(1) provides that if a User submits a buy (sell) limit order to the System with a price that is more than a buffer amount above (below) the NBO (NBB), the System cancels or rejects the order (
The Exchange proposes to add Stop-Limit orders to Rule 6.14(c)(1)(D) as an additional order type to which the fat finger check does not apply. A “Stop-Limit” order is an order to buy (sell) that becomes a limit order when the consolidated last sale price (excluding prices from complex order trades if outside the NBBO) or NBB (NBO) for a particular option contract is equal to or above (below) the stop price specified by the User.
The primary purpose of the fat finger check is to prevent limit orders from executing at potentially erroneous prices upon entry, because the limit prices are “too far away” from the then-current NBBO. As noted above, a Stop-Limit order is not intended to execute upon entry. Currently, because a Stop-Limit order does not “become” a limit order until activated, the limit order fat finger check applies to a Stop-Limit order at the time the order is activated. As noted above, at that time, the limit price may cross the NBO, and thus may be cancelled due to the fat finger check if the limit price crosses the NBO by more than the buffer. Therefore, the manner in which the fat finger check cancels/rejects a Stop-Limit order may conflict with the intended purpose of a Stop-Limit order and a User's control over the time when and the price at which it executes. For example, assume that when the NBBO is 8.00 × 8.05, a User submits a Stop-Limit order to buy at 9.25 and a stop price of 8.15 and the User has set the fat finger buffer to $1.00. Assume the NBBO then updates to 8.15 × 8.20. The updated NBB equals the stop price of the order will activate the stop price of the Stop Limit Order, converting it into a limit order to buy at 9.25, which would be more than the fat finger buffer of $1.00 above the current NBO, thus canceled/rejected by the System in accordance with the fat finger check. The Exchange also notes that the System is currently able to apply only one buffer amount (either the Exchange default amount or a User's established amount) across multiple order types. Therefore, a User would not be able to expand the buffer amount to accommodate Stop-Limit orders without potentially over-expanding the buffer
The Exchange notes that a User's Stop-Limit orders would still be subject to other price protections already in place on the Exchange. In particular, Rule 6.12(c)(2) specifically applies to Stop-Limit orders and provides that the System cancels or rejects a buy (sell) Stop-Limit order if the NBB (NBO) at the time the System receives the order is equal to or above (below) the stop price.
The Exchange believes that allowing a Stop-Limit order, once activated, with a limit price outside of the NBBO (notwithstanding any fat finger buffer) to execute at that limit price (up to the drill-through buffer amount) is consistent with the intended purpose of a Stop-Limit order. As stated, when a buy (sell) Stop-Limit order is activated, its limit price is intended to be at a consequential amount above (below) the NBO (NBB) in order to capture rapidly increasing (decreasing) trade prices, to which the NBBO would as rapidly track and reflect. To cancel or reject such orders based on the NBBO at the time of its activation would inhibit Stop-Limit orders from capturing favorable trade prices as a result of a rapidly shifting market. The Exchange further notes that its affiliated exchange, Cboe Exchange, Inc. (“Cboe Options”), recently submitted a rule filing that also proposed to exclude Stop Limit Orders from its fat finger check, which function in substantively the same manner as on the Exchange.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed rule change benefits market participants by ensuring that they are able to use Stop-Limit orders to achieve their intended purpose. As stated, Stop-Limit orders are intended to increase User price control and flexibility, particularly in the face of price swings and market volatility, by resting in the System until the market reaches a certain price level. Thus, they are not intended to execute upon entry. Conversely, the primary purpose of the fat finger check is to prevent limit orders from executing at potentially erroneous prices upon entry, because the limit prices are “too far away” from the then-current NBBO. By excluding Stop-Limit orders from the fat finger check, which would currently cancel/reject a Stop-Limit order if its buy (sell) limit price was above (below) the NBO (NBB) upon activation of its stop limit price, the proposed rule change removes impediments to and perfects the mechanism of a free and open market and national market system by allowing Users the control and flexibility to set the limit prices on Stop-Limit orders so as to capture significant market fluctuations, which, as stated, result in corresponding significant adjustments in the NBBO. Therefore, the proposed rule change is designed to protect investors by allowing their Stop-Limit orders to execute as intended without being canceled or rejected in connection with the NBBO that existed at the time of their activation, and instead to consider rapid price movements and corresponding NBBO adjustments. The Exchange notes that the proposed rule change will not affect the protection of investors or the maintenance of a fair and orderly market because other price controls would apply to Stop-Limit orders, both at the time of their submission and when their stop prices are activated and they become limit orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change will not impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because all Users' Stop-Limit orders will be excluded from the fat finger check in the same manner. Also, all Users' Stop-Limit orders will continue to be subject to other specific price controls in place, both at the time of their submission and once their stop prices are activated and they become limit orders. The proposed rule change will not impose any burden on intermarket competition that that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change is merely designed to allow Users' Stop-Limit orders to execute in a manner that achieves their intended purpose by updating a price protection mechanism already in place on the Exchange and applicable only to trading on the Exchange.
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
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
The Commission believes that waiver of the 30-day operative delay is consistent with the protection of investors and the public interest because the proposal will permit Stop-Limit orders to execute as intended and not be inadvertently cancelled in certain situation, as discussed above, by the fat finger check provision. Therefore, the Commission hereby waives the operative delay and designates the proposal as operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes a rule change to adopt BZX Rule 14.11(l) to permit the listing and trading of Exchange-Traded Fund Shares that are permitted to operate in reliance on Rule 6c-11 under the Investment Company Act of 1940. The Exchange is also proposing to discontinue the quarterly reports required with respect to Managed Fund Shares listed on the Exchange pursuant to the generic listing standards under Rule 14.11(i).
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to add new Rule 14.11(l)
The Commission recently adopted Rule 6c-11 to permit exchange-traded funds (“ETFs”) that satisfy certain conditions to operate without obtaining an exemptive order from the Commission under the 1940 Act.
Consistent with Index Fund Shares and Managed Fund Shares listed under the generic listing standards in Rules 14.11(c) and 14.11(i), respectively, series of Exchange-Traded Fund Shares that are permitted to operate in reliance on Rule 6c-11 would be permitted to be listed and traded on the Exchange without a prior Commission approval order or notice of effectiveness pursuant to Section 19(b) of the Act.
Proposed Rule 14.11(l)(1) provides that the Exchange will consider for trading, whether by listing or pursuant to unlisted trading privileges, the shares of Exchange-Traded Funds (“ETF Shares”) that meet the criteria of this Rule.
Proposed Rule 14.11(l)(2) provides that the proposed rule would be applicable only to ETF Shares. Except to the extent inconsistent with this Rule, or unless the context otherwise requires, the rules and procedures of the Board of Directors shall be applicable to the trading on the Exchange of such securities. ETF Shares are included within the definition of “security” or “securities” as such terms are used in the Rules of the Exchange.
Proposed Rule 14.11(l)(2) further provides that: (A) Transactions in ETF Shares will occur throughout the Exchange's trading hours; (B) the minimum price variation for quoting and entry of orders in ETF Shares is $0.01; and (C) the Exchange will implement and maintain written surveillance procedures for ETF Shares.
Proposed Rule 14.11(l)(3)(A) provides that the term “ETF Shares” shall mean the shares issued by a registered open-end management investment company that: (i) Is eligible to operate in reliance on Rule 6c-11 under the Investment Company Act of 1940;
Proposed Rule 14.11(l)(3)(B) provides that the term “Reporting Authority” in respect of a particular series of ETF Shares means the Exchange, an institution, or a reporting service designated by the Exchange or by the exchange that lists a particular series of ETF Shares (if the Exchange is trading such series pursuant to unlisted trading privileges) as the official source for
Proposed Rule 14.11(l)(4) provides that the Exchange may approve ETF Shares for listing and/or trading (including pursuant to unlisted trading privileges) on the Exchange pursuant to Rule 19b-4(e) under the Act so long as such series of ETF Shares is eligible to operate in reliance on Rule 6c-11 under the Investment Company Act of 1940 and meets all applicable requirements under such Rule 6c-11 upon initial listing and on a continuing basis. ETF Shares will be listed and traded on the Exchange subject to application of the following criteria.
Proposed Rule 14.11(l)(4)(A) provides that each series of ETF Shares will be listed and traded on the Exchange subject to application of the following initial listing criteria: (i) For each series, the Exchange will establish a minimum number of ETF Shares required to be outstanding at the time of commencement of trading on the Exchange; and (ii) the Exchange will obtain a representation from the issuer of each series of ETF Shares stating that the disclosures required under Rule 6c-11 of the Investment Company Act of 1940 will be made available on a daily basis in compliance with Rule 6c-11 and that the issuer will notify the Exchange of any failure to do so.
Proposed Rule 14.11(l)(4)(B) provides that each series of ETF Shares will be listed and traded on the Exchange subject to application of the following continued listing criteria.
Proposed Rule 14.11(l)(4)(B)(i) provides that the Exchange will consider the suspension of trading in, and will commence delisting proceedings under Rule 14.12 for, a series of ETF Shares under any of the following circumstances: (a) If the issuer of the ETF Shares has failed to file any filings required by the Commission or if the Exchange is aware that the issuer is not in compliance with the requirements of Rule 6c-11 of the Investment Company Act of 1940; (b) if any of the other listing requirements set forth in this Rule 14.11(l) are not continuously maintained; or (c) if such other event shall occur or condition exists which, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable.
Proposed Rule 14.11(l)(4)(B)(ii) provides that the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in a series of ETF Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which certain information about the ETF Shares that is required to be disclosed under Rule 6c-11 of the Investment Company Act of 1940 is not being made available; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present.
Proposed Rule 14.11(l)(4)(B)(iii) provides that upon termination of an investment company, the Exchange requires that ETF Shares issued in connection with such entity be removed from Exchange listing.
Proposed Rule 14.11(l)(5) provides that neither the Exchange, the Reporting Authority, nor any agent of the Exchange shall have any liability for damages, claims, losses or expenses caused by any errors, omissions, or delays in calculating or disseminating any current index or portfolio value; the current value of the portfolio of securities required to be deposited to the open-end management investment company in connection with issuance of ETF Shares; the amount of any dividend equivalent payment or cash distribution to holders of ETF Shares; net asset value; or other information relating to the purchase, redemption, or trading of ETF Shares, resulting from any negligent act or omission by the Exchange, the Reporting Authority, or any agent of the Exchange, or any act, condition, or cause beyond the reasonable control of the Exchange, its agent, or the Reporting Authority, including, but not limited to, an act of God; fire; flood; extraordinary weather conditions; war; insurrection; riot; strike; accident; action of government; communications or power failure; equipment or software malfunction; or any error, omission, or delay in the reports of transactions in one or more underlying securities.
Proposed Rule 14.11(l)(6) provides that the provisions of this subparagraph apply only to series of ETF Shares that are the subject of an order by the Securities and Exchange Commission exempting such series from certain prospectus delivery requirements under Section 24(d) of the Investment Company Act of 1940 and are not otherwise subject to prospectus delivery requirements under the Securities Act of 1933. The Exchange will inform its Members regarding application of this subparagraph to a particular series of ETF Shares by means of an information circular prior to commencement of trading in such series. The Exchange requires that members provide to all purchasers of a series of ETF Shares a written description of the terms and characteristics of those securities, in a form prepared by the open-end management investment company issuing such securities, not later than the time a confirmation of the first transaction in such series is delivered to such purchaser. In addition, members shall include such a written description with any sales material relating to a series of ETF Shares that is provided to customers or the public. Any other written materials provided by a member to customers or the public making specific reference to a series of ETF Shares as an investment vehicle must include a statement in substantially the following form: “A circular describing the terms and characteristics of (the series of ETF Shares) has been prepared by the (open-end management investment company name) and is available from your broker. It is recommended that you obtain and review such circular before purchasing (the series of ETF Shares).” A member carrying an omnibus account for a non-member broker-dealer is required to inform such non-member that execution of an order to purchase a series of ETF Shares for such omnibus account will be deemed to constitute agreement by the non-member to make such written description available to its customers on the same terms as are directly applicable to members under this rule. Upon request of a customer, a member shall also provide a prospectus for the particular series of ETF Shares.
The Exchange is also proposing to make two non-substantive amendments to include ETF Shares in other Exchange rules. Specifically, the Exchange is also proposing: (i) To amend Rule 14.10(e)(1)(E) in order to add ETF Shares to a list of product types listed on the Exchange, including Index Fund Shares and Managed Fund Shares, that are exempted from the Audit Committee requirements set forth in Rule 14.10(c)(3), except for the applicable requirements of SEC Rule 10A-3; and (ii) to amend Rule 14.11(c)(3)(A)(i)(a) in order to include ETF Shares in the definition of Derivative Securities Products.
Proposed Rule 14.11(l) is based in large part on Rules 14.11(c) and (i) related to the listing and trading of Index Fund Shares and Managed Fund
The Exchange believes that the proposal is designed to prevent fraudulent and manipulative acts and practices because the Exchange will perform ongoing surveillance of ETF Shares listed on the Exchange in order to ensure compliance with Rule 6c-11 and the 1940 Act on an ongoing basis. While proposed Rule 14.11(l) does not include the quantitative requirements applicable to an ETF or an ETF's holdings or underlying index that are included in Rules 14.(c) and 14.11(i),
To the extent that any of the requirements under Rule 6c-11 or the 1940 Act are not being met, the Exchange may halt trading in a series of ETF Shares as provided in proposed Rule 14.11(l)(4)(B)(ii).
Further, the Exchange also represents that its surveillance procedures are adequate to properly monitor the trading of the ETF Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. Specifically, the Exchange intends to utilize its existing surveillance procedures applicable to derivative products, which are currently applicable to Index Fund Shares and Managed Fund Shares, among other product types, to monitor trading in ETF Shares. The Exchange or the Financial Industry Regulatory Authority, Inc. (“FINRA”), on behalf of the Exchange, will communicate as needed regarding trading in ETF Shares and certain of their applicable underlying components with other markets that are members of the Intermarket Surveillance Group (“ISG”) or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, the Exchange may obtain information regarding trading in ETF Shares and certain of their applicable underlying components from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. Additionally, FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain
As described above, proposed Rule 14.11(l) does not include any requirements related to the dissemination of an Intraday Indicative Value. Both Rule 14.11(c) and Rule 14.11(i) include the requirement that a series of Index Fund Shares and Managed Fund Shares, respectively, disseminate and update an Intraday Indicative Value at least every 15 seconds.
Aside from the fact that the disseminated IIV may provide investors with stale or misleading data, the Commission also stated that market makers and authorized participants typically calculate their own intraday value of an ETF's portfolio with proprietary algorithms that use an ETF's daily portfolio disclosure and available pricing information.
The Exchange generally agrees with the limitations and shortcomings of IIV described in the Rule 6c-11 Release. The Exchange further agrees with the conclusion of the Adopting Release that the “IIV is not necessary to support the arbitrage mechanism for ETFs that provide daily portfolio holdings disclosure.” The transparency that comes from daily portfolio holdings disclosure as required under Rule 6c-11 provides market participants with sufficient information to facilitate the intraday valuation of ETF Shares. The Exchange notes that it is not proposing to prohibit the dissemination of an IIV for a series of ETF Shares and believes that there are certain instances in which the dissemination of an IIV could provide valuable information to the investing public. The Exchange is simply not proposing to require the dissemination of such information.
As such, the Exchange believes that it is appropriate and consistent with the Act to not include a requirement for the dissemination of an IIV for a series of ETF Shares to be listed on the Exchange.
Both Rule 14.11(c) and Rule 14.11(i) require under certain circumstances the implementation of firewalls between certain affiliates and related employees as well as policies and procedures designed to prevent the dissemination of material non-public information.
Finally, the Exchange is proposing to eliminate certain quarterly reporting obligations related to the listing and trading of Managed Fund Shares on the Exchange. In the order approving the Exchange's proposal to adopt generic listing standards for Managed Fund Shares,
The Exchange has provided such information to the Commission on a quarterly basis since the MFS Approval Order was issued in 2016. The type of information provided in the reports was created to provide a window into the creation and redemption process for Managed Fund Shares in order to ensure that the arbitrage mechanism would work as expected for products that were listed pursuant to the newly approved generic listing standards. In the Rule 6c-11 Release, the Commission concluded that “the arbitrage mechanism for existing actively managed ETFs has worked effectively with small deviations between market price and NAV per share.”
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange believes that proposed Rule 14.11(l) is designed to prevent fraudulent and manipulative acts and practices in that the proposed rules relating to listing and trading ETF Shares on the Exchange provide specific initial and continued listing criteria required to be met by such securities. Proposed Rule 14.11(l)(4) sets forth initial and continued listing criteria applicable to ETF Shares, specifically providing that the Exchange may approve ETF Shares for listing and/or trading (including pursuant to unlisted trading privileges) on the Exchange pursuant to Rule 19b-4(e) under the Act so long as such series of ETF Shares is eligible to operate in reliance on Rule 6c-11 and meets all applicable requirements under such Rule 6c-11 upon initial listing and on a continuing basis. Proposed Rule 14.11(l)(4)(A)(i) provides that the Exchange will establish for each series of ETF Shares a minimum number of shares required to be outstanding at the time of commencement of trading on the Exchange. Proposed Rule 14.11(l)(4)(A)(i) provides that the Exchange will obtain a representation from the issuer of each series of ETF Shares stating that the disclosures required under Rule 6c-11 of the Investment Company Act of 1940 will be made available on a daily basis in compliance with Rule 6c-11 and that the issuer will notify the Exchange of any failure to do so.
Proposed Rule 14.11(l)(4)(B)(i) provides that the Exchange will consider the suspension of trading in, and will commence delisting proceedings under Rule 14.12 for, a series of ETF Shares under any of the following circumstances: (a) If the issuer of the ETF Shares has failed to file any filings required by the Commission or if the Exchange is aware that the issuer is not in compliance with the requirements of Rule 6c-11 of the Investment Company Act of 1940; (b) if any of the other listing requirements set forth in this Rule 14.11(l) are not continuously maintained; or (c) if such other event shall occur or condition exists which, in the opinion of the Exchange, makes further dealings on the Exchange inadvisable. Proposed Rule 14.11(l)(4)(B)(ii) provides that the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in a series of ETF Shares. Trading may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which certain information about the ETF Shares that is required to be disclosed under Rule 6c-11 is not being made available; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Finally, proposed Rule 14.11(l)(4)(B)(iii) provides that, upon termination of an investment company, the Exchange requires that ETF Shares issued in connection with such entity be removed from Exchange listing.
The Exchange further believes that proposed Rule 14.11(l) is designed to prevent fraudulent and manipulative acts and practices because of the robust surveillances in place on the Exchange as required under proposed Rule 14.11(l)(2)(C) along with the similarities of proposed Rule 14.11(l) to the rules related to other securities that are already listed and traded on the Exchange and which would qualify as ETF Shares. Proposed Rule 14.11(l) is based in large part on Rules 14.11(c) and (i) related to the listing and trading of Index Fund Shares and Managed Fund Shares on the Exchange, respectively, both of which are issued under the 1940 Act and would qualify as ETF Shares after Rule 6c-11 is effective. Rule 14.11(c) and 14.11(i) are very similar, their primary difference being that Index Fund Shares are designed to track an underlying index and Managed Fund Shares are based on an actively managed portfolio that is not designed to track an index. As such, the Exchange believes that using the Current ETF Standards as the basis for proposed Rule 14.11(l) is appropriate because they are generally designed to address the issues associated with ETF Shares. The only substantial differences between proposed Rule 14.11(l) and the Current ETF Standards that are not otherwise required under Rule 6c-11 are as follows: (i) proposed Rule 14.11(l) does not include the quantitative standards applicable to a fund or an index that are included in the Current ETF Standards; (ii) proposed Rule 14.11(l) does not include any requirements related to the dissemination of a fund's Intraday Indicative Value;
The Exchange believes that the proposal is designed to prevent fraudulent and manipulative acts and practices because the Exchange will perform ongoing surveillance of ETF
To the extent that any of the requirements under Rule 6c-11 or the 1940 Act are not being met, the Exchange may halt trading in a series of ETF Shares as provided in proposed Rule 14.11(l)(4)(B)(ii).
Further, the Exchange also represents that its surveillance procedures are adequate to properly monitor the trading of the ETF Shares in all trading sessions and to deter and detect violations of Exchange rules. Specifically, the Exchange intends to utilize its existing surveillance procedures applicable to derivative products, which are currently applicable to Index Fund Shares and Managed Fund Shares, among other product types, to monitor trading in ETF Shares. The Exchange or FINRA, on behalf of the Exchange, will communicate as needed regarding trading in ETF Shares and certain of their applicable underlying components with other markets that are members of the ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, the Exchange may obtain information regarding trading in ETF Shares and certain of their applicable underlying components from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. Additionally, FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities that may be held by a series of ETF Shares reported to FINRA's TRACE. FINRA also can access data obtained from the MSRB's EMMA system relating to municipal bond trading activity for surveillance purposes in connection with trading in a series of ETF Shares, to the extent that a series of ETF Shares holds municipal securities. Finally, as noted above, the issuer of a series of ETF Shares will be required to comply with Rule 10A-3 under the Act for the initial and continued listing of Exchange-Traded Fund Shares, as provided under Rule 14.10(e)(1)(E).
As described above, proposed Rule 14.11(l) does not include any requirements related to the dissemination of an Intraday Indicative Value. Both Rule 14.11(c) and Rule 14.11(i) include the requirement that a series of Index Fund Shares and Managed Fund Shares, respectively, disseminate and update an Intraday Indicative Value at least every 15 seconds.
Aside from the fact that the disseminated IIV may provide investors with stale or misleading data, the Commission also stated that market makers and authorized participants typically calculate their own intraday value of an ETF's portfolio with proprietary algorithms that use an ETF's daily portfolio disclosure and available pricing information.
The Exchange generally agrees with the limitations and shortcomings of IIV described in the Rule 6c-11 Release. The Exchange further agrees with the conclusion of the Adopting Release that the “IIV is not necessary to support the arbitrage mechanism for ETFs that provide daily portfolio holdings disclosure.” The transparency that comes from daily portfolio holdings disclosure as required under Rule 6c-11 provides market participants with sufficient information to facilitate the intraday valuation of ETF Shares. The Exchange notes that it is not proposing to prohibit the dissemination of an IIV for a series of ETF Shares and believes that there are certain instances in which the dissemination of an IIV could provide valuable information to the investing public. The Exchange is simply not proposing to require the dissemination of such information.
As such, the Exchange believes that it is appropriate and consistent with the Act to not include a requirement for the dissemination of an IIV for a series of ETF Shares to be listed on the Exchange.
Both Rule 14.11(c) and Rule 14.11(i) require under certain circumstances the implementation of firewalls between certain affiliates and related employees as well as policies and procedures designed to prevent the dissemination of material non-public information.
The Exchange also believes that the proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of each series of ETF Shares stating that the Disclosure Requirements under Rule 6c-11 of the Investment Company Act of 1940 will be made available on a daily basis in compliance with Rule 6c-11 and that the issuer will notify the Exchange of any failure to do so. In addition, a large amount of information will be publicly available regarding the Funds and the Shares, thereby promoting market transparency. Quotation and last sale information for ETF Shares will be available via the CTA high-speed line. The website for each series of ETF Shares will include a form of the prospectus for the Fund that may be downloaded, and additional data relating to NAV and other applicable quantitative information, updated on a daily basis. Moreover, prior to the commencement of trading, the Exchange will inform its members in a circular of the special characteristics and risks associated with trading in the series of ETF Shares. As noted above, series of ETF Shares will not be required to publicly disseminate an IIV. The Exchange continues to believe that this proposal is consistent with the Act and is designed to promote just and equitable principles of trade and to protect investors and the public interest because the transparency that comes from daily portfolio holdings disclosure as required under Rule 6c-11 provides market participants with sufficient information to facilitate the intraday valuation of ETF Shares, rendering the dissemination of the IIV unnecessary.
The Exchange notes that it is not proposing to prohibit the dissemination of an IIV for a series of ETF Shares and believes that there could be certain instances in which the dissemination of an IIV could provide valuable information to the investing public. The Exchange proposes to leave that decision to an issuer of ETF Shares and is simply not proposing to require the dissemination of an IIV.
Based on the foregoing discussion regarding proposed Rule 14.11(l) and its similarities to and differences between the Current ETF Standards, the Exchange believes that the proposal is consistent with the Act and is designed to prevent fraudulent and manipulative transactions and that the manipulation concerns that the quantitative standards, the IIV, and the firewall requirements are designed to address are otherwise mitigated by the proposal and the new Disclosure Obligations and flexibility under Rule 6c-11.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of ETF Shares in a manner that will enhance competition among market participants, to the benefit of investors and the marketplace. The Exchange believes that approval of this proposal will streamline current procedures, reduce the costs and timeline associated with bringing ETFs to market, and provide significantly greater regulatory certainty to potential issuers considering bringing ETF Shares to market, thereby enhancing competition among ETF issuers and reducing costs for investors.
The Exchange also believes that the non-substantive change to amend Rule 14.10(e)(1)(E) in order to add ETF Shares to a list of product types listed on the Exchange, including Index Fund Shares and Managed Fund Shares, that are exempted from the Audit Committee requirements set forth in Rule 14.10(c)(3), except for the applicable requirements of SEC Rule 10A-3 because it is a non-substantive change meant only to subject ETF Shares to the same corporate governance requirements currently applicable to Index Fund Shares and Managed Fund Shares. The Exchange also believes that the non-substantive change to amend Rule 14.11(c)(3)(A)(i)(a) in order to include ETF Shares in the definition of Derivative Securities Products is also a non-substantive change because it is just intended to add ETF Shares to a definition that includes Index Fund Shares and Managed Fund Shares in order to make sure that ETF Shares are treated consistently with Index Fund Shares and Managed Fund Shares throughout the Exchange's rules.
Finally, the Exchange believes that eliminating the quarterly reporting requirement for Managed Fund Shares is designed to prevent fraudulent and manipulative acts and practices and, in general, to protect investors and the public interest because the report no longer serves the purpose for which it was originally intended. The type of information provided in the reports was created to provide a window into the creation and redemption process for Managed Fund Shares in order to ensure that the arbitrage mechanism would work as expected for products that were listed pursuant to the newly approved generic listing standards. In the Rule 6c-11 Release, the Commission concluded that “the arbitrage mechanism for existing actively managed ETFs has worked effectively with small deviations between market price and NAV per share.”
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. To the contrary, the Exchange believes that the proposed rule change would enhance competition by streamlining current procedures, reducing the costs and timeline associated with bringing ETFs to market, and providing significantly greater regulatory certainty to potential issuers considering bringing ETF Shares to market, all of which the Exchange believes would enhance competition among ETF issuers and reduce costs for investors. The Exchange also believes that the proposed change would make enhance competition among ETF Shares by ensuring the application of uniform listing standards.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. By order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Wisconsin Central Ltd. (WCL), a rail carrier,
In an accompanying petition to set a procedural schedule, WCL requests that replies to the petition for exemption be due by December 13, 2019, and WCL's response by January 2, 2020.
The Board will institute an exemption proceeding pursuant to 49 U.S.C. 10502(b). A procedural schedule will be set as noted below, consistent with the reply and response deadlines WCL requested.
All pleadings, referring to Docket No. FD 36346, must be filed with the Surface Transportation Board either via e-filing or in writing addressed to 395 E Street, SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on WCL's representative: Thomas J. Litwiler, Fletcher & Sippel LLC, 29 North Wacker Drive, Suite 800, Chicago, IL 60606-3208.
Board decisions and notices are available at
1. An exemption proceeding is instituted under 49 U.S.C. 10502(b).
2. Replies to WCL's petition are due by December 13, 2019.
3. WCL's response to any replies is due by January 2, 2020.
4. Notice of this decision will be published in the
5. This decision is effective on its date of service.
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
3i RR Holdings GP LLC, 3i Holdings Partnership L.P., 3i RR LLC, and Regional Rail Holdings, LLC (collectively, 3i RR), and Regional Rail, LLC (Regional Rail), all noncarriers, have filed a verified notice of exemption under 49 CFR 1180.2(d)(2) to acquire from Pinsly Railroad Company control of Florida Central Railroad Company, Inc. (Central), Florida Midland Railroad Company, Inc. (Midland), and Florida Northern Railroad Company, Inc. (Northern) (collectively, the Florida Railroads), all Class III rail carriers operating in Florida.
The earliest this transaction may be consummated is December 6, 2019, the effective date of the exemption (30 days after the verified notice was filed). The verified notice states that the parties intend to consummate the transaction on or after January 3, 2020.
According to the verified notice, 3i RR Holdings GP LLC controls 3i Holdings Partnership L.P., which controls 3i RR LLC, which controls Regional Rail Holdings, LLC, which controls Regional Rail. Regional Rail Holdings, LLC, is a holding company that directly controls the following three Class III rail carriers: (1) East Penn Railroad, LLC, which operates in Delaware and Pennsylvania; (2) Middletown & New Jersey Railroad, LLC, which operates in New York; and (3) Tyburn Railroad LLC, which operates in Pennsylvania (collectively, the Subsidiary Railroads).
The verified notice states that: (1) The Florida Railroads do not connect with each other or with the Subsidiary Railroads; (2) the acquisition of control of the Florida Railroads is not intended to connect them to any other railroads in 3i RR's corporate family; and (3) the proposed transaction does not involve a Class I rail carrier. The proposed transaction is therefore exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, 49 U.S.C. 11326(c) does not provide for labor protection for transactions under 49 U.S.C. 11324 and 11325 that involve only Class III rail carriers. Because this transaction involves Class III rail carriers only, the Board, under the statute, may not impose labor protective conditions for this transaction.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed no later than November 29, 2019 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36365, must be filed with the Surface Transportation Board either via e-filing or in writing addressed to 395 E Street, SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on applicants' representative, Louis E. Gitomer, Law Offices of Louis E. Gitomer, LLC, 600 Baltimore Ave., Suite 301, Towson, MD 21204.
According to the verified notice, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The
Written comments should be submitted by December 23, 2019.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget. Comments should be addressed to the attention of the Desk Officer, Department of Transportation/FAA, and sent via electronic mail to
Thomas Luipersbeck by email at:
Background: The
Under the authority of Title 49 CFR, Section 44701, Title 14 CFR prescribes the terms, conditions, and limitations as are necessary to ensure safety in air transportation. Title 14 CFR parts 91 and 135 prescribes the requirements governing helicopter air ambulance, commercial helicopter, and Part 91 helicopter operations. The information collected is used to determine air operators' compliance with the minimum safety standards and the applicants' eligibility for air operations certification. Each operator which seeks to obtain, or is in possession of an operating certificate, must comply with the requirements of part 91 or 135, as applicable, which include maintaining data which is used to determine if the air carrier is operating in accordance with minimum safety standards.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
The Veterans Benefits Administration (VBA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the
Written comments and recommendations on the proposed collection of information should be received on or before January 21, 2020.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Danny S. Green at (202) 421-1354.
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, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA'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.
By direction of the Secretary.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (the EPA or the Agency) is proposing a regulation to revise the technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating point source category applicable to flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water. This proposal is estimated to save approximately $175 million dollars annually in pre-tax compliance costs and $137 million dollars annually in social costs as a result of less costly FGD wastewater technologies that could be used with the proposed relaxation of the Steam Electric Power Generating Effluent Guidelines 2015 rule (the 2015 rule) selenium limitation; less costly BA transport water technologies made possible by the proposed relaxation of the 2015 rule's zero discharge limitations; a two-year extension of compliance timeframes for meeting FGD wastewater limits, and additional proposed subcategories for both FGD wastewater and BA transport water. EPA also believes that participation in the voluntary incentive program would further reduce the pollutants that these steam electric facilities discharge in FGD wastewater by approximately 105 million pounds per year.
Submit your comments on the proposed rule, identified by Docket No. EPA-HQ-OW-2009-0819, by one of the following methods:
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For technical information, contact Richard Benware, Engineering and Analysis Division, Telephone: 202-566-1369; Email:
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Coal-fired facilities are impacted by several environmental regulations. One of these regulations, the Steam Electric Power Generating ELGs was promulgated in 2015 (80 FR 67838; November 3, 2015) and applies to the subset of the electric power industry where “generation of electricity is the predominant source of revenue or principal reason for operation, and whose generation of electricity results primarily from a process utilizing fossil-type fuel (coal, oil, gas), fuel derived from fossil fuel (
In the few years since the steam electric ELGs were revised in 2015, steam electric facilities have installed more affordable technologies which are capable of removing a similar amount of pollution as those which existed in 2015. This proposal would revise requirements for two of the waste streams addressed in the 2015 rule: Bottom ash (BA) transport water and flue gas desulfurization (FGD) wastewater—two of the facilities' largest sources of wastewater—while reducing industry costs as compared to the costs of the 2015 rule's controls. This proposal does not seek to revise the other waste streams covered by the 2015 rule.
For existing sources that discharge directly to surface water, with the exception of the subcategories discussed below, the proposed rule would establish the following effluent limitations based on Best Available Technology Economically Achievable (BAT):
• For flue gas desulfurization wastewater, there are two sets of proposed BAT limitations. The first set of limitations is a numeric effluent limitation on Total Suspended Solids (TSS) in the discharge of FGD wastewater. The second set of BAT limitations comprises numeric effluent limitations on mercury, arsenic, selenium, and nitrate/nitrite as nitrogen in the discharge of FGD wastewater.
• For bottom ash transport water, there are two sets of proposed BAT limitations. The first set of BAT limitations is a numeric effluent limitation on TSS in the discharge of these wastewaters. The second set of BAT limitations is a not-too-exceed 10 percent volumetric purge limitation.
The proposed rule includes separate requirements for the following subcategories: High flow facilities, low utilization boilers, and boilers retiring by 2028. The proposed rule does not seek to change the existing subcategories for oil-fired boilers and small generating units (50 MW or less) from the 2015 rule. For high flow facilities (FGD wastewater flows over four million gallons per day after accounting for that facility's ability to recycle the wastewater to the maximum limits for the FGD system materials of construction) or low utilization boilers (876,000 MWh per year or less), the proposed rule would establish the second set of BAT limitations in the discharge of FGD wastewater as numeric effluent limitations only on mercury and arsenic (and not on selenium and nitrate/nitrite as nitrogen). For low utilization boilers, the proposed rule would establish BAT limitations for BA transport water for TSS, and would also include standards for implementation of a best management practices (BMP) plan. For oil-fired boilers, small boilers (50 MW or less), and boilers retiring by 2028, the proposed rule would establish BAT limitations for TSS in FGD wastewater and bottom ash transport water.
The proposed rule would establish a voluntary incentives program that provides the certainty of more time (until December 31, 2028) for facilities to implement new standards and limitations, if they adopt additional process changes and controls that achieve more stringent limitations on mercury, arsenic, selenium, nitrate/nitrite, bromide, and total dissolved solids in FGD wastewater. The optional program offers environmental protections beyond those achieved by the proposed BAT limitations, while providing facilities that opt into the program more flexibility (such as additional time) than the current voluntary incentives program.
For indirect discharges (
Where BAT limitations in this rule are more stringent than previously established BPT limitations, the EPA proposes that those limitations do not apply until a date determined by the permitting authority that is as soon as possible on or after November 1, 2020, but that is no later than December 31, 2023 (for BA transport water) or December 31, 2025 (for FGD wastewater).
The EPA has estimated costs and benefits of four different regulatory options. The EPA estimates that its proposed option (
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2009-0819, at
Entities potentially regulated by any final rule following this action include:
This section is not intended to be exhaustive, but rather provides a guide regarding entities likely to be regulated by any final rule following this action. Other types of entities that do not meet the above criteria could also be regulated. To determine whether your facility is regulated by any final rule following this action, you should carefully examine the applicability criteria listed in 40 CFR 423.10 and the definitions in 40 CFR 423.11 of the 2015 rule. If you still have questions regarding the applicability of any final rule following this action to a particular entity, consult the person listed for technical information in the preceding
The agency is proposing to revise certain Best Available Technology Economically Achievable (BAT) effluent limitations guidelines and pretreatment standards for existing sources in the steam electric power generating point source category that apply to FGD wastewater and BA transport water.
The EPA is proposing to promulgate this rule under the authority of sections 301, 304, 306, 307, 308, 402, and 501 of the Clean Water Act (CWA), 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361.
This action is estimated to save $136.3 million per year in social costs and result in between $14.8 million and $68.5 million in benefits, using a 3 percent discount rate. Using a 7 percent discount rate, the estimated savings are $166.2 million per year and benefits are between $28.4 million and $74.4 million.
Among its core provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the U.S., except as authorized under the CWA. Under section 402 of the CWA, 33 U.S.C. 1342, discharges may be authorized through a National Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes a dual approach for these permits: (1) Technology-based controls that establish a floor of performance for all dischargers, and (2) water quality-based effluent limitations, where the technology-based effluent limitations are insufficient to meet applicable water quality standards (WQS). As the basis for the technology-based controls, the CWA authorizes the EPA to establish national technology-based effluent limitations guidelines and new source performance standards for discharges into waters of the United States from categories of point sources (such as industrial, commercial, and public sources).
The CWA also authorizes the EPA to promulgate nationally applicable pretreatment standards that control pollutant discharges from sources that discharge wastewater indirectly to waters of the U.S., through sewers flowing to POTWs, as outlined in sections 307(b) and (c) of the CWA, 33 U.S.C. 1317(b) and (c). The EPA establishes national pretreatment standards for those pollutants in wastewater from indirect dischargers that pass through, interfere with, or are otherwise incompatible with POTW operations. Pretreatment standards are designed to ensure that wastewaters from direct and indirect industrial dischargers are subject to similar levels of treatment.
Direct dischargers (those discharging to waters of the U.S. rather than to a POTW) must comply with effluent limitations in NPDES permits. Indirect dischargers, who discharge through POTWs, must comply with pretreatment standards. Technology-based effluent limitations and standards in NPDES permits are derived from effluent limitations guidelines (CWA sections 301 and 304, 33 U.S.C. 1311 and 1314) and new source performance standards (CWA section 306, 33 U.S.C. 1316) promulgated by the EPA, or are based on best professional judgment (BPJ) where EPA has not promulgated an applicable effluent limitation guideline or new source performance standard (CWA section 402(a)(1)(B), 33 U.S.C. 1342(a)(1)(B)). Additional limitations are also required in the permit where necessary to meet WQS. CWA section 301(b)(1)(C), 33 U.S.C. 1311(b)(1)(C). The ELGs are established by EPA regulation for categories of industrial dischargers and are based on the degree of control that can be achieved using various levels of pollution control technology, as specified in the Act (
EPA promulgates national ELGs for industrial categories for three classes of pollutants: (1) Conventional pollutants (total suspended solids (TSS), oil and grease, biochemical oxygen demand (BOD5), fecal coliform, and pH), as outlined in CWA section 304(a)(4), 33 U.S.C. 1314(a)(4), and 40 CFR 401.16; (2) toxic pollutants (
The EPA establishes ELGs based on the performance of well-designed and well-operated control and treatment technologies. The legislative history also supports that the EPA need not consider water quality impacts on individual water bodies as the guidelines are developed;
There are four types of standards applicable to direct dischargers and two types of standards applicable to indirect dischargers. The three standards relevant to this rulemaking are described in detail below.
Traditionally, the EPA establishes effluent limitations based on BPT by reference to the average of the best performances of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics. The EPA promulgates BPT effluent limitations for conventional, toxic, and nonconventional pollutants. In specifying BPT, the EPA looks at a number of factors. The EPA first considers the cost of achieving effluent reductions in relation to the effluent reduction benefits. The Agency also considers the age of equipment and facilities, the processes employed, engineering aspects of the control technologies, any required process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate.
BAT represents the second level of control for direct discharges of toxic and nonconventional pollutants. As the statutory phrase intends, the EPA considers the technological availability and the economic achievability in determining what level of control represents BAT. CWA section 301(b)(2)(A), 33 U.S.C. 1311(b)(2)(A). Other statutory factors that the EPA must consider in assessing BAT are the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate. CWA section 304(b)(2)(B), 33 U.S.C. 1314(b)(2)(B);
One way that EPA may take into account differences within an industry when establishing BAT limitations is through subcategorization. The Supreme Court has recognized that the substantive test for subcategorizing an industry is the same as that which applies to establishing fundamentally different factor variances—
Section 307(b) of the CWA, 33 U.S.C. 1317(b), authorizes the EPA to promulgate pretreatment standards for discharges of pollutants to POTWs. PSES are designed to prevent the discharge of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. Categorical pretreatment standards are technology-based and are analogous to BPT and BAT effluent limitations guidelines, and thus the Agency typically considers the same factors in promulgating PSES as it considers in promulgating BPT and BAT. Legislative history indicates that Congress intended for the combination of pretreatment and treatment by the POTW to achieve the level of treatment that would be required if the industrial source were discharging to a water of the U.S. Conf. Rep. No. 95-830, at 87 (1977), reprinted in U.S. Congress. Senate Committee on Public Works (1978), A Legislative History of the CWA of 1977, Serial No. 95-14 at 271 (1978). The General Pretreatment Regulations, which set forth the framework for the implementation of categorical pretreatment standards, are found at 40 CFR 403. These regulations establish pretreatment standards that apply to all non-domestic dischargers.
The EPA, on September 30, 2015, finalized a rule revising the regulations for the Steam Electric Power Generating point source category (40 CFR part 423) (hereinafter the “2015 rule”). The rule set the first federal limitations on the levels of toxic metals in wastewater that can be discharged from steam electric facilities, based on technology improvements in the steam electric power industry over the preceding three decades. Prior to the 2015 rule, regulations for the industry had been last updated in 1982.
New technologies for generating electric power and the widespread implementation of air pollution controls over the last 30 years have altered existing wastewater streams or created new wastewater streams at many steam electric facilities, particularly coal-fired facilities. Discharges of these wastestreams include arsenic, lead, mercury, selenium, chromium, and cadmium. Many of these toxic pollutants, once in the environment, remain there for years, and continue to cause impacts.
The 2015 rule addressed effluent limitations and standards for multiple wastestreams generated by new and existing steam electric facilities: BA transport water, combustion residual leachate, FGD wastewater, flue gas mercury control wastewater, fly ash (FA) transport water, and gasification wastewater. The rule required most steam electric facilities to comply with the effluent limitations “as soon as possible” after November 1, 2018, and no later than December 31, 2023. Within that range, except for indirect dischargers, the particular compliance date(s) for each facility would be determined by the facility's National Pollutant Discharge Elimination System permit, which is typically issued by a state environmental agency.
On an annual basis, the 2015 rule was projected to reduce the amount of metals defined in the Act as toxic pollutants, nutrients, and other pollutants that steam electric facilities are allowed to discharge by 1.4 billion pounds and reduce water withdrawal by 57 billion gallons. At the time, the EPA estimated annual compliance costs for the final rule to be $480 million (in 2013
Seven petitions for review of the 2015 rule were filed in various circuit courts by the electric utility industry, environmental groups, and drinking water utilities. These petitions were consolidated in the U.S. Court of Appeals for the Fifth Circuit,
On April 25, 2017, the EPA responded to these petitions by publishing a postponement of the 2015 rule compliance deadlines that had not yet passed, under Section 705 of the Administrative Procedure Act (APA). This Section 705 Action drew multiple legal challenges.
In September 2017, the EPA finalized a rule, using notice-and-comment procedures, postponing the earliest compliance dates for the new, more stringent BAT effluent limitations and PSES for FGD wastewater and BA transport water in the 2015 rule, from November 1, 2018 to November 1, 2020. The EPA also withdrew its prior action taken pursuant to Section 705 of the APA. The rule received multiple legal challenges, but EPA prevailed, and the courts did not sustain any of them.
The final 2015 CPP established carbon dioxide (CO
On June 19, 2019, the EPA issued the ACE rule, an effort to provide existing coal-fired electric utility generating units (EGUs) with achievable and realistic standards for reducing greenhouse gas emissions. This action was finalized in conjunction with two related, but separate and distinct rulemakings: (1) The repeal of the CPP, and (2) revised implementing regulations for ACE, ongoing emission guidelines, and all future emission guidelines for existing sources issued under the authority of Clean Air Act section 111(d). ACE provides states with new emission guidelines that will inform the state's development of standards of performance to reduce CO
ACE establishes heat rate improvement (HRI), or efficiency improvement, as the best system of emissions reduction (BSER) for CO
The 2015 rule analyses incorporated compliance costs associated with the 2015 CPP, resulting in, among other things, baseline retirements associated with that rule in the Integrated Planning Model (IPM). As noted in the ACE RIA, while the final repeal of the CPP has been promulgated, the business-as-usual economic conditions achieved the carbon reductions laid out in the final CPP. The EPA used the IPM version 6 to analyze today's proposal to be consistent with the base case analyses done for the ACE final rule. The Agency also performed a sensitivity analysis on the proposed Option 2, following promulgation of the ACE final rule, that estimates the impacts of the proposed option relative to a baseline that includes the ACE rule. A similar sensitivity analysis was not conducted for Option 4. The EPA intends to perform IPM runs with the most up-to-date version of the model available for the final rule.
On April 17, 2015, the Agency published the Disposal of Coal Combustion Residuals from Electric Utilities final rule. This rule finalized national regulations to provide a comprehensive set of requirements for the safe disposal of CCRs, commonly known as coal ash, from coal-fired facilities. The final CCR rule was the culmination of extensive study on the effects of coal ash on the environment and public health. The rule established technical requirements for CCR landfills and surface impoundments under subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation's primary law for regulating solid waste.
These regulations addressed coal ash disposal, including regulations designed to prevent leaking of contaminants into ground water, blowing of contaminants into the air as dust, and the catastrophic failure of coal ash surface
As explained in the 2015 rule, the ELGs and CCR rules may affect the same boiler or activity at a facility. That being the case, when the EPA finalized both rules in 2015, the Agency coordinated them to facilitate and minimize the complexity of implementing engineering, financial, and permitting activities. The coordination of the two rules continues to be a consideration in the development of today's proposal. The EPA's analysis of this proposal incorporates the same approach used in the 2015 rule to estimate how the CCR rule may affect surface impoundments and the ash handling systems and FGD treatment systems that send wastes to those impoundments. However, as a result of the D.C. Circuit Court rulings in
In order to account for the CCR rule proposed amendments in this proposed rule, the EPA conducted a sensitivity analysis to determine how the closure of unlined surfaced impoundments would impact the compliance cost and pollutant loading estimates for today's proposal. After conducting this sensitivity analysis, the EPA found that the capital and operation and maintenance compliance cost estimates decrease by 50 to 60 percent and the total industry pollutant loadings decrease by five percent (
The EPA solicits comment on the overlap between these two rules, including whether the Agency's cost benefit and regulatory impact analyses appropriately capture the overlap of the two rules, and ways that the Agency could harmonize the timelines for regulatory requirements. The Agency also solicits comment on the extent to which facilities have chosen to construct new composite lined surface impoundments for the treatment of bottom ash transport water or FGD wastewater. Comments on the intersection of the two rules should be submitted to both dockets.
This proposal, if finalized, would revise the new, more stringent BAT effluent limitations guidelines and pretreatment standards for existing sources in the 2015 rule that apply to FGD wastewater and BA transport water. It does not propose otherwise to amend (nor is the EPA requesting comment on) the effluent limitations guidelines and standards for other wastes discharged by the steam electric power generating point source category. The EPA plans to address the Court's remand in
The EPA provided a general description of the steam electric power generating industry in the 2013 proposed rule and the 2015 rule, and has continued to collect information and update that profile. The previous descriptions reflected the known information about the universe of steam electric facilities and incorporated applicable final environmental regulations at that time. For this proposal, as described in the Supplemental TDD Section 3, the EPA has revised its description of the steam electric power generating industry (and its supporting analyses) to incorporate major changes such as additional retirements, fuel conversions, ash handling conversions, wastewater treatment updates, and updated information on capacity utilization.
Market conditions in the electricity generation sector have changed significantly and rapidly in the past decade. These changes include availability of abundant and inexpensive natural gas, emergence of alternative fuel technologies, and continued aging of coal-fired facilities. These changes have resulted in coal-fired unit and facility retirements and switching of fuels. The lower cost of natural gas and technological advances in solar and wind power have had a depressive effect on both coal-fired and nuclear-powered generation. (This proposal, if finalized, would have no effect on the nuclear-powered sector, except as it might affect relative prices through its impacts on coal-fired generation.) In the coal-fired sector, the market forces are manifest as scaling back coal-fired power generation (including unit and facility closures) at an accelerated rate. The rate of coal capacity retirement is affected by regulation affecting coal-fired electricity generation as there have been regulations adopted, particularly in the last decade (
In general, control and treatment technologies for some wastestreams have continued to advance since the 2015 rule. Often, these advancements provide facilities with additional ways of meeting effluent limitations, in some instances at a lower cost. For this proposal, the EPA incorporated updated information and evaluated several technologies available to control and treat FGD wastewater and BA transport water produced by the steam electric
FGD scrubber systems, either dry or wet, are used to remove sulfur dioxide from flue gas so that sulfur dioxide is not emitted into the air. Dry FGD systems generally do not discharge wastewater, as the water they use is evaporated during operation; wet FGD systems do produce a wastewater stream.
As part of this proposed rule, the EPA is including two additional FGD wastewater treatment technologies among the suite of regulatory options that were not evaluated as main regulatory options in the 2015 rule: Low Hydraulic Residence Time Biological Reduction (LRTR) and membrane filtration, which are further described below.
• LRTR System. A biological treatment system that targets removal of selenium and nitrate/nitrite using fixed-film bioreactors in smaller, more compact reaction vessels than those used in the biological treatment system evaluated in the 2015 rule (referred to in this proposal as HRTR—high residence time biological reduction). The LRTR system is designed to operate with a shorter residence time (on the order of 1 to 4 hours, as compared to a residence time of 10-16 hours for HRTR), while still achieving significant removal of selenium and nitrate/nitrite. The LRTR technology option considered as part of this proposed rule includes chemical precipitation as a pretreatment stage prior to the bioreactor and ultrafiltration as a polishing step following the bioreactor.
• Membrane Filtration. A membrane filtration system designed specifically for high TDS and TSS wastestreams. These systems are designed to eliminate fouling and scaling associated with industrial wastewater. These systems typically combine pretreatment for potential scaling agents such as calcium, magnesium, and sulfates, and one or more types of membrane technology (
Steam electric facilities discharging FGD wastewater currently employ a variety of wastewater treatment technologies and operating/management practices to reduce the pollutants associated with FGD wastewater discharges. As part of the 2015 rule, the EPA identified the following types of treatment and handling practices for FGD wastewater:
• Chemical precipitation systems that use tanks to treat FGD wastewater. Chemicals are added to help remove suspended solids and dissolved solids, particularly metals. The precipitated solids are then removed from solution by coagulation/flocculation, followed by clarification and/or filtration. The 2015 rule focused on a specific design that employs hydroxide precipitation, sulfide precipitation (organosulfide), and iron coprecipitation to remove suspended solids and to convert soluble metal ions to insoluble metal hydroxides or sulfides.
• Biological treatment systems that use microorganisms to treat FGD wastewater. The EPA identified three types of biological treatment systems used to treat FGD wastewater: (1) Anoxic/anaerobic fixed-film bioreactors, which target removals of nitrogen compounds and selenium, as well as other metals; (2) anoxic/anaerobic suspended growth systems, which target removals of selenium and other metals; and (3) aerobic/anaerobic sequencing batch reactors, which target removals of organics and nutrients. The 2015 rule focused on a specific design of anoxic/anaerobic fixed-film bioreactors that employs a relatively long residence time for the microbial processes. The bioreactor design used as the basis for the 2015 rule, with typical hydraulic residence time on the order of approximately 10 to 16 hours, is referred to in this rulemaking as high residence time reduction (HRTR). The BAT technology basis for the 2015 rule also included chemical precipitation as a pretreatment stage prior to the bioreactor and a sand filter as a polishing step following the bioreactor (
• Thermal evaporation systems that use a falling-film evaporator (or brine concentrator), following a softening pretreatment step, to produce a concentrated wastewater stream and a distillate stream to reduce the volume of wastewater by 80 to 90 percent and also reduce the discharge of pollutants. The concentrated wastewater is usually further processed in a crystallizer that produces a solid residue for landfill disposal and additional distillate that can be reused within the facility or discharged. These systems are designed to remove the broad spectrum of pollutants present in FGD wastewater to very low effluent concentrations.
• Constructed wetland systems using natural biological processes involving wetland vegetation, soils, and microbial activity to reduce the concentrations of metals, nutrients, and TSS in wastewater. High temperature, chemical oxygen demand (COD), nitrates, sulfates, boron, and chlorides in the wastewater can adversely affect constructed wetlands' performance. To avoid this, facilities typically find it necessary to dilute the FGD wastewater with service water before it enters the wetland.
• Some facilities operate their wet FGD systems using approaches that eliminate the discharge of FGD wastewater. These facilities use a variety of operating and management practices to achieve this.
The EPA also collected new information on other FGD wastewater treatment technologies, including spray
BA consists of heavier ash particles that are not entrained in the flue gas and fall to the bottom of the furnace. In most furnaces, the hot BA is quenched in a water-filled hopper.
• Remote Mechanical Drag System. These systems use the same processes as wet-sluicing impoundment or dewatering bin systems to transport bottom ash to a remote mechanical drag system. A drag chain conveyor dewaters the bottom ash by pulling it out of the water bath on an incline. The system can either be operated as a closed-loop (evaluated during the 2015 rule) or a high recycle rate system. For this proposed rule, under the high recycle rate option, facilities would be permitted to purge a portion of the wastewater from the system to maintain a high recycle rate, as described in Section VII of this preamble.
• Dense Slurry System. These systems use a dry vacuum or pressure system to convey the bottom ash to a silo (as described below for the “Dry Vacuum or Pressure System”), but instead of using trucks to transport the bottom ash to a landfill, the facility mixes the bottom ash with water (a lower percentage of water compared to a wet-sluicing system) and pumps the mixture to the landfill.
As part of the 2015 rule and this reconsideration, the EPA identified the following BA handling systems that do not generate bottom ash transport water.
• Mechanical Drag System. These systems are located directly underneath the boiler. The bottom ash is collected in a water quench bath. A drag chain conveyor dewaters the bottom ash by pulling it out of the water bath on an incline.
• Dry Mechanical Conveyor. These systems are located directly underneath the boiler. The system uses ambient air to cool the bottom ash in the boiler and then transports the ash out of the boiler on a conveyor. No water is used in this process.
• Dry Vacuum or Pressure System. These systems transport bottom ash from the boiler to a dry hopper without using any water. Air is percolated through the ash to cool it and combust unburned carbon. Cooled ash then drops to a crusher and is conveyed via vacuum or pressure to an intermediate storage destination.
• Vibratory Belt System. These systems deposit bottom ash into a vibratory conveyor trough, where the ash is air-cooled and ultimately moved through the conveyor deck to an intermediate storage destination without using any water.
• Submerged Grind Conveyor. These systems are located directly underneath the boiler and are designed to reuse slag tanks, ash gates, clinker grinders, and transfer enclosures from the existing wet sluicing systems. The system collects bottom ash from the discharge of each clinker grinder. A series of submerged drag chain conveyors transport and dewater the bottom ash.
During October and November 2017, the EPA conducted seven site visits to facilities in five states. The EPA selected facilities to visit using information gathered in support of the 2015 rule, information from industry outreach, and publicly available facility-specific information. The EPA visited four facilities that were previously visited in support of the 2015 rule because they had recently conducted, or were currently conducting, FGD wastewater treatment pilot studies. The EPA also revisited facilities that had implemented new FGD wastewater treatment technologies or BA handling systems (after the 2015 rule) to learn more about implementation timing, start-up and operation, and implementation costs.
The specific objectives of these site visits were to gather general information about each facility's operations; their pollution prevention and wastewater treatment system operations; their ongoing pilot or laboratory scale studies for FGD wastewater treatment; and BA handling system conversions.
Under the authority of Section 308 of the Clean Water Act (CWA) (33 U.S.C. 1318), in January 2018, the EPA requested the following information from nine steam electric power companies that own coal-fired facilities generating FGD wastewater:
• FGD wastewater characterization data associated with testing and implementation of treatment technologies, in 2013 or later.
• Information on halogen usage to reduce flue gas emissions, as well as halogen concentration data in FGD wastewater.
• Projected installations of FGD wastewater treatment technologies.
• Cost information for projected or installed FGD wastewater treatment systems, from bids received in 2013 or later.
After receiving each company's response, the EPA met with these companies to discuss the FGD-related data submitted, other FGD and BA data outside the scope of the request that the company believed to be relevant, and suggestions each company had for potential changes to the 2015 rule with respect to FGD wastewater and BA transport water. The EPA used this information to learn more about the performance of treatment systems, inform the development of FGD wastewater limitations, learn more about facility-specific halogen usage (such as bromide), and obtain information useful for updating cost estimates of installing candidate treatment technologies. As needed, the EPA conducted follow-up meetings and conference calls with industry representatives to discuss and clarify these data.
In December 2017, the EPA invited seven steam electric facilities to participate in a voluntary BA transport water sampling program designed to obtain data to supplement the wastewater characterization data set for BA transport water included in the record for the 2015 rule. The EPA asked facilities to provide analytical data for
EPRI conducts studies—funded by the steam electric power generating industry—to evaluate and demonstrate technologies that can potentially remove pollutants from wastestreams or eliminate wastestreams using zero discharge technologies. Following the 2015 rule, the EPA reviewed 35 reports published between 2011 and 2018 that EPRI voluntarily provided regarding characteristics of FGD wastewater and BA transport water, FGD wastewater treatment pilot studies, BA handling practices, halogen addition rates, and the effect of halogen additives on FGD wastewater. The EPA used information presented in these reports to inform the development of numeric effluent limitations for FGD wastewater and to update methods for estimating the costs and pollutant removals associated with candidate treatment technologies.
In May and June of 2018, the EPA met with the Edison Electric Institute (EEI), the National Rural Electric Cooperatives Association (NRECA), and the American Public Power Association (APPA). These trade associations represent investor-owned utilities, electric cooperatives, and community-owned utilities, respectively. The EPA also met with the Utility Water Act Group (UWAG), an association comprising the trade associations above as well as individual electric utilities. The EPA met with each of these trade associations separately and together to discuss the technologies and the analyses presented in the 2015 rule and to hear suggestions for potential changes to the 2015 rule. The EPA also used information from these meetings to update industry profile data (
The EPA obtained additional information from the drinking water utility sector and states on the effects of bromide discharges from steam electric facilities on drinking water treatment processes. First, the EPA received letters from, and met with, the American Water Works Association (AWWA), the Association of Metropolitan Water Agencies (AMWA), the National Association of Water Companies (NAWC), the Association of Clean Water Administrators (ACWA), and the Association of State Drinking Water Administrators (ASDWA). Second, the EPA visited two drinking water treatment facilities in North Carolina that have modified their treatment processes to address an increase in disinfection byproduct levels due to bromide discharges from an upstream steam electric power facility. Finally, the EPA obtained data on surface water bromide concentrations and data from drinking water monitoring from the two drinking water treatment facilities. The EPA also obtained existing state data from other drinking water treatment facilities from the states of North Carolina and Virginia.
The EPA gathered data on availability and effectiveness from technology vendors and EPC firms through presentations, conferences, meetings, and email and phone contacts regarding FGD wastewater and BA handling technologies used in the industry. The data collected informed the development of the technology costs and pollutant removal estimates for FGD wastewater and BA transport water. The EPC firms also suggested potential changes to the 2015 rule.
The EPA gathered information on steam electric generating facilities from the Department of Energy's (DOE's) Energy Information Administration (EIA) Forms EIA-860 (Annual Electric Generator Report) and EIA-923 (Power Plant Operations Report). The EPA used the 2015 through 2017 data to update the industry profile prepared for the 2015 rule, including commissioning dates, energy sources, capacity, net generation, operating statuses, planned retirement dates, ownership, and pollution controls of the boilers.
The EPA conducted literature and internet searches to gather information on FGD wastewater treatment technologies, including information on pilot studies, applications in the steam electric power generating industry, and implementation costs and timelines. The EPA also used the internet searches to identify or confirm reports of planned facility and boiler retirements, and reports of planned unit conversions to dry or closed-loop recycle ash handling systems. The EPA used this information to inform the industry profile and identify process modifications occurring in the industry.
The EPA received information from several environmental groups and other stakeholders following the 2015 rule. In general, these groups voiced concerns about extending the period that facilities could continue to discharge FGD wastewater and BA transport water pollutants subject to BPT limitations, as well as steam electric bromide discharges, their interaction with drinking water treatment facilities, and the associated human health effects. They also noted the improved availability of technological controls for reducing or eliminating pollutant discharges from FGD and BA handling systems. Finally, they provided examples where they believed that states had not properly considered the “as soon as possible date” for the new, more stringent BAT requirements in the 2015 rule when issuing permits.
The proposal evaluates four regulatory options and identifies one proposed option, as shown in Table VII-1. All options include similar technology bases for BA transport water, except that Option 2 allows surface impoundments and a BMP plan for low utilization boilers. In general, each successive option from Option 1 to 4 would achieve a greater reduction in FGD wastewater pollutant discharges. Each subcategorization is described further in Section VII.C below. In addition to some specific requests for comment included throughout this proposal, the EPA solicits comment on all aspects of this proposal, including the information, data and assumptions EPA relied upon to develop the proposed regulatory options, as well as the proposed BAT, effluent limitations, and alternate approaches included in this proposal.
Under Option 1, the EPA would establish BAT limitations and PSES for mercury and arsenic based on chemical precipitation. For Options 2 and 3, the EPA would establish BAT limitations and PSES for mercury, arsenic, selenium, and nitrate/nitrate based on chemical precipitation followed by LRTR and ultrafiltration. Option 2 subcategorizes boilers producing less than 876,000 MWh per year
Under all options described above, the EPA proposes to control discharge of pollutants from BA transport water by establishing daily BAT limitations and PSES on the volume of BA transport water that can be discharged based on high recycle rate systems. A high recycle rate system is a recirculating wet ash handling system operated such that it periodically discharges (purges) a small portion of the process wastewater from the system. Under all options, boilers retiring by December 31, 2028, would be subcategorized, and for this subcategory, BAT limitations would be set equal to BPT limitations for TSS, based on gravity settling in surface impoundments. Under Option 2, for boilers producing less than 876,000 MWh per year, BAT effluent limitations for BA transport water would be set equal to the BPT effluent limitations based on gravity settling in surface impoundments to remove TSS.
In light of the criteria and factors specified in CWA sections 304(b)(2)(B) and 301(b)(2)(A) (
This proposal identifies treatment using chemical precipitation followed by a low hydraulic residence time biological treatment including ultrafiltration as the BAT technology basis for control of pollutants discharged in FGD wastewater because after considering the factors specified in CWA section 304(b)(2)(B), the EPA proposes to find that this technology is available and economically achievable. More specifically, the technology basis for BAT would include the same chemical precipitation system described in the 2015 rule. Thus, it would employ equalization, hydroxide and sulfide (organosulfide) precipitation, iron coprecipitation, and removal of suspended and precipitated solids. This chemical precipitation system would be followed by a low hydraulic residence time, anoxic/anaerobic biological treatment system designed to remove heavy metals, selenium, and nitrate-nitrite.
Both chemical precipitation and biological treatment are well-demonstrated technologies that are available to steam electric facilities for use in treating FGD wastewater. In addition to the 39 facilities mentioned as using chemical precipitation in the 2015 rule preamble, facilities have installed, or begun installation of such systems, because they have taken steps to cease using surface impoundments to treat their FGD wastewater. In addition, chemical precipitation has been used at thousands of industrial facilities nationwide for the last several decades as described in the 2015 rule record. Ultrafilters downstream of the biological treatment stage are designed for the removal of suspended solids exiting the bioreactor, such as any reduced, insoluble selenium, mercury, and other particulates. Ultrafiltration uses a membrane with pore size small enough to remove these smaller suspended particulates after the biological treatment stage, but still much larger than the pore size of the membrane technology (
After accounting for the changes in the industry described in Section V of this preamble, fifteen steam electric facilities with wet scrubbers have technologies in place able to meet the proposed BAT effluent limitations for FGD wastewater.
In the 2015 rule, the EPA rejected three availability arguments made against biological treatment generally. The EPA is not proposing to change these findings based on record information received since the 2015 rule but solicits comment on whether, and to what extent, these findings should be retained for the final rule. First, the EPA rejected the argument that maintaining a biological system over the long run was infeasible. Of the ten full-scale systems discussed above, four facilities have used the biological technology to treat FGD wastewater for more than a decade under varying operating conditions, climate conditions, and coal sources. Many pilot tests of the biological technology have been conducted at various facilities, and data from these tests demonstrate that even in the face of major upsets within the chemical precipitation stage of treatment, the biological stage continues to reduce selenium and nitrogen.
In the 2015 rule, the EPA also rejected the argument that selenium removal efficacy was subject to the type of coal burned (specifically subbituminous coal) and coal-switching. Facilities have continued to operate biological treatment systems while switching coals and, in those cases, have maintained a consistent level of selenium removal. Furthermore, at least three pilot and two full-scale systems have now been successfully run or installed to treat FGD wastewater at facilities burning sub-bituminous coals or blends of bituminous and sub-bituminous coals, encompassing both HRTR and LRTR technologies.
Finally, in the 2015 rule the EPA rejected arguments that cycling of facilities up and down in production, and even out of service for various periods of time, would affect the ability of facilities to meet the effluent limitations. Industry provided data for two facilities showing that they successfully operated biological systems while cycling operations and undergoing shutdowns in the years since the 2015 rule.
While the rationale above applies to both HRTR and LRTR technologies, the EPA proposes to establish BAT based on the LRTR technologies. LRTR reductions are comparable to HRTR reductions,
LRTR is less costly than HRTR. Compared to the baseline of the 2015 rule, LRTR is estimated to save approximately $72 million per year in after-tax costs to industry.
LRTR requires fewer process changes than HRTR. Compared to HRTR, LRTR installations are less complex and require fewer modifications to a facility's footprint. The HRTR systems selected in the 2015 rule were large, concrete tanks which, along with their associated piping and pumping and control equipment, would be fabricated on site. By contrast, new LRTR systems have smaller footprints, and in many cases come prefabricated as modular components, including the ultrafilter polishing stage, requiring little more than a concrete foundation, electricity supply, and piping connections.
The EPA is not proposing to establish BAT limitations or PSES based on chemical precipitation alone (Option 1). As the EPA noted during the development of the 2015 rule, chemical precipitation is effective at removing mercury, arsenic, and certain other heavy metals. While basing BAT limitations and PSES on this technology alone could save industry $103 million per year in after-tax costs relative to the 2015 rule, this technology alone does not remove nitrogen, nor does it remove the majority of selenium. Furthermore, the data in the EPA's record demonstrate that both LRTR and HRTR remove approximately 90 percent of the mercury remaining in the effluent from chemical precipitation treatment.
The EPA is not proposing to establish BAT limitations based on membrane filtration (Option 4). Based on the EPA's record, the EPA could not conclude that membrane filtration is technologically available nationwide at this time, as the term is used in the CWA, but may become “available” on a nationwide basis by 2028 (this is reflected in the date of compliance for the VIP program under Options 2 and 3). Furthermore, membrane filtration entails non-water-quality environmental impacts (associated with management of the brine) that the EPA proposes to find unacceptable.
At the time of the 2015 rule, the EPA had no record of information about membrane filtration technologies being used to treat FGD wastewater. Since that time, the EPA collected information on several types of membrane filtration technologies. Microfiltration and ultrafiltration membranes are used primarily for removing suspended solids, including colloids. Nanofiltration, reverse osmosis, forward osmosis, and electrodialysis reversal (EDR) membranes are used to remove a broad range of dissolved pollutants. Each of these membrane filtration technologies generate both a treated effluent and a residual requiring further treatment or disposal. Microfiltration and ultrafiltration generate a solid waste residual which is disposed. Similarly, nanofiltration, reverse osmosis, forward osmosis, and EDR all produce a concentrated brine residual which must be disposed.
The EPA's current record includes information on seven pilot studies of FGD wastewater treatment at domestic facilities using four different membrane filtration technologies.
The EPA is not aware of any domestic facilities which have to date installed nanofiltration or reverse osmosis membrane filtration systems to remove dissolved pollutants in FGD wastewater, although EPA is aware of three facilities in China which have installed such membrane filtration systems.
While the EPA does have some information about the use of membrane filtration on FGD wastewater from pilot studies, uncertainty remains regarding operation of the suite of membrane filtration technologies evaluated by the EPA as the basis for Option 4. With respect to data from the pilot studies, these studies focused on membrane technologies that would remove dissolved pollutants. For the technologies designed to remove dissolved pollutants, several studies either did not include a second stage of membrane filtration (
In addition, while the EPA does have information about membrane filtration application to FGD wastewater from bids and engineering documents, those sources express concerns about operating a technology on this wastewater that would be the first of its kind in the U.S. With respect to information from bids for full-scale installations and related documents, the EPA obtained copies of bids that represented a single vendor's reverse osmosis-based technology and that incorporated performance guarantees. Such guarantees, which are standard within the steam electric power generating industry, act to transfer the costs of specific performance issues from the purchaser of the equipment to the vendor. While the willingness of this vendor to take on these risks might suggest confidence in the long-term performance of its technology, third-party EPC firms with no vested interest in the technology are hesitant to recommend that a client be the first site in the U.S. to adopt membrane filtration for the treatment of FGD wastewater because of uncertainty related to system performance and the ability to operate successfully without frequent, if not excessive, chemical cleaning. This further supports EPA's proposal to find, at this time, that membrane filtration is not, technologically available or an appropriate basis for mandatory requirements for the entire industry. The EPA solicits comment on this availability finding, and whether membrane filtration may become nationally available sooner or later than 2028.
The EPA also rejects membranes as the technology basis for BAT for all existing facilities because it could discourage more valuable forms of beneficial reuse of FA (such as replacing Portland cement in concrete) potentially causing more FA to be incorporated in wastes being disposed.
Landfilling an encapsulated material raises challenges. For instance, comingling might result in a leachate blowout. The King County Landfill in Virginia experienced a leachate blow out when compact CCR materials with a low infiltration rate were layered with normal municipal solid waste having a higher infiltration rate. Similarly, in the case of encapsulated brine paste, the paste would set and thereafter achieve a very low infiltration rate. When comingled with CCRs having a higher infiltration rate, this would lead to layers with disparate infiltration rates akin to those experienced in the King County scenario. Thus, segregation of low infiltration rate encapsulated brine in a landfill cell separate from other, higher infiltration wastes could be necessary to prevent this layering, and a potential leachate blowout. Such dedicated landfill cells do not exist today, and would require time to permit and construct.
Moreover, instead of disposing of their FA, facilities can sell it for beneficial use. As stated in the 2015 CCR rule:
The beneficial use of CCR is a primary alternative to current disposal methods. And as EPA has repeatedly concluded, it is a method that, when performed correctly, can offer significant environmental benefits, including greenhouse gas (GHG) reduction, energy conservation, reduction in land disposal (along with the corresponding avoidance of potential CCR disposal impacts), and reduction in the need to mine and process virgin materials and the associated environmental impacts.
According to 2016 EIA data, the median percent of FA sold for beneficial use by the facilities with wet FGD systems is approximately fifty percent, with a range of zero to one hundred percent. The fact that encapsulation with FA and lime is the most likely, and least cost, brine management method that facilities could employ nationally, combined with the high percent of FA currently being beneficially used, indicates that selection of membrane filtration as BAT could discourage environmentally preferable beneficial uses of FA, such as replacement of Portland cement in concrete.
Finally, while the EPA views the foregoing reasoning as sufficient to find that membrane filtration is not BAT for all existing sources, the EPA notes that membrane filtration is projected to cost industry more than the proposed BAT option for FGD wastewater,
Although the EPA is proposing to reject membranes as the national technology basis for BAT, the EPA proposes to establish a VIP based on membrane technology, as discussed later in this section. The EPA solicits comment on this conclusion. Furthermore, the EPA solicits comment on whether there are early adopters who have already contracted for, purchased, or installed biological technology for compliance with the 2015 rule, and whether these facilities should be included as a subcategory not subject to the final BAT of Option 4, if finalized. The EPA solicits comment on whether such a subcategory could be based on the age of the new pollution control equipment that had not yet lived out its useful life, the disparate costs of purchasing two sets of equipment, or other statutory factors.
As described further below, the EPA is also not proposing to establish BAT limitations based on other technologies also evaluated in the 2015 rule.
First, except for the end of life boiler and low-utilization subcategories discussed below, the EPA is not proposing to establish BAT limitations based on surface impoundments. Surface impoundments are not as effective at controlling pollutants like dissolved metals and nutrients as available and achievable technologies like CP and LRTR. EPA drew a similar conclusion in the 2015 rule, and nothing in the record developed by the Agency since the 2015 rule would change this determination.
Second, the EPA is not proposing to establish BAT limitations based on thermal technologies, such as chemical precipitation (including softening) followed by a falling film evaporator, on the basis of high costs to industry. In the 2015 rule, the EPA rejected this technology as a basis for BAT limitations due to high costs to industry. Since the 2015 rule, the EPA has collected additional information on full-scale installations and pilots of thermal technologies to treat FGD wastewater. The EPA's record includes information about approximately 10 pilot studies conducted in the U.S., providing performance data for five different thermal technologies. In addition, full scale installations are operating at six facilities,
Furthermore, since membrane filtration technologies included in Option 4 appear to achieve similar pollutant removals for lower costs than thermal, the EPA is proposing to revise the basis for the VIP limitations adopted in the 2015 rule to membrane filtration, instead of thermal technologies, as discussed later in this section.
Finally, the EPA is not proposing to decline to establish BAT and leave BAT effluent limitations for FGD wastewater to be established by the permitting authority using BPJ. The EPA explained in the 2015 rule why BPJ determinations would not be appropriate for FGD wastewater, particularly given the availability of several other technologies, and nothing in EPA's record would alter its previous conclusion.
This proposal identifies treatment using high recycle rate systems as the BAT technology basis for control of pollutants discharged in BA transport water because, after evaluating the factors specified in CWA section 304(b)(2)(B), the EPA proposes to find that this technology is available and economically achievable. In the 2015 rule, the EPA selected dry BA handling or closed-loop wet ash handling systems as the technology basis for the “zero discharge” BAT requirements for BA transport water. The EPA established zero pollutant discharge limitations based on these technologies and included a limited allowance for pollutant discharges associated with certain maintenance activities.
At the time of the 2015 rule, the EPA estimated that more than 50 percent of facilities already employed dry handling systems or wet sluicing systems designed to operate closed-loop, or had announced plans to switch to such systems in the near future. Based on new information collected since the 2015 rule, that value is now over 75 percent, nearly evenly split between dry and wet systems. However, since the 2015 rule, the EPA's understanding of the types of available dry systems, and the ability of wet systems to achieve complete recycle has changed, as discussed below.
There have been advances in dry BA handling systems since the 2015 rule.
With respect to wet BA handling systems, in their petitions for reconsideration and in recent meetings with the EPA, utilities and trade associations informed the EPA that many existing remote wet systems are, in reality, “partially closed” rather than closed-loop, as indicated by the EPA in
The EPA agrees that the new information indicates that some facilities with wet ash removal systems generally operate as zero discharge systems, but in many cases must operate as high recycle rate systems. While some facilities currently handle the challenges discussed above by discharging some portion of their BA transport water (as the zero discharge limitations in the 2015 rule are not yet applicable), the record demonstrates that facilities can likely eliminate such discharges with additional process changes and expenditures. Just as the EPA estimated costs of chemical additions in the 2015 rule to manage scaling, companies could add additional treatment chemicals (caustic) to manage acidity or other chemicals to control alkalinity, make use of reverse osmosis filters to treat a slip stream of the recycled water to remove dissolved solids, add polymer to enhance settling and removal of fine particulates (“fines”), and build storage tanks to hold water during infrequent maintenance or precipitation events. Industry-wide, the EPA estimates the costs of fully closing the loop to be $43 million per year in after-tax costs, above and beyond the costs of the systems themselves.
The EPA also recognizes the need for facilities to consider the standards of multiple environmental regulations simultaneously. As discussed in Section IV above, the EPA is separately proposing changes to the CCR rule that, if finalized, would allow facilities to cease receiving waste in unlined surface impoundments by August 2020.
In light of the foregoing process changes (and associated engineering challenges) that facilities would need to make to implement a true zero discharge BA transport water limitation in combination with the CCR rule, and to give facilities flexibilities that will facilitate orderly compliance with the fast-approaching CCR rule deadlines, the EPA proposes to base the BA transport water BAT limitations on the use of dry handling or high recycle rate systems rather than dry handling or closed-loop systems, the technologies on which the zero discharge BAT limitation adopted in the 2015 rule were based. The EPA's proposal is based on its discretion to give particular weight to the CWA Section 304(b) statutory factor of “process changes.” Process changes to existing high recycle rate systems that do not currently operate as closed loop, or that will be installed in the near-future, to comply with this rule in conjunction with the CCR rule as discussed above could be more challenging without a further discharge allowance, and in some cases could also result in the prolonged use of unlined surface impoundments.
The EPA considers that the factors discussed above are sufficient to support the Agency's decision not to select closed-loop systems as BAT for BA transport water. The EPA also notes that cost is a statutory factor that it must consider when establishing BAT, and that closed-loop systems cost more than high recycle rate systems for treatment of BA transport water. While the EPA does not find this higher cost to be economically unachievable, the higher cost of closed loop systems is an additional reason for the EPA to not select closed loop systems as BAT for treating BA transport water.
Under the proposed option, the EPA would allow facilities with a wet transport system, on an “as needed” basis, to discharge up to 10 percent of the system volume per day on a 30-day rolling average to account for the challenges identified above, including infrequent large precipitation and maintenance events. The EPA proposes that the term “30-day rolling average” means the series of averages using the measured values of the preceding 30 days for each average in the series. This does not mean that the EPA expects all facilities to discharge up to 10 percent on a regular basis, rather this option is designed to provide flexibility if and when needed to address site-specific challenges of operating the recirculating
Under either option discussed above for determining discharge allowances (10 percent 30-day rolling average or site-specific), there may be wastewater from whatever is purged by the high recycle rate system, and plants may wish to discharge this wastewater. Two considerations make determining a nationwide BAT for these discharges challenging and fact-specific. First, in the case of precipitation or maintenance-related purges, such purges would be potentially large volumes at infrequent intervals.
In light of the information discussed above, and the EPA's authority under section 304(b) to consider both the process employed (for maintenance needs) and process changes (for new treatment systems installed to comply with the CCR rule), the EPA proposes that BAT limitations for any wastewater that is purged from a high recycle rate system and then discharged be established by the permitting authority on a case-by-case basis using BPJ. The EPA assumes permitting authorities will be in a better position than the EPA to examine site-specific climate and maintenance factors for infrequent events. Permitting authorities will also be in a better position than the EPA to account for site-specific treatment technologies and their configurations already installed or being installed to comply with the CCR rule and other regulations which could accommodate the volumes of, and successfully treat, any discharges of wastewater from a high recycle rate system associated with the proposed allowance. The EPA also solicits comment on technologies that could serve as the basis for BAT for this discharge and what technologies state permitting authorities may consider as BPJ. For example, the EPA solicits comment on whether surface impoundments could be selected as BAT based on high costs to control the purge with other technologies. The EPA further solicits comment on whether delaying the selection of appropriate treatment technology though the BPJ process masks the true cost of this proposed rule for both the regulated entity and the regulatory agency that must undertake the evaluation and ultimately establish BPJ. The EPA also solicits comment on whether the EPA should constrain BPJ by precluding the consideration of some technologies (
The EPA is not proposing to identify surface impoundments as BAT for BA transport water except for BATW purge water because surface impoundments are not as effective at removing dissolved metals as available and achievable technologies, such as high recycle rate systems. Furthermore, the record since the 2015 rule shows that facilities have continued to convert away from surface impoundments to the types of technologies described above, either voluntarily or due to the CCR rule, and in 2018, the U.S. Court of Appeals for the District of Columbia vacated that portion of the 2015 CCR rule that allowed both unlined and clay-lined surface impoundments to continue operating.
As part of the BAT for existing sources, the 2015 rule established a VIP that provided the certainty of more time (until December 31, 2023 instead of a date determined by the permitting authority that is as soon as possible beginning November 1, 2018) for facilities to implement new BAT limitations if they adopted additional process changes and controls that achieve limitations on mercury, arsenic, selenium and TDS in FGD wastewater, based on thermal evaporation technology.
The EPA proposes to revise the VIP limitations established in the 2015 rule using membrane filtration as the technology basis because it costs less than half the cost of thermal technology and has comparable pollutant removal performance. Membrane filtration achieves pollutant removals comparable to thermal systems in situations where the thermal system would discharge. Engineering documents for some individual facilities evaluated this technology as a zero liquid discharge system which would recycle permeate into the plant. Due to the higher costs of thermal systems compared to chemical precipitation followed by LRTR, the EPA does not expect that any facility would install a new thermal system under the 2015 rule VIP as the least cost technology. As authorized by section 304(b) of the CWA, which allows the EPA to consider costs, the EPA proposes membrane filtration as the technology basis for the VIP BAT limitations, with limitations for mercury, arsenic, selenium, nitrate-nitrite, bromide, and TDS.
Second, as authorized by section 304(b) of the CWA, which allows the EPA to consider process changes and non-water quality environmental impacts, the EPA proposes to revise the compliance date for the VIP limitations to December 31, 2028. That is the date the EPA has determined that the membrane filtration technology will be available nationwide, as that term is used in the CWA, for those facilities who choose to adopt it. This timeframe is based on the amount of time necessary to pilot, design, procure, and install both the membrane filtration systems and the brine management systems. The EPA notes that this is similar to the eight-year period between promulgation of the 2015 rule and the 2023 deadline for the current voluntary incentives program. The EPA proposes to find that forthcoming changes in membrane filtration brine disposal options may significantly reduce the non-water quality environmental impacts associated with encapsulation, discussed in Section VII(b)(i) above. Through discussions with several utilities and EPRI, the EPA learned that a forthcoming paste technology may allow facilities to mix the brine with lower quantities of FA and lime and pump the resulting paste via pipes to an onsite landfill where the paste would self-level prior to setting as an encapsulated material. According to these discussions, such a process may be less costly than existing brine disposal alternatives. This process could also reduce non-water quality environmental impacts by reducing the amount of FA used, decreasing air emissions and fuel use associated with trucking and spreading, and, where FA is already being disposed of, could reduce the volumes and pollutant concentrations in leachate.
One remaining challenge identified for this paste technology is developing approaches to manage wastes (
Taken together, the EPA's proposed changes to the VIP would give facilities greater flexibility when choosing a technology, while continuing to achieve pollutant reductions beyond the BAT limitations that are generally applicable to the industry and currently available nationwide. Under Option 2, the EPA estimated that 18 plants (27 percent of plants estimated to incur FGD compliance costs) may opt into the VIP program and under Option 3 the number rises to 23 plants (34 percent of plants estimated to incur FGD compliance costs). The EPA solicits comment on the accuracy of the cost estimates indicating that these plants would opt into the revised VIP program, including data identifying costs that may be potentially excluded from this analysis. Specifically, the EPA solicits data and information on any potential technology limitations, commercial availability, and other limitations that may affect plants' ability to adopt the VIP limits by the proposed VIP compliance date of 2028.
In the 2015 rule, the EPA established subcategories for small boilers (<50 MW nameplate capacity) and oil-fired units. The EPA subcategorized small boilers due to disproportionate costs when compared to the rest of the industry and subcategorized oil-fired boilers both because they generated substantially fewer pollutants and are generally older
If these units shut down, EPA is concerned about resulting reductions in the flexibility that grid operators have during peak demand due to less reserve generating capacity to draw upon. But, more importantly, maintaining a diverse fleet of generating units that includes a variety of fuel sources is important to the nation's energy security. Because the supply/delivery network for oil is different from other fuel sources, maintaining the existence of oil-fired generating units helps ensure reliable electric
For these subcategorized units, in the 2015 rule the EPA established differentiated limitations based on surface impoundments (i.e, setting BAT equal to BPT limitations for TSS).
As part of this proposal, the EPA is not proposing a change to the 2015 rule subcategorization of small and oil-fired boilers; therefore, these boilers have limitations for TSS. The EPA is incorporating and expanding on its previous analysis of characteristics and possible differences within the industry. The EPA proposes further subcategorization for FGD wastewater and BA transport water for boilers with low utilization and boilers with limited remaining useful life. In addition, for FGD wastewater, the EPA proposes to subcategorize units with high FGD flows. These proposed subcategories are discussed below.
The EPA is proposing to establish a new subcategory for facilities with high FGD flows based on the statutory factor of cost. The 2015 rule discussed the ability of high-flow facilities to recycle FGD wastewater back into the air pollution control system to decrease FGD wastewater flows and treatment costs. After the 2015 rule, the Tennessee Valley Authority (TVA) submitted a request seeking a fundamentally different factors (FDF) variance for its Cumberland power facility.
The EPA proposes to subcategorize facilities with FGD purge flows greater than four million gallons per day, after accounting for that facility's ability to recycle the wastewater to the maximum limits for the FGD system materials of construction to avoid placing a disproportionate cost on such facilities.
According to TVA's analysis, chemical precipitation plus biological treatment would result in a capital cost of $171 million, and an O&M cost of approximately $20 million per year.
The EPA is proposing to establish a new subcategory for boilers with low utilization based on the statutory factors of cost and non-water quality environmental impacts (including energy requirements). Low natural gas prices and other factors have led to a decline in capacity utilization for the majority of coal-fired boilers. According to EIA 923 data,
In light of these industry changes, the EPA examined the costs of the proposed BAT limitations and pretreatment standards for FGD wastewater and BA transport water on the basis of MWh produced, rather than the nameplate capacity used to subcategorize boilers less than or equal to 50 MW in the 2015 rule. Due to changed utilization, nameplate capacity has become less representative of electricity production. Nevertheless, the EPA is not proposing any changes to the 50 MW nameplate capacity subcategory of the 2015 rule as that subcategory applied to additional wastestreams not part of this proposal (
Similar to the EPA's finding regarding small boilers in the 2015 rule, the record indicates that disparate costs to meet the proposed FGD wastewater and BA transport water BAT limitations and pretreatment standards are imposed on boilers with low capacity utilization. Figure VIII-1 below presents costs per MWh produced as measured against the status quo, rather than against the 2015 rule baseline. As can be seen in this figure, there is a significant difference between boilers above and below 876,000 MWh per year.
In addition to
In light of the information discussed above, the EPA proposes to establish a subcategory for low utilization units producing less than 876,000 MWh per year. The EPA solicits comment on whether this subcategory should be based on alternative utilization thresholds. For this subcategory, the EPA proposes to select chemical precipitation as the technology basis for BAT for FGD wastewater, with effluent limitations for mercury and arsenic. The EPA solicits comment on whether chemical precipitation is appropriate and economical or if other approaches would be appropriate. The EPA requests commenters identify and include available data or information to support their recommended approach. Also, for this subcategory, as it did for the subcategories established in the 2015 rule, the EPA proposes to select surface impoundments as the BAT technology basis for BA transport water and establish limitations for TSS based on surface impoundments in combination with a BMP plan under section 304(e) of the Act. Although facilities are likely to meet these TSS limits using technologies other than surface impoundments once they have closed any unlined surface impoundments under the CCR rule, facilities may choose to retrofit a surface impoundment or construct a new surface impoundment. As authorized by section 304(b) of the CWA, which allows the EPA to consider costs, the EPA proposes to find that additional technologies are not BAT for this subcategory due to the unacceptable disproportionate costs per MWh those technologies would impose. Chemical precipitation for FGD wastewater and surface impoundments for BA transport water, along with a requirement to prepare and implement a BMP plan under section 304(e) of the Act to reduce pollutant discharges, are the only technologies the EPA proposes to find would not impose such disproportionate costs on this subcategory of boilers. While the Fifth Circuit in
The EPA is proposing to establish a new subcategory for boilers retiring by 2028 based on the statutory factors of cost, the age of the equipment and facilities involved, non-water quality environmental impacts (including energy requirements), and other factors as the Administrator deems appropriate. The EPA has continued to gather information about facility and boiler retirements, deactivations, and fuel conversions since the 2015 rule. Of the 107 facilities that the EPA identified in Section 3 of the Supplemental TDD that have announced, commenced or completed such actions, the most frequently stated reason was market forces, such as the continued low price of natural gas (49 facilities).
(2)
To further explore this, the EPA examined the cost implications of complying with the proposed limitations and standards on a dollar-per-MWh-produced basis under hypothetical boiler retirement scenarios. Cost estimates for this proposal assume that facilities will amortize capital and O&M costs across the 20-year life of the technologies (
In meetings with the EPA, utilities expressed two other concerns related to retiring units. First, several utilities discussed the potential for stranded assets where equipment would be purchased near the end of a facility's useful life and the public utility commission (PUC) would not allow cost recovery. Although the utilities indicated that PUCs have historically allowed for cost recovery even after the retirement of a boiler, they provided recent examples of PUCs rejecting cost recovery, which make the prospect of continued recovery after retirement less certain. Second, the utilities expressed the need for sufficient time to plan, construct, and obtain necessary permits and approvals for replacement generating capacity. In discussions of example Integrated Resource Plans (IRPs) and the associated process, utilities suggested timelines that would extend for five to eight years or longer.
Finally, the North American Electric Reliability Corporation (NERC) recently conducted an aggressive stress test scenario identifying the reliability risks if large baseload coal and nuclear facilities were to bring their projected retirement dates forward.
In light of the information discussed above, and the EPA's authority under section 304(b) to consider cost, the age of equipment and facilities involved, non-water quality environmental impacts (including energy requirements), and other factors that the Administrator deems appropriate, the EPA proposes a new subcategory for boilers with a limited remaining useful life,
The EPA solicits comment on whether approaches to retirement in other rules have worked particularly well and might be adopted here. The EPA solicits comment on whether this subcategory would adversely incentivize coal-fired boilers planning to retire after 2028 to accelerate their retirement to 2028, as well as alternatives for addressing the disproportionate costs, energy requirements, and intersection with the CCR rule discussed above. The EPA also solicits comment on whether this subcategory should also be available for boilers that are planned to be repowered or replaced by 2028, not just those planned for retirement. For example, the EPA solicits comment on data and information demonstrating that boilers that are repowered with gas units are unable to finance both the repowering and the FGD and BA technology upgrades applicable to the rest of the industrial category, and whether BAT for such units should also be established based on surface impoundments as for retiring units described above. The EPA solicits comment on whether 2028 is the most appropriate target date for retirement or if a date earlier or later than 2028 would be more appropriate. The EPA also solicits comment on whether an additional subcategory for low utilization boilers retiring by a date certain that is after 2028 would be warranted, and what an appropriate retirement date might be. The EPA requests commenters identify and include available data or information to support their recommended approach.
Where BAT limitations in the 2015 rule are more stringent than previously established BPT limitations for FGD wastewater and BA transport water, those limitations, under the compliance dates as amended by the 2017 postponement rule, do not apply until a date determined by the permitting authority that is “as soon as possible” beginning November 1, 2020.
In the 2015 rule, and as amended by the 2017 postponement rule, the EPA selected the time frames described above to enable many facilities to raise needed capital, plan and design systems, procure equipment, and then construct and test systems. The time frames also allow for consideration of facility changes being made in response to other Agency rules affecting the steam electric power generating industry (
As described previously, the industry continues to shift away from the use of surface impoundments for handling BA. Information collected since the 2015 rule, as well as conversations with electric utilities, EPA understands that facilities may be able to complete design, procurement, installation, and operation of BA transport water technologies by December 31, 2023.
For FGD wastewater, the EPA proposes to continue the existing “beginning” date, but proposes a different “no later than” date. The EPA collected updated information regarding the technical availability of the proposed FGD BAT technology basis, including the proposed VIP alternative. Based on the engineering dependency charts, bids, and other analytical documents in the current record, individual facilities may need two to three years from the effective date of any rule to install and begin operating a treatment system to achieve BAT.
In addition, as discussed earlier, the EPA is proposing to give facilities that elect to use the VIP until December 31, 2028, to meet the VIP limitations, which are based on membrane filtration technology. That is the date on which the EPA proposes to determine that the membrane filtration-based limitations are “available” (as that term is used in the CWA) to all plants that might choose to participate in the voluntary incentives program. The EPA is proposing to give facilities sufficient time to work out operational issues related to being the first facilities in the U.S. to treat FGD wastewater using membrane filtration at full scale, as well as having to dispose of the resulting brine. Both issues contribute to the EPA's proposed decision that membrane filtration is not BAT on a nationwide basis at this time. The EPA also wants to incentivize facilities to opt into a program that can achieve significant pollutant reductions.
The 2015 rule rejected thermal evaporation technology as the basis for BAT and therefore did not establish limitations for bromides in FGD wastewater. Section XVI.D of the preamble noted that the VIP established in the 2015 rule would address bromide through the limitations for TDS. The newly proposed VIP includes limits for bromide. Because the EPA proposes to provide more flexible VIP limits on other pollutants and more flexible VIP timing, the EPA estimates that selecting the proposed VIP may be the least-cost option for some facilities. The facilities that the EPA estimates VIP may be the least-cost option range in FGD wastewater flows, nameplate capacity, capacity utilization, and location. The EPA cost estimates for the VIP tend to be lower at facilities where no treatment has been installed beyond surface impoundments, however even for this group of facilities biological systems are still often least-cost. Thus, while the EPA estimates that the proposed revisions to the VIP may address bromide at more facilities than the 2015 VIP, it is still a voluntary program, and concerns about costs, availability, and disposal of the resultant brine are still present.
The EPA suggested in the preamble to the 2015 rule that water-quality-based effluent limitations may be appropriate on a site-specific basis to address the potential impacts of bromides on downstream drinking water treatment facilities, as determined by state permitting authorities. Since that time, few states have begun to monitor bromide discharges and it is unclear how many have acted to address such discharges.
On June 8, 2018, drinking water utilities sent a letter to the EPA requesting that the Agency consider three regulatory BAT/PSES technology options to reduce bromide discharges in FGD wastewater: (1) Zero liquid discharge technologies (ZLD), such as membrane filtration or thermal treatment; (2) treatment with reverse osmosis; or (3) a requirement that facilities provide data to the state permitting authority for use in calculating a site-specific discharge limitation. For the reasons explained earlier in this section, the EPA is not proposing to base BAT limitations or PSES for FGD wastewater at all existing units based on membrane filtration or thermal treatment. The EPA proposes a water quality-based approach as the most appropriate approach and solicits comment on that alternative, including ways that such an alternative could be strengthened. However, in light of the letter from the drinking water utilities and the limited state action since the 2015 rule to address this potential issue, the EPA is requesting comment on three bromide-specific regulatory sub-options in addition to the proposed approach of retaining the 2015 rule's approach of leaving bromides to be limited by permitting authorities where appropriate using water quality-based effluent limitations:
In the case of FGD wastewater monitoring, the EPA solicits comment on two approaches suggested by electric utilities. Under the first approach, bromide would be monitored monthly for two years, and thereafter only after specific changes in facility operations that could alter bromide concentrations in FGD wastewater. Such operational changes could include changing to a brominated refined coal, a bromide addition process, a coal feedstock with higher bromide levels, or use of brominated powdered activated carbon (PAC). Under the second approach, bromide would be monitored monthly for five years in two locations to better capture bromide variability. The first monitoring location would be of intake water not affected by the site's discharge to capture what fraction of bromide is present from background surface water. The second would be of discharge water to capture the amount of bromide added by various wastewaters. The monitoring point for the FGD wastewater discharge could be at the final outfall. The EPA also solicits comment on whether monitoring should be longer or shorter duration than proposed and if additional monitoring locations may be appropriate to capture other operational changes that the EPA has not identified.
The EPA solicits comment on whether a facility should develop a plan to minimize its use of bromide on a site-specific basis. Such a plan could allow a facility to consider the costs of potential approaches to minimizing bromide use in conjunction with its efforts to meet other standards (
Regarding a bromide limitation based on product substitution, the EPA solicits comment on whether a limitation could be established that reflects the difference in concentrations naturally occurring in coal as opposed to levels found in refined coal or from other halogen applications. Alternatively, the EPA solicits comment on whether facilities could certify that they do not burn refined coal and/or use bromide addition processes. The EPA solicits data that supports development of a numerical bromide limitation, or that demonstrates a specific numerical bromide limitation to be inappropriate.
The Agency solicits input on the pros and cons of each of these bromide sub-option approaches. Finally, the Agency solicits comment on other pollutants, including other halides, discharged from steam electric facilities that may impact the formation of disinfection byproducts (DBPs).
As the EPA did for the 2015 rule, the Agency performed cost and economic impact assessments using the Integrated Planning Model (IPM) to determine the effect of the proposed ELGs, using a baseline that incorporates impacts from other relevant environmental regulations (
The EPA similarly ran the IPM model to determine the effect of the regulatory options presented in Table VII-1. Options 2 and 4 bound the costs to industry of these four options, IPM results from these options alone reflect the range of impacts associated with all four regulatory options.
The EPA's economic achievability analysis for this and other options is described in Section VIII, below.
For the 2015 rule, the EPA performed an assessment of non-water quality environmental impacts, including energy requirements, air impacts, solid waste impacts, and changes in water use and found them to be acceptable. The EPA has reevaluated these impacts in light of the changed industry profile, as well as the proposed changes to BAT. Based on the results of these analyses the EPA determined that Options 1, 2, and 3 have acceptable non-water quality impacts. Option 4, however, would result in unacceptable non-water quality environmental impacts where management of the brine could divert FA that might otherwise be sold for use in products (
As the EPA did for the 2015 rule, the Agency examined the effects of today's regulatory options on consumers as an additional factor that might be appropriate when considering what level of control represents BAT. If all annualized compliance cost savings were passed on to residential consumers of electricity, instead of being borne by the operators and owners of facilities, the average monthly cost savings under any of the options would be between $0.01 and 0.04 per month as compared to the 2015 rule.
The EPA similarly evaluated the effect of today's regulatory options on minority and low-income populations. As explained in Section XII, the EPA used demographic data for populations potentially impacted by steam electric power plant discharges due to their proximity (
The EPA is continuing to rely on the pass-through analysis as the basis of the limitations and standards in the 2015 rule. With respect to FGD wastewater, as discussed above, the long-term averages for low residence time biological treatment are very similar to or lower than those achieved with high residence time biological systems. On this basis, the EPA proposes to conclude that mercury, arsenic, selenium, and nitrate/nitrite pass-through POTWs, as it concluded in the 2015 rule.
With respect to BA, the EPA notes that facilities converting to dry handling or recycling all of their BA transport water would continue to perform as the zero discharge systems the EPA used in its 2015 rule pass-through analysis. As explained in Section VII.b.ii, for those facilities using high rate recycle systems, the EPA proposes to allow a discharge up to 10 percent of the system volume per day on a 30-day rolling average and to subject such direct discharges to TSS limitations of BPT. Consistent with the 2015 rule pass through analysis, TSS is not considered to pass through and the EPA would not establish TSS limitations under PSES.
Thus, like BAT, the EPA proposes to establish PSES based on Option 2: PSES for FGD wastewater based on chemical precipitation plus low hydraulic residence time biological treatment, and PSES for BA transport water based on dry handling or high recycle rate systems.
As with the final BAT effluent limitations, in considering the availability and achievability of the final PSES, the EPA concluded that existing indirect dischargers need some time to achieve the final standards, in part to avoid forced outages (see Section VIII.C.7). However, in contrast to the BAT limitations (which apply on a date determined by the permitting authority that is as soon as possible beginning November 1, 2020, but no later than December 31, 2023, for BA transport water, and no later than December 31, 2025, for FGD wastewater), facilities must meet the PSES no later than three years after the effective date of any final rule. Under CWA section 307(b)(1), pretreatment standards shall specify a time for compliance not to exceed three years from the date of promulgation, so the EPA cannot establish a longer implementation period. Moreover, unlike limitations on direct discharges, limitations on indirect discharges are not implemented through an NPDES permit and thus are specified clearly for the discharger without delay, without waiting some time for the next permit issuance. The EPA has determined that all current indirect dischargers can meet the standards within three years of the effective date of any final rule (which the EPA projects will be issued in the summer of 2020).
The EPA evaluated the costs and associated impacts of the proposed regulatory options on existing boilers at steam electric facilities. These costs are analyzed within the context of compounding regulations and other industry trends that have affected steam electric facilities profitability and generation. These include the impacts of existing environmental regulations (
In developing ELGs, and as required by CWA section 301(b)(2)(A), the EPA evaluates the economic achievability of regulatory options to assess the impacts of applying the limitations and standards on the industry as a whole, which typically includes an assessment of incremental facility closures attributable to a regulatory option. As described in more detail below, this proposed ELG is expected to provide cost savings when compared to the baseline. Like the prior analysis of the 2015 rule, the cost and economic impact analysis for this proposed rulemaking focuses on understanding the magnitude and distribution of compliance cost savings across the industry, and the broader market impacts.
The EPA used certain indicators to assess the impacts of the proposed regulatory options on the steam electric power generating industry as a whole. These indicators are consistent with those used to assess the economic achievability of the 2015 rule (80 FR 67838); however, for this proposal, the EPA compared the values to a baseline that reflects implementation of existing environmental regulations (as of this proposal), including the 2015 rule. In the 2015 rule analysis, the costs of achieving the 2015 rule requirements were reflected in the policy cases analyzed rather than the baseline. Here, the baseline appropriately includes costs for achieving the 2015 rule limitations and standards, and the policy cases show the impacts resulting from changes to those existing 2015 limitations and standards. More specifically, the EPA considered the total cost to industry and change in the number and capacity of specific boilers and facilities expected to close under the options in this proposal (including proposed Option 2) compared to the estimated baseline costs. The EPA also analyzed the ratio of compliance costs to revenue to see how the proposed regulatory options change the number of facilities and their owning entities that exceed certain thresholds indicating potential financial strain.
In addition to the analyses supporting the economic achievability of the regulatory options, the EPA conducted other analyses to (1) characterize other potential impacts of the regulatory options (
The EPA estimated facility-specific costs to control FGD wastewater and BA transport water discharges at existing boilers at steam electric facilities to
Following the same methodology used for the 2015 rule analysis, the EPA used a rate of seven percent to annualize one-time costs and costs recurring on other than on an annual basis over a specific useful life, implementation, and/or event recurrence period. For capital costs and initial one-time costs, the EPA used 20 years. For O&M costs incurred at intervals greater than one year, EPA used the interval as the annualization period (3 years, 5 years, 6 years, 10 years). The EPA added annualized capital, initial one-time costs, and the non-annual portion of O&M costs to annual O&M costs to derive total annualized facility costs. The EPA then calculated total industry costs by summing facility-specific annualized costs. For the assessment of industry costs, the EPA considered costs on both a pre-tax and after-tax basis. Pre-tax annualized costs provide insight on the total expenditure as incurred, while after-tax annualized costs are a more meaningful measure of impact on privately owned for-profit facilities and incorporate approximate capital depreciation and other relevant tax treatments in the analysis. The EPA uses pre- and/or after-tax costs in different analyses, depending on the concept appropriate to each analysis (
Table VIII-1 summarizes estimates of incremental pre- and post-tax industry costs for the four regulatory options presented in Table VII-1 as compared to the baseline. All four options provide cost savings (negative incremental costs) as compared to the costs that the industry would incur under the 2015 rule. Under all four options, some savings are attributable to cheaper high recycle rate BA systems. Under Options 1, 2, and 3, additional savings are due to lower cost FGD wastewater treatment systems (chemical precipitation and LRTR). Under Option 2, further savings are attributable to the subcategorization of low utilization boilers. Finally, some cost savings are due to the changes in compliance timeframes discussed above in Section VII.D. The after-tax savings range from approximately $26 million under Option 4 to $147 million under Option 2.
Social costs are the costs of the proposed rule from the viewpoint of society as a whole, rather than the viewpoint of regulated facilities (which are private costs). In calculating social costs, the EPA tabulated the pre-tax costs in the year when they are estimated to be incurred. As described in Section VII.D of this preamble, the proposed compliance deadlines and therefore the expected technology implementation years vary across the regulatory options. The EPA performed the social cost analysis over a 27-year analysis period of 2021-2047, which combines the length of the period during which facilities are anticipated to install the control technologies (which could be as late as 2028 under Option 4) and the useful life of the longest-lived technology installed at any facility (20 years). The EPA calculated the social cost of the proposed rule using both a three percent discount rate and an alternative discount rate of seven percent.
Social costs include costs incurred by both private entities and the government (
Table VIII-2 presents the total annualized social costs of the four regulatory options presented in Table VII-1, compared to the baseline and calculated using three percent and seven percent discount rates. All four options provide cost savings (negative incremental costs) compared to the baseline using a seven percent discount rate, and Options 1, 2, and 3 also show cost savings using a three percent discount rate. Option 2 has estimated annualized cost savings of $166.2 million using a seven percent discount rate and $136.3 million using a three percent discount rate.
The EPA assessed the economic impacts of this proposed rule in two ways: (1) A screening-level assessment of the cost impacts on existing boilers at steam electric facilities and the entities
The first set of cost and economic impact analyses—at both the facility and parent company levels—provide screening-level indicators of the impacts of costs for FGD wastewater and BA transport water controls relative to historical operating characteristics of steam electric facilities incurring those costs (
The EPA conducted a screening-level analysis of each regulatory option's potential impact to existing boilers at steam electric facilities and parent entities based on cost-to-revenue ratios. For each of the two levels of analysis (facility and parent entity), the Agency assumed, for analytic convenience and as a worst-case scenario, that none of the compliance costs would be passed on to consumers through electricity rate increases and would instead be absorbed by the steam electric facilities and their parent entities. This assumption overstates the impacts of compliance expenditures since steam electric facilities that operate in a regulated market may be able to pass on changes in production costs to consumers through changes in electricity prices. It is, however, an appropriate assumption for a screening-level estimate of the potential cost impacts.
The EPA developed revenue estimates for this analysis using EIA data. The EPA then calculated the change in the annualized after-tax costs of the four regulatory options presented in Table VII-1 as a percent of baseline annual revenues.
Cost-to-revenue ratios are used to describe impacts to entities because they provide screening-level indicators of potential economic impacts. Just as for the facilities owned by small entities under guidance in U.S. EPA (2006),
As a result of the 2015 rule (baseline), the EPA estimated that 18 facilities incur costs greater than or equal to one percent of revenue, including six facilities that have costs greater than or equal to three percent of revenue, and an additional 96 facilities incur costs that are less than one percent of revenue. By contrast, the four regulatory options the EPA analyzed for this proposal are estimated to provide cost savings that reduce this impact to various degrees, with Option 2 showing the largest reductions in cost. Options 1, 3, and 4 show an estimated 16 to 19 facilities with costs greater than or equal to one percent of revenue, including four or five facilities with costs greater than or equal to three percent of revenue. Under Option 2, the EPA estimated that eight facilities incur costs greater than or equal to one percent of revenue, including two facilities that have costs greater than or equal to three percent of revenue, and an additional 100 facilities incur costs that are less than one percent of revenue.
The EPA also assessed the economic impact of the regulatory options presented in Table VII-1 at the parent entity level. The screening-level cost-to-revenue analysis at the parent entity level provides insight on the impact on those entities that own existing boilers at steam electric facilities. In this analysis, the domestic parent entity associated with a given facility is defined as that entity with the largest ownership share in the facility. For each parent entity, the EPA compared the incremental change in the total annualized after-tax costs and the total revenue for the entity compared to the baseline (
Similar to the facility-level analysis above, cost-to-revenue ratios provide screening-level indicators of potential economic impacts, this time to the owning entities; higher ratios suggest a higher probability of economic impacts. The EPA estimated that the number of entities owning existing boilers at steam electric facilities ranges from 243 (lower-bound estimate) to 478 (upper-bound estimate), depending on the assumed ownership structure of facilities not incurring ELG costs and not explicitly analyzed. The EPA estimates that in the baseline 236 to 470 parent entities, respectively, would either incur no costs or the annualized cost they incur to meet the 2015 rule BAT limitations and pretreatment standards would represent less than one percent of their revenues.
Compared to the baseline, all four regulatory options reduce the impacts on the small number of entities incurring costs. The changes are greatest for Option 2, which has five fewer entities with costs exceeding one percent of revenue, including one less entity with costs exceeding three percent of revenue, with the remaining entities either having no cost, or costs that are less than one percent of revenue. Options 1 and 3 each have two fewer entities in the one to three percent of revenue category, and Option 4 has
In analyzing the impacts of regulatory actions affecting the electric power sector, the EPA used IPM, a comprehensive electricity market optimization model that can evaluate such impacts within the context of regional and national electricity markets. The model is designed to evaluate the effects of changes in boiler-level electric generation costs on the total cost of electricity supply, subject to specified demand and emissions constraints. Use of a comprehensive, market analysis system is important in assessing the potential impact of any power facility regulation because of the interdependence of electric boilers in supplying power to the electric transmission grid. Changes in electricity production costs at some boilers can have a range of broader market impacts affecting other boilers, including the likelihood that various units are dispatched, on average. The analysis also provides important insight on steam electric capacity closures (
The EPA analyzed proposed Option 2 and Option 4 using IPM V6. As discussed in Section VIII.A, these two options have the greatest and least cost savings, respectively, compared to the baseline, and therefore reflect the full range of potential impacts from the regulatory options in this proposal. In addition, following promulgation of the ACE final rule, EPA also analyzed proposed Option 2 relative to a baseline that includes the ACE rule.
In contrast to the screening-level analyses, which are static analyses and do not account for interdependence of electric boilers in supplying power to the electricity transmission grid, IPM V6 accounts for potential changes in the generation profile of steam electric and other boilers and consequent changes in market-level generation costs, as the electric power market responds to changes in generation costs for steam electric boilers due to the regulatory options. Additionally, in contrast to the screening-level analyses, in which the EPA assumed no cost pass through of ELG compliance costs, IPM V6 depicts production activity in wholesale electricity markets where the specific increases in electricity prices for individual markets would result in some recovery of compliance costs for plants in those markets.
In analyzing the regulatory options presented in Table VII-1, the EPA estimated changes in fixed and variable costs for the steam electric facilities and boilers already incurring costs in the baseline to instead incur costs (or avoid incurring costs) to comply with Option 2 and Option 4. Because IPM is not designed to endogenously model the selection of wastewater treatment technologies as a function of electricity generation, effluent flows, and pollutant discharge, the EPA estimated these costs exogenously for each steam electric generating unit and input these costs into the IPM model as fixed and variable O&M cost adders. The EPA then ran IPM V6 including these new cost estimates to determine the dispatch of electric boilers that would meet projected demand at the lowest costs, subject to the same constraints as those present in the baseline analysis. The estimated changes in facility- and boiler-specific production levels and costs—and, in turn, changes in total electric power sector costs and production profile—are key data elements in evaluating the expected national and regional effects of the regulatory options in this proposal, including closures or avoided closures of steam electric boilers and facilities. The EPA considered impact metrics of interest at three levels of aggregation: (1) Impact on national and regional electricity markets (all electric power generation, including steam and non-steam electric facilities); (2) impact on steam electric facilities as a group, and (3) impact on individual steam electric facilities incurring costs. Chapter 5 of the RIA discusses the first analysis; the sections below summarize the last two, which are further described in Chapter 5 and in Appendix C of the RIA. All results presented below are representative of modeled market conditions in the years 2028-2033, when the rule would either be implemented or plans for implementation by the end of 2028 would be well underway at all facilities.
The EPA used IPM V6 results for 2030
Under proposed Option 2, generation at steam electric facilities is projected to increase by 4,676 GWh (0.3 percent) nationally, when compared to the baseline. IPM V6 projects a net increase in total steam electric capacity by 2,880 MW or approximately 0.9 percent of total baseline capacity, but no net change in the number of full facility retirements and the net avoidance of three partial retirements (unit closures) nationwide indicating a higher capacity utilization by these facilities.
IPM V6 projects generation at steam electric facilities increases under Option 4 by 1,235 GWh (0.1 percent) nationally, which is smaller in magnitude than the increase under Option 2. National level results for steam electric facilities under Option 4 show an increase in total steam electric capacity of 3,194 MW (0.9 percent of the baseline). At the national level, IPM projects one net avoided full facility closure and the same three avoided partial retirements as for Option 2.
These findings suggest that all of the regulatory options in this proposal can be expected to have small economic consequences for the steam electric facilities as a group. Options 2 and 4 also affect the operating status of very few steam electric facilities, with no net change in facility closures under Option 2, and one net avoided closure under Option 4.
Because the analysis of the proposed options discussed in the RIA was completed before the EPA finalized the ACE rule, this analysis does not include the projected effects of the ACE rule. Thus, the EPA conducted a supplemental IPM run with the costs of Option 2 on a baseline that includes the ACE illustrative case presented in the ACE final rule (
Examining the incremental impacts of Option 2 on a baseline including ACE, generation at steam electric facilities is projected to increase by 3,107 GWh (0.9 percent) nationally. IPM V6 projects a net increase in total steam electric capacity by 7,345 MW or approximately 0.5 percent of total baseline capacity. There is one incremental full facility retirement as well as the net avoidance of four partial retirements (unit closures) nationwide indicating a higher capacity utilization by these facilities. See Appendix C of the RIA for further details.
To assess potential facility-level effects, the EPA also analyzed facility-specific changes attributable to the regulatory options in Table VII-1 for the following metrics: (1) Capacity utilization (defined as annual generation (in MWh) divided by [capacity (MW) times 8,760 hours]) (2) electricity generation, and (3) variable production costs per MWh, defined as variable O&M cost plus fuel cost divided by net generation. The analysis of changes in individual facilities is detailed in Chapter 5 of the RIA.
The results for both Option 2 and Option 4 show no change, or less than a one percent reduction or one percent increase for steam electric facilities projected to incur ELG compliance costs. For Option 2, a greater number of facilities see improving operating
In developing ELGs, the EPA typically evaluates the pollutant loading reductions of regulatory options to assess the impacts of the compliance requirements on discharges from the industry as a whole. In estimating pollutant reductions associated with this proposal, the EPA took the same approach as described above for facility-specific costs. That is, the EPA compared the values to a baseline that reflects implementation of existing environmental regulations, including the 2015 rule. In the 2015 rule, the baseline did not reflect pollutant loading reductions for achieving the 2015 rule requirements as that impact is what EPA analyzed. Here, the baseline appropriately includes pollutant loading reductions for achieving the 2015 rule requirements as the EPA is analyzing the impact resulting from any changes to those requirements. More specifically, the EPA considered the change in the pollutant loading reductions associated with the regulatory options in this proposal to those projected under the baseline.
The general methodology that the EPA used to calculate pollutant loadings is the same as that described in the 2015 rule. The EPA used data collected for the 2015 rule, as well as the data described in Section VI, to characterize pollutant concentrations for FGD wastewater and bottom ash transport water. The EPA evaluated these data sources to identify analytical data that meet EPA's acceptance criteria for inclusion in analyses for characterizing discharges of FGD wastewater and bottom ash transport water. For each plant discharging FGD wastewater or bottom ash transport water, the EPA used data from the 2009 survey and/or industry-submitted data to determine the discharge flow rates for FGD wastewater and bottom ash transport water. The EPA adjusted the discharge flow rates used in the pollutant loadings estimates to account for retirements, fuel conversions, and other changes in operations scheduled to occur by December 31, 2028, described in Section 6 of the Supplemental TDD, that will eliminate or alter the discharge of an applicable wastestream. Finally, the Agency adjusted the discharge flow rates to account for changes in plant operations to optimize FGD wastewater flows and to comply with the CCR rule. For further discussion of these adjustments see Section 6.2.2 and 6.3.2 of the Supplemental TDD, respectively.
The EPA first estimated—on an annual, per facility basis—the pollutant discharge load for FGD wastewater and BA transport water associated with the technology basis evaluated for facilities to comply with the 2015 rule requirements for FGD wastewater and BA transport water relative to the conditions currently present or planned at each facility. The EPA similarly estimated facility-specific post-compliance pollutant loadings associated with the technology bases for facilities to comply with effluent limitations based on each of the regulatory options in this proposal. For each regulatory option, the EPA then calculated the changes in pollutant loadings at a particular facility as the sum of the differences between the estimated baseline and post-compliance discharge loadings for each applicable wastestream.
For those facilities that discharge indirectly to POTWs, the EPA adjusted the baseline and option loadings to account for pollutant removals expected from POTWs. These adjusted pollutant loadings for indirect dischargers therefore approximate the resulting discharges to receiving waters. For additional details on the methodology the EPA used to calculate pollutant loading reductions,
For FGD wastewater, the EPA continued to use the average pollutant effluent concentration with facility-specific discharge flow rates to estimate the mass pollutant discharge per facility for baseline and each regulatory option in Table VII-1. The EPA used data compiled for the 2015 rule as the initial basis for estimating discharge flow rates and updated the data to reflect retirements or other relevant changes in operation. For example, the EPA reviewed state and EIA data to identify flow rates for new scrubbers that have come online since the 2015 rule. The EPA also accounted for increased rates of recycle through the scrubber that would affect the discharge flow.
The EPA assigned pollutant concentrations for each analyte based on the operation of a treatment system designed to comply with the baseline or the regulatory options considered. The EPA used data compiled for the 2015 rule to characterize untreated FGD purge, chemical precipitation effluent, and chemical precipitation plus high hydraulic residence time biological reduction effluent. The EPA used data provided by industry to characterize effluent quality for chemical precipitation plus LRTR and membrane filtration effluent. In addition, the EPA used data provided by industry and other stakeholders as described in Section VI of this preamble to quantify bromide in FGD wastewater under baseline conditions and for the regulatory options.
The EPA estimated baseline and post-compliance loadings for each regulatory option in Table VII-1 using pollutant concentrations for BA transport water and facility-specific flow rates. The EPA used data compiled for the 2015 rule as the basis for estimating BA transport water discharge flows and updated the data set to reflect retirements and other relevant changes in operation (
For this proposed rule, in response to the administrative petitions discussed in Section IV of this preamble, the EPA was able to use a revised set of the 2015 rule analytical data to characterize BA transport water effluent from steam electric facilities. As an example, the EPA re-evaluated and revised, as appropriate, its data sets in light of questions petitioners raised about the inclusion and validity of certain data due, in part, to what the petitioners assert are flaws in data acceptance criteria, obsolete analytical methods, and the treatment of non-detect analytical results, which petitioners believed resulted in an overestimation of pollutant loadings resulting from current practices for BA transport water, in turn resulting in an overestimation of pollutant removals under the 2015 rule. The EPA also updated the data set and incorporated BA transport water
Table IX-1 summarizes the net change to annual pollutant loadings, compared to baseline, associated with each regulatory option in Table VII-1.
Compared to the 2015 rule, Options 2, 3 and 4 result in decreased pollutant loadings to surface waters. Reductions under Options 2 and 3 would be realized to the extent that operators chose to meet the limitations based on membrane filtration under the proposed revisions of VIP for FGD wastewater. Under Option 2, the EPA estimated that 18 plants (27 percent of plants estimated to incur FGD compliance costs) would opt into the VIP program and under Option 3 the number rises to 23 plants (34 percent of plants estimated to incur FGD compliance costs).
The elimination or reduction of one form of pollution may create or aggravate other environmental problems. Therefore, Sections 304(b) and 306 of the Act require the EPA to consider non-water quality environmental impacts (including energy impacts) associated with ELGs. Accordingly, the EPA has considered the potential impact of the regulatory options in today's proposal on air emissions, solid waste generation, and energy consumption. For the reasons described in Section IX of this preamble, the baseline for these analyses appropriately includes non-water quality environmental impacts associated with achieving the 2015 rule requirements, and the EPA is analyzing the incremental impacts resulting from the regulatory options presented in Table VII-1 compared to those projected under the baseline. In general, the EPA used the same methodology to conduct the current analysis (with updated data as applicable) as it did for the analysis supporting the 2015 rule. The following summarizes the methodology and results.
Steam electric facilities use energy when transporting ash and other solids on or off site, operating wastewater treatment systems (
The EPA estimated the amount of energy needed to operate wastewater treatment systems and ash handling systems based on the horsepower rating of the pumps and other equipment. The EPA also estimated the fuel consumption associated with the changes in transportation needed to landfill solid waste and combustion residuals (
The regulatory options are expected to affect air pollution through three main mechanisms: (1) Changes in auxiliary electricity use by steam electric facilities to operate wastewater treatment, ash handling, and other systems needed to meet regulatory standards; (2) changes to transportation-related emissions due to the trucking of CCR waste to landfills; and (3) the change in the profile of electricity generation due to any regulatory requirements. This section discusses air emission changes associated with the first two mechanisms and presents the corresponding estimated net change in air emissions.
Steam electric facilities generate air emissions from operating transport vehicles, such as dump trucks, which release criteria air pollutants and greenhouse gases when operated. Similarly, a decrease in energy use or vehicle operation would result in decreased air pollution.
To estimate the net air emissions associated with changes in electrical energy use projected as a result of the regulatory options in today's proposal compared to baseline, the EPA combined the energy usage estimates with air emission factors associated with electricity production to calculate air emissions associated with the incremental energy requirements. The EPA used emission factors projected by IPM V6 (ton/MWh) for nitrogen oxides, sulfur dioxide, and carbon dioxide to generate estimates of the changes in air emissions associated with changes in energy production for Options 2 and 4 compared to baseline.
To estimate net air emissions associated with the change in operation of transport vehicles, the EPA used the MOVES2014b model to identify air emission factors (grams per mile) for the air pollutants of interest. The EPA estimated the annual number of miles that dump trucks moving ash or wastewater treatment solids to on- or off-site landfills would travel for the regulatory options. The EPA used these estimates to calculate the net change in air emissions for the Options 2 and 4 compared to baseline. Table X-2 presents EPA's estimated net change in air emissions associated with auxiliary electricity and transportation.
The modeled output from IPM V6 predicts changes in electricity generation due to compliance costs attributable to Options 2 and 4 compared to baseline. These changes in electricity generation are, in turn, predicted to affect the amount of NO
Steam electric facilities generate solid waste associated with sludge from wastewater treatment systems (
The EPA also evaluated the potential impacts of diverting FA from current beneficial uses toward encapsulation of brine (from membrane filtration) for disposal in landfills. According to the latest ACAA survey,
In the EPA's coal combustion residuals disposal rule,
Steam electric facilities generally use water for handling solid waste, including ash, and for operating wet FGD scrubbers. The BA handling technologies associated with baseline and the regulatory options in today's proposal for BA transport water eliminate or reduce water use associated with wet sluicing BA operating systems. The 2015 rule baseline requires zero discharge of pollutants in BA transport water, and because the use of other wastewater could significantly increase the necessary purge flow to maintain water chemistry, the EPA estimated the increase in water use for BA handling associated with Options 1, 2, 3, and 4 compared to baseline as equal to the BA purge flow.
Two of the three technology bases for FGD wastewater included in the regulatory options in today's proposal, chemical precipitation and chemical precipitation plus LRTR, are not expected to reduce or increase the amount of water use. Facilities that install a membrane filtration system for FGD wastewater treatment under Option 2 or 3 as part of the VIP option, or under Option 4, are assumed to decrease water use compared to baseline by recycling all permeate back into the FGD system, which would avoid costs of pumping or treating new makeup water. Therefore, the EPA estimated this reduction in water use resulting from membrane filtration treatment based on the estimated volume of the permeate stream from the membrane filtration system. Table X-6 sums the changes for FGD wastewater and BA transport water and shows the net change in water use, compared to baseline, for the proposed regulatory options.
The EPA conducted an environmental assessment for this proposed rule. The environmental assessment reviewed currently available literature on the documented environmental and human health impacts of steam electric power facility FGD wastewater and BA transport water discharges and conducted modeling to determine the impacts of pollution from the universe of steam electric facilities to which the steam electric ELGs apply. For the reasons described in Section VIII of this preamble, in conducting these analyses, the baseline appropriately evaluates environmental and human health impacts of achieving the 2015 rule requirements as the EPA is analyzing the impact resulting from any changes to those requirements compared to the 2015 rule (the same baseline used to evaluate costs). More specifically, the EPA considered the change in impacts associated with the regulatory options presented in Table VII-1 in relation to those projected under the baseline.
Information from the EPA's review of the scientific literature and documented cases of impacts of steam electric power facility FGD wastewater and BA transport water discharges on human health and the environment, as well as a description of the EPA's modeling methodology and results, are provided in the Supplemental Environmental Assessment (Supplemental EA). The Supplemental EA contains information on literature that the EPA has reviewed since the 2015 rule, updates to the modeling methodology and modeling results for each of the regulatory options in today's proposal. The 2015 EA provides information from the EPA's earlier review of the scientific literature and documented cases of the full spectrum of impacts associated with the wider range of steam electric power facility wastewater discharges addressed in the 2015 rule on human health and the environment, as well as a full description of the EPA's modeling methodology.
Current scientific literature indicates that untreated steam electric power facility wastewaters, such as FGD wastewater and BA transport water, contain large amounts of a wide range of pollutants, some of which are toxic and bioaccumulative, and which cause detrimental environmental and human health impacts. For additional information,
The environmental assessment modeling for today's proposed rule consisted of the steady-state, national-scale immediate receiving water (IRW) model that was used to evaluate the direct and indirect discharges from steam electric facilities in the 2015 final ELG rule and 2015 final CCR rule.
The environmental assessment also incorporates changes to the industry profile outlined in Section V of this preamble. Additionally, the EPA updated and improved several input parameters for the IRW model, including receiving water boundaries and volumetric flow data from National Hydrography Dataset Plus (NHDPlus) Version 2, updated national recommended water quality criteria (WQC) for cadmium and selenium, updated benchmarks for ecological impacts in benthic sediment, and an updated bioconcentration factor for cadmium.
The EPA estimates small environmental and ecological changes associated with changes in pollutant loadings for the regulatory options presented in Table VII-1 as compared to the baseline, including small changes in impacts to wildlife and humans. More specifically, in addition to other unquantified environmental changes, the environmental assessment evaluated changes in (1) surface water quality, (2) impacts to wildlife, (3) number of receiving waters with potential human health cancer risks, (4) number of receiving waters with potential to cause non-cancer human health effects, and (5) nutrient impacts.
The EPA focused its quantitative analyses on the changes in environmental and human health impacts associated with exposure to toxic bioaccumulative pollutants via the surface water pathway. The EPA modeled changes in discharges of toxic, bioaccumulative pollutants from both FGD wastewater and BA transport water into rivers and streams and lakes and ponds, including reservoirs. The EPA addressed environmental impacts from nutrients in a separate analysis discussed in Section XII of this preamble.
The environmental assessment concentrates on impacts to aquatic life based on changes in surface water quality; impacts to aquatic life based on changes in sediment quality within surface waters; impacts to wildlife from consumption of contaminated aquatic organisms; and impacts to human health from consumption of contaminated fish and water. The Supplemental EA discusses, with quantified results, the estimated environmental changes projected within the immediate receiving waters due to the estimated pollutant loading changes associated with the regulatory options in today's proposal compared to the 2015 rule. All of the modeled changes are small in magnitude.
This section summarizes the EPA's estimates of the changes in national environmental benefits expected to result from potential changes in steam electric facility wastewater discharges described in Section IX of this preamble, and the resultant environmental effects, summarized in Section XI. The Benefit Cost Analysis
Table XII-1 summarizes benefit categories associated with the proposed regulatory options and notes which categories the EPA was able to quantify and monetize. Analyzed benefits fall into six broad categories: Human health benefits from surface water quality improvements, ecological conditions and effects on recreational use from surface water quality changes, market and productivity benefits, air-related effects, and changes in water withdrawal. Within these broad categories, the EPA was able to assess changes in the benefits projected for the regulatory options in today's proposal with varying degrees of completeness and rigor. Where possible, the EPA quantified the expected changes in effects and estimated monetary values. However, data limitations, modeling limitations, and gaps in the understanding of how society values certain environmental changes prevent the EPA from quantifying and/or monetizing some benefit categories. In the following discussion, positive benefit values represent improvements in environmental conditions and negative values represent forgone benefits of the proposed options compared to the baseline.
The following section summarizes the EPA's analysis of the benefit categories that the Agency was able to quantify and/or monetize (identified in the second and third columns of Table XII-1, respectively). Benefits are a function of not only the changes in pollutant loadings under the various options, but also the timing of those options. For example, although loadings increase more under Option 1, treatment technologies are in place sooner, resulting in fewer forgone lead, mercury, and arsenic-related human health benefits under Option 1 than under more stringent options that may be installed in the future. The regulatory options would also affect additional benefit categories that the Agency was not able to monetize. The BCA Report further describes some of these additional nonmonetized benefits.
Changes in pollutant discharges from steam electric facilities affect human health benefits in multiple ways. Exposure to pollutants in steam electric power facility discharges via consumption of fish from affected waters can cause a wide variety of adverse health effects, including cancer, kidney damage, nervous system damage, fatigue, irritability, liver damage, circulatory damage, vomiting, diarrhea, brain damage, IQ loss, and many others. Exposure to drinking water containing brominated disinfection by-products could cause adverse health effects such as cancer and reproductive and fetal development issues. Because the regulatory options in this proposal would change discharges of steam electric pollutants into waterbodies that receive or are downstream from these discharges, they may alter incidence of associated illnesses, even if by small amounts. These analyses, which are detailed in Chapters 4 and 5 of the BCA, find that the incremental changes in exposure between the baseline and regulatory options are minimal compared to the absolute changes for those same pollutants evaluated in the 2015 rule.
Due to data limitations and uncertainties, the EPA is able to monetize only a subset of the changes in health benefits associated with changes in pollutant discharges from steam electric facilities resulting from the regulatory options in this proposal as compared to the baseline. The EPA monetized these changes in human health effects by estimating the change in the expected number of individuals experiencing adverse human health effects in the populations exposed to steam electric discharges and/or altered exposure levels for the regulatory options relative to the baseline, and valuing these changes using different monetization methods for different benefit endpoints.
The EPA estimated changes in health risks from the consumption of contaminated fish from waterbodies within 50 miles of households. The EPA used Census Block population data and state-specific average fishing rates to estimate the exposed population. The EPA used cohort-specific fish consumption rates and waterbody-specific fish tissue concentration estimates to calculate potential exposure to steam electric pollutants. Cohorts were defined by age, sex, race/ethnicity, and fishing mode (recreational or subsistence). The EPA used these data to quantify and monetize changes in the following five categories of human health effects, which are further detailed in the BCA Report:
• Changes in IQ Loss in Children Aged Zero to Seven from Lead Exposure via Fish Consumption.
• Changes in Need for Specialized Education for Children from Lead Exposure via Fish Consumption.
• Changes in In Utero Mercury Exposure via Maternal Fish Consumption and Associated IQ Loss.
• Changes in Incidence of Cancer from Arsenic Exposure via Fish Consumption.
Table XII-2 summarizes the monetary value of changes in all estimated health outcomes associated with consumption of contaminated fish tissue for the ELG options compared to the baseline. Chapter 5 of the BCA provides additional detail on the methodology. The EPA solicits comment on the assumptions and uncertainties included in this analysis.
The EPA also estimated changes in bladder cancer incidence from the use and consumption of drinking water contaminated with total trihalomethanes (TTHMs) derived from changes in pollutant loadings of bromide associated with the four regulatory options in today's proposal relative to the baseline. This qualitative relationship between bladder cancer and bromide demonstrates the relative size of the benefit to other benefits associated with this proposal. Should this analysis be used to justify an economically significant rulemaking, the EPA intends to peer review the analysis consistent with OMB's Information Quality Bulletin for Peer Review. That review would include robust examination of the strengths and limitations of the methods and an exploration of the sensitivity of the results to the assumptions made. If the analysis is designated a highly influential scientific assessment (HISA), one way the EPA may seek such a review is via the EPA's Science Advisory Board (SAB), which is particularly well suited to provide a peer review of HISAs. The EPA's SAB is a statutorily established committee with a broad mandate to provide advice and recommendations to the Agency on scientific and technical matters.
The EPA estimated changes in cancer risks within populations served by drinking water treatment facilities with intakes on surface waters influenced by bromide discharges from steam electric facilities. The EPA used Safe Drinking Water Information System (SDWIS) and US Census data to estimate the exposed population. The EPA used estimates of changes in waterbody-specific bromide concentrations and estimates of drinking water treatment facility-specific TTHM concentrations to calculate potential changes in exposure to TTHM and associated adverse health outcomes.
The TTHM MCL is set higher than the health-based trihalomethane Maximum Contaminant Level Goals (MCLGs) in order to balance protection from human health risks from DBP exposure with the need for adequate disinfection to control human health risks from microbial pathogens. Actions that reduce TTHM levels below the MCL can therefore further reduce human health risk. The EPA's analysis quantifies the human health effects associated with incremental changes between the MCL and the MCLG. Recent TTHM compliance monitoring data indicate that the drinking water treatment facilities contributing most significantly to the total estimated benefits for the regulatory options have TTHM levels below the MCL but in excess of the MCLGs for trihalomethanes.
Table XII-3 summarizes the estimated monetary value of estimated changes in bromide-related human health outcomes from modeled surface water quality improvements under Options 2, 3, and 4 or degradation under Option 1. As described in Chapter 4 of the BCA Report, approximately 90 percent of these benefits derive from a small number of steam electric facilities (6 facilities under Option 2, 7 facilities under Option 3, and 17 facilities under Option 4). Bromide reduction benefits under Options 2 and 3 derive from estimated facility participation in the VIP.
The formation of TTHM in a particular water treatment system is a function of several site-specific factors, including chlorine, bromine, organic carbon, temperature, pH and the system residence time. The EPA did not collect site-specific information on these factors at each potentially affected drinking water treatment facility. Instead, the EPA conducted a site-based analysis which only addresses the estimated site-specific changes in bromides. To account for the changes in TTHM, and subsequently bladder cancer incidence, using only the estimated site-specific changes in bromides, the EPA used the national relationship from Regli et al (2015).
The EPA evaluated whether the regulatory options in today's proposal would alter aquatic habitats and human welfare by changing concentrations of harmful pollutants such as arsenic, cadmium, chromium, copper, lead, mercury, nickel, selenium, zinc, nitrogen, phosphorus, and suspended sediment relative to the baseline. As a result, the usability of some of the waters for recreation relative to baseline discharge conditions could change under each option, thereby affecting recreational users. Changes in pollutant loadings can also change the attractiveness of waters usable for recreation by making recreational trips more or less enjoyable. The regulatory options may also change nonuse values stemming from bequest, altruism, and existence motivations. Individuals may value water quality maintenance, ecosystem protection, and healthy species populations independent of any use of those attributes.
The EPA uses a water quality index (WQI) to translate water quality measurements, gathered for multiple parameters that are indicative of various aspects of water quality, into a single numerical indicator that reflects achievement of quality consistent with the suitability for certain uses. The WQI includes seven parameters: Dissolved oxygen, biochemical oxygen demand, fecal coliform, total nitrogen, total phosphorus, TSS, and one aggregate subindex for toxics. The EPA modeled changes in four of these parameters, and held the remaining parameters (dissolved oxygen, biochemical oxygen demand, and fecal coliform) constant for the purposes of this analysis. Table XII-4 summarizes water quality change ranges relative to the baseline under the four regulatory options. Under Options 1 through 3, 78 to 84 percent of potentially affected reaches have a negative change in the WQI. Another 16 to 22 percent of reaches show no change under these options. Under Option 4, 61 percent of reaches would experience a negative change in the WQI, and another 12 percent of reaches show no change.
The EPA estimated the change in monetized benefit values using the same meta-regressions of surface water valuation studies used in the benefit analysis for the 2015 rule. The meta-regressions quantify average household WTP for incremental improvements in surface water quality. This WTP is the maximum amount of money a person is willing to give up to obtain an improvement in water quality. Chapter 6 of the BCA provides additional detail on the valuation methodology. Overall, Option 1 results in water quality degradation, which is reflected in negative annual household WTP values ranging from −$0.11 to −$0.62. Under Options 2, 3, and 4, the net water quality improvements (accounting for all increases and decreases of pollutant loadings) result in positive net benefits to households affected by water quality changes from the regulatory options proposed. The estimated annual household WTP for water quality changes ranges from $0.10 to $0.56 for Option 2, $0.16 to $0.87 for Option 3, and $0.19 to $1.04 for Option 4.
Table XII-5 presents annualized total WTP values for water quality changes associated with modified metal (arsenic, cadmium, chromium, copper, lead, mercury, zinc, and nickel), non-metal (selenium), nutrient (phosphorus and nitrogen), and sediment pollutant discharges to the approximately 10,393 reach miles affected by the regulatory options in this proposal. An estimated 85 million households reside in Census block groups within 100 miles of affected reaches. The central tendency estimate of the total annualized benefits of water quality changes for Option 2 range from $14.3 million (7 percent discount rate) to $16.7 million (3 percent discount rate).
To assess the potential for impacts on T&E species (both aquatic and terrestrial) relative to the 2015 baseline, the EPA analyzed the overlap between waters expected to change their wildlife WQC exceedance status under a particular option and the known critical habitat locations of high-vulnerability T&E species. The EPA examined the life history traits of potentially affected T&E species and categorized them by potential for population impacts due to surface water quality changes. Chapter 7
The proposed rule options could affect the ability of steam electric facilities to market coal combustion byproducts for beneficial use by converting from wet to dry handling of BA. In particular, the EPA evaluated the potential effects from changes in marketability of BA as a substitute for sand and gravel in fill applications. Among the regulatory options considered for this proposal, EPA estimates that only Option 2 would affect the quantity of BA handled wet when compared to the baseline, and for that option the estimated increase in BA handled wet is small (total of 310,671 tons per year at 20 facilities). Given these small changes and the uncertainty associated with projecting facility-specific changes in marketed ash, the EPA chose not to monetize this benefit category in the analysis of the proposed regulatory options.
The proposed regulatory options would affect discharge loadings of various categories of pollutants, including TSS, thereby changing the rate of sediment deposition to affected waterbodies, including navigable waterways and reservoirs that require dredging for maintenance.
Navigable waterways, including rivers, lakes, bays, shipping channels and harbors, are an integral part of the United States transportation network. They are prone to reduced functionality due to sediment build-up, which can reduce the navigable depth and width of the waterway. In many cases, costly periodic dredging is necessary to keep them passable. Reservoirs serve many functions, including storage of drinking and irrigation water supplies, flood control, hydropower supply, and recreation. Streams can carry sediment into reservoirs, where it can settle and cause buildup of silt layers over time. Sedimentation reduces reservoir capacity and the useful life of reservoirs unless measures such as dredging are taken to reclaim capacity. Chapter 10 of the BCA provides additional detail on the methodology.
The EPA expects that Option 4 would provide cost savings ranging from $0.48 million (7 percent discount rate) to $0.72 million (3 percent discount rate) by reducing required dredging maintenance for both navigable waterways and reservoirs. Estimated increases in sediment loadings under Options 1, 2, and 3 would result in cost increases. Cost increases range from $0.05 million to $0.09 million for Option 1, $0.12 million to $0.21 million for Option 2, and $0.04 million to $0.07 million for Option 3.
The EPA expects the proposed options to affect air pollution through three main mechanisms: (1) Changes in auxiliary electricity use by steam electric facilities to operate wastewater treatment, ash handling, and other systems that the EPA predicts facilities would use under each proposed option; (2) changes in transportation-related air emissions due to changes in trucking of CCR waste to landfills; and (3) change in the profile of electricity generation due to the relatively higher or lower costs to generate electricity at steam electric facilities incurring compliance costs under the proposed options.
Changes in the electricity generation profile can increase or decrease air pollutant emissions because emission factors vary for different types of electric boilers. For this analysis, the changes in air emissions are based on the change in dispatch of generation units as projected by IPM V6 given the overlaying of costs for complying with the proposed options onto steam electric boilers' production costs. As discussed in Section VIII of this preamble, the IPM V6 analysis accounts for the effects of other regulations on the electric power sector.
The EPA evaluated potential effects resulting from net changes in air emissions of three pollutants: NO
The EPA used domestic social cost of carbon estimates to value changes in CO
Table XII-6 shows the changes in emissions of NO
Steam electric facilities use water for handling BA and operating wet FGD scrubbers. By reducing water used in sluicing operations or prompting the recycling of water in FGD wastewater treatment systems, Option 4 is expected to reduce water withdrawals from surface waters, whereas proposed Options 1, 2, and 3 are expected to increase water withdrawals from surface waterbodies. Option 2 is also expected to increase water withdrawal from aquifers. Using the same methodology used for the 2015 rule, the EPA estimated the monetary value of increased ground water withdrawals based on increased costs of ground water supply. For each relevant facility, the EPA multiplied the increase in ground water withdrawal (in gallons per year) by water costs of about $1,192 per acre-foot. Chapter 9 of the BCA Report provides the details of this analysis. The EPA estimates the changes in annualized benefits of increased ground water withdrawals are less than $0.2 million annually. Due to data limitations, the EPA was not able to estimate the monetary value of changes in surface water withdrawals. Chapter 9 of the BCA Report and Section 7 of the Supplemental TDD provide additional details on the estimated changes in surface water withdrawals.
Using the analysis approach described above, the EPA estimated the total monetary value of annual benefits of the proposed rule for all monetized categories. Table XII-8 and Table XII-9 summarize the total annualized monetary value of social welfare effects using 3 percent and 7 percent discount rates, respectively. The total monetary value of benefits under Option 2 range from $14.8 million to $68.5 million using a 3 percent discount rate and from $28.4 million to $74.4 million using a 7 percent discount rate.
The monetary value of the proposed rule's effects on social welfare does not account for all effects of the proposed options because, as described above, the EPA is unable to monetize some categories. Examples of effects not reflected in these monetary estimates include health and other effects from changes in NO
The proposed rule contains new numeric effluent limitations and pretreatment standards that apply to discharges of FGD wastewater at existing sources.
The EPA's objective in establishing daily maximum limitations is to restrict the discharges on a daily basis at a level that is achievable for a facility that designs and operates its treatment to achieve the long-term average performance that the EPA's statistical analyses show the BAT/PSES technology can attain (
The EPA's objective in establishing monthly average limitations is to provide an additional restriction to help ensure that facilities target their average discharges to achieve the long-term average. The monthly average limitation requires dischargers to provide ongoing control, on a monthly basis, that supplements controls imposed by the daily maximum limitation. In order to meet the monthly average limitation, a facility must counterbalance a value near the daily maximum limitation with one or more values well below the daily maximum limitation.
In developing effluent limitations guidelines and standards for any industry, the EPA qualitatively reviews all the data before selecting data that represents proper operation of the technology that forms the basis for the limitations. The EPA typically uses four criteria to assess the data. The first criterion requires that the facilities have the model treatment technology identified as a candidate basis for effluent limitations (
A second criterion generally requires that the influents and effluents from the treatment components represent typical wastewater from the industry, without incompatible wastewater from other sources. Application of this criterion results in the EPA selecting those facilities where the commingled wastewaters did not result in substantial dilution, unequalized slug loads resulting in frequent upsets and/or overloads, more concentrated wastewaters, or wastewaters with different types of pollutants than those generated by the wastestream for which the EPA is proposing effluent limitations and pretreatment standards.
A third criterion typically ensures that the pollutants are present in the influent at sufficient concentrations to evaluate treatment effectiveness. If a data set for a pollutant shows that the pollutant was not present at a treatable concentration at sufficient frequency (
A fourth criterion typically requires that the data are valid and appropriate for their intended use (
The fourth criterion also is applied in the EPA's review of data corresponding to the initial commissioning period for treatment systems (and startup periods for pilot test equipment). Most industries incur commissioning periods during the adjustment period associated with installing new treatment systems. During this acclimation and optimization process, the effluent concentration values tend to be highly variable with occasional extreme values (high and low). This occurs because the treatment system typically requires
The Supplemental TDD provides a description of the data and methodology used to develop long-term averages, variability factors, and limitations and standards for this proposed rule. The effluent limitations and pretreatment standards for the low utilization subcategory and high flow subcategory are based on chemical precipitation. The derivation of the limitations for these subcategories and the data used are described in Section 13 of the 2015 TDD. The new limitations and pretreatment standards proposed today for facilities not in those subcategories and for the voluntary incentives plan were derived from a statistical analysis of effluent data collected by facilities during extended testing of the LRTR technology and membrane filtration technology, respectively. The duration of the test programs at these facilities spanned from approximately one month for membranes to more than a year for LRTR, enabling the EPA to evaluate long-term performance of these technologies under conditions that can contribute to influent variability, including varying power demand, changes in coal suppliers, and changes in operation of the air pollution control system. The tests occurred over different seasons of the year and demonstrate that the technologies operate effectively under varying climate conditions.
During the development of these new limitations and pretreatment standards, the EPA identified certain data that warranted exclusion because: (1) The samples were analyzed using a method that is not sensitive enough to reliably quantify the pollutants present (
Table XIV-1 presents the proposed effluent limitations and standards for FGD wastewater. For comparison, the table also presents the long-term average treatment performance calculated for each parameter. Due to routine variability in treated effluent, a power facility that targets discharging its wastewater at a level near the values of the daily maximum limitation or the monthly average limitation may periodically experience values exceeding the limitations. For this reason, the EPA recommends that facilities design and operate the treatment system to achieve the long-term average for the model technology. In doing so, a system that is designed and operated to achieve the BAT/PSES level of control would meet the limitations.
The EPA expects that facilities will be able to meet their effluent limitations or standards at all times. If an exceedance is caused by an upset condition, the facility would have an affirmative defense to an enforcement action if the requirements of 40 CFR 122.41(n) are met. Exceedances caused by a design or operational deficiency, however, are indications that the facility's performance does not represent the appropriate level of control. For these proposed limitations and pretreatment standards, the EPA proposes to determine that such exceedances can be controlled by diligent process and wastewater treatment system operational practices, such as regular monitoring of influent and effluent wastewater characteristics and adjusting dosage rates for chemical additives to target effluent performance for regulated pollutants at the long-term average concentration for the BAT/PSES technology. Additionally, some facilities may need to upgrade or replace existing treatment systems to ensure that the treatment system is designed to achieve performance that targets the effluent concentrations at the long-term average. This is consistent with the EPA's costing approach and its engineering judgment, developed over years of evaluating wastewater treatment processes for steam electric facilities and other industrial sectors. The EPA recognizes that some dischargers, including those that are operating technologies representing the technology basis for the proposed rule, may need to improve their treatment systems, process controls, and/or treatment system operations in order to consistently meet the proposed effluent limitations and pretreatment standards. This is consistent with the CWA, which requires that BAT/PSES discharge limitations and standards reflect the best available technology economically achievable.
The EPA notes that while some limitations are higher than corresponding limits in the 2015 rule, in other cases limitations of additional pollutants or lower limitations for pollutants regulated in the 2015 rule have also been calculated. The EPA solicits comment on the demonstrated ability or inability of existing systems to meet the limitations in this proposal, the costs associated with modifying existing systems or with modifying the operation of existing systems to meet these limits, and whether any existing systems with demonstrated issues meeting these limits would be best addressed through FDF variances or through subcategorization. Furthermore, should the EPA determine subcategorization of facilities with existing FGD treatment systems is warranted, the EPA solicits comment on what limitations should apply to those facilities, including whether the 2015 rule limits would be appropriate for such facilities.
In contrast to the limitations estimated for specific pollutants above, the EPA is proposing a pollutant discharge allowance in the form of a maximum percentage purge rate for BA transport water. To develop this allowance, the EPA first collected data on the discharge needs of the model treatment technology (high recycle rate systems) to maintain water chemistry or water balance.
Finally, the EPA added each reported regular discharge percent from EPRI (2016) to the averaged infrequent discharge percent under four scenarios: (1) With no infrequent discharge event, (2) with only a precipitation-related discharge event, (3) with only a maintenance-related discharge event, and (4) with both a precipitation-related and maintenance-related discharge event. These potential discharge needs are reported in Table XIV-2 below. Consistent with the statistical approach used to develop limitations and pretreatment standards for individual pollutants, the EPA selected a 95th percentile of 10 percent of total system volume as representative of the 30-day rolling average.
The EPA recognizes that some facilities may need to improve their equipment, process controls, and/or operations to consistently meet the zero discharge standard established by the 2015 rule. However, with the discharge allowance included in this proposed rule, the EPA expects that facilities would be able to avoid these costs in most circumstances. For example, in the table above, only when the Facility F systems experience both high-end precipitation- and maintenance-related discharge events could the required discharge potentially exceed the 30-day rolling average of 10 percent. This is consistent with the CWA, which requires that BAT/PSES discharge limitations and standards reflect the best available technology economically achievable. For further discussion of costs associated with managing a fully-closed-loop system,
As described in Section VII of this preamble, one of the regulatory options presented in today's proposed rule would require a subcategory of facilities discharging BA transport water and having low MWh production to develop and implement a BMP plan to recirculate BA transport water back to the BA handling system (
The proposed BMP provisions would require applicable facilities to develop a plan to minimize the discharge of pollutants by recycling as much BA transport water as practicable back to the BA handling system. For example, if a facility could recycle 80 percent of its BA transport water for a few thousand dollars, but recycling 81 percent would require the installation of a multi-million dollar system, the former would be practicable, but the latter would not.
The requirements in this rule apply to discharges from steam electric facilities through incorporation into NPDES permits issued by the EPA or by authorized states under Section 402 of the Act, and through local pretreatment programs under Section 307 of the Act. Permits or control mechanisms issued after this rule's effective date must incorporate the ELGs, as applicable. Also, under CWA section 510, states can require effluent limitations under state law as long as they are no less stringent than the requirements of this rule. Finally, in addition to requiring application of the technology-based ELGs in this rule, CWA section 301(b)(1)(C) requires the permitting authority to impose more stringent effluent limitations, as necessary, to meet applicable water quality standards.
The direct discharge limitations proposed in this rule would apply only when implemented in an NPDES permit issued to a discharger. Under the CWA, the permitting authority must incorporate these ELGs into NPDES permits as a floor or a minimum level of control. The proposed rule would allow a permitting authority to determine a date when the new effluent limitations for FGD wastewater and BA transport water will apply to a given discharger. As proposed, the permitting authority would make these effluent limitations applicable on or after November 1, 2020. For any final effluent limitation that is specified to become applicable after November 1, 2020, the specified date must be as soon as possible, but in no case later than December 31, 2023, for BA transport water, or December 31, 2025, for FGD wastewater. For dischargers choosing to meet the voluntary incentives program effluent limitations for FGD wastewater, the date for meeting those limitations is December 31, 2028.
For FGD wastewater and BA transport water from boilers retiring by 2028, the proposed BAT limitations would apply on the date that a permit is issued to a discharger. The proposed rule does not build in an implementation period for meeting these limitations, as the BAT limitation on TSS is equal to the previously promulgated BPT limitation on TSS. Pretreatment standards are self-implementing, meaning they apply directly, without the need for a permit. As defined by the statute, the pretreatment standards for existing sources must be met by three years after the effective date of any final rule.
Regardless of when a facility's NPDES permit is ready for renewal, the EPA recommends that each facility immediately begin evaluating how it intends to comply with the requirements of any final rule. In cases where significant changes in operation are appropriate, the EPA recommends that the facility discuss such changes with its permitting authority and evaluate appropriate steps and a timeline for the changes as soon as a final rule is issued, even prior to the permit renewal process.
In cases where a facility's final NPDES permit is issued before these ELGs are finalized, and includes limitations for BA transport water and/or FGD wastewater from the 2015 rule, EPA recommends such a permit be reopened as soon as practicable, and modified consistent with any new rule provisions.
For permits that are issued on or after November 1, 2020, the permitting
As proposed, the “as soon as possible” date determined by the permitting authority is November 1, 2020, unless the permitting authority determines another date after receiving facility-specific information submitted by the discharger.
(a) Time to expeditiously plan (including to raise capital), design, procure, and install equipment to comply with the requirements of the final rule.
(b) Changes being made or planned at the facility in response to greenhouse gas regulations for new or existing fossil fuel-fired facilities under the Clean Air Act, as well as regulations for the disposal of coal combustion residuals under subtitle D of the Resource Conservation and Recovery Act.
(c) For FGD wastewater requirements only, an initial commissioning period to optimize the installed equipment.
(d) Other factors as appropriate.
The EPA proposes to clarify that the discharger must provide relevant, site-specific information for consideration of these factors by the permitting authority. Environmental groups informed the EPA that facilities had filed permit applications for, and states had granted, delayed applicability dates based on information about a facility other than the one being permitted. This was not the intent of the 2015 rule, and the EPA solicits comment on other potential misunderstandings of the factors presented in the 2015 rule that may have caused confusion or led to misunderstandings.
As specified in factor (b), the permitting authority must also consider scheduling for installation of equipment, which includes a consideration of facility changes planned or being made to comply with certain other key rules that affect the steam electric power generating industry. As specified in factor (c), for the FGD wastewater requirements only, the permitting authority must consider whether it is appropriate to allow more time for implementation in order to ensure that the facility has appropriate time to optimize any relevant technologies.
The “as soon as possible” date determined by the permitting authority may or may not be different for each wastestream. The permitting authority should provide a well-documented justification of how it determined the “as soon as possible” date in the fact sheet or administrative record for the permit. If the permitting authority determines a date later than November 1, 2020, the justification should explain why allowing additional time to meet the proposed limitations is appropriate, and why the discharger cannot meet the effluent limitations as of November 1, 2020. In cases where the facility is already operating the proposed BAT technology basis for a specific wastestream (
Where a discharger chooses to participate in the VIP and be subject to effluent limitations for FGD wastewater based on membranes, the permitting authority must allow the facility up to December 31, 2028, to meet those limitations. Again, the permit must make clear that the facility must meet the limitations by December 31, 2028.
The EPA is proposing to establish a new subcategory for low utilization boilers with net generation below 876,000 MWh per year. The EIA defines net generation as, “The amount of gross generation less the electrical energy consumed at the generating station(s) for station service or auxiliaries. Note: Electricity required for pumping at pumped-storage plants is regarded as electricity for station service and is deducted from gross generation.”
When a facility seeks to have limitations for one or more subcategorized boilers incorporated into its permit, the EPA is proposing that the facility provide the permitting authority its calculation of the average of the most recent two calendar years of net generation for that boiler(s). A facility wishing to seek this subcategory, must operate below this threshold before the latest implementation dates, but a permitting authority should also refrain from establishing a “no later than date” which would restrict a facility from demonstrating two years of reduced net generation. This average should primarily be collected and calculated using data developed for reporting to the EIA, since using net generation information already collected for the EIA will both eliminate the potentially unnecessary paperwork burden of a separate information gathering and calculations and allow the permitting authority to more easily verify the accuracy of the reported values. If it is necessary for a facility to apportion facility-wide energy consumption not specifically attributable to individual boilers, the facility must apportion this consumption proportionally, by boiler nameplate capacity, unless it adequately documents a sufficient rationale for an alternate apportionment. The use of a two-year average will ensure that a low utilization boiler responding to a single extreme demand event in one year (
In cases where a facility seeks to have limitations for this subcategory incorporated into its permit, the EPA is proposing that a permitting authority incorporate two additional features. First, the EPA is proposing that the limitations for this subcategory be included as the first of two sets of limitations. The second set of limitations would be those applicable to the rest of the steam electric generation point source category. Second, the EPA is proposing that these tiered limits have a two-year timeframe to be implemented for a facility exceeding the two-year net generation requirements as measured per calendar year. For example, if a facility reported it exceeded a two-year average net generation of 876,000 MWh for a unit, it would have two years before discharges of FGD wastewater and BA transport water would henceforth be subject to the second tier of limitations.
These tiered limitations would ensure that, if a boiler that qualified for this subcategorization changes its operation such that it no longer qualifies, it would be automatically subject to the second set of limitations. An automatic feature makes sense for several reasons. Tiered limitations are beneficial to the regulated facility because they provide certainty that the facility would not be considered in violation of its permit initially, when exceeding the required net generation, nor subsequently, during the two-year timeframe over which it has to meet the second tier of effluent limitations. Two years is also consistent with the engineering documents provided to the EPA for the installation of the appropriate technologies. Tiered limitations are beneficial to the state because they avoid the potentially onerous permit modification process and its burden to the permitting authority. Finally, tiered limitations are beneficial to the environment because they ensure a timely transition to more stringent limitations as soon as the reason for the less stringent limitations (disproportionate cost) is gone. The EPA solicits comment on the inclusion of tiered limitations.
Since the 2015 rule, the EPA has learned of several instances when facilities have withdrawn or delayed retirement announcements for coal-fired boilers and facilities. These instances can be grouped into two categories. First, some delays were involuntary, resulting from orders issued by the Department of Energy (DOE) or Public Utility Commissions (PUCs). The remaining announcements were withdrawn or delayed voluntarily due to changed circumstances. While both the voluntary and involuntary changes to announced retirements were infrequent, the EPA acknowledges that such changes will necessarily impact a facility's status with regard to some of the new subcategories in today's proposal. These situations are discussed below. For further information on announced retirements,
At least five facilities with announced retirement dates had those dates involuntarily delayed as a result of the DOE issuing orders under Section 202(c) of the Federal Power Act, or a PUC issuing a reliability must-run agreement. Such involuntary operations have raised questions about the conflict between legal obligations to produce electricity and legal obligations under environmental statutes.
Units at five facilities with announced retirement dates had those dates voluntarily withdrawn or delayed due to changed situations, including market conditions, unavailability of natural gas pipelines, changes in environmental regulations, and sale of the facility. Like the involuntary retirement delays discussed in the section above, these situations could impact a facility's qualification for the proposed subcategories for low utilization boilers and boilers retiring by 2028. Unlike the involuntary retirement delays, these voluntary delays and withdrawals can be accounted for through the normal integrated resource planning process. Thus, the EPA does not propose a similar savings clause for such units. Instead, a facility should carefully plan its implementation of the ELGs.
This proposal includes five new reporting and recordkeeping standards. First, the EPA is proposing a reporting and recordkeeping standard for facilities operating high recycle rate BA systems. The EPA is proposing that such facilities submit the calculation of the primary active wetted BA system volume, which means the maximum volumetric capacity of BA transport water in all piping (including recirculation piping) and primary tanks of a wet bottom ash system, excluding the volumes of installed spares, redundancies, maintenance tanks, other secondary bottom ash system equipment, and non-bottom ash transport systems that may direct process water to the bottom ash system. This ensures that the permitting authority can verify the volume of discharge allowed for a high recycle rate system. The EPA solicits comment on the specific components of the BA transport water system that should be included and/or excluded from the calculation of primary active wetted BA system volume.
Second, the EPA is proposing a reporting and recordkeeping requirement for facilities seeking subcategorization of low utilization boilers. The EPA is proposing that, as part of any permit renewal or re-opening, such facilities submit a calculation of the two-year average net generation for each applicable boiler to
Third, as described in Section VII.C.2, facilities with boilers that qualify for the low-utilization subcategory and that discharge BA transport water, would be required to develop and implement a BMP plan to minimize the discharge of pollutants by recycling as much BA transport water as practicable back to the BA handling system. As part of any permit renewal or any re-opening, such facilities would need to submit their facility-specific plan (certified that it meets the proposed requirements of 40 CFR 423.13(k)(3)) along with a certification that the plan is being implemented. For each permit renewal, the plan and PE certification should be updated and provided to the permitting authority.
Fourth, the EPA is proposing reporting and recordkeeping requirements for facilities seeking subcategorization for a boiler(s) retiring by December 31, 2028. The EPA is proposing that, as part of the permit renewal or re-opening, which are when a facility would make this request, such facilities submit a one-time certification to the permitting authority stating the date of expected retirement from the combustion of coal, and provide a citation to any filing, integrated resource plan, or other documentation in support of that date. This citation is meant to provide the permitting authority further evidence that a boiler will, in fact, cease the production of electricity by that date.
Finally, the EPA is proposing reporting and recordkeeping requirements for facilities invoking the proposed savings clause. The EPA is proposing that such facilities must demonstrate that a boiler would have qualified for the subcategory at issue, if not for the emergency order issued by the DOE under Section 202(c) of the Federal Power Act or PUC reliability must-run agreement. Furthermore, the EPA is proposing to require a copy of such order or agreement as an attachment to the submission.
The EPA regulations at 40 CFR 122.44(d)(1) require that each NPDES permit shall include any requirements, in addition to or more stringent than effluent limitations guidelines or standards promulgated pursuant to sections 301, 304, 306, 307, 318 and 405 of the CWA, necessary to achieve water quality standards established under section 303 of the CWA, including state narrative criteria for water quality. Furthermore, those same regulations require that limitations must control all pollutants, or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any state water quality standard, including state narrative criteria for water quality.
Bromide was discussed in the preamble to the 2015 rule as a parameter for which water quality-based effluent limitations may be appropriate. The EPA stated its recommendation that permitting authorities carefully consider whether water quality-based effluent limitations on bromide or TDS would be appropriate for FGD wastewater discharges from steam electric facilities upstream of drinking water intakes. The EPA also stated its recommendation that the permitting authority notify any downstream drinking water treatment plants of the discharge of bromide.
The EPA is not proposing additional limitations on bromide for FGD wastewater beyond the removals that might be accomplished by facilities choosing to implement the VIP limitations, though the EPA is soliciting comment on the three potential bromide-specific sub-options presented in Section VII of this preamble. The record continues to suggest that state permitting authorities should consider establishing water quality-based effluent limitations that are protective of populations served by downstream drinking water treatment facilities. As described in Section XII, the analysis of changes in human health benefits associated with changes in bromide discharges are concentrated at a small number of sites. This supports the EPA's determination that potential discharges are best addressed using site-specific, water quality-based effluent limitations established by permitting authorities for the small number of steam electric facilities that may impact downstream drinking water treatment facilities.
This proposed rule is an economically significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. The EPA prepared an analysis of the potential social costs and benefits associated with this action. This analysis is contained in Chapter 13 of the BCA, available in the docket. The analysis in the BCA builds on compliance costs and certain other assumptions regarding compliance years discussed in the RIA to estimate the incremental social costs and benefits of the four proposed options relative to the baseline. Analyzing the options against the baseline enables the Agency to characterize the incremental impact of ELG revisions proposed by this action.
Table XV-1 presents the annualized value of the social costs and benefits over 27 years and discounted using a three percent discount rate as compared to the updated baseline. Table XV-2 presents annualized values using a seven percent discount rate. In both tables, negative costs indicate avoided costs (
The proposed regulatory options would be an Executive Order 13771 deregulatory action. Details on the estimated cost savings of the regulatory options are located in the RIA, and in Tables XV-1 and XV-2 above.
OMB has previously approved the information collection requirements contained in the existing regulations 40 CFR part 423 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501
The EPA estimated small changes in monitoring costs at steam electric facilities under the regulatory options presented in today's proposal relative to the baseline. As proposed, these changes would apply to facilities for which the proposed subcategories are applicable. In some cases, in lieu of these monitoring requirements, facilities would have additional paperwork burden such as that associated with certifications and applicable BMP plans.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment
The Agency certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The basis for this finding is documented in Chapter 8 of the RIA, included in the docket and summarized below.
The EPA estimates that 243 to 478 entities own steam electric facilities to which the regulatory options would apply, of which 79 to 127 are small. These small ownership entities own a total of 139 steam electric facilities. The EPA considered the impacts of the regulatory options presented in this proposal on small businesses using a cost-to-revenue test. The analysis compares the cost of implementing controls for BA and FGD wastewater under the four regulatory options to those under the baseline (which reflects the 2015 rule as explained in Section V of this preamble). Small entities estimated to incur compliance costs exceeding one or more of the one percent and three percent impact thresholds were identified as potentially incurring a significant impact. The EPA's analysis shows that four small entities (municipalities) are expected to incur costs equal to or greater than one percent of revenue to meet the 2015 rule; for two of these municipalities, the costs to meet the 2015 rule exceed three percent of revenue. Cost savings provided under the regulatory options reduce the impacts on these small entities to varying degrees. Option 2 has the greatest mitigating effect on small entities, reducing to 2 the number of small entities incurring costs equal to or greater than one percent of revenue, and to 1 the entities with costs greater than three percent of revenue. Options 1, 3, and 4 have similar mitigating effects, with one fewer small entity incurring costs equal to or greater than one percent of revenue. The number of small entities exceeding either the one or three percent impact threshold in the baseline is small in the absolute and represents small percentages of the total estimated number of small entities; the cost savings provided by the regulatory options further support the EPA's finding of no significant impact on a substantial number of small entities (No SISNOSE).
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on state, local, and tribal governments, and the private sector. An action contains a federal mandate if it may result in expenditures of $100 million or more (annually, adjusted for inflation) for state, local, and tribal governments, in the aggregate, or the private sector in any one year ($160 million in 2018).
The EPA finds that this action is not subject to the requirements of UMRA section 203 because the expenditures are less than $160 million or more in any one year. As detailed in Chapter 9 of the RIA, for its assessment of the impact of potential changes in compliance requirements on small governments (governments for populations of less than 50,000), the EPA estimated the changes in costs for compliance with the regulatory options relative to the baseline for different categories of entities. All four regulatory options presented in this proposal result in lower compliance costs (cost savings) when compared to the baseline. Compared to $44.1 million in the baseline, the Agency estimates that the change in maximum cost in any one year to state, local, or tribal governments range from −$23.5 million under Option 1 to −$6.0 million under Option 4, with an incremental cost for Option 2 of −$23.0 million. Compared to $841.3 million in baseline, the incremental cost in any given year to the private sector ranges from −$444.5 million under Option 4 to −$327.5 million under Option 1, with Option 2 having an incremental cost of −$405 million. From these incremental cost values, the EPA determined that none of the regulatory options would constitute a federal mandate that may result in expenditures of $160 million (in 2018 dollars) or more for state, local, and tribal governments in the aggregate, or the private sector in any one year. Chapter 9 of the RIA report provides details of these analyses.
This action is also not subject to the requirements of UMRA section 203 because it contains no regulatory requirements that might significantly or uniquely affect small governments. To assess whether the regulatory options presented in this proposal would affect small governments in a way that is disproportionately burdensome in comparison to the effect on large governments, the EPA compared total incremental costs and incremental costs per facility for small governments and large governments. The EPA also compared the changes in per facility costs incurred for small-government-owned facilities with those incurred by non-government-owned facilities. The Agency evaluated both average and maximum annualized incremental costs per facility. These analyses, which are detailed in Chapter 9 of the RIA, find that small governments would not be significantly or uniquely affected by the regulatory options presented in this proposal.
Under Executive Order (E.O.) 13132, the EPA may not issue an action that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments or the EPA consults with state and local officials early in development of the action.
The EPA anticipates that none of the regulatory options presented in this proposed rule would impose incremental administrative burden on states due to issuing, reviewing, and overseeing compliance with discharge requirements. Nevertheless, the EPA solicits comment on examples and data that demonstrate net impacts compared to the 2015 rule baseline which would allow the Agency to evaluate these impacts for the final rule.
As detailed in Chapter 9 of the RIA in the docket for this action, the EPA has identified 160 steam electric facilities owned by state or local governments, of which 16 facilities are estimated to incur costs to comply with the BA transport water and FGD limitations in the 2015 rule. However, all four regulatory options presented in this proposal provide cost savings as compared to the baseline. The difference in the maximum costs of the options as compared to the baseline ranges from −$6 million under Option 4 to −$23.5 million under Option 2. Based on this information, the EPA proposes to conclude that this action would not impose substantial direct compliance costs on state or local governments.
This action does not have tribal implications, as specified in E.O. 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the federal government and the
The EPA assessed potential tribal implications for the regulatory options presented in this proposed rule arising from three main changes: (1) Direct compliance costs incurred by facilities; (2) impacts on drinking water systems downstream from steam electric facilities; and (3) administrative burden on governments that implement the NPDES program.
Regarding direct compliance costs, the EPA's analyses show that no steam electric facilities with BA transport water or FGD discharges are owned by tribal governments. Regarding impacts on drinking water systems, the EPA identified 15 public water systems operated by tribal governments that may be affected by bromide discharges from steam electric facilities. These systems serve a total of 18,917 people. The EPA estimated changes in bladder cancer risk and the resulting health benefits for the four regulatory options in comparison to the baseline. This analysis, which is detailed in Chapter 4 of the BCA, finds very small changes in exposure between the baseline and regulatory options, amounting to very small changes in risk for this population. Finally, regarding administrative burden, no tribal governments are currently authorized pursuant to section 402(b) of the CWA to implement the NPDES program. Based on this information, the EPA concluded that none of the regulatory options presented in the proposed rule would have substantial direct effects on tribal governments.
This action is not subject to E.O. 13045 (62 FR 19885, April 23, 1997) because the EPA does not expect that the environmental health risks or safety risks associated with steam electric facility discharges addressed by this action present a disproportionate risk to children. This action's health risk assessments are in Chapters 4 and 5 of the BCA and are summarized below.
The EPA identified several ways in which the regulatory options presented in this proposal could affect children, including by potentially increasing health risks from changes in exposure to pollutants present in steam electric facility FGD wastewater and BA transport water discharges, or through impacts of the discharges on the quality of source water used by public water systems. This increase arises from less stringent pollutant limitations or later deadlines for meeting effluent limitations under certain regulatory options presented in this proposal as compared to the baseline. In particular, the EPA quantified the changes in IQ losses from lead exposure among pre-school children and from mercury exposure in utero resulting from maternal fish consumption under the four regulatory options, as compared to the baseline. The EPA also estimated changes in the number of children with very high blood lead concentrations. Finally, the EPA estimated changes in the lifetime risk of developing bladder cancer due to exposure to trihalomethanes in drinking water. The EPA did not estimate children-specific risk because these adverse health effects normally follow long-term exposure. These analyses show that all of the regulatory options presented in this proposal would have a small, and not disproportionate, impact on children.
This action is not a “significant energy action,” as defined by E.O. 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The Agency analyzed the potential energy effects of the regulatory options presented in this proposal relative to the baseline and found minimal or no impacts on electricity generation, generating capacity, cost of energy production, or dependence on a foreign supply of energy. Specifically, the Agency's analysis found that none of the regulatory options would reduce electricity production by more than 1 billion kilowatt hours per year or by 500 megawatts of installed capacity under either of the options analyzed, nor would the option increase U.S. dependence on foreign supplies of energy. For more detail on the potential energy effects of the regulatory options in this proposal,
This proposed rulemaking does not involve technical standards.
The EPA conducted the analysis in three ways. First, the EPA summarized the demographic characteristics of individuals living in proximity to steam electric facilities with BA transport water or FGD discharges and thus are likely to be affected by the facility discharges and changes in air emissions resulting from the regulatory options presented in this proposal. This first analysis focuses on the spatial distribution of minority and low-income groups to determine whether these groups are more or less represented in the populations that are expected to be affected by the regulatory options, based on their proximity to steam electric facilities. The results show that, when compared to state averages, all affected communities are poorer and a large majority of affected communities have more minority residents than average.
Second, the EPA summarized the demographic characteristics of individuals served by public water systems (PWS) downstream from steam electric facilities and potentially affected by bromide discharges. The results show that the majority of county populations potentially affected by changes in drinking water quality as a result of steam electric facility discharges are poorer and have more minority residents than the state average.
Finally, the EPA conducted analyses of populations exposed to steam electric power facility FGD wastewater and BA transport water discharges through consumption of recreationally caught fish by estimating exposure and health effects by demographic cohort. Where possible, the EPA used analytic assumptions specific to the demographic cohorts—
The results show that the regulatory options would result in forgone benefits to these populations and that these changes may disproportionately affect communities in cases where the regulatory options increase pollutant exposure compared to the baseline. Overall however, the EPA's analysis, which is detailed in Chapter 14 of the BCA, finds very small changes in exposure between the baseline and regulatory options, amounting to very small changes in risk for this population. The EPA solicits comment on the assumptions and uncertainties included in this analysis.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is a “major rule” as defined by 5 U.S.C. 804(2).
The following acronyms and abbreviations are used in this preamble.
Environmental protection, Electric power generation, Power facilities, Waste treatment and disposal, Water pollution control.
For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 423 as follows:
Secs. 101; 301; 304(b), (c), (e), and (g); 306; 307; 308 and 501, Clean Water Act (Federal Water Pollution Control Act Amendments of 1972, as amended; 33 U.S.C. 1251; 1311; 1314(b), (c), (e), and (g); 1316; 1317; 1318 and 1361).
(n) The term flue gas desulfurization (FGD) wastewater means any wastewater generated specifically from the wet flue gas desulfurization scrubber system that comes into contact with the flue gas or the FGD solids, including but not limited to, the blowdown from the FGD scrubber system, overflow or underflow from the solids separation process, FGD solids wash water, and the filtrate from the solids dewatering process. Wastewater generated from cleaning the FGD scrubber, cleaning FGD solids separation equipment, cleaning FGD solids dewatering equipment, cleaning FGD paste transportation piping, or that is collected in floor drains in the FGD process area is not considered FGD wastewater.
(p) The term transport water means any wastewater that is used to convey fly ash, bottom ash, or economizer ash from the ash collection or storage equipment, or boiler, and has direct contact with the ash. Transport water does not include low volume, short duration discharges of wastewater from minor leaks (
(t) The phrase “as soon as possible” means November 1, 2018 (except for purposes of § 423.13(g)(1)(i) and (k)(1)(i), and § 423.16(e) and (g), in which case it means November 1, 2020), unless the permitting authority establishes a later date, after receiving site-specific information from the discharger, which reflects a consideration of the following factors:
(1) Time to expeditiously plan (including to raise capital), design, procure, and install equipment to comply with the requirements of this part.
(2) Changes being made or planned at the plant in response to:
(i) New source performance standards for greenhouse gases from new fossil fuel-fired electric generating units, under sections 111, 301, 302, and 307(d)(1)(C) of the Clean Air Act, as amended, 42 U.S.C. 7411, 7601, 7602, 7607(d)(1)(C);
(ii) Emission guidelines for greenhouse gases from existing fossil fuel-fired electric generating units, under sections 111, 301, 302, and 307(d) of the Clean Air Act, as amended, 42 U.S.C. 7411, 7601, 7602, 7607(d); or
(iii) Regulations that address the disposal of coal combustion residuals as solid waste, under sections 1006(b), 1008(a), 2002(a), 3001, 4004, and 4005(a) of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6906(b), 6907(a), 6912(a), 6944, and 6945(a).
(3) For FGD wastewater requirements only, an initial commissioning period for the treatment system to optimize the installed equipment.
(4) Other factors as appropriate.
(u) The term “FGD paste” means any combination of FGD wastewater treated with fly ash and/or lime prior to being landfilled, that is engineered to form a solid through pozzolanic reactions.
(v) The term “FGD paste transportation piping” means any pipe, valve, or related item used for transporting FGD paste from its point of generation to a landfill.
(w) The term “retired from service” means the owner or operator of a boiler no longer has, or is no longer required to have, the necessary permission through a permit, license, or other legally applicable form of permission to conduct electricity generation activities under Federal, state, or local law, irrespective of whether the owner and operator is subject to this part.
(x) The term “high FGD flow” means the maximum daily volume of FGD wastewater that could be discharged by a facility is above 4 million gallons per day after accounting for that facility's ability to recycle the wastewater to the maximum limits for the FGD system materials of construction.
(y) The term “net generation” means the amount of gross electrical generation less the electrical energy consumed at the generating station(s) for station service or auxiliaries as calculated in paragraph 423.19(e) of this subpart.
(z) The term “low utilization boiler” means any boiler for which the facility owner certifies, and annually recertifies, under 423.19(e) that the two-year average annual net generation is below 876,000 MWh per year.
(aa) The term “primary active wetted bottom ash system volume” means the maximum volumetric capacity of bottom ash transport water in all piping (including recirculation piping) and primary tanks of a wet bottom ash system, excluding the volumes of installed spares, redundancies, maintenance tanks, other secondary bottom ash system equipment, and non-bottom ash transport systems that may direct process water to the bottom ash system as certified to in paragraph 423.19(c).
(bb) The term “tank” means a stationary device, designed to contain
(cc) The term “maintenance purge water” means any water being discharged subject to paragraphs § 423.13(k)(2)(i) or § 423.16(g)(2)(i).
(dd) The term “30-day rolling average” means the series of averages using the measured values of the preceding 30 days for each average in the series.
(b) * * *
(11) The quantity of pollutants discharged in FGD wastewater, flue gas mercury control wastewater, combustion residual leachate, gasification wastewater, or bottom ash maintenance purge water shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration listed in table 1:
The additions and revisions to read as follows.
(g)(1)(i) FGD wastewater. Except for those discharges to which paragraph (g)(2) or (g)(3) of this section applies, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table following this paragraph (g)(1)(i). Dischargers must meet the effluent limitations for FGD wastewater in this paragraph by a date determined by the permitting authority that is as soon as possible beginning November 1, 2020, but no later than December 31, 2025. These effluent limitations apply to the discharge of FGD wastewater generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph.
(2)(i) For any electric generating unit with a total nameplate capacity of less than or equal to 50 megawatts, that is an oil-fired unit, or for which the owner has certified pursuant to 423.19(f) will be retired from service by December 31, 2028, the quantity of pollutants discharged in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed for TSS in § 423.12(b)(11).
(ii) For FGD wastewater discharges from a high FGD flow facility, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table following this paragraph (g)(2)(ii). Dischargers must meet the effluent limitations for FGD wastewater in this paragraph by a date determined by the permitting authority that is as soon as possible beginning November 1, 2020, but no later than December 31, 2023. These effluent limitations apply to the discharge of FGD wastewater generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (g)(2)(ii).
(iii)(A) For FGD wastewater discharges from a low utilization boiler, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the Table 1 to paragraph (g)(2)(ii). Dischargers must meet the effluent limitations for FGD wastewater in this paragraph by a date determined by the permitting authority that is as soon as possible beginning November 1, 2020, but no later than December 31, 2023. These effluent limitations apply to the discharge of FGD wastewater generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (g)(2)(iii)(A).
(B) If any low utilization boiler fails to timely recertify that the two year average net generation of such a boiler is below 876,000 MWh per year as specified in § 423.19(e), regardless of the reason, within two years from the date such a recertification was required, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the Table 1 to paragraph (g)(1)(i).
(3)(i) For dischargers who voluntarily choose to meet the effluent limitations for FGD wastewater in this paragraph, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table following this paragraph (g)(3)(i). Dischargers who choose to meet the effluent limitations for FGD wastewater in this paragraph must meet such limitations by December 31, 2028. These effluent limitations apply to the discharge of FGD wastewater generated on and after December 31, 2028.
(k)(1)(i)
(2)(i)(A) The discharge of pollutants in bottom ash transport water from a properly installed, operated, and maintained bottom ash system is authorized under the following conditions:
(
(
(
(
(B) The total volume necessary to be discharged for the above activities shall be reduced or eliminated to the extent
(ii) For any electric generating unit with a total nameplate generating capacity of less than or equal to 50 megawatts, that is an oil-fired unit, or for which the owner has certified pursuant to 423.19(f) will be retired from service by December 31, 2028, the quantity of pollutants discharged in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration for TSS listed in § 423.12(b)(4).
(iii)(A) For bottom ash transport water generated by a low utilization boiler, the quantity of pollutants discharged in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration for TSS listed in § 423.12(b)(4),and shall incorporate the elements of a best management practices plan as described in (k)(3) of this section.
(B) If any low utilization boiler fails to timely recertify that the two year average net generation of such a boiler is below 876,000 MWh per year as specified in 423.19(e), regardless of the reason, within two years from the date such a recertification was required, the quantity of pollutants discharged in bottom ash transport water shall be governed by paragraphs (k)(1) and (k)(2)(i) of this section.
(3) Where required in paragraph (k)(2)(iii) of this section, the discharger shall prepare, implement, review, and update a best management practices plan for the recycle of bottom ash transport water, and must include:
(i) Identification of the low utilization coal-fired generating units that contribute bottom ash to the bottom ash transport system.
(ii) A description of the existing bottom ash handling system and a list of system components (
(iii) A detailed water balance, based on measurements, or estimates where measurements are not feasible, specifying the volume and frequency of water additions and removals from the bottom ash transport system, including:
(A) Water removed from the BA transport system:
(
(
(
(
(
(B) Entering or recycled to the BA transport system:
(
(
(
(iv) Measures to be employed by all facilities:
(A) Implementation of a comprehensive preventive maintenance program to identify, repair and replace equipment prior to failures that result in the release of bottom ash transport water.
(B) Daily or more frequent inspections of the entire bottom ash transport water system, including valves, pipe flanges and piping, to identify leaks, spills and other unintended bottom ash transport water escaping from the system, and timely repair of such conditions.
(C) Documentation of preventive and corrective maintenance performed.
(v) Evaluation of options and feasibility, accounting for the associated costs, for eliminating or minimizing discharges of bottom ash transport water, including:
(A) Segregating bottom ash transport water from other process water.
(B) Minimizing the introduction of stormwater by diverting (
(C) Recycling bottom ash transport water back to the bottom ash transport water system.
(D) Recycling bottom ash transport water for use in the FGD scrubber.
(E) Optimizing existing equipment (
(F) Utilizing “in-line” treatment of transport water (
(vi) Description of the bottom ash recycle system, including all technologies, measures, and practices that will be used to minimize discharge.
(vii) A schedule showing the sequence of implementing any changes necessary to achieve the minimized discharge of bottom ash transport water, including the following:
(A) The anticipated initiation and completion dates of construction and installation associated with the technology components or process modifications specified in the plan.
(B) The anticipated dates that the discharger expects the technologies and process modifications to be fully implemented on a full-scale basis, which in no case shall be later than December 31, 2023.
(C) The anticipated change in discharge volume and effluent quality associated with implementation of the plan.
(viii) Description establishing a method for documenting and demonstrating to the permitting/control authority that the recycle system is well operated and maintained.
(ix) The discharger shall perform weekly flow monitoring for the following:
(A) Make up water to the bottom ash transport water system.
(B) Bottom ash transport water sluice flow rate (
(C) Bottom ash transport water discharge to surface water or POTW.
(D) Bottom ash transport water recycle back to the bottom ash system or FGD scrubber.
The additions and revisions to read as follows
(e)(1) FGD wastewater. Except as provided for in paragraph (e)(2) of this section, for any electric generating unit with a total nameplate generating capacity of more than 50 megawatts, that is not an oil-fired unit, and that the owner has not certified pursuant to § 423.19(f) will be retired from service by December 31, 2028, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table following this paragraph (e). Dischargers must meet the standards in this paragraph by [DATE 3 YEARS AFTER DATE OF FINAL RULE] except as provided for in paragraph (e)(2) of this section. These standards apply to the discharge of FGD wastewater generated on and after [DATE 3 YEARS AFTER DATE OF FINAL RULE].
(2)(i) For FGD wastewater discharges from a low utilization boiler, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table following this paragraph (e)(2). Dischargers must meet the standards in this paragraph by [DATE 3 YEARS AFTER DATE OF FINAL RULE].
(ii) If any low utilization boiler fails to timely recertify that the two year average net generation of such a boiler is below 876,000 MWh per year as specified in § 423.19(e), regardless of the reason, within two years from the date such a recertification was required, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in Table 1 to paragraph (e)(1).
(g)(1) Except for those discharges to which paragraph (g)(2) of this section applies, or when the bottom ash transport water is used in the FGD scrubber, for any electric generating unit with a total nameplate generating capacity of more than 50 megawatts, that is not an oil-fired unit, that is not a low utilization boiler, and that the owner has not certified pursuant to § 423.19(f) will be retired from service by December 31, 2028, there shall be no discharge of pollutants in bottom ash transport water. This standard applies to the discharge of bottom ash transport water generated on and after [DATE 3 YEARS AFTER DATE OF FINAL RULE]. Except for those discharges to which paragraph (g)(2) of this section applies, whenever bottom ash transport water is used in any other plant process or is sent to a treatment system at the plant (except when it is used in the FGD scrubber), the resulting effluent must comply with the discharge standard in this paragraph. When the bottom ash transport water is used in the FGD scrubber, the quantity of pollutants in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of bottom ash transport water times the concentration listed in Table 1 to paragraph (e)(1) of this section.
(2)(i)(A) The discharge of pollutants in bottom ash transport water from a properly installed, operated, and maintained bottom ash system is authorized under the following conditions:
(
(
(
(
(B) The total volume necessary to be discharged to a POTW for the above activities shall be reduced or eliminated to the extent achievable using control measures (including best management practices) that are technologically available and economically achievable in light of best industry practice, and in no instance shall it exceed a 30-day rolling average of ten percent of the primary active wetted bottom ash system volume. Discharges shall be measured by computing daily discharges by totaling daily flow discharges.
(ii)(A) For bottom ash transport water generated by a low utilization boiler, the quantity of pollutants discharged in bottom ash transport water shall incorporate the elements of a best management practices plan as described in § 423.13(k)(3).
(B) If any low utilization boiler fails to timely recertify that the two year average net generation of such a boiler is below 876,000 MWh per year as specified in § 423.19(e), regardless of the reason, within two years from the date such a recertification was required, the quantity of pollutants discharged in bottom ash transport water shall be governed by paragraphs (g)(1) and (g)(2)(i) of this section.
All permits subject to this part shall include the following permit conditions:
(a) In case of an emergency order issued by the Department of Energy under Section 202(c) of the Federal Power Act or a Public Utility Commission reliability must run agreement, a boiler shall be deemed to qualify as a low utilization boiler or
(b) Any facility providing the required documentation pursuant to § 423.19(g) may avail itself of the protections of this permit condition.
(a) Discharges subject to this part must comply with the following reporting requirements in addition to the applicable requirements in 40 CFR 403.12(b), (d), (e), and (g).
(b)
(c) Requirements for facilities discharging bottom ash transport water pursuant to § 423.13(k)(2)(i) or § 423.16(g)(2)(i).
(1)
(2)
(3)
(A) A statement that the professional engineer is a licensed professional engineer.
(B) A statement that the professional engineer is familiar with the regulation requirements.
(C) A statement that the professional engineer is familiar with the facility.
(D) The primary active wetted bottom ash system volume in § 423.11(aa).
(E) All assumptions, information, and calculations used by the certifying professional engineer to determine the primary active wetted bottom ash system volume.
(d) Requirements for a bottom ash best management practices plan.
(1)
(2)
(3)
(A) A statement that the professional engineer is a licensed professional engineer.
(B) A statement that the professional engineer is familiar with the regulation requirements.
(C) A statement that the professional engineer is familiar with the facility.
(D) The approved best management practices plan.
(E) A statement that the best management practices plan is being implemented.
(4)
(A) Any updates to the best management practices plan.
(B) An attachment of weekly flow measurements from the previous year.
(C) The average amount of recycled bottom ash transport water in gallons per day.
(D) Copies of annual inspection reports and a summary of preventative maintenance performed on the system.
(E) A statement that the plan and corresponding flow records are being maintained at the office of the plant.
(e)
(2)
(f) Requirements for units that will be retired from service by December 31, 2028 pursuant to §§ 423.13(k)(2)(ii) and 423.13(g)(1).
(1)
(2)
(g) Requirements for facilities seeking the protections of § 423.18.
(1)
(2)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of a final rule.
This document summarizes the Federal Acquisition Regulation (FAR) rule agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2020-02. A companion document, the
For effective date see the separate document, which follows.
Ms. Marilyn E. Chambers, Procurement Analyst, at 202-285-7380 or
A summary for the FAR rule follows. For the actual revisions and/or amendments made by this FAR case, refer to the specific subject set forth in the document following this item summary. FAC 2020-02 amends the FAR as follows:
This final rule amends the FAR to require contractors and subcontractors to report to the Government-Industry Data Exchange Program (GIDEP) certain counterfeit or suspect counterfeit parts and certain major or critical nonconformances. This change implements sections 818(c)(4) and (c)(5) of the National Defense Authorization Act for Fiscal Year 2012, which require DoD contractors and subcontractors to report counterfeit or suspect counterfeit electronic parts purchased by or for DoD to GIDEP. In addition, the FAR Council extended coverage of the proposed rule by policy to cover other Government agencies, other types of parts, and other types of nonconformance. In response to public comments, this final rule has more limited scope than the proposed rule, exempting contracts and subcontracts for commercial items and limiting the clause application to acquisitions of items that require higher level quality standards, critical items, or electronic parts by or for DoD.
Federal Acquisition Circular (FAC) 2020-02 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator of National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2020-02 is effective November 22, 2019 except for FAR Case 2013-002, which is effective December 23, 2019.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Final rule.
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to require contractors and subcontractors to report to the Government-Industry Data Exchange Program certain counterfeit or suspect counterfeit parts and certain major or critical nonconformances.
Ms. Marilyn E. Chambers, Procurement Analyst, at 202-285-7380, or by email at
DoD, GSA, and NASA published a proposed rule at 79 FR 33164 on June 10, 2014, in the
The Presidential Memorandum on Combating Trafficking in Counterfeit and Pirated Goods, issued April 3, 2019, states that “[c]ounterfeit trafficking . . . may threaten national security and public safety through the introduction of counterfeit goods destined for the Department of Defense and other critical infrastructure supply chains.” Accordingly, the Federal Government must improve coordinated efforts to protect national security from the dangers and negative effects of the introduction of counterfeit goods. This rule furthers that aim by requiring contractors to screen for and report critical nonconformances, including counterfeits and suspect counterfeits, which may impede the performance of mission critical systems, where high level quality standards are essential to protect the integrity of systems requirements, and are necessary for national defense or critical national infrastructure.
The U.S. Intellectual Property Enforcement Coordinator's Annual Intellectual Property Report to Congress, dated February 2019, reiterated: “Counterfeiting is a significant challenge that can impair supply chains for both the public and private sectors. In the context of the U.S. Government, acquiring products or services from sellers with inadequate integrity, security, resilience, and quality assurance controls create significant risks, from a national security and mission assurance perspective as well as from an economic standpoint (due to the increased costs to American taxpayers). Counterfeiting can have particularly significant consequences for the Department of Defense (DoD) supply chain, by negatively affecting missions, the reliability of weapon systems, the safety of the warfighter, and the integrity of sensitive data and secure networks.” (Appendix, p.51.) This rule is likely to have a positive impact on national security and critical infrastructure where the Government procures elements of the infrastructure, for example, Federal Aviation Administration air traffic control systems, Department of Agriculture food safety equipment, all national defense programs, Department of Transportation monitoring of transportation systems, Department of Energy monitoring of power generation and distribution networks, etc.
By reporting in GIDEP, contractors are able to share knowledge of counterfeits and critical nonconformances which reduces the risk of counterfeit and other nonconforming items entering the supply chain and being used in high value, mission critical defense, space, or critical infrastructure systems where system failure could threaten national security through the loss of satellite-based critical information, communication and navigation systems, or other systems resulting in the loss of the ability to control connected systems or secure information within those systems. Counterfeits are not produced to meet higher-level quality standards required in mission critical applications and are a significant risk in causing failures to systems vital to an agency's mission. For weapons, space flight, aviation, and satellite systems, these failures can result in the death, severe injuries, and millions of dollars in system damage or loss. For example, if counterfeits are installed in a missile's guidance system, such missile may not function at all, may not proceed to its intended target, or may strike a completely unintended location resulting in catastrophic losses. Critical nonconforming and counterfeits items may cause failures in navigation or steering control systems, planes and flight control. Counterfeits can create “backdoors” into supposedly secure programmable devices which could be exploited to insert circuit functions to steal information and relay it to third parties or command or prevent the device from operating as designed. Defense, space, and aviation systems in particular must meet rigorous component specifications; failure of even a single one can be catastrophic causing serious problems and placing personnel and the public in harm's way.
GIDEP is a widely available Federal database. Timely GIDEP reporting and screening allows all contractors to promptly investigate and remove suspect parts from the supply chain and to ensure that suspect parts are not installed in the equipment which would result in experiencing high failure rates. With this knowledge, contractors can also avoid costs resulting from production stoppage, high failure rates, rework, or lost time due to maintenance turnaround to remove and replace failed parts. This effect is magnified by the fact GIDEP permits contractors to learn from the experiences of others across industry.
This rule concentrates on complex items with critical applications where the failure of the item could injure personnel or jeopardize a vital agency mission. In accordance with the Office of Federal Procurement Policy (OFPP) Policy Letter 91-3, all Government agencies use GIDEP as the central data base for receiving and disseminating information about nonconforming products. Contractor participation has been largely voluntary. This rule requires contractors to screen and report major or critical nonconformances in order to reduce the risk of counterfeit and other nonconforming items entering the supply chain and impacting the performance of mission critical items where item failure could result in loss of high value items or loss of life.
GIDEP is a cooperative activity between government and industry participants seeking to reduce and ultimately eliminate expenditures of resources by sharing technical information essential during research, design, development, production and operational phases of the life cycle of systems, facilities and equipment. Since GIDEP's inception, participants have reported over $2.1 billion in cost avoidance. That means without GIDEP, participants could have
Proper utilization of GIDEP data can materially improve the total safety, quality and reliability of systems and components during the acquisition and logistics phases of the life cycle and reduce costs in the development and manufacture of complex systems and mission critical equipment.
Examples of the value of this reporting include discovery of counterfeiting operations that supplied parts to many defense and other Government contractors and removal from the supply chain of—
• Faulty rivets that could have caused military aircraft failure in flight;
• Counterfeit electronic parts that would have caused a $100M failure of a satellite in orbit;
• Counterfeit bolts securing overhead gantry cranes in a Government industrial facility;
• Counterfeit raw stock materials (aluminum, steel, and titanium) supplied over a decade and used in structural applications across defense and civil systems and infrastructure;
• Counterfeit refrigerant with explosive properties that led to explosions and fire on several commercial ships;
• Uncertified electronic connectors that shut down large parts of the defense and space industrial base production for 6 months until solutions to certification could be devised.
What all these examples have in common is that the items in question are largely commercially available common piece parts or small assemblies that are used throughout the industrial base and in most defense, space, and critical infrastructure programs and can easily enter any supply stream.
In the proposed rule, the FAR Council extended coverage outside of DoD to other Government agencies, other types of parts, and other types of nonconformance. The FAR Council proposed this because the problem of counterfeit and nonconforming parts extends far beyond electronic parts and can impact the mission of all Government agencies, such as NASA and the Department of Energy, and mission critical systems such as avionics, satellites, space flight systems, and nuclear facilities. The final rule still applies across all agencies and to parts other than electronics, but there was some reassessment of costs and benefits, so that rather than applying to all supplies, in addition to the requirements for section 818(c)(4) with regard to electronic parts for DoD, the rule focuses on supplies that require higher-level quality standards or are determined to be critical items (definition added). This and other de-scoping efforts (see preamble sections II.A. and II.B.1.) reduced the estimated responses from 474,000 to 5,166 responses, and reduces the estimated burden hours from 1,422,000 hours to 30,986 hours, so that information is obtained where it is most critically needed.
A public meeting was held June 16, 2014. Public comments were received from 14 respondents (including respondents who provided written statements at the public meeting).
The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows.
1.
• It does not apply to contracts and subcontracts for the acquisition of commercial items, including commercially available off-the-shelf (COTS) items.
• Section 818(c)(4) of the NDAA for FY 2012 will not apply to contracts and subcontracts at or below the simplified acquisition threshold (SAT).
• Rather than applying to all supplies, in addition to the requirements for section 818(c)(4) with regard to electronic parts for DoD, the rule focuses on supplies that require higher-level quality standards or are determined to be critical items (definition added).
• The rule also exempts medical devices that are subject to the Food and Drug Administration reporting requirements at 21 CFR 803; foreign corporations or partnerships that do not have an office, place of business, or paying agent in the United States; counterfeit, suspect counterfeit, or nonconforming items that are the subject of an on-going criminal investigation, unless the report is approved by the cognizant law-enforcement agency; and nonconforming items (other than counterfeit or suspect counterfeit items) for which it can be confirmed that the organization where the defect was generated (
• Flowdown to subcontracts is similarly descoped. The contractor is prohibited from altering the clause other than to identify the appropriate parties.
2.
3.
4.
• Multiple respondents recommended limiting scope of the mandatory reporting rule to the statutory requirement: Counterfeit electronic parts and suspect counterfeit electronic parts from defense suppliers. Some respondents thought the rule should only apply to contractors/subcontractors covered by the cost accounting standards (CAS). One respondent recommended that FAR Case 2013-002 be withdrawn and a DFARS case be proposed instead. Another respondent stated that significant research has identified the problems and risks of counterfeit electronic part infiltration into the defense supply chain, but is concerned whether the benefits of such broad expansion of the scope of the rule justify the additional burdens and costs it will impose, not just on industry, but on the Government as well.
• Several respondents questioned the statutory authority for extending requirements to contractors for items that are not counterfeit. These respondents indicated that GIDEP reporting should be strictly limited to counterfeit items. These respondents stated that counterfeiting and nonconformance are two distinct problems that require different solutions. Another respondent indicated that expanding GIDEP reporting to include quality issues could also reduce
However, in response to public comments, after weighing the risks of failure against the cost of compliance with this rule, the final rule has significantly descoped the applicability (see FAR 46.317) of FAR clause 52.246-26, so that it applies only to acquisition of—
• Items that are subject to higher-level quality standards in accordance with the clause at FAR 52.246-11, Higher-Level Contract Quality Requirement;
• Items that the contracting officer, in consultation with the requiring activity, determines to be critical items (see FAR 46.101) for which use of the clause is appropriate;
• Electronic parts or end items, components, parts, or assemblies containing electronic parts, if this is an acquisition by, or for, the Department of Defense, as provided in paragraph (c)(4) of section 818 of the NDAA for FY 2012 (Pub. L. 112-81) that exceeds the SAT; or
• Services, if the contractor will furnish, as part of the service, any items that meet the above-specified criteria.
The clause will not be required in contracts for the acquisition of commercial items (see paragraph II.B.1.b.) or the acquisition of medical devices that are subject to the Food and Drug Administration reporting requirements at 21 CFR 803 (see paragraph II.B.5.e.).
Even if the clause is included in the contract, the contractor is not required to submit a report to GIDEP (see FAR 52.246-26(c)) if—
• The Contractor is a foreign corporation or partnership that does not have an office, place of business, or fiscal paying agent in the United States (see paragraph II.B.3.b.);
• The contractor is aware that the counterfeit suspect counterfeit or nonconforming item is the subject of an on-going criminal investigation, unless the report is approved by the cognizant law-enforcement agency (see paragraph II.B.7.b.); or
• For nonconforming items (other than counterfeit or suspect counterfeit items), it can be confirmed that the organization where the defect was generated (
• Items subject to higher-level quality standards in accordance with the clause at FAR 52.246-11, Higher-Level Contract Quality Requirement;
• Items that the contractor determines to be critical items for which use of the clause is appropriate;
• Electronic parts or end items, components, parts, or materials containing electronic parts if the subcontract is valued at more than the SAT, and if this is an acquisition by, or for, the Department of Defense, as provided in paragraph (c)(4) of section 818 of the NDAA for FY 2012 (Pub. L. 112-81); or
• The acquisition of services, if the subcontractor will furnish, as part of the service, any items that meet the above-specified criteria.
The clause does not flow down to subcontracts for—
(i) Commercial items; or
(ii) Medical devices that are subject to the Food and Drug Administration reporting requirements at 21 CFR 803.
With regard to the meaning of the terms “critical nonconformance” and “major nonconformance,” these terms are not new to this rule, but have been used in the FAR for many years and are commonly understood in the quality assurance field. FAR 46.101, defines a “critical nonconformance” as a nonconformance that is likely to result in hazardous or unsafe conditions for individuals using, maintaining, or depending upon the supplies or services; or is likely to prevent performance of a vital agency mission. It defines a “major nonconformance” to mean a nonconformance, other than critical, that is likely to result in failure of the supplies or services, or to materially reduce the usability of the supplies or services for their intended purpose. As with other items, a nonconforming electronic part is one which does not meet the requirements for its intended use. Quality standards for electronic parts are widely understood in the industry. No further
One respondent expressed concern that by not including foreign suppliers in GIDEP that this rule would create a barrier to trade since foreign suppliers could not comply with the GIDEP related requirements.
However, it is possible for a foreign contractor or subcontractor to work through a U.S. contractor that is a member of GIDEP and can act as a liaison between the foreign contractor and GIDEP.
One respondent opined that reviewing, or screening, of GIDEP reports for suspect counterfeit electronic parts by contractors and Government is often geared “not to find” affected parts, stating if only the exact part number and lot/date code is checked for impact, there is little chance of detecting all counterfeit parts. The respondent suggested the rule be revised to instruct contractors to screen for similar parts purchased or installed from the named supplier.
One respondent recommended that the reporting obligation be imposed upon only the organization that delivered the nonconforming item, not the entity or entities that received the nonconforming item. Another respondent recommended that the first point in time in the supply chain where “actual knowledge” can be established may be the proper point for disclosure and reporting to GIDEP.
• A Batch Match service allows users to load their parts into GIDEP and to be informed via email whenever new published reports may impact their parts.
• Weekly report summaries and part numbers are pushed out to industry via email links.
• A daily XML feed of data tailored to meet industry's specific data requirements is also available.
GIDEP training emphasizes the capabilities of the various notifications systems available to industry.
• Various GIDEP instructional modules are provided as online web-based training.
• Training clinics are held where GIDEP members can attend to get personal hands-on training by GIDEP Operations Center personnel.
• Quarterly classroom training is held at the GIDEP Operations Center.
• Training is also available remotely through web-conferencing.
Furthermore, the information collected during normal quality assurance inspection, testing, record review, or notification from another source (
Several respondents supported the safe harbor provisions, but had some concern that it may encourage contractors to err on the side of reporting to GIDEP, rather than analyzing whether the nonconformance is a critical or major nonconformance, and whether the nonconformance is genuine.
Some respondents, expressed concern that expanding the rule beyond the original Congressional intent leaves industry open to significant civil liability, which Congress could not have intended. According to two respondents, the rule should not be extended beyond the original statutory scope until Congress provides safe harbor for the expanded scope of the rule. Some respondents recommended that the rule should afford civil immunity to all contractors covered by the rule, or even legal indemnification.
According to one respondent, lack of safe harbor may disincentivize contractors from reporting. Several other respondents were concerned that, absent safe harbor provisions for authorized supply chains, the Government may find its access to authorized sellers limited.
Section 818(c)(5) of the NDAA for FY 2012 is limited by its language to immunity from civil liability to defense contractors and subcontractors, only with regard to reporting of counterfeit or suspect counterfeit electronic parts. It does not provide a legal basis to hold civilian agency contractors immune from civil liability in accordance with the plain language of the statute. Immunity is an exemption from liability that is granted by law to a person or class of persons. There has to be a legal basis to release a contractor from liability either under the contract, pursuant to a statute, or in accordance with common law. Granting an immunity from liability is achieved by law—either by the legislature pursuant to statute, or by the courts under common law (
The fact that the clause is not in the contract may relieve the contractor from the specific requirement to report the credible evidence of fraud to the IG. However, although the clause at FAR 52.203-13 is only included in contracts in accordance with the clause prescription at FAR 3.1004, the requirements at FAR 3.1003(a)(2) state that, whether or not the clause is applicable, a contractor may be suspended and/or debarred for knowing failure to timely disclose to the Government, in connection with the award, performance, or closeout of a Government contract performed by the contractor or a subcontract award thereunder, credible evidence of a violation of Federal criminal law involving fraud or a violation of the Civil False Claims Act.
Although the mandatory disclosure under FAR 52.203-13 indicates an ethical code of conduct violation at some tier by some entity, that does not equate to an ethical violation by the contractor that is reporting the violation. Therefore, there was no change from the proposed rule as a result of these public comments.
If parts are procured from sources open to or available to the broader industrial base, then it is likely others have procured the same part and it should be reported.
(1) An official position about what a recipient of suspect/actual counterfeit parts should do with the material when it discovers/determines that it may be counterfeit;
(2) Procedures the Government would prefer industry follow in securing suspect counterfeit electronic parts and preserve the chain of custody; and
(3) Guidance addressing how long after a company notifies the Government of its conclusion that industry should retain suspect counterfeit electronic parts.
(1) The parts in question are electronic components for items contained in fielded systems previously sold to the Government years earlier and are now needed to support replacement or additional requirements for those same systems;
(2) The OCM no longer manufactures the part in question;
(3) Neither the OCM nor its authorized distributors have the part in stock; and
(4) There is not enough time or inventory to engage authorized aftermarket manufacturers.
According to the respondent, OCMs occasionally refuse to verify such information as lot number, date code, and trademark of suspect counterfeit parts citing that (1) the reporting company did not purchase the part in question from the OCM; (2) taking time to assess the part costs the OCM money; and (3) the risk to the OCM involved in terms of liability to the seller of the part if the OCM's input to the reporting company is incorrect. The respondent recommended that the Government allow industry to bring its requests for such information from OCMs to Federal law enforcement to obtain the information from the OCM or encourage OCMs to cooperate with industry in the collective public good.
(A) An annual effect on the economy of $100,000,000 or more;
(B) A major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(C) Significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
Quality assurance systems already have methods of analyzing and dealing with nonconformances; therefore, the bulk of the process in gathering information on nonconforming parts is already happening (
Another respondent stated that, although the proposed rule addresses an important objective—to mitigate the threat that counterfeit items pose when used in systems vital to an agency's mission—the rule imposes significant new monitoring and reporting requirements that will pose particular challenges for small businesses. The respondent stated that the proposed rule was likely to increase costs for smaller businesses. The respondent cited examples, such as by requiring them to significantly increase quality assurance and compliance investments in order to remain at some tier in the Government supply chain, increasing liability costs associated with compliance failures, and increasing costs associated with the heightened risk of application of the exclusionary authority. This respondent also opined that in the section 818 regulatory process, the rulemakings have had the net effect of higher-tiered Federal contractors trimming their supply chains to eliminate companies unable or unwilling to implement flowdown policies or that cannot immediately demonstrate well in advance of entering supplier agreements that they have the capabilities demanded by the various section 818 rules. Ultimately, the by-product of this and other section 818 rulemakings is that they disproportionately and negatively impact small businesses through reduced participation in the Federal market and reduced Federal funding.
The Councils have revised the rule to lessen burden and reduced reporting requirements to the maximum extent while still getting information necessary to protect items that require higher-level quality standards, critical items, and electronic parts for DOD from counterfeit parts and major or critical nonconformances. Changes to the rule include: Focusing on supplies that require higher-level quality standards or are determined to be critical items, excluding foreign contractors and commercial items. Commercial items
Several respondents stated that the burden is currently underestimated. According to a respondent, the estimate of 474,000 reports underestimates the potential burden of the expanded reporting requirements because it failed to account for the growth in GIDEP reporting entities and relies on the number of companies currently participating in GIDEP.
Various respondents commented that 3 hours per report was substantially underestimated. One respondent noted that any incident must be identified, investigated, and reported. Procedures need to be followed, individuals with expertise need to be consulted, tests need to be performed and reports to memorialize findings of the review need to be prepared and filed. Another respondent noted that a single report can take up to 100 hours to complete, including significant legal review. Another respondent commented that the “very low estimate” seems to ignore the significant time and costs associated with training, implementation, and the risks of liability.
Industry already has all the information necessary to prepare a GIDEP report, based on existing quality assurance systems and procedures. However, in response to the industry comments and after discussions with subject matter experts, DoD, GSA, and NASA have reconsidered the number of estimated hours to prepare, review, and submit the report at an average of 6 hours per report (see section VII of this preamble).
41 U.S.C. 1905 governs the applicability of laws to contracts or subcontracts in amounts not greater than the SAT. It is intended to limit the applicability of laws to such contracts or subcontracts. 41 U.S.C. 1905 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council, which includes DoD, makes a written determination that it is not in the best interest of the Federal Government to exempt contracts or subcontracts at or below the SAT, the law will apply to them. The FAR Council has not made this determination. Therefore, section 818(c)(4) of Public Law 112-81 will not be applied below the SAT at either the prime or subcontract level. However, the Governmentwide policy, which is not required by statute, with regard to items that require higher level quality standards and critical items (including electronic parts), will be applied below the SAT, because for such parts, counterfeit or nonconforming parts of any dollar value can still cause hazardous or unsafe conditions for individual using the equipment and can lead to mission failure.
41 U.S.C. 1906 governs the applicability of laws to contracts and subcontracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts and subcontracts for the acquisition of commercial items. 41 U.S.C. 1906 provides that if a provision of law contains criminal or civil penalties, or if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items.
Likewise, 41 U.S.C. 1907 governs the applicability of laws to the acquisition of COTS items, with the Administrator for Federal Procurement Policy serving as the decision authority in determining whether it is not in the best interest of the Government to exempt contracts for COTS items from a provision of law.
The FAR Council and the Administrator for Federal Procurement Policy have not made these determinations with regard to application of section 818(c)(4) of Public Law 112-81 to contracts and subcontracts for the acquisition of commercial items and COTS items, respectively. This final rule will not apply the requirements of section 818(c)(4) of Public Law 112-81 or the Governmentwide policy to prime contracts for the acquisition of commercial items using FAR part 12 procedures and will not flow the clause FAR 52.246-26 down to subcontracts for the acquisition of commercial items.
DoD, GSA, and NASA have performed a regulatory cost analysis on this rule. The following is a summary of the estimated public and Government costs. Currently, there is no FAR requirement for contractors to exchange information about counterfeit, suspect counterfeit or major or critical nonconforming items in a Governmentwide database. This final rule establishes the requirement for contractors to search for and share information on such items in GIDEP. Specifically, the rule adds a new FAR clause at 52.246-26, Reporting Nonconforming Items, that includes a requirement for contractors to: (1) Screen GIDEP for items which may have critical or major nonconformances or items that are counterfeits or suspect counterfeits; and (2) report to GIDEP and the contracting officer within 60 days of becoming aware or having
By sharing this information in GIDEP, both the Government and contractors will benefit from knowing about and avoiding items with critical or major nonconformances, or items that are counterfeits or suspect counterfeits. Sharing this information in GIDEP will reduce the risk of having such items in the supply chain for mission critical items where failure would endanger an agency mission, cause catastrophic failures, or endanger human health and the environment. Although unable to quantify the benefits of this rule, the Government expects reduction in the high costs of potential damage to equipment, mission failure, and even injury and death of personnel.
The following is a summary of the estimated public and Government cost savings calculated in perpetuity in 2016 dollars at a 7-percent discount rate:
To access the full regulatory cost analysis for this rule, go to the Federal eRulemaking Portal at
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
This rule is an E.O. 13771 regulatory action. The total annualized value of the cost is $14,913,688.15. Details on the estimated costs can be found in section IV. of this preamble.
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule partially implements section 818 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2012 (Pub. L. 112-81, 10 U.S.C. 2302 Note), requiring regulations regarding the definition, prevention, detection and reporting of actual or suspected counterfeit electronic parts in the Government-Industry Data Exchange Program (GIDEP) system. Section 818(c)(4) was directed specifically at the reporting of counterfeit or suspect counterfeit electronic parts by Department of Defense (DoD) contractors and subcontractors; however, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Counsel (the Councils) consider the problem of nonconforming and counterfeit parts to be significant across the Federal Government and, therefore this rule applies to all applicable Federal contracts.
Respondents expressed concern about the scope of the proposed rule and the potential difficulty of tracking and reporting, especially for small businesses.
• One respondent asserted that the analysis of the costs and impacts of the proposed rule were greatly underestimated and that small business most assuredly will be impacted as the proposed rule requires a system for ongoing review of GIDEP, audit, investigation, and reporting to GIDEP and the contracting officer. The respondent pointed out that small businesses have limited resources—both in terms of personnel and financial resources—to establish systems necessary to engage in these kinds of continuous monitoring, auditing, investigating, and reporting activities.
• Another respondent stated that the proposed rule was likely to increase cost for smaller businesses. The respondent cited examples, such as by requiring them to significantly increase quality assurance and compliance investments in order to remain at some tier in the Government supply chain, increasing liability costs associated with compliance failures, and increasing costs associated with the heightened risk of application of the exclusionary authority.
In response to these concerns, the Councils significantly descoped the rule, both at the prime and the subcontract level. The final rule no longer applies to contracts or subcontracts for the acquisition of commercial items. Additionally, the rule does not require application of section 818(c)(4) to DoD contracts and subcontracts that do not exceed the simplified acquisition threshold (see FAR 46.317(a) and 52.246-26(g)(1)).
The removal of the flowdown requirements will greatly reduce the impact on small businesses. While this rule may require small businesses to implement new business practices involving screening GIDEP reports or reporting in GIDEP if a mission critical nonconforming item is discovered, we do not expect the incident of finding mission critical nonconformances to be frequent. These practices will have the beneficial effect of making the business more competitive as potential prime contractors and business partners see that the firm has instituted practices to avoid passing on counterfeit parts and items with critical nonconformances.
One respondent was concerned that adding negotiations over quality assurance may further distort the playing field to hurt small businesses attempting to retain a degree of control in their operations when negotiating with prime contractors. Conversely, lower-tier subcontractors, particularly commercial-item contractors and small-business entities, may assert that they do not have (and cannot afford to have) the sophisticated internal control systems necessary to detect and categorize the types of nonconforming conditions that require reporting to GIDEP. Neither the proposed clause nor the proposed regulation offers any guidance for resolving such conflicts.
Part of the concern of the respondent was that higher-tier contractors could insist on imposing quality control and reporting requirements that go well beyond those specified in the proposed clause to ensure that they fulfill their own obligation under the clause. This issue has been resolved through amendment of the flowdown language to restrict changes to the clause.
The rule applies to contracts that have higher-level quality assurance requirements (FAR 52.246-11), contracts for critical items, and DoD contracts for electronic parts that exceed the simplified acquisition threshold (other than commercial items). The total number of contractors and subcontractors to which the rule will apply is estimated to be
This rule requires screening of GIDEP reports; written notice to the contracting officer within 60 days of becoming aware through inspection or testing of counterfeit or suspect counterfeit parts for delivery to, or for, the Government; and reporting of counterfeit and suspect counterfeit items and common items that have a critical or major nonconformance into GIDEP.
The Government vitally needs a program to protect its critical assets from the threat of loss and especially where failure of the item could injure personnel or jeopardize a vital agency mission. The Councils carefully weighed the stated concerns of businesses against the serious impact parts with major or critical nonconformances may have on critical items.
As described above, the Councils minimized the economic impact on small entities consistent with the stated objects of the rule by descoping the rule significantly to the maximum extent possible while maintaining the ability to track and avoid counterfeit, suspect counterfeit items and common items that have a critical or major nonconformance.
Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The rule contains information collection requirements. OMB has cleared this information collection requirement under OMB Control Number 9000-0187, titled: “Reporting of Nonconforming Items to the Government-Industry Data Exchange Program.” Due to the major descoping of the final rule, the approved estimated number of responses is substantially less than the estimated responses in the preamble to the proposed rule. However, the number of hours per response has been increased to 6 hours.
Government procurement.
Therefore, DoD, GSA and NASA are issuing a final rule amending 48 CFR parts 1, 2, 7, 46, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
(b) * * *
(b) * * *
(19) * * * In contracts for supplies or service contracts that include supplies, address whether higher-level quality standards are necessary (46.202) and whether the supplies to be acquired are critical items (46.101).
(a) Except as provided in paragraph (b) of this section, the contracting officer shall insert the clause at 52.246-26, Reporting Nonconforming Items, in solicitations and contracts—as follows:
(1) For an acquisition by any agency, including the Department of Defense, of—
(i) Any items that are subject to higher-level quality standards in accordance with the clause at 52.246-11, Higher-Level Contract Quality Requirement;
(ii) Any items that the contracting officer, in consultation with the requiring activity determines to be critical items for which use of the clause is appropriate;
(2) In addition (as required by paragraph (c)(4) of section 818 of the National Defense Authorization Act for
(3) For the acquisition of services, if the contractor will furnish, as part of the service, any items that meet the criteria specified in paragraphs (a)(1) through (a)(2) of this section.
(b) The contracting officer shall not insert the clause at 52.246-26, Reporting Nonconforming Items, in solicitations and contracts when acquiring—
(1) Commercial items using part 12 procedures; or
(2) Medical devices that are subject to the Food and Drug Administration reporting requirements at 21 CFR 803.
(c) If required by agency policy, the contracting officer may modify paragraph (b)(4) of the clause at 52.246-26, but only to change the responsibility for the contractor to submit reports to the agency rather than to Government-Industry Data Exchange Program (GIDEP), so that the agency instead of the contractor submits reports to GIDEP within the mandatory 60 days.
(h) The contracting officer shall provide disposition instructions for counterfeit or suspect counterfeit items in accordance with agency policy. Agency policy may require the contracting officer to direct the contractor to retain such items for investigative or evidentiary purposes.
As prescribed in 46.317, insert the following clause:
(a)
(b) The Contractor shall—
(1) Screen Government-Industry Data Exchange Program (GIDEP) reports, available at
(2) Provide written notification to the Contracting Officer within 60 days of becoming aware or having reason to suspect, such as through inspection, testing, record review, or notification from another source (
(3) Retain counterfeit or suspect counterfeit items in its possession at the time of discovery until disposition instructions have been provided by the Contracting Officer; and
(4) Except as provided in paragraph (c) of this clause, submit a report to GIDEP at
(i) A counterfeit or suspect counterfeit item; or
(ii) A common item that has a major or critical nonconformance.
(c) The Contractor shall not submit a report as required by paragraph (b)(4) of this clause, if—
(1) The Contractor is a foreign corporation or partnership that does not have an office, place of business, or fiscal paying agent in the United States;
(2) The Contractor is aware that the counterfeit, suspect counterfeit, or nonconforming item is the subject of an on-going criminal investigation, unless the report is approved by the cognizant law-enforcement agency; or
(3) For nonconforming items other than counterfeit or suspect counterfeit items, it can be confirmed that the organization where the defect was generated (
(d) Reports submitted in accordance with paragraph (b)(4) of this clause shall not include—
(1) Trade secrets or confidential commercial or financial information protected under the Trade Secrets Act (18 U.S.C. 1905); or
(2) Any other information prohibited from disclosure by statute or regulation.
(e) Additional guidance on the use of GIDEP is provided at
(f) If this is a contract with the Department of Defense, as provided in paragraph (c)(5) of section 818 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81), the Contractor or subcontractor that provides a written report or notification under this clause that the end item, component, part, or material contained electronic parts (
(g)
(1) Except as provided in paragraph (g)(2) of this clause, the Contractor shall insert this clause, including this paragraph (g), in subcontracts that are for—
(i) Items subject to higher-level quality standards in accordance with the clause at FAR 52.246-11, Higher-Level Contract Quality Requirement;
(ii) Items that the Contractor determines to be critical items for which use of the clause is appropriate;
(iii) Electronic parts or end items, components, parts, or materials containing electronic parts, whether or not covered in paragraph (g)(1)(i) or (ii) of this clause, if the subcontract exceeds the simplified
(iv) For the acquisition of services, if the subcontractor will furnish, as part of the service, any items that meet the criteria specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this clause.
(2) The Contractor shall not insert the clause in subcontracts for—
(i) Commercial items; or
(ii) Medical devices that are subject to the Food and Drug Administration reporting requirements at 21 CFR 803.
(3) The Contractor shall not alter the clause other than to identify the appropriate parties.
(End of clause)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of DOD, GSA, and NASA. This
November 22, 2019.
Ms. Marilyn E. Chambers, Procurement Analyst, at 202-285-7380 or
A summary for the FAR rule follows. For the actual revisions and/or amendments made by this FAR case, refer to the specific subject set forth in the document following this item summary. FAC 2020-02 amends the FAR as follows:
This final rule amends the FAR to require contractors and subcontractors to report to the Government-Industry Data Exchange Program (GIDEP) certain counterfeit or suspect counterfeit parts and certain major or critical nonconformances. This change implements sections 818(c)(4) and (c)(5) of the National Defense Authorization Act for Fiscal Year 2012, which require DoD contractors and subcontractors to report counterfeit or suspect counterfeit electronic parts purchased by or for DoD to GIDEP. In addition, the FAR Council extended coverage of the proposed rule by policy to cover other Government agencies, other types of parts, and other types of nonconformance. In response to public comments, this final rule has more limited scope than the proposed rule, exempting contracts and subcontracts for commercial items and limiting the clause application to acquisitions of items that require higher level quality standards, critical items, or electronic parts by or for DoD.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The Secretary of Commerce is hereby authorized and directed to publish this memorandum in the