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Bureau of Consumer Financial Protection.
Interim final rule with request for public comment.
The Bureau of Consumer Financial Protection (CFPB or Bureau), with the concurrence of the Office of Government Ethics (OGE), is issuing this interim final rule for employees of the Bureau. This rule supplements the Standards of Ethical Conduct for Employees of the Executive Branch (OGE Standards) issued by OGE and is necessary because it addresses ethical issues unique to the Bureau. The rule establishes restrictions on outside employment and business activities; prohibitions on the ownership of certain financial interests; restrictions on seeking, obtaining or renegotiating credit and indebtedness; prohibitions on recommendations concerning debt and equity interests; disqualification requirements based on credit or indebtedness; prohibitions on purchasing certain assets; and restrictions on participating in particular matters involving outside entities.
This interim final rule is effective June 26, 2012. Written comments are invited and must be received on or before June 26, 2012.
You may submit comments, identified by
•
•
All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Comments will not be edited to remove any identifying or contact information.
Amber Vail at (202) 435–7305 or Amy Mertz Brown at (202) 435–7256 at the Office of General Counsel, Consumer Financial Protection Bureau.
On August 7, 1992, OGE published the OGE Standards.
Section 2635.105 of the OGE Standards authorizes an agency, with the concurrence of OGE, to adopt agency-specific supplemental regulations that are necessary to properly implement its ethics program. The Bureau, with OGE's concurrence, has determined that the following supplemental regulations are necessary for successful implementation of its ethics program in light of the Bureau's unique programs and operations.
Section 9401.101 explains that the regulations contained in part 9401 (CFPB Ethics Regulations) apply to employees of the Bureau and supplement the OGE Standards. The section also includes cross-references to other ethics restrictions applicable to employees—including the regulations concerning executive branch financial disclosure, financial interests, post-Government restrictions, outside earned income and employment and affiliation limitations, and employee responsibilities and conduct—as well as implementing Bureau guidance and procedures issued in accordance with the OGE Standards.
Section 9401.102 defines terms and phrases used throughout these supplemental regulations. Many of the definitions reference terms defined in the OGE Standards or in the Consumer Financial Protection Act of 2010 (CFPA) (12 U.S.C. 5301
The terms “credit” and “Director” are statutory terms taken from the CFPA.
This regulation broadly defines the term “debt or equity interest” to include without limitation, “secured and unsecured bonds, debentures, notes, securitized assets, commercial papers, and preferred and common stock.” It extends to any right to acquire or dispose of any such debt or equity interest and to beneficial or legal interests derived from a trust. However, the term does not include deposit accounts (e.g., savings accounts, checking accounts, certificates of deposit, money market accounts), credit union shares, future interests created by someone other than the employee or the employee's spouse or dependent child, or a right as a beneficiary of an estate that has not been settled.
The term “dependent child” has the same meaning as in OGE's financial disclosure regulations at 5 CFR 2634.105(d).
The term “Designated Agency Ethics Official” (DAEO) means the individual appointed by the Director to coordinate and manage the ethics program. It also includes the Alternate DAEO and a
The term “domestic partner” includes an individual with whom an employee has a close, committed, personal, and financially interdependent relationship in which both parties have agreed to be responsible for each other's common welfare and share financial obligations, and who for at least six months have shared the same regular and permanent residence and intend to do so indefinitely, or would have a common residence but for an assignment abroad or other employment-related, financial or similar obstacle. The definition of “domestic partner” in these supplemental regulations is the same as the one used to determine whether an individual is eligible to receive benefits under the Bureau's Domestic Partner Health Insurance Subsidy Program.
The term “employee” includes all Bureau employees, including special Government employees.
The phrase “entity supervised by the Bureau” means a person that is subject to the Bureau's supervision authority pursuant to 12 U.S.C. 5514(a)(1) or 5515(a) and in regulations promulgated thereunder, as identified on a list to be maintained and regularly updated by the Bureau.
The terms “indebted” and “indebtedness” refer to a legal obligation under which an individual or borrower received money or assets on credit, and now owes payment.
The term “indebted to an entity” means an obligation to make payments to that entity as a result of an indebtedness, whether originally made with that entity or with another entity. This includes without limitation a servicer on a mortgage to whom payments are made.
The term “participate” means to participate personally and substantially and has the meaning set forth in the OGE Standards at 5 CFR 2635.402(b)(4).
The terms “particular matter,” “particular matter involving specific parties,” “person,” and “special Government employee” have the same meanings as in the OGE Standards and in OGE's regulations on post-employment conflict of interest at 5 CFR 2635.402(b)(3), 2641.201(h), 2635.102(k) and 2635.102(l), respectively.
The term “spouse” means an employee's husband or wife by lawful marriage, but does not include a legally separated spouse when the employee and spouse live apart, there is an intention to end the marriage or separate permanently, and the employee has no control over the legally separated spouse's debt or equity interests.
This section requires employees to obtain written approval prior to engaging in certain outside employment and activities. This prior approval requirement will be an integral part of the Bureau's ethics program. The prior approval requirement is necessary to ensure that an employee's participation in certain outside employment or activities does not adversely affect Bureau operations or place the employee at risk of violating applicable Federal conduct statutes and regulations. In addition, prior approval is necessary to avoid the appearance that an outside employment or activity was obtained through a misuse of the employee's official position and to address a number of other ethics concerns.
Because the Bureau engages in enforcement, supervisory and regulatory functions across the consumer financial services sector, requiring prior approval is necessary to ensure that a reasonable person will not question the integrity of Bureau programs and operations. The Bureau would be hindered in fulfilling its mission if members of the public did not have confidence in employees' ability to act impartially while performing their official duties.
Paragraph (a) requires that an employee obtain prior written approval from the employee's supervisor and the concurrence of the DAEO before engaging in outside employment, except to the extent the Bureau has issued an instruction or internal directive exempting an activity or class of activities from this requirement. Under paragraph (d), an employee must submit a new request for approval when the scope of the approved activity changes or when the employee's position changes.
Paragraph (b) broadly defines “employment” to include any form of non-Federal employment or business relationship involving the provision of personal services other than in the discharge of official duties, regardless of whether the services are compensated. It includes outside teaching, speaking, or writing.
A note following paragraph (b) pertains to the special approval requirement in both 18 U.S.C. 203(d) and 205(e) for certain representational activities otherwise covered by the conflict of interest restrictions on compensation and activities of employees in claims against and other matters affecting the Government. The note explains that in addition to the regulatory approval required in this section, an employee who wishes to act as agent or attorney for or otherwise represent his or her parents, spouse, child, or a person for whom or for an estate for which he or she is serving as guardian, executor, administrator, trustee, or other personal fiduciary in such matters must obtain the approval of the Government official responsible for the employee's appointment to the federal service.
Paragraph (c) sets out the standard to be applied by the employee's supervisor and the DAEO in acting on requests for prior approval of outside employment. Approval will be granted only upon a determination that the outside employment is not expected to involve conduct prohibited by statute, the OGE Standards, or these supplemental regulations.
Under paragraph (e), the DAEO may issue instructions or internal directives governing the submission of requests for approval of outside employment that may exempt categories of employment from the prior approval requirement of this section based on a determination that employment within those categories generally would be approved and is not likely to involve prohibited conduct or create an appearance of lack of impartiality.
This section supplements § 2635.802 of the OGE Standards by prohibiting covered employees from engaging in compensated outside employment for any entity supervised by the Bureau or for an officer, director, or employee of such entity. This regulation addresses situations unique to covered employees, including those who are involved in the supervision of entities offering or providing a consumer financial product or service, and prohibits activity that may interfere with the objective and impartial performance of an employee's official duties. This regulation is based in part on 18 U.S.C. 1909, which prohibits national bank examiners from performing any service for compensation for any bank or banking or loan association, or any officer, director, or employee thereof.
For purposes of this section, the term “covered employee” means all employees serving in an examiner or attorney position, specified persons within the Office of Research and the Office of Enforcement, all Public Financial Disclosure Report filers, and other employees specified in a Bureau order or directive who the DAEO
Employees serving in an attorney position are subject to restrictions in addition to the prior approval of outside employment requirement in § 9401.103 and the prohibited outside employment restriction in § 9401.104. This section prohibits all such individuals from practicing law outside of their official duties where they may in fact or in appearance take a legal position in conflict with the interests of the Bureau. Bureau attorneys are prohibited from interpreting a statute, regulation, or rule administered by the Bureau as part of the outside practice of law. The regulation in this section is consistent with the rules of professional conduct governing the attorney-client relationship. It is a necessary supplement to the OGE Standards because it specifically addresses the unique and sensitive relationship between an attorney and a client, which for Bureau attorneys is the Bureau.
Paragraph (b) contains an exemption allowing an employee to represent himself or herself unless the employee participated personally and substantially in the matter as part of his or her official duties or the matter is the subject of the employee's official responsibility.
Paragraph (a) prohibits an employee or the employee's spouse or minor child from owning or controlling a debt or equity interest in an entity supervised by the Bureau. As set forth in Section 9401.102, the term “supervised by the Bureau” refers to the Bureau's authority under the CFPA to supervise and examine certain financial institutions and other providers of consumer financial products and services. Under 5 CFR 2635.403(a), an agency may, by supplemental regulation, prohibit or restrict the holding of a financial interest by its employees and the spouses and minor children of those employees based on the agency's determination that the acquisition or holding of such financial interest would cause a reasonable person to question the impartiality and objectivity with which agency programs are administered.
The Bureau has determined that in light of the Bureau's sensitive supervisory functions, the restriction is necessary to: (1) Maintain public confidence in the impartiality and objectivity with which the Bureau executes its supervisory functions; (2) eliminate any concern that sensitive information provided to the Bureau might be misused for private gain; and (3) avoid the widespread disqualification of employees from official matters that might impair the Bureau's ability to fulfill its mission.
The prohibition in paragraph (a) also applies to the spouse and minor children of an employee. Under 5 CFR 2635.403(a), a restriction on the holdings of financial interests by spouses or minor children of agency employees must be based on the agency's determination that there is a direct and appropriate nexus between the restriction as applied to spouses and minor children and the efficiency of the service. The Bureau has determined that such a nexus exists and is adopting this provision to avoid the need to disqualify employees from official matters to prevent violations of criminal law (18 U.S.C. 208), to maintain public confidence in the objectivity and impartiality of the Bureau's administration of its programs, and to avoid the potential appearance that an employee's spouse could trade on information obtained through the employee's official position.
The scope of this prohibition extends only to those entities supervised by the Bureau that are identified on a list maintained by the Bureau for the purposes of easing administration of this provision and minimizing inadvertent violations. The Bureau's regulatory and enforcement authority under the CFPA may extend beyond those entities supervised by the Bureau that are identified on the list. However, the regulation limits the prohibition on ownership of debt and equity interests to only those entities identified on the list, in order to establish a bright-line test and enable employees to easily identify prohibited interests.
Paragraph (b) sets forth several exceptions intended to ease the restrictions on the financial interests of employees and their spouses and minor children to permit interests of a character unlikely to raise questions regarding the objective and impartial performance of employees' official duties or the possible misuse of their positions. The exceptions permit employees and their spouses and minor children to own or control interests in entities supervised by the Bureau through investments in a publicly traded or available mutual fund (as long as the fund does not have a stated policy of concentrating in the financial services industry or the banking industry), a widely held and diversified pension plan, or a fund administered by a Federal government agency.
Paragraph (c) requires employees to immediately disqualify themselves if they own or control a prohibited interest and consult with the DAEO concerning a potential waiver under paragraph (d).
Paragraph (d) authorizes the DAEO, in consultation with senior management in the Division in which the employee works, to waive under certain limited circumstances on a case-by-case basis the prohibition in paragraph (a). In general, a request for a waiver will be considered if mitigating circumstances exist due to how the employee or the employee's spouse or minor child acquired ownership or control, the employee makes a prompt and complete written disclosure of the debt or equity interest to the DAEO, and the employee's disqualification from matters involving the entity in which the prohibited interest is held would not unduly interfere with the full performance of the employee's duties. If owning or controlling the debt or equity interest would raise financial conflict of interest concerns under 18 U.S.C. 208(a), the DAEO will consult with OGE prior to authorizing the employee to own or control the debt or equity interest. The DAEO also will consult with OGE prior to authorizing an employee to work on a particular matter that would raise financial conflict of interest concerns under 18 U.S.C. 208(a).
Paragraph (e) attributes to an employee a debt or equity interest held by entities described in this subsection (e.g., trusts, partnerships, closely held corporations). An employee who has knowledge of an attributed interest that would violate subparagraph (a) of this section is required to report the interest in writing to the DAEO. The DAEO may require the employee to terminate the relationship with the third party entity, disqualify himself or herself from participating in a matter, or take other appropriate action as determined by the DAEO to avoid a violation of the conflict of interest statutes, the OGE Standards or these supplemental regulations, or an appearance of misuse of position or loss of impartiality.
Section 9401.107 prohibits employees or the employee's spouse or minor child from accepting credit from or entering into a financial relationship with an entity supervised by the Bureau if the relationship is based on terms more favorable than those offered in
Section 9401.108 prohibits an employee from seeking, obtaining, or renegotiating credit from an entity, while the employee is assigned to participate in a particular matter involving specific parties in which the entity is or represents a party to the matter. The prohibition also extends to those matters to which the employee is not currently assigned, but the employee is aware of the pendency of the matter and believes it is likely that he or she will participate in the matter. This prohibition also applies for two years after the employee's participation in the matter has ended.
This prohibition applies equally to the employee's spouse or minor children, unless the credit or indebtedness is supported exclusively by the income or independent means of the spouse or minor child and is obtained on terms and conditions no more favorable than those offered to the public, and the employee does not participate in the negotiations for the credit or indebtedness or serve as a co-maker, endorser, or guarantor of the loan.
The prohibition on seeking, obtaining, or renegotiating credit is necessary for several reasons. Under 5 CFR 2635.403(a), the Bureau may prohibit or restrict the acquisition or holding of a financial interest or class of financial interests by employees, and the spouses and minor children of those employees, when the Bureau has determined that the acquisition or holding of such financial interests would cause a reasonable person to question the impartiality and objectivity with which the Bureau programs are administered. “Financial interest” may include an indebtedness relationship, under 5 CFR 2635.403(c). This prohibition is necessary to prevent the loss of public confidence in the integrity of Bureau programs and to prevent the appearance of loss of impartiality. These concerns might arise if an employee appears to be using his or her official position or contacts with an entity resulting from the employee's work on a matter to obtain loans or extensions of credit on favorable terms, or to be benefitting from his or her official position through possible forbearance by the lender in collecting on the indebtedness. This section also will strengthen public confidence in the Bureau's integrity by limiting the ability of employees to engage in financial transactions with entities that are or represent a party to a particular matter involving specific parties to which the employee is assigned.
Under paragraph (c), an employee must immediately disqualify himself or herself from participating in a particular matter involving specific parties after the employee becomes aware that certain identified persons are seeking, obtaining, or renegotiating credit or indebtedness with an entity that is or represents a party to the matter, while the matter is pending before the Bureau. The Bureau does not intend to impose an affirmative duty on the part of the employee to investigate or inquire whether the persons identified in this section are seeking, obtaining, or renegotiating credit.
Because this section supplements § 2635.502 of the OGE Standards, the list of persons identified in paragraph (c) of this section are defined broadly and include the employee's spouse, domestic partner, and dependent child, and other related entities. This section is designed to ensure that employees and persons associated with employees in a non-governmental capacity do not benefit or appear to benefit from the employees' official positions and that employees do not lose or appear to lose their impartiality.
Paragraph (d) provides exemptions to the prohibition in paragraphs (a) and (b) and the disqualification requirement in paragraph (c), for two forms of credit: borrowing through the use of a credit or charge card and borrowing through overdraft protection, on terms and conditions available to the public. The need for regulation is diminished because these forms of credit are typically fairly standardized and low credit amounts are customary. The Bureau has determined permitting employees to have adequate access to sources of credit to meet their individual financial needs outweighs the incremental benefit that may be gained by extending the rule to cover these forms of credit.
The DAEO may grant a waiver under paragraph (e) based on a determination that the participation in matters otherwise prohibited by this section is not prohibited by law and would not create an appearance of loss of impartiality or use of public office for private gain.
Section 9401.109(a) prohibits an employee from participating in a particular matter involving specific parties if the employee is aware that the employee, the employee's spouse, domestic partner, or dependent child, or a specified related entity has credit with or is indebted to an entity that is or represents a party to the matter.
This section supplements § 2635.502 of the OGE Standards. The disqualification requirement is designed to ensure that employees and persons and entities related to employees do not benefit or appear to benefit from employees' official positions and the employees do not lose or appear to lose their impartiality when taking official action.
Paragraph (b) exempts certain forms of credit and indebtedness from the disqualification requirement in paragraph (a) as long as the person with the credit or indebtedness is not in an adversarial position with the entity that extended the credit or to which the indebtedness is owed, and the credit or indebtedness was offered on terms and conditions no more favorable than those offered to the general public. The exemptions include revolving consumer credit and charge cards; overdraft protection on checking and similar accounts; amortizing indebtedness on consumer goods (e.g., automobiles); educational loans (e.g., student loans; loans taken out by a parent or guardian to pay for a child's education costs); and loans on residential homes (e.g., mortgages, home equity lines of credit).
Paragraph (c) allows an employee to participate in a matter from which they would be disqualified under paragraph (a), if the credit or indebtedness is the sole responsibility of a person listed in paragraphs (a)(2) through (a)(8), and other conditions are met. The exception is intended to address situations where the credit or indebtedness is unlikely to raise ethics concerns regarding the motivation of the lender or the impartiality of an employee's performance of official duties because the connection between the employee and that credit or indebtedness is attenuated.
Despite the general disqualification requirement in paragraph (a) of this section, the DAEO may authorize an employee to participate in the matter using the authorization process set forth in 5 CFR 2635.502(d) of the OGE Standards.
This section prohibits employees from making any recommendation or suggestion regarding the acquisition, sale, or other divestiture of a debt or equity interest of an entity supervised by the Bureau or of an entity that is or represents a party to a particular matter involving specific parties to which the employee is assigned. This rule is intended in part to eliminate any misunderstanding or harm that could result from such a recommendation. For example, an investor should not be misled into believing that an equity interest in a particular entity supervised by the Bureau is a good investment because the investor believes that the employee from whom the investor receives a recommendation may have access to inside information concerning that entity. This provision also supplements 5 CFR 2635.704 with a provision designed specifically to prohibit employees from using or creating the appearance of using information unavailable to the general public to further a private interest.
This section disqualifies an employee from participating in a particular matter involving specific parties if a covered entity is or represents a party to the matter. For purposes of this disqualification requirement, the term “covered entity” includes a person for whom the employee is aware that his or her spouse, domestic partner, fiancé, child, parent, sibling, or member of the employee's household is serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee. Disqualification of the employee eliminates the potential for an appearance of preferential treatment in those instances where the employee's connection to a covered entity would likely raise questions regarding the appropriateness of actions taken by the employee or the Bureau. This section is not intended to impose an affirmative duty on the part of the employee to investigate or inquire as to whether these individuals have these relationships with covered entities.
The DAEO may authorize an employee to participate in the matter using the authorization process set forth in 5 CFR 2635.502(d) of the OGE Standards.
This section prohibits employees, or their spouse and minor children, from purchasing real or personal property from an entity supervised by the Bureau unless it is sold at public auction or by other means that assures that the selling price of the property is the asset's fair market value. For example, fixed price retail transactions from an entity supervised by the Bureau would be excluded from this prohibition. This section is proposed to maintain public confidence in the impartiality and objectivity with which the Bureau executes its supervisory functions and as a supplement to the general prohibition in 5 CFR 2635.702 against the use of public office for private gain.
This section authorizes the DAEO to grant a written waiver of any provision of this part based upon a determination that the waiver will not result in conduct inconsistent with the OGE Standards or otherwise prohibited by law. Under this section, the DAEO may grant a written waiver but require the employee to take further action. This provision is intended, in appropriate cases, to lessen the burden that these supplemental regulations may impose on employees while ensuring that employees do not engage in actions or hold financial interests that may interfere with the objective and impartial performance of their official duties.
Under 5 U.S.C. 553(a)(2), rules relating to agency management or personnel are exempt from the notice and comment rulemaking requirements of the Administrative Procedure Act (APA). In addition, under 5 U.S.C. 553(b)(3)(A), notice and comment rulemaking requirements do not apply to rules concerning matters of agency organization, procedure, or practice. Given that the rule concerns matters of agency management or personnel, and organization, procedure, or practice, the notice and comment requirements of the APA do not apply here. Furthermore, under 5 U.S.C. 553(b)(3)(B), the Bureau finds that good cause exists to waive the proposed rulemaking requirements under the APA because the notice and comment procedures would be contrary to the public interest. The Bureau began exercising certain of its supervision, enforcement, and regulatory authorities on July 21, 2011. Given the Bureau's newly acquired authorities, it is necessary to promptly establish supplemental ethics rules that will: (1) Maintain public confidence in the impartiality and objectivity with which the Bureau executes its regulatory and supervisory functions; (2) eliminate concerns that sensitive information provided to the Bureau might be misused for private gain; and (3) ensure that employees are not disqualified from participating in official matters that might result in the Bureau's inability to fulfill its mission. The absence of such rules may adversely affect the public's confidence and may call into question the impartiality with which Bureau programs are carried out. For these reasons, the Bureau finds good cause to issue this regulation as an Interim Final Rule effective 60 days after publication.
The Bureau is issuing this interim final rule for comment and welcomes comments from the public on all aspects of the rule. The Bureau will consider comments as appropriate. Comments may be submitted in accordance with the instructions in the
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Conflict of interests, Government employees.
For the reasons set forth in the preamble, the Bureau, in concurrence with OGE, is amending title 5 of the Code of Federal Regulations by adding a new chapter LXXXIV, consisting of part 9401, to read as follows:
5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159; 3 CFR, 1898 Comp., p.215, as modified by E.O. 12731, 55 FR 42547; 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, 2635.403, 2635.502 and 2635.803.
(a)
(b)
For purposes of this part:
(1) Unmarried, under the age of 21, and living in the employee's household; or
(2) Claimed as a “dependent” on the employee's income tax return.
(1) Has a close and committed personal relationship and both parties are at least 18 years of age, are each other's sole domestic partner, and intend to remain in the relationship indefinitely, and neither is married to, in a civil union with, or partnered with any other spouse or domestic partner;
(2) Is not related by blood in a manner that would bar marriage under the laws of the jurisdiction in which the employee resides;
(3) Is in a financially interdependent relationship in which both agree to be responsible for each other's common welfare and share in financial obligations; and
(4) Has shared for at least six months the same regular and permanent residence in a committed relationship and both parties intend to do so indefinitely, or would maintain a common residence but for an assignment abroad or other employment-related, financial, or similar obstacle.
(1) The employee and the employee's spouse are legally separated;
(2) The employee and the employee's spouse live apart;
(3) There is an intention to end the marriage or separate permanently; and
(4) The employee has no control over the legally separated spouse's debt or equity interests.
(a)
(b)
Both 18 U.S.C. 203(d) and 205(e) require special approval for certain representational activities in claims against and other matters affecting the interests of the Government. Thus, an employee who wishes to act as agent or attorney for or otherwise represent his or her parents, spouse, child, or a person for whom or for an estate for which he or she is serving as guardian, executor, administrator, trustee, or other personal fiduciary in such matters as described in those statutes shall obtain the approval of the Government official responsible for the employee's appointment in addition to the regulatory approval required in this section.
(c)
(d)
(e)
(a)
(b)
(c)
(1) An employee serving in an examiner position;
(2) An employee serving in an attorney position;
(3) An employee in the Office of Research, serving as a section chief at CFPB pay band 71 or above or as a senior economist in the Compliance Analysis Section;
(4) An employee serving in an investigator, paralegal, or financial analyst position in the Office of Enforcement;
(5) An employee required to file a Public Financial Disclosure Report (OGE Form 278) under 5 CFR part 2634; or
(6) Any other Bureau employee specified in a Bureau order or directive whose duties and responsibilities, as determined by the DAEO, require application of the prohibition on outside employment contained in this section to ensure public confidence that the Bureau's programs are conducted impartially and objectively.
(a)
(1) Take a position that is or appears to be in conflict with the interests of CFPB; or
(2) Interpret any statute, regulation, or rule administered or issued by the Bureau.
(b)
(1) In those matters in which the employee has participated personally and substantially as a Government employee; or
(2) In those matters which are the subject of the employee's official responsibility.
(a)
(b)
(1)
(i) The fund does not have a stated policy of concentration in the financial services industry or the banking industry; and
(ii) Neither the employee nor the employee's spouse exercises or has the ability to exercise control over or selection of the financial interests held by the fund.
(2)
(3)
(c)
(d)
(1) Mitigating circumstances exist due to the way the employee or the employee's spouse or minor child acquired ownership or control of the debt or equity interest. Mitigating circumstances may include, but are not limited to:
(i) The employee or the employee's spouse or minor child acquired the debt or equity interest through inheritance, gift, merger, acquisition, or other change in corporate structure, or otherwise without specific intent on the part of the employee or the employee's spouse or minor child; or
(ii) The employee's spouse received the debt or equity interest as part of a compensation package in connection with employment or prior to marriage to the employee;
(2) The employee makes a prompt and complete written disclosure of the debt or equity interest to the DAEO; and
(3) The disqualification of the employee from participating in particular matters involving an entity with which the employee or the employee's spouse or minor child has a debt or equity interest, as specified in the written waiver, would not unduly interfere with the full performance of the employee's duties.
(e)
(1) A partnership in which the employee or the employee's spouse or minor child is a general partner;
(2) A partnership or closely held corporation in which the employee or the employee's spouse or minor child individually or jointly holds more than a 10 percent equity interest;
(3) A trust in which the employee or the employee's spouse or minor child has a legal or beneficial interest;
(4) An investment club or similar informal investment arrangement between the employee or the employee's spouse or minor child, and others;
(5) A qualified profit sharing, retirement, or similar plan in which the employee or the employee's spouse or minor child has an interest; or
(6) An entity in which the employee or the employee's spouse or minor child individually or jointly holds more than a 25 percent equity interest.
An employee, and the employee's spouse or minor child, may not accept credit from or enter into any other financial relationship with an entity supervised by the Bureau, if the credit or financial relationship contains terms that are more favorable than those offered to the public in comparable circumstances.
(a)
(2) The prohibition in paragraph (a)(1) of this section continues for two years after the employee's participation in the particular matter has ended.
(b)
(1) The credit or indebtedness is supported only by the income or independent means of the spouse or minor child;
(2) The credit or indebtedness is obtained on terms and conditions no more favorable than those offered to the general public; and
(3) The employee does not participate in the negotiation for the credit or indebtedness or serve as co-maker, endorser, or guarantor of the credit or indebtedness.
(c)
(1) The employee's spouse, domestic partner, or dependent child;
(2) A partnership in which the employee or the employee's spouse, domestic partner, or dependent child is a general partner;
(3) A partnership or closely held corporation in which the employee or the employee's spouse, domestic partner, or dependent child individually or jointly owns or controls more than a 10 percent equity interest;
(4) A trust in which the employee or the employee's spouse, domestic partner, or dependent child has a legal or beneficial interest;
(5) An investment club or similar informal investment arrangement between the employee or the employee's spouse, domestic partner, or dependent child, and others;
(6) A qualified profit sharing, retirement, or similar plan in which the employee or the employee's spouse, domestic partner, or dependent child has an interest; or
(7) An entity in which the employee or the employee's spouse, domestic partner, or dependent child individually or jointly holds more than a 25 percent equity interest.
(d)
(1) Revolving consumer credit or charge cards issued by insured depository institutions or insured credit unions on terms and conditions no more favorable than those offered to the general public; and
(2) Overdraft protection on checking accounts and similar accounts at insured depository institutions or insured credit unions on terms and conditions no more favorable than those offered to the general public.
(e)
(a)
(1) The employee;
(2) The employee's spouse, domestic partner, or dependent child;
(3) A partnership in which the employee or the employee's spouse, domestic partner, or dependent child is a general partner;
(4) A partnership or closely held corporation in which the employee or the employee's spouse, domestic partner, or dependent child individually or jointly owns or controls more than 10 percent of its equity;
(5) A trust in which the employee or the employee's spouse, domestic partner, or dependent child has a legal or beneficial interest;
(6) An investment club or similar informal investment arrangement between the employee or the employee's spouse, domestic partner, or dependent child, and others;
(7) A qualified profit sharing, retirement, or similar plan in which the employee or the employee's spouse, domestic partner, or dependent child has an interest; or
(8) An entity in which the employee or the employee's spouse, domestic partner, or dependent child individually or jointly holds more than a 25 percent equity interest.
(b)
(1) Revolving consumer credit or charge cards issued by insured depository institutions or insured credit unions;
(2) Overdraft protection on checking accounts and similar accounts at insured depository institutions or insured credit unions;
(3) Amortizing indebtedness on consumer goods (e.g., automobiles);
(4) Educational loans (e.g., student loans; loans taken out by a parent or guardian to pay for a child's education costs); and
(5) Loans on residential homes (e.g., home mortgages; home equity lines of credit).
(c)
(1) The credit or indebtedness is solely the responsibility of the person listed in paragraphs (a)(2) through (a)(8) of this section; and
(2) The credit or the liability for repayment of the indebtedness is not dependent on, attributable to, or derived from the employee's income, assets, or activities.
(d)
An employee shall not make recommendations or suggestions, directly or indirectly, concerning the acquisition or sale or other divestiture of a debt or equity interest of an entity supervised by the Bureau, or an entity that is or represents a party to a particular matter involving specific parties to which the employee is assigned.
(a) An employee shall not participate in a particular matter involving specific parties if a covered entity is or represents a party to the matter, unless the employee receives authorization from the DAEO. For purposes of this paragraph, a “covered entity” is a person for whom the employee is aware the employee's spouse, domestic partner, fiancé, child, parent, sibling, or member of the employee's household is serving or seeking to serve as an officer, director, trustee, general partner, agent, attorney, consultant, contractor, or employee.
(b) The DAEO may authorize the employee to participate in the matter using the authorization process set forth in 5 CFR 2635.502(d) of the OGE Standards. The DAEO will consult with senior management in the Division in which the employee works before issuing such an authorization.
An employee, or an employee's spouse or minor child, shall not purchase, directly or indirectly, any real or personal property from an entity supervised by the Bureau, unless it is sold at public auction or by other means which assures that the selling price reflects the asset's fair market value.
The DAEO may grant a written waiver from any provision of this part where the DAEO finds good cause to do so; provided, however, that the DAEO will not do so unless the DAEO finds that the waiver is not inconsistent with the OGE Standards or otherwise prohibited by law and that, under the particular circumstances, application of the provision being waived is not necessary in order to avoid a violation of an ethics rule. Each waiver must be in writing and supported by a statement of facts and findings and may impose appropriate conditions, such as requiring the employee to execute a written disqualification statement.
Food and Nutrition Service, USDA.
Interim final rule.
This interim rule amends National School Lunch Program regulations to conform to requirements contained in the Healthy, Hunger-Free Kids Act of 2010 regarding performance-based cash assistance for school food authorities certified compliant with meal pattern and nutrition standards. This rule requires State agencies to certify participating school food authorities (SFAs) that are in compliance with meal pattern and nutrition standard requirements as eligible to receive performance-based cash assistance for each reimbursable lunch served (an additional six cents per lunch available beginning October 1, 2012 and adjusted annually thereafter). This rule also requires State agencies to disburse performance-based cash assistance to certified SFAs, and withhold the performance-based cash assistance if the SFA is determined to be out of compliance with meal pattern or nutrition standards during a subsequent administrative review. The intended effect of this rule is to provide additional funding for SFAs to implement new meal pattern requirements, thus increasing the healthfulness of meals served to school children.
Comments on Paperwork Reduction Act requirements: Comments on the information collection requirements associated with this rule must be received by June 26, 2012.
The Food and Nutrition Service (FNS) invites interested persons to submit comments on this interim rule. Comments may be submitted by any of the following methods:
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Julie Brewer, Chief, Policy and Program Development Branch, Child Nutrition Division, FNS, 3101 Park Center Drive, Alexandria, Virginia 22302, or by telephone at (703) 305–2590.
The National School Lunch Program (NSLP) provides cash assistance to States to assist schools in providing nutritious lunches for school children. In order to receive reimbursement, schools must serve lunches that meet program requirements, including statutory and regulatory nutrition standards.
Prior to the enactment of the Healthy, Hunger-Free Kids Act of 2010 (Pub. L. 111–296), on December 13, 2010, the Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1751 et al.) authorized only general and special cash assistance for lunches served in the NSLP. Section 4 of the NSLA authorizes the Secretary to provide two levels of general cash assistance for all lunches served, including lunches to children whose family income is above 185 percent of the Federal poverty guidelines. The lower cash assistance level applies to lunches served by SFAs in which less than 60 percent of the lunches served in the school lunch program during the second preceding school year were served free or at a reduced price. The higher payment level applies to lunches served by SFAs in which 60 percent or more of the lunches served during the second preceding school year were served free or at a reduced price.
To supplement the general cash assistance payments, section 11 of the NSLA (42 U.S.C. 1759a) authorizes the Secretary to provide special cash assistance payments to schools providing free and reduced price meals. Children from families with income at or below 130 percent of the Federal poverty level are eligible for free meals, while those from families with incomes between 130 and 185 percent are eligible for reduced price meals. As a result, lunches served to those students are reimbursable at a higher, special assistance rate.
In accordance with section 11 of the NSLA, both the general and special cash assistance reimbursement rates are adjusted annually on July 1 of each year. Annual adjustments reflect changes in the cost of operating the NSLP, as indicated by the change in the Food Away From Home series of the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics of the Department of Labor. Each year, the Department of Agriculture (the Department) publishes a Notice specifying the annual adjustments.
The Healthy, Hunger-Free Kids Act of 2010 (the HHFKA) made significant changes to the NSLA. Section 201 of the HHFKA amended section 4(b) of the NSLA, 42 U.S.C. 1753(b), by requiring the Secretary to update the meal patterns and nutrition standards for the NSLP and School Breakfast Program (SBP) and to issue regulations requiring all SFAs to comply with the updated meal patterns and nutrition standards.
On January 13, 2011, the Department published a proposed rule,
Section 201 of the HHFKA also amended the NSLA to provide for additional assistance payments in the form of performance-based reimbursement of 6 cents per lunch served beginning on October 1, 2012. Performance-based cash reimbursement is in addition to the general and special cash assistance described above and is to be provided for each lunch served in SFAs certified by the State agency to be in compliance with the updated meal patterns and nutrition standards (hereafter referred to in this preamble as “updated meal patterns”).
In recognition of the significance of changes necessitated by the new statutory requirements, section 201 of the HHFKA also amended section 4(b) of the NSLA to provide $50 million for each of two years to assist in the implementation of the updated meal patterns. During each of those two years, $47 million of the $50 million will be made available to State agencies for training, technical assistance, certification, and oversight activities. The remaining $3 million will be used to support Federal implementation of the new requirements. This is in addition to the annual allocation of State administrative expense funds made available to State agencies in accordance with section 7 of the Child Nutrition Act of 1966, 42 U.S.C. 1776, and 7 CFR Part 235.
As noted above, Section 201 authorized the provision of performance-based cash assistance (performance-based reimbursement) for each lunch served in SFAs certified to be in compliance with the updated meal patterns. Specifically, section 201 added subparagraphs (D) and (E) to section 4(b)(3) of the NSLA which read as follows:
• ELIGIBLE SCHOOL FOOD AUTHORITY.—To be eligible to receive an additional reimbursement described in this paragraph, a school food authority shall be certified by the State to be in compliance with the interim or final regulations described in subparagraph (A)(ii).
• FAILURE TO COMPLY.—Beginning on the later of the date described in subparagraph (A)(ii)(II), the date of enactment of this paragraph, or October 1, 2012, school food authorities found to be out of compliance with the meal patterns or nutrition standards established by the implementing regulations shall not receive the additional reimbursement for each lunch served described in this paragraph.
Congress clearly intended that each SFA recognized as complying with updated meal patterns should be certified and should receive performance-based reimbursement for each eligible meal served. However, the method for assessing such compliance and determining such eligibility for performance-based reimbursement was not clearly enunciated in the above-cited provisions. Further, in subparagraph (E), it is not clear whether the reference to “meal patterns or nutrition standards established by the implementing regulations” refers to both the SBP and the NSLP or just the NSLP, especially considering that the provision reinforces the concept that the performance reimbursement is only applied to lunches served. As a result, it was necessary for the Secretary to develop an interpretation of this provision in order to determine how to implement it in this interim rule. Key to that determination was establishing the extent to which failure to comply with the updated meal patterns in SBP would jeopardize a SFA's ability to continue to receive the performance-based reimbursement. First, the Department considered the overall purposes of the HHFKA, as Congress articulated them in the legislative history:
In summary, it is evident that tremendous needs exist to reduce childhood hunger and food insecurity, as well as to improve the diets and overall health of American children more generally. The purpose of this bill is to address those needs in order that fewer low-income children have to go without food, and to ensure that more children from all income levels adopt the kind of healthful eating habits and lifestyles that will enable them to live longer, more productive lives. (Senate Report 111–178, page 5.)
It was apparent that in considering the HHFKA, Congress noted that participation in the SBP was substantially lower than participation in the NSLP and that the need for both of these programs is growing as a large segment of America's school aged children face food insecurity.
In addition to their importance in addressing food insecurity, Federal child nutrition programs play a critical role in providing nutritious, balanced meals to children and promoting healthy lifestyles. Major strides have been made in recent years to improve the quality of meals served to children through child nutrition programs. According to the third USDA School Nutrition Dietary Assessment (SNDA III), in school year 2004–2005, over 95 percent of NSLP lunches offered and served by most schools met USDA goals for cholesterol over a typical week and were lower in saturated fat than meals served in school year 1998–1999, when the last SNDA was conducted. Larger proportions of elementary schools met the standards for total fat and saturated fat, and a larger proportion of secondary schools met the standard for saturated fat.
Despite this significant progress, however, considerable work remains to be done to improve children's diets and to bring Federally-subsidized meals in line with USDA nutritional guidelines. According to USDA, roughly 99 percent of lunches included amounts of sodium above the recommended levels. And, only 26 percent and 34 percent of schools served lunches that met USDA guidelines for total fat and saturated fat, respectively. Additionally, available research has consistently shown that the diets of U.S. children do not meet current national dietary recommendations for nutrition and health. Overall, children today have diets that are low in fruits, vegetables, whole grains, and dairy foods, and high in sodium, fat and added sugars. The 2005 Dietary Guidelines recommend that Americans consume half of their grains as whole grains, but according to the U.S. Department of Health and Human Services report,
After consideration of expressed Congressional intent and given the dual focus of the HHFKA on raising nutritional standards and improving program access in order to address food insecurity, the Department adopted a balanced approach in implementing the performance-based reimbursement provisions in this interim rule. The Department is of the view that the burden on SFAs should not be too onerous in scope nor too rapid in implementation insofar as either result could lead SFAs to decide not to make the changes necessary to receive the performance-based reimbursement or to cease SBP participation and focus solely on raising the nutritional standards for lunches served in the NSLP. On the other hand, the Department is committed to implementing the provisions in a way that is robust enough to ensure that SFAs receiving the performance-based reimbursement have implemented improved nutritional standards. The approach taken in this interim rule, then, is to strike the appropriate implementation balance to achieve both the goal of expanding
Thus, in formulating regulations to implement the performance-based reimbursement, the Department sought to further the overall goals of the HHFKA as expressed by Congress and the ultimate purposes of the performance-based reimbursement. Specifically, the Department views section 4(b)(3)(D) and (E) as establishing two separate requirements. Subparagraph (D) requires that at the time an SFA is certified by the State agency to receive the 6 cents per lunch performance-based reimbursement, the State agency must determine that the SFA is in compliance with the updated meal patterns and nutrition requirements in effect at the time of certification for the NSLP (and for the SBP if the SFA participates in that program). That is, for an SFA to be eligible for the performance-based reimbursement, it must meet the improved nutritional standards then in effect for the lunches and breakfasts it serves under these programs. The Department believes that this approach to the certification requirement of subparagraph (D) meets the overall goals of the HHFKA, comports with the expectations of Congress, and incentivizes SFAs to raise the nutritional standards for all meals served.
In subparagraph (E), the HHFKA provides that an SFA which falls out of compliance with the meal patterns or nutritional requirements is precluded from receiving the 6 cents per lunch performance-based reimbursement. In considering the implementation of this provision, the Department focused on the statutory intent of the phrase “school food authorities found to be out of compliance with the meal patterns or nutrition standard.” As discussed above, in examining this phrase, the Department determined that it is unclear whether “meal patterns or nutrition standards” encompasses the patterns and standards in both the SBP and the NSLP or refers solely to those of the NSLP. The determination is especially important given that the 6 cents performance-based reimbursement may only be provided to an SFA for the service of eligible lunches. There is no legislative history that provides additional insight or explanation as to the intent of Congress regarding the interpretation of this key phrase in the provision. Thus, after analysis and in consideration of the other changes to the NSLP and SBP accomplished in accordance with section 201 of the HHFKA, the Department shaped its interpretation of this phrase in light of the overall intent of the HHFKA and in keeping with federal experience in administering these programs.
State agencies currently conduct regular administrative reviews of participating SFAs for both the NSLP and the SBP. In instances in which a State agency finds that the SFA has violated one of more critical areas of review, program regulations require that the SFA implement corrective action. The State agency may withhold program payments during the corrective action period, but will also provide technical and other assistance to the SFA and confirm corrective action through one or more follow up reviews. Pursuant to program regulations and consistent with the general policy of the Department, only in the rare instance in which an SFA fails to complete corrective action in a critical area of review does a State agency disallow meal reimbursements. The regulatory framework reflects the reality that a reduction in program payments of any amount is most likely to have an adverse impact on those who these programs are designed to help, the children receiving these school meals.
Accordingly, in interpreting subparagraph (E) for the purposes of developing the implementing regulations in the interim rule, the Department has taken the following factors into account:
(1) As explained above, it is clear that the 6 cents performance-based reimbursement and the compliance requirements of subparagraph (E) have a dual intent—to expand SFA participation in the NSLP and SBP and to encourage SFAs to raise nutritional standards for both the NSLP and SBP. In implementing the statute, the Department must balance the need effectively to encourage compliance with the increased nutritional standards for both programs without imposing unnecessary burdens likely to discourage SFAs from raising their breakfast and lunch nutrition standards or from participating in SBP. Neither of these outcomes would be compatible with the purposes of the HHFKA.
(2) The implementation of the meal patterns and nutrition standards developed pursuant to the HHFKA will be phased in over a period of several years with SBP implementation likely to be more dynamic over the course of the next several years.
Taking into account all of these factors and balancing the overall goals of the HHFKA-mandated performance-based reimbursement, the Department concluded that for the purposes of the interim rule, Congress' use of the phrase “the meal patterns or nutrition standards” in subparagraph (E) of the HHFKA means the meal patterns or nutrition standards of the NSLP but not the SBP. As a result, this interim rule provides that if the SFA is certified to receive the performance-based reimbursement and, during a State agency's administrative review, is found to be in violation of a review area of the updated meal patterns for the SBP established in program regulations, the SFA is not in jeopardy of losing the performance-based reimbursement for eligible lunches served under the NSLP. Conversely, if the SFA is found to be out of compliance with the updated meal patterns for the NSLP, the SFA is at risk of losing the performance-based reimbursement. In addition, if the State agency finds a SFA out of compliance with the updated meal patterns for either SBP or the NSLP, the State agency is required to follow the standard operating procedures for administrative reviews. This means that a SFA could be subject to fiscal sanctions if the State agency determines that the SFA has not completed timely the corrective action as required by the regulations.
The Department has determined that this approach strikes the right balance regarding the implementation of the requirements the HHFKA added to NSLA in sections 4(b)(3)(D) and (E) and reflects the intent of Congress as clarified in pertinent legislative history regarding the goals of the HHFKA. Consistent with the HHFKA provisions, the interim rule clearly requires SFAs that participate in the SBP and the NSLP to meet the higher nutritional standards in effect for both programs at the time the SFAs are certified. Existing regulations continue to require State agencies to establish corrective action plans and work with SFAs to timely complete corrective actions for any violations identified during administrative reviews relating to either program. On balance, the implementation of performance-based reimbursement and the higher nutrition standards will allow the performance-based reimbursement and compliance tools to serve as an effective incentive for SFAs to increase participation in these programs while raising nutritional standards.
This interim rule amends 7 CFR part 210, the regulations governing the NSLP, to add the procedures for performance-based certifications, required documentation and timeframes, validation reviews, compliance and administrative reviews, reporting and recordkeeping, and technical assistance.
In accordance with the HHFKA, State agencies must provide performance-based reimbursements for each lunch served in eligible SFAs, i.e., SFAs certified by the State agency to be in compliance with the updated meal patterns for the NSLP (as well as for the SBP, if the SFA participates in the SBP). Section 210.7(d) has been revised to set forth the procedures for performance-based certifications for both State agencies and SFAs.
Section 210.7(d)(1) of this interim rule requires State agencies to establish procedures to certify SFAs for performance-based cash reimbursement in accordance with guidance established by the Food and Nutrition Service (FNS). State agencies must provide guidance to facilitate the certification process, including making SFAs aware of certification protocol and documentation required to demonstrate compliance with updated meal patterns set forth in § 210.10 and for those SFAs participating in the SBP, 7 CFR 220.8 or 220.23. Compliance with both NSLP and SBP updated meal patterns is necessary to be certified for performance-based cash reimbursements for lunch. However, because some aspects of the updated meal patterns are phased in over several years, SFAs must demonstrate compliance with requirements in effect at the time of certification.
In school years subsequent to the school year of certification, through School Year 2014–2015, State agencies must require SFAs to submit an annual attestation of compliance with meal pattern requirements as new requirements are phased in. The phase in timeline for meal pattern requirements is established in the updated meal pattern rule.FNS will provide SFAs with a prototype attestation which includes a statement attesting compliance with each of the phased in meal pattern requirements. The attestation must be provided to the State agency as an addendum to the written agreement required in § 210.9(b). Additionally, this interim rule requires in new § 210.18(g) that compliance with new requirements in subsequent years will be confirmed during State administrative reviews.
This interim regulation also requires that State agencies' procedures must also include a protocol for timely review of certification documents and disbursement of funds to eligible SFAs. Once a SFA is certified, a State agency must promptly disburse performance-based reimbursement to the SFA beginning with the start of certification. State agencies must begin making performance-based reimbursement payments for lunches served in certified SFAs in the calendar month for which the SFA is certified. However, because performance-based cash reimbursement is not available until October 1, 2012, State agency procedures must ensure that no performance-based reimbursement is provided for meals served by SFAs prior to October 1, 2012.
Finally, during School Year 2012–2013, State agencies must conduct on-site validation reviews for a sample of certified SFAs to ensure that submitted certification documentation accurately reflects the meal service.
These requirements are discussed in more detail below.
Section 210.7(d)(2)of this interim rule establishes requirements for SFAs seeking to obtain performance-based reimbursement. SFAs must submit certification materials to the State agency in accordance with State agency certification procedures, including documentation to support receipt of performance-based reimbursement. SFAs must attest that the documentation provided is representative of the ongoing meal service within the SFA. Required documentation is described below. SFAs certified to earn performance-based reimbursement must maintain documentation of compliance, including production and menu records, and other records, and SFAs must make appropriate records available to State agencies upon request.
SFAs may demonstrate compliance with the updated meal patterns to the State agency in a variety of ways, briefly described below. FNS developed the following options for certification using, to the maximum extent possible, existing processes and information available to the State agency and SFAs. This flexible approach is intended to facilitate the timely completion of certification activities with a reasonable burden on State agencies and SFAs. Additionally, the approach ensures that an SFA's compliance with the updated meal patterns is assessed accurately.
SFAs may choose whether to submit menus with a nutrient analysis (option 1), or with the simplified nutrient assessment (option 2). The option to certify SFA compliance during the course of an administrative review is left to the State agency. State agencies that wish to use this approach for some or all of their SFAs should notify these SFAs promptly.
To ensure that certification documentation accurately reflect current SFA practices, menus submitted for certification after October 1, 2012 must be submitted for certification at or around the time of planned usage. To facilitate disbursement of performance-based reimbursement as soon as it becomes available (October 1, 2012),
In years subsequent to the year certified, through School Year 2014–2015, SFA's will be required to submit an annual attestation of compliance with meal pattern requirements as new requirements are phased in. The phase in timeline for meal pattern requirements is established in the updated meal pattern rule. The attestation must be provided to the State agency as an addendum to the written agreement required in § 210.9(b).
Because of the short implementation timeline prior to performance-based reimbursement becoming available, FNS seeks to ensure that certification activities are conducted in a timely manner. This interim rule requires in the new § 210.7(d)(1) that State agencies must review certification materials and make a certification determination within 60 days of receipt from the SFA or as otherwise authorized by FNS.
Upon certification, the State agency must reimburse the certified SFA with the additional performance-based reimbursement for each lunch served beginning in the start of the month in which the certified menus are served. For example, if menus for the first week of October are certified in December, the State agency must retroactively reimburse the additional performance-based reimbursement for all lunches served on or after October 1.
Documentation must reflect current meal service, i.e., meal service in the calendar month the certification materials are submitted or, in the month preceding the calendar month of submission. For the time period prior to the availability of funds (July 1, 2012–September 30, 2012), SFAs may submit documentation of compliance reflecting planned meal service beginning October 1, 2012. However, in no case can reimbursement be made for meals served prior to October 1, 2012.
Provision of the performance-based reimbursement is added by this interim rule at § 210.7(d).
For School Year 2012–2013, State agencies also must conduct on-site validation reviews for a sample of certified SFAs to validate the information submitted for certification. This interim rule requires in § 210.7(d)(1)(vi)(A) State agencies to conduct on-site validation reviews for a random sample of 25 percent of certified SFAs, except that the sample must include all large certified SFAs, as defined in 210.18(b)(6). Because certifications will be ongoing throughout School Year 2012–2013, State agencies should select SFAs for validation reviews throughout the year to ensure that all certified SFAs are included in the sample universe. During on-site validation reviews, State agencies must observe a meal service for each type of certified menu, review the production records for observed meals to ensure they are consistent with the menus on which the certification determination was based, and review the documentation submitted for certification to ensure that ongoing meal service operations are consistent with certification documentation. These requirements are added by this rule at § 210.7(d)(vi).
The Department is mindful of State agency concerns about increased administrative burden related to implementing new meal pattern requirements, training and technical assistance, increased review frequency, and performance-based reimbursement certifications and validation reviews. In response to these concerns, for School Year 2012–2013, § 210.18(a) of this rule permit State agencies to conduct performance-based reimbursement certifications and validation reviews in lieu of administrative reviews, unless an SFA is determined by the State agency to be at-risk for improper payments. This flexibility for the 2012–2013 School Year is discussed later in this preamble.
FNS anticipates that SFAs in compliance with updated standards will seek certification by the State agency in a timely manner in order to receive performance-based reimbursement at the earliest possible date. An SFA that either does not voluntarily submit certification documentation or that submits materials that do not support certification will not receive the performance-based reimbursement. Further, § 210.18(d)(3) and (e)(4) require State agencies to conduct an administrative review of a non-compliant school food authority earlier in the review cycle. For these SFAs, compliance with the updated meal patterns will be evaluated at the next administrative review, at which time the State agency will assess compliance with the updated meal patterns and determine eligibility for the performance-based reimbursement. This provision is established by this rule in § 210.18(e)(4). State agencies are strongly encouraged to include those SFAs not certified in School Year 2012–2013 in the first year of the administrative review cycle (which is School Year 2013–2014).
The updated meal pattern rule increases the scope of State agency administrative reviews of SFAs by eliminating School Meals Initiative (SMI) reviews and revising the Performance Standard 2 portion of the administrative review (commonly referred to as, Coordinated Review Effort) to reflect new meal pattern requirements. The final rule also increases review frequency to once every three years beginning School Year 2013–2014, requires that breakfasts be reviewed during administrative reviews, and establishes requirements for fiscal action related to specific meal pattern violations.
Administrative reviews will continue to assess both general and critical areas. The critical areas contain two performance standards: Performance Standard 1 assesses certification, counting, and claiming procedures to ensure that all free, reduced, and paid lunches are served to eligible children and that lunches are counted correctly to yield accurate claims; and Performance Standard 2 assesses whether lunches meet the updated meal patterns set forth in § 210.10 and breakfast meets § 220.8 or § 220.23, as applicable. The rule also establishes requirements for when State agencies must take fiscal action for specific meal pattern violations.
After the initial certification to receive performance-based reimbursement, State agencies will assess continued compliance with the lunch and breakfast patterns at subsequent administrative reviews, as described
The Department recognizes updating the school meal patterns and implementing the new performance-based reimbursement certification process will require a significant effort on the part of the State agencies, and local SFAs. To help ensure State agencies provide SFAs with the training and technical assistance needed to implement the updated meal patterns and performance-based funding requirements, the Department has reduced the administrative review requirements for School Year 2012–2013, as indicated above.
The previously mentioned final rule,
This interim rule revises § 210.18(a) to permit State agencies to conduct administrative Coordinated Review Effort reviews scheduled for School Year 2012–2013 in either School Year 2012–2013 or 2013–2014, with one exception: State agencies must conduct a scheduled School Year 2012–2013 review in that year of any school food authority at risk for improper payments, as determined by the State agency. State agencies are advised that any reviews moved to School Year 2013–2014 count toward, and are not in addition to, the required number of reviews for the first three-year administrative review cycle.
State agencies must continue to conduct additional administrative reviews (AARs) of selected local educational agencies that have a demonstrated level of, or are at high risk for, administrative error. On November 4, 2010, State agencies were provided guidance on the implementation of AARs in school year 2010–2011 (
These changes are expected to provide State agencies with the flexibility needed to conduct necessary training, technical assistance, and certification activities while exercising proper stewardship of federal funds.
To facilitate disbursement of performance-based reimbursement to State agencies and, ultimately, SFAs, this interim rule establishes performance-based reimbursement reporting requirements for State agencies and SFAs.
In addition to incorporating meal counts earning the performance-based reimbursement on the Report of School Program Operations (FNS–10), State agencies must submit a quarterly report, as specified by FNS, detailing the disbursement of performance-based reimbursement, including the total number of SFAs in the State, the names and locations of certified SFAs, and, for each school food authority, the total number of lunches earning the performance-based reimbursement for each month. In addition, this rule requires SFAs to submit to the State agency documentation to demonstrate compliance and support the receipt of performance-based reimbursement and an annual attestation of compliance with the meal pattern as new requirements become effective. The new reporting requirements for SFAs and State agencies, respectively, are contained in § 210.5(d)(2)(ii) and § 210.15(b)(2).
FNS will work with State agencies to facilitate transition to the new meal requirements and assist SFAs in becoming eligible to receive performance-based reimbursement. FNS and the National Food Service Management Institute are developing technical assistance resources and training to help school foodservice staff improve menus, order appropriate foods to meet the new meal requirements, and control costs while maintaining quality. Resources and training materials being developed include identifying and purchasing whole grain-rich foods, lowering sodium in menus, and understanding and meeting the new meal pattern requirements. Training will be available through a variety of methods including webinars and online learning modules.
In addition, Section 201 of the HHFKA amended Section 9(b)(3)(F) of the NSLA, by providing $50 million for each of two years to help FNS and State agencies implement new requirements implemented by this interim rule, including training, technical assistance, and conducting performance-based certifications. As provided for in HHFKA, we expect that all but $3 million of each year's funds (which will be used to support Federal implementation) will be made available to State agencies for those purposes. These funds, combined with subsequent increases in State Administrative Expense funding, aim to provide resources that State agencies may use to assist local program operators to improve the quality of school meals provided to children and come into compliance with the new meal patterns.
FNS is also developing guidance, resources, and necessary forms to assist with the timely execution of performance-based certifications, and will make these materials available on a centralized Web site. These materials will be available at:
The Department, under the provisions of the Administrative Procedure Act at 5 U.S.C. 553(b)(B), finds for good cause that use of prior notice and comment procedures for issuing this interim rule is impracticable. Section 201 of the Healthy, Hunger-Free Kids Act of 2010, Public Law 111–296, enacted on
The Department invites public comment on this interim rule, and will consider amendments to the interim rule based on comments submitted during the 90-day comment period. The Department will address comments and affirm or amend the interim rule in a final rule.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This interim rule has been designated an “economically significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget. As required for all rules that have been designated significant by the Office of Management and Budget, a Regulatory Impact Analysis (RIA) was developed for this interim rule. The following is a summary of the RIA. The complete RIA is published in this docket (FNS–2011–0025) on
Section 201 of the Healthy Hunger-Free Kids Act of 2010 (HHFKA) provides for a 6 cent per lunch performance-based reimbursement to SFAs that comply with NSLP and SBP meal standards that take effect on July 1, 2012. This rule provides the regulatory framework for establishing initial school food authority (SFA) compliance with the new meal standards and for monitoring ongoing compliance.
This rule establishes procedures that will result in a transfer from the Federal government to SFAs of as much as $1.4 billion through FY 2016 to implement improved NSLP and SBP meal patterns that are more fully aligned with the
In addition to the estimated $1.4 billion 5-year transfer from the Federal government to SFAs in NSLP meal reimbursements, SFAs will incur some minor costs to prepare materials to document and certify their compliance with the new meals patterns. State agencies will incur costs to review that documentation, make certification decisions, conduct on-site SFA verification reviews, and provide technical assistance to the SFAs. Through FY 2016, these administrative functions are expected to cost $3.7 million. Finally, the interim rule provides for an additional $100 million over fiscal years 2012 and 2013 to fund technical assistance, oversight, monitoring, and certification activity by the States.
The following accounting statement gives the estimated discounted, annualized costs and transfers of the rule. The figures are computed from nominal 5-year estimates developed in the full RIA. The accounting statement contains figures computed with 7 percent and 3 percent discount rates under two scenarios. The first scenario estimates the cost of full and immediate SFA compliance with the new meal patterns. Under that upper bound scenario, summarized in the preceding paragraphs, the nominal 5-year increase in NSLP reimbursements totals $1.4 billion, and State and SFA administrative expenses equal $3.7 million. The second scenario models full SFA compliance within 3 years. Under that alternate scenario, the nominal 5-year increase in NSLP reimbursements totals $1.2 billion, and State and SFA administrative expenses are $3.8 million.
The figures in the accounting statement rows labeled “costs” include State and SFA administrative expenses as well as the $3 million retained by USDA in each of the fiscal years 2012 and 2013 out of the $100 million provided by HHFKA for State technical assistance, certification, and monitoring activity.
The figures in the rows labeled “transfers” include Federal NSLP reimbursements to SFAs plus the $47 million in Federal assistance ($50 million less $3 million retained for Federal expenses) in each of the fiscal years 2012 and 2013 for State technical assistance, certification, and monitoring activity.
This interim rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601–612). Pursuant to that review, it has been determined that this rule will not have a significant impact on a substantial number of small entities.
While there may be some SFA burden associated with initial certification for the performance-based reimbursement in this rule, the burdens will not be significant and will be outweighed by the benefits of increased Federal reimbursement for school lunches.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. This rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) that impose costs on State, local, or tribal governments or to the private sector of $100 million or more in any one year. This rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA.
The National School Lunch Program and School Breakfast Program are listed in the Catalog of Federal Domestic Assistance under No. 10.555. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V and related notice (48 FR 29115, June 24, 1983), this program is included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials. In developing this regulation, FNS gathered input from State and local program operators, and other stakeholders, via listening sessions held at the School Nutrition Association Legislative Action Conference in March 2011, and at the School Nutrition Association Annual National Conference in July 2011.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132.
Prior to drafting this interim rule, FNS staff received informal input from various stakeholders while participating in various State, regional, national, and professional conferences. The School Nutrition Association, the Center for Science in the Public Interest, and the American Dietetic Association shared their views about performance-based reimbursement. Numerous stakeholders, including State and local program operators, also provided input at public meetings held by the School Nutrition Association.
State Agencies and SFAs want to provide the best possible school meals through the NSLP and SBP but are concerned about the costs and administrative burden associated with increased program oversight. While FNS is aware of these concerns, the National School Lunch Act, 42 U.S.C. 1753(b)(a)(4) requires that State agencies certify whether SFAs are in compliance with meal pattern and nutrition standards, and disburse performance-based reimbursement to eligible SFAs.
FNS has considered the impact of this interim rule on State and local program operators and has attempted to develop a rule that would implement the performance-based reimbursement in the most effective and least burdensome manner. FNS recognizes that implementing the new performance-based reimbursement certification process will require a significant effort on the part of State and local program operators. To ensure State agencies conduct performance-based funding requirements and provide SFAs with the training and technical assistance needed to implement the improved school meal patterns, FNS has reduced the administrative review requirements for School Year 2012–2013. Per the requirements of the HHFKA, FNS will provide $47 million to States for each of two years to assist with meal pattern implementation, training, technical assistance, and performance-based certification activities. FNS is also exploring additional approaches to alleviate program operators' administrative burden, including support for implementation and certification activities.
This rule has been reviewed under Executive Order 12988, Civil Justice
FNS has reviewed this rule in accordance with Departmental Regulations 4300–4, “Civil Rights Impact Analysis”, and 1512–1, “Regulatory Decision Making Requirements.” After a careful review of the rule's intent and provisions, FNS has determined that this rule is not intended to limit or reduce in any way the ability of protected classes of individuals to receive benefits on the basis of their race, color, national origin, sex, age or disability nor is it intended to have a differential impact on minority owned or operated business establishments, and woman- owned or operated business establishments that participate in the Child Nutrition Programs.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320), requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current, valid OMB control number. This is a new collection. The new provisions in this rule, which increase burden hours, affect the information collection requirements that will be merged into the National School Lunch Program, OMB Control Number 0584–0006, expiration date 5/31/2012. The current collection burden inventory for the National School Lunch Program is 12,654,440. These changes are contingent upon OMB approval under the Paperwork Reduction Act of 1995. When the information collection requirements have been approved, FNS will publish a separate action in the
Comments on the information collection in this interim rule must be received by June 26, 2012.
Send comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for FNS, Washington, DC 20503. Please also send a copy of your comments to Lynn Rodgers-Kuperman, Program Analysis and Monitoring Brach, Child Nutrition Division, 3101 Park Center Drive, Alexandria, VA 22302. For further information, or for copies of the information collection requirements, please contact Lynn Rodgers-Kuperman at the address indicated above. Comments are invited on: (1) Whether the interim collection of information is necessary for the proper performance of the Agency's functions, including whether the information will have practical utility; (2) the accuracy of the Agency's estimate of the interim information collection burden, 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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this request for comments will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Those respondents participating in the School Breakfast Program also participate in the National School Lunch Program, thus the burden associated with the School Breakfast Program will be carried in the National School Lunch Program. The average burden per response and the annual burden hours are explained below and summarized in the charts which follow.
The Food and Nutrition Service is committed to complying with the E-Government Act, 2002 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.
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
1. HHFKA Webinar & Conference Call—April 12, 2011.
2. Mountain Plains—HHFKA Consultation, Rapid City, SD—March 23, 2011.
3. HHFKA Webinar & Conference Call—June, 22, 2011.
4. Tribal Self-Governance Annual Conference in Palm Springs, CA—May 2, 2011.
5. National Congress of American Indians Mid-Year Conference, Milwaukee, WI—June 14, 2011.
There were no comments about this regulation received during any of the aforementioned Tribal Consultation sessions.
Reports from these consultations are part of the USDA annual reporting on Tribal consultation and collaboration. FNS will respond in a timely and meaningful manner to Tribal government requests for consultation concerning this rule. Currently, FNS provides regularly scheduled quarterly consultation sessions through the end of FY2012 as a venue for collaborative conversations with Tribal officials or their designees.
Grant programs—education; Grant programs—health; Infants and children; Nutrition; Penalties; Reporting and recordkeeping requirements; School breakfast and lunch programs; Surplus agricultural commodities.
Accordingly, 7 CFR part 210 is amended as follows:
42 U.S.C. 1751–1760, 1779.
(b) * * *
(1) Cash assistance will be made available to each State agency administering the National School Lunch Program as follows:
(i)
(ii)
(iii)
(iv)
(d) * * *
(2)
(i) Each State agency shall submit to FNS a quarterly Financial Status Report (FNS–777) on the use of Program funds. Such reports shall be postmarked and/or submitted no later than 30 days after the end of each fiscal year quarter.
(ii) Each State agency shall also submit a quarterly report, as specified by FNS, detailing the disbursement of performance-based cash assistance described in § 210.4(b)(1). Such report shall be submitted no later than 30 days after the end of each fiscal year quarter. The report shall include the total number of school food authorities in the State, the names and locations of certified school food authorities, and for each school food authority, the total number of lunches earning the performance-based cash assistance for each month.
(d)
(1)
(i) Make certification procedures readily available to school food authorities and provide guidance necessary to facilitate the certification process.
(ii) Require school food authorities to submit documentation to demonstrate compliance with meal pattern requirements set forth in § 210.10 and § 220.8 or § 220.23, as applicable. Such documentation must reflect meal service at or about the time of certification.
(iii) Certification procedures must ensure that no performance-based cash assistance is provided to school food authorities for meals served prior to October 1, 2012.
(iv) Within 60 calendar days of a certification submission or as otherwise authorized by FNS, review submitted materials and notify school food authorities of the certification determination, the date that performance-based cash assistance is effective, and consequences for non-compliance;
(v) Disburse performance-based cash assistance for all lunches served beginning with the start of certification provided that documentation reflects meal service in the calendar month the certification materials are submitted or, in the month preceding the calendar month of submission; and
(vi) For school year 2012–2013, State agencies must conduct on-site validation reviews for a sample of certified school food authorities. State agencies must:
(A) Ensure that all certified school food authorities are subject to review and randomly select at least 25 percent of certified school food authorities for an on-site validation review; except that, all large school food authorities, as defined in § 210.18(b)(6) must be included in the sample selected; and
(B) Conduct validation reviews that include, at a minimum, observation of a meal service for each type of certified menu, review of production records for observed meals to ensure they are consistent with the menus on which certification was based, and a review of documentation submitted for certification to ensure that ongoing meal operations are consistent with certification documentation.
(vii) In years subsequent to the year certified, through School Year 2014–2015, State agencies must require school food authorities to submit an annual attestation of compliance with meal pattern requirements as new requirements are phased in. The attestation must be provided to the State agency as an addendum to the written agreement required in § 210.9(b).
(2)
(b) * * *
(2) Production and menu records as required under § 210.10 and documentation to support performance-based cash assistance, as required under § 210.7(d)(2).
The revisions and additions read as follows:
(a)
(d) * * *
(3)
(ii) Any school food authority that was not reviewed in the review cycle for school year 2007–2008 through school year 2012–2013, shall be reviewed in the first year of the 3-year review cycle set forth in paragraph (c) of this section (school year 2013–2014).
(e) * * *
(4)
(g) * * *
(2) * * *
(v) If the school food authority is receiving performance-based cash assistance under § 210.7(d), assess the school food authority's meal service and documentation of lunches served and determine whether performance-based cash assistance should continue to be provided.
(m) * * *
(2)
(iv)
(c) * * *
(1) * * * Fiscal action also includes disallowance of funds for failure to take corrective action to meet the meal requirements in parts 210 and 220 of this chapter, including the disallowance of performance-based cash assistance described in § 210.4(b)(1). * * *
National Institute of Food and Agriculture, USDA.
Final rule.
This final rule establishes the process and procedures to certify a qualifying college or university as a Hispanic-Serving Agricultural Colleges and Universities (HSACU) institution. NIFA will publish 7 CFR part 3434 in the Code of Federal Regulations to chronicle the eligibility criteria colleges and universities must satisfy in order to be certified as HSACU institutions by the Secretary of Agriculture. The Food, Conservation, and Energy Act of 2008 (FCEA) amended section 1404 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to add a definition for a new group of cooperating educational institutions known as Hispanic-Serving Agricultural Colleges and Universities. Section 1404 defines HSACUs as colleges and universities that qualify as Hispanic-serving Institutions (HSIs) and offer associate, bachelors, or other accredited degree programs in agriculture-related fields. HSACUs do not include 1862 land-grant institutions, as defined in the Agricultural Research, Extension, and Education Reform Act of 1998.
A separate part, 7 CFR part 3437, will be published in the future to provide specific administrative provisions for the HSACU Endowment Program (
This final rule is effective April 27, 2012.
Matthew Lockhart, Senior Policy Specialist; National Institute of Food and Agriculture; U.S. Department of Agriculture; STOP 2299; 1400 Independence Avenue SW., Washington, DC 20250–2299; Voice: (202) 559–5088; Email:
Section 7101 of the Food, Conservation, and Energy Act of 2008 (FCEA) (Pub. L. 110–246) amended section 1404 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977, 7 U.S.C. 3103, to add a definition for a new group of cooperating educational institutions known as Hispanic-serving agricultural colleges and universities (HSACUs). Section 1404 defines HSACUs as colleges or universities that qualify as “Hispanic-serving institutions,” as that term is defined in Section 1101a of title 20, and that offer associate, bachelors, or other accredited degree programs in agriculture-related fields. An exception is made to the HSACU definition so that it does not include 1862 institutions as defined in Section 2 of the Agricultural Research, Extension, and Education Reform Act of 1998 (7 U.S.C. 7601).
Section 7129 of the FCEA authorizes the following five new programs for HSACUs: (1) HSACU Endowment Fund (formula-based); (2) HSACU Equity Grants Program (formula-based); (3) HSACU Institutional Capacity-Building Grants Program (competitive); (4) HSACU Extension Grants Program (competitive); and (5) HSACU Fundamental and Applied Research Grants Program (competitive). Funding for these programs is subject to the availability of appropriations.
In addition, the FCEA amends section 406(b) of the Agricultural Research, Extension, and Education Reform Act of 1998, 7 U.S.C. 7626, to expand the eligibility for NIFA Integrated Research, Education, and Extension Competitive Grants Programs to include HSACUs.
NIFA's mission is to work with university partners to advance research, extension, and higher education in the food, agricultural, and related environmental and human sciences to benefit people, communities, and the nation.
The rules for funds distributed to the HSACUs from the HSACU Endowment Fund shall be contained within 7 CFR part 3437.
Because HSACUs were not specifically named in the authorizing statute, NIFA was required to establish the eligibility criteria to designate HSACUs based on the definition provided in the legislation, which stated that HSACUs are defined as HSIs that offer “agriculture-related programs.” On September 24, 2008, NIFA published a
Twenty individuals, from 17 institutions and 2 organizations, provided oral comments during this public meeting. NIFA also received 17 written comments from individuals, academic institutions, and organizations. A transcript of the public meeting and a scanned copy of all written comments are available for review on the NIFA Web site at the following web page:
NIFA considered all comments received in the construction of the
Comments on the proposed rule were required to be received by August 12, 2011, to be considered in the formulation of the final regulations. NIFA received 14 sets of comments from individuals, academic institutions, and the Hispanic Association of Colleges and Universities (HACU). NIFA considered all comments received and made revisions in the final rule based on several recommendations. The comments received provided valuable insight on how NIFA could administer the HSACU certification process in a more equitable and consistent manner across schools of different sectors (2-year and 4-year schools) and regions.
There is a strong preference among stakeholders to limit the number of eligible institutions, by way of a rigorous certification process, during the initial phase of the implementation process to maximize the impact of limited funding available. Several commentors expressed support for the rigorous certification process and provided suggestions to further enhance the process. One of these commentors remarked that careful implementation would ensure that benefits go to those that need them the most. Another commentor recognized the certification process, as outlined in the proposed rule, as thoughtful and fair. A third commentor requested that NIFA pay special attention to the number of institutions receiving HSACU certification given limited resources as constraining the number of HSACUs would optimize funding opportunities for HSACUs. A fourth commentor encouraged NIFA to remain diligent in maintaining high standards for certification and remain rigorous in its definitions. A fifth commentor remarked that given scarce and limited funds, the focus of support should be directed toward institutions that can maximize public funds to the most efficient and highest productive levels possible.
NIFA fully supports a rigorous certification process by instilling high standards in the eligibility criteria. However, there is no basis to limit the number of HSACUs if institutions meet the eligibility requirements as defined in the statute and this regulation.
In response to stakeholders' call for a rigorous certification process, NIFA explored different possibilities to hold institutions accountable through quantifiable outcomes involving Hispanic students and agriculture-related fields if they were to receive HSACU certification. In March 2010, the American Enterprise Institute released a report, “Rising to the Challenge,” which noted that HSI designation was a direct result of enrollment data (input) rather than retention or graduation data (outcome). In the proposed rule, NIFA included a measure based on degrees awarded to the eligibility criteria to hold institutions accountable for the retention and graduation of Hispanic students in agriculture-related fields. NIFA determined that a stipulation based on degrees awarded would provide institutions with an incentive to take on a proactive role to focus on graduating Hispanic students in agriculture-related fields, thus strengthening the rigorousness of the HSACU certification process. Hence, NIFA concluded that granting HSACU certification to HSIs with agriculture-related programs where at least one Hispanic student obtained a degree in an agriculture-related field would provide the best interpretation of the intent behind the legislation that established the new HSACU category.
Two commentors recommended that NIFA avoid basing eligibility on a single year of data as this would create unmanageable funding volatility from year to year, which may hurt or impair growth and development of Hispanic-serving programs in institutions that are unable to consistently stay on the HSACU list. Another commentor mentioned that the only certain result of the proposed single year criterion is that it will reduce the pool of eligible institutions. Yet another commentor pointed out that a small program may fail to graduate any Hispanic student in a given year while a number of Hispanic students are enrolled and expected to graduate in the following years.
After the publication of the proposed rule, an additional year of data from the National Center for Education Statistics became available to NIFA. An analysis on the additional year of data confirmed the volatility caused by a single year criterion. For the purpose of this analysis, Year 1 represents the data we had prior to the publication of the proposed rule (Fall 2009 enrollment and 2008–09 completions data) and Year 2 represents the data we received after the publication of the proposed rule (Fall 2010 enrollment and 2009–10 completions data). Of the 57 HSIs that awarded a degree in an agriculture-related field to a Hispanic student in Year 1, 19 (33%) did not meet the eligibility criteria in Year 2. Of the 70 HSIs that met the eligibility criteria in Year 2, 32 (46%) did not meet the eligibility criteria in Year 1. In other words, only 38 schools would have received HSACU certification in both years while 51 schools would have received HSACU certification in only one of the two years. Based on this information, NIFA recognized that a single year criterion created an unintended bias that harms smaller programs while schools with larger student populations may be able to effortlessly graduate a single Hispanic student in any given year.
When NIFA combined two years of completions data and used a percentage-based standard, the bias concerns between larger and smaller schools were significantly reduced, if not eliminated altogether. Given that HSIs are defined in Federal law as institutions of higher education with at least 25% Hispanic Full-Time Equivalent (FTE) student enrollment, it stands to reason that a percentage-based yardstick for graduating Hispanic students in agriculture-related programs should be proportional to the institution's Hispanic enrollment, meaning that institutions should receive HSACU designation if Hispanic students receive at least 25% of the degrees awarded in agriculture-related programs. However, NIFA recognizes that a large number of HSIs became a HSI within the last few years and this trend is expected to continue over the next several years as the Hispanic demographic continues to grow. As of this writing, there are more than 200 institutions with Hispanic FTEs that fall in the 15% to 24% range of their student enrollment. These institutions are identified as “emerging HSIs” and are generally expected to become HSIs within the next few years. For a newly-designated HSI, its first graduating class (as a HSI) would be composed of students who entered the institution at a time the institution was not classified as a HSI, thus the 25% graduation benchmark would exclude many newly-designated HSIs at a time when they are building up a pipeline of Hispanic students in their agriculture-related programs. In recognition of the
NIFA has amended Part 3434.4(b)(4) to reflect that institutions will not receive HSACU certification if their Hispanic students receive less than 15% of degrees awarded from agriculture-related programs from the two most recent academic years. The list of HSACUs for Fiscal Year (FY) 2012 will be based on (1) completions data from 2008–09 and 2009–10, and (2) enrollment data from Fall 2010. NIFA identified 71 institutions that will meet the eligibility criteria and receive HSACU certification for FY 2012 (October 1, 2011 to September 30, 2012).
NIFA incorporated a suggestion from the listening session to utilize the Classification of Instructional Programs (CIP) coding system developed by the U.S. Department of Education's National Center for Education Statistics as an instrument to identify agriculture-related programs. The CIP coding system provides a taxonomic scheme that supports accurate tracking and reporting of fields of study and program completions activity. The CIP is organized on three levels: the 2-digit series represent the most general groupings of related programs, the 4-digit series are intermediate groupings of programs, and the 6-digit codes represent specific instructional programs. More information about CIP codes is available at
Two commentors expressed satisfaction in seeing that CIP codes were used to identify agriculture-related programs. Four commentors suggested that NIFA consider adding various CIP codes to the list of agriculture-related fields such as Horticulture, Biology, Nutrition Sciences, Sustainability Studies, and Veterinary/Animal Health Technology.
NIFA wishes to point out that Horticulture is already in the list of agriculture-related fields (01.06 group). NIFA agrees that Nutrition Sciences (30.1901), Sustainability Studies (30.3301), and Veterinary/Animal Health Technology/Technician and Veterinary Assistant (51.0808) should be added to the list as these specific instructional programs are agriculture-related. However, including a broad subject such as Biology that includes several instructional programs that are not related to agriculture would go against stakeholders' wishes for a rigorous certification process, so NIFA will not include Biology in the list of agriculture-related programs.
NIFA has added Nutrition Sciences (30.1901), Sustainability Studies (30.3301), and Veterinary/Animal Health Technology/Technician and Veterinary Assistant (51.0808) to the list in Appendix A of this part.
Three commentors felt that certifying schools one year at a time would create undue burden on the institutions. Two of these commentors further recommended that HSACU recertification occur every five years. Prior to the publication of the proposed rule, NIFA explored the feasibility of granting certifications for a period of five years as this would provide a sense of continuity and sustainability of program delivery. However, HSACUs must meet the eligibility requirements in the year they receive funds as a HSACU, thus if the institution did not meet the eligibility criteria at some point during the five-year certification period, the certification would be revoked immediately. Given this perspective, NIFA decided to go with a one-year certification period and NIFA further believes that an annual certification process will incentivize schools to remain focused on their eligibility status on an ongoing basis.
Three commentors expressed concern on varying levels regarding potential bias against a group of institutions either by sector (2-year or 4-year schools) or by region/state. NIFA performed a thorough analysis on the data provided by the National Center for Education Statistics (U.S. Department of Education) and confirmed the fairness and soundness of the certification process. The composition of 71 HSACUs (listed in Appendix B) is comparable to the HSI population (293 schools) by sector, region, and state as evidenced by the data provided in the Composition of HSACUs section.
Based on the eligibility criteria provided in this regulations along with the most recent reports made available to us from the U.S. Department of Education's National Center for Education Statistics (Completions data from the 2008–09 and 2009–10 academic years and Enrollment data from the Fall 2010 term), 71 college and universities meet the HSI and agriculture-related field criteria (see Appendix B for a complete list of the 71 schools). Of the 71 schools up for certification, 32 are 2-year institutions (45%) and 39 are 4-year institutions (55%). Thirty-three schools are in the Western region (47%), 32 schools are in the Southern region (45%), 3 schools are in the North Central region (4%), and 3 schools are in the Northeastern region (4%). The following tables offer a detailed look at the breakdown by sector, region, and state for both HSACUs and HSIs, including the difference in percentage points between HSACUs and HSIs within each category.
With this composition, HSACUs are clearly in line with HSIs in terms of representation across states, regions, and institution types.
HSACU certification will be based on “degrees awarded” and “completions data” rather than “graduates” and “graduation data” respectively. This revision was made to be consistent with the terminology used by the U.S. Department of Education's National Center for Education Statistics.
Two comments essentially served as an appeal by the commentors for their respective academic institutions which were excluded from the list of HSACU institutions in the proposed rule. A response to each appeal will be handled independently from the regulatory process.
Section 3434.8(a) has been revised to accurately reflect that an institution not listed in Appendix B, rather than Section 3434.6, of this Part may submit an appeal.
The annual certification process begins when NIFA obtains the latest report from the U.S. Department of Education's National Center for Education Statistics that lists all HSIs and the degrees conferred by these institutions during the most recently completed academic year. NIFA will use this report to identify HSIs that conferred a degree in an instructional program that appears in Appendix A of this Part and to confirm that over the last two years at least 15% of the degrees in agriculture-related fields were awarded to Hispanic students. The resulting institutions are eligible to be certified as a HSACU (Appendix B).
NIFA will announce the list of schools with HSACU certification through a notice in the
NIFA will permit HSIs that are not granted HSACU certification to submit an appeal within 30 days of NIFA's announcement of HSACU institutions. The appellant must submit a request for review to the NIFA official specified in the notification with details on the nature of the disagreement and include supporting documents. The appeal procedure will consist of two levels to allow an institution to request further review on its case should the initial NIFA review result in a rejection of the appeal.
In addition to this final regulation, which addresses the certification process, NIFA will publish regulations for the HSACU Endowment Fund in 2012. NIFA also plans to create informational web pages to provide detailed information and procedures for all HSACU programs.
This action has been determined to be not significant for purposes of Executive Order 12866, and therefore has not been reviewed by the Office of Management and Budget. This final regulation will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor will it materially alter the budgetary impact of entitlements, grants, user fees, or loan programs; nor will it have an annual effect on the economy of $100 million or more; nor will it adversely affect the economy, 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. Furthermore, it does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities, or principles set forth in the Executive Order.
This final rule has been reviewed in accordance with the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601–612. The Department concluded that the rule will not have a significant economic impact on a substantial number of small entities. The rule does not involve regulatory and informational requirements regarding businesses, organizations, and governmental jurisdictions subject to regulation.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
This final regulation applies to the Federal assistance program administered by NIFA under the Catalog for Federal Domestic Assistance (CFDA) No. 10.310, Agriculture and Food Research Initiative (AFRI). New CFDAs
The Department has reviewed this final rule in accordance with the requirements of Executive Order No. 13132, 64 FR 43255 (August 10, 1999) and the Unfunded Mandates Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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. As there is no Federal mandate contained herein that could result in increased expenditures by State, local, or tribal governments or by the private sector, the Department has not prepared a budgetary impact statement.
The Department has reviewed this final rule in accordance with Executive Order 13175, 65 FR 67249 (November 9, 2000), and has determined that it does not have “tribal implications.” The final rule does not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.”
Executive Order 12866 and the President's Memorandum of June 1, 1998 require each agency to write all rules in plain language. The Department invites comments on how to make this final rule easier to understand.
Administrative practice and procedure, Agricultural research, education, extension, Hispanic-serving Institutions, Federal assistance.
For the reasons set forth in the preamble, NIFA adds 7 CFR part 3434 to read as set forth below:
7 U.S.C. 3103.
This part establishes the process to certify and designate a group of eligible educational institutions as Hispanic-Serving Agricultural Colleges and Universities, as authorized by Section 7101 of the Food, Conservation, and Energy Act of 2008 (FCEA), 7 U.S.C. 3103; Public Law 110–246.
The Secretary will follow the processes and criteria established in this regulation to certify and designate qualifying colleges and universities as HSACUs. Institutions designated as HSACUs will be eligible for five new programs authorized by Congress in section 7129 of the FCEA as well as for other ongoing NIFA programs for which HSACUs are now eligible (
As used in this part:
(1) Is an eligible institution, as that term is defined at 20 U.S.C. 1101a; and
(2) Has an enrollment of undergraduate full-time equivalent students that is at least 25 percent Hispanic students, as reported to the U.S. Department of Education's Integrated Postsecondary Education Data System during the fall semester of the previous academic year.
(a)
(1) Qualify as Hispanic-serving Institutions; and
(2) Offer associate, bachelors, or other accredited degree programs in agriculture-related fields pursuant to § 3434.5.
(b)
(1) 1862 land-grant institutions, as defined in section 2 of the Agricultural Research, Extension, and Education Reform Act of 1998 (7 U.S.C. 7601);
(2) Institutions that appear in the Lists of Parties Excluded from Federal financial and nonfinancial assistance and benefits programs (Excluded Parties List System);
(3) Institutions that are not accredited by a nationally recognized accredited agency or association; and
(4) Institutions with Hispanic students receiving less than 15% of the degrees awarded in agriculture-related programs over the two most recent completed academic years.
(a) The Secretary shall use the Classification of Instructional Programs (CIP) coding system developed by the U.S. Department of Education's National Center for Education Statistics as the source of information for all existing instructional programs. This source is located at
(b) A complete list of instructional programs deemed to be agriculture-related fields by the Secretary is provided in Appendix A to this part. This list will include the full six-digit CIP code and program title (or major) for each agriculture-related instructional program.
(c) The list of agriculture-related fields will be updated every five years starting in 2015. However, the Secretary reserves the right to make changes at any time, if deemed appropriate and necessary.
(d) Any changes made in the CIP coding system by the U.S. Department
(a) Except as provided in paragraph (c) of this section, institutions that meet the eligibility criteria set forth in § 3434.4 and offer agriculture-related programs in accordance to the criteria set forth in § 3434.5 (see list in Appendix A to this part) shall be granted HSACU certification by the Secretary.
(b) A complete list of institutions with HSACU certification shall be provided in Appendix B to this part and posted on the NIFA Web site at
(c) Institutions with Hispanic students receiving less than 15% of degrees awarded in agriculture-related programs during the two most recent completed academic years shall not be granted HSACU certification by the Secretary.
(d) The list of HSACU institutions will be updated annually. However, the Secretary reserves the right to make changes at any time, when deemed appropriate and necessary.
(a) Except as provided in paragraphs (b) and (c) of this section, HSACU certification granted to an institution by the Secretary under this part shall remain valid for a period of one year.
(b) Failure to maintain eligibility status at any time during the HSACU certification period shall result in an immediate revocation of HSACU certification.
(c) Failure to remain in compliance with reporting requirements or adherence to any administrative or national policy requirements listed in award terms and conditions for any of the HSACU programs may result in a suspension or an immediate revocation of HSACU certification.
(a) An institution not listed as a HSACU in Appendix B to this part may submit an appeal to address denial of a certification made pursuant to this part. Such appeals must be in writing and received by the HSACU Appeals Officer, Policy and Oversight Division, National Institute of Food and Agriculture, U.S. Department of Agriculture, 800 9th Street SW., Washington, DC 20024 within 30 days following an announcement of institutions designated for certification. The Appeals Officer will consider the record of the decision in question, any further written submissions by the institution, and other available information and shall provide the appellant a written decision as promptly as circumstances permit. Such appeals constitute an administrative review of the decision appealed from and are not conducted as an adjudicative proceeding.
(b) Appeals involving an agriculture-related field of study must include the CIP code and program title of the field of study (or major).
(c) Appeals from non-HSI schools will not be considered.
(d) The NIFA Assistant Director of the Institute of Youth, Family, and Community shall serve as the Appeals Officer.
(e) In considering such appeals or administrative reviews, the Appeals Officer shall take into account alleged errors in professional judgment or alleged prejudicial procedural errors by NIFA officials. The Appeals Officer's decision may:
(1) Reverse the appealed decision;
(2) Affirm the appealed decision;
(3) Where appropriate, withhold a decision until additional materials are provided. The Appeals Officer may base his/her decision in whole or part on matters or factors not discussed in the decision appealed from.
(f) If the NIFA decision on the appeal is adverse to the appellant or if an appellant's request for review is rejected, the appellant then has the option of submitting a request to the NIFA Deputy Director for Food and Community Resources for further review.
(g) The request for further review must be submitted to Policy and Oversight Division, National Institute of Food and Agriculture, U.S. Department of Agriculture, 800 9th Street SW., Washington, DC 20024 within 30 days following the Appeals Officer's decision.
(h) No institution shall be considered to have exhausted its administrative remedies with respect to the certification or decision described in this part until the NIFA Deputy Director for Food and Community Resources has issued a final administrative decision pursuant to this section. The decision of the NIFA Deputy Director for Food and Community Resources is considered final.
(i) Appellants shall be notified in writing of any decision made by NIFA in regards to the appeal.
(a) The recertification process for a HSACU remains the same as the process outlined in § 3434.6.
(b) There is no limit to the number of times an institution may be recertified as a HSACU.
(c) In the event an institution is not granted recertification due to noncompliance with reporting requirements for a HSACU program, the institution shall be notified in writing and given a period of 90 days from the date of notification to be in compliance.
(a) The certification process does not involve any reporting requirements.
(b) Reporting requirements for HSACU programs (
The instructional programs listed in this appendix are observed to be agriculture-related fields for HSACU eligibility purposes. Programs are listed in numerical order by their six-digit CIP code followed by the full title of the instructional program, as listed by the U.S. Department of Education.
The institutions listed in this appendix are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2011 and ending September 30, 2012. Institutions are listed alphabetically under the state of the school's location, with the campus indicated where applicable.
U.S. Small Business Administration.
Final rule.
In this final rule, the U.S. Small Business Administration (SBA) is defining a new sub-category of small
This rule is effective April 27, 2012.
Carol Fendler, Office of Investment, (202) 205–7559 or
On January 31, 2011, President Obama announced the “Start-Up America Initiative” to encourage American innovation and job creation by promoting high-growth entrepreneurship across the country with new initiatives to help encourage private sector investment in job-creating startups and small firms, accelerate research, and address barriers to success for entrepreneurs and small businesses. The SBIC program will play a key role in accomplishing these goals by expanding access to capital for early stage businesses.
Early stage businesses face difficult challenges accessing capital, particularly those without the necessary assets or cash flow for traditional bank funding. Although the venture capital industry provided over $22 billion in financings to U.S. businesses in calendar year 2010, this represented over a 23% decline from 2007. Less than a third of these financing dollars went to early stage or start-up businesses. Of the financings that went to early stage and start-up, over two-thirds went to businesses located in three states: California, Massachusetts, and New York. (Source: ThomsonOne VentureXpert) As a result, less than 10% of U.S. venture financing dollars went to early stage and start-up businesses not in those three states. SBA will seek to expand access to capital for early stage small businesses throughout the United States by allocating from its current debenture authorization up to $200 million per year (up to $1 billion total over five years) beginning in FY 2012 to Early Stage SBICs.
SBA has not typically provided leverage in the form of SBA-guaranteed debentures to SBICs that plan to provide early stage venture capital financing to small businesses. The standard debenture is generally appropriate for investments in small businesses that generate sufficient cash flow to pay interest and/or dividends, so that SBICs in turn can make semi-annual interest payments on their debentures. Investments in early stage companies, which typically cannot make current interest or dividend payments, do not fit naturally with the structure of debenture leverage.
Furthermore, early stage companies have inherently higher risk; although they can offer potentially higher returns than later stage equity or mezzanine debt investments, the returns are much more volatile. Because the debenture program is required by law to operate at zero cost, the Early Stage SBIC initiative contemplates a number of strategies to mitigate risk and limit the initiative's impact on leverage fees, although fee increases will still be necessary.
On December 9, 2011, SBA published a proposed rule to define an Early Stage SBIC and to establish the features of the Early Stage SBIC initiative. The proposed rule also included several new regulatory provisions intended to reduce the risk that an Early Stage SBIC would default on its leverage and to improve SBA's recovery prospects should a default occur. The preamble to the proposed rule also discussed key aspects of the Early Stage initiative that are not addressed in the regulations, including the limits on the aggregate amount of debenture leverage that will be made available to Early Stage SBICs, and SBA's intention to make leverage available to Early Stage SBICs in two forms: (1) A debenture that requires quarterly interest payments throughout its term; and (2) a debenture that is issued at a discount and does not require interest payments during the first five years of its term.
SBA received ten sets of comments on the proposed rule. Some were general comments on the Early Stage initiative and others were specific to individual sections of the proposed regulations. SBA discusses the comments in the following sections.
SBA agrees that the stability of the existing debenture program must be maintained, and has designed the Early Stage initiative with multiple protections to achieve that goal. These protections include: (1) Limiting the total leverage committed to Early Stage SBICs to a maximum of $200 million per year over a five year period; (2) limiting the maximum leverage available to an individual Early Stage SBIC to the lesser of $50 million or 100 percent of its Regulatory Capital (as opposed to the lesser of $150 million or 300 percent of Regulatory Capital for standard debenture SBICs); and (3) establishing special distribution rules to require pro rata repayment of SBA leverage when an Early Stage SBIC makes distributions to its investors. The higher risks of early stage investing have been accounted for in the program formulation model which determines the annual fee needed to keep the debenture program's original subsidy cost at zero, as required by law.
SBA understands that managers of a debenture SBIC may feel that they are being unfairly required to “subsidize” the higher-risk investment strategy of an Early Stage SBIC. However, debenture SBICs already pursue a range of investment strategies that present varying degrees of risk to SBA, yet SBA does not formulate separate fees based on these differences; rather, the leverage fees are calculated based on analysis of the overall SBIC program portfolio. Although the Early Stage initiative does result in a small increase in the annual fee for all new debenture leverage commitments, the resulting fee of roughly 80 basis points for fiscal year 2012 is well below the statutory maximum of 1.38 percent and is also below the actual fees charged in many previous years.
SBA notes that the fiscal year 2012 annual fee reflects the impact of both the Early Stage initiative and the energy saving debentures. In addition, in developing the Early Stage initiative, SBA gave extensive consideration to the lessons learned from the participating securities program.
SBA currently intends to issue commitments for Early Stage debenture leverage only until the end of fiscal year 2016. However, SBA recognizes that it is important for Early Stage SBICs to be able to obtain the leverage for which they are eligible, and will explore various options to ensure availability. These options may include allowing an Early Stage SBIC to apply for a new leverage commitment to replace an expired commitment, provided that SBA has the budget authority to do so, or permitting an Early Stage SBIC to draw the remaining balance of a leverage commitment prior to its expiration, even if does not have a current need for the funds. Because SBA cannot ensure that any of these options will be available in the future, Early Stage SBICs will need to be prepared to manage their portfolios within the existing limitations.
SBA believes that adopting this suggestion would result in an unacceptable increase in risk. SBA incurred losses on a large majority of participating securities SBICs that reached an 85 percent CIP, and especially on those that reached 85 percent sooner rather than later. However, SBA recognizes that an Early Stage SBIC is more likely than a regular debenture SBIC to have some early losses that, combined with a lack of current income, may put upward pressure on the CIP even though the fund's overall portfolio ultimately proves to be sound. SBA has considered whether there is a low-risk way to offer Early Stage SBICs more flexibility in their CIP calculation, and believes that a change can safely be made in the treatment of “Class 2” unrealized appreciation. Class 2 appreciation arises when an SBIC holds an investment in a company that subsequently receives a new round of financing at a higher price, provided the new round includes a substantial investment by a sophisticated, new, non-strategic investor in an arm's length transaction. SBA regulations allow Class 2 appreciation (discounted by 50 percent) to offset realized losses in the CIP computation, but in most cases only for 24 months after the new round of financing takes place.
For Early Stage SBICs, SBA believes the 24-month limit can be made more flexible without increasing program risk. In general, at the end of the initial 24 months, an Early Stage SBIC with “expiring” Class 2 appreciation will be able to request an extension based on an independent third-party valuation of the investment and any other relevant information, as determined by SBA. In addition, in certain instances, based on the valuation of the investment and other relevant information, SBA will permit the Early Stage SBIC to use the Class 2 appreciation in its CIP computation without the 50 percent discount. Full details of these changes are discussed in the section-by-section analysis under new § 107.1845.
SBA believes these capital impairment changes are also responsive in part to a concern that may be implicit in two comments received on proposed § 107.1182, under which SBA has the right to require valuations of an Early Stage SBIC's investments. In asking how SBA plans to use these valuations and whether SBA will be bound by them, the comments may reflect a concern that SBA is more likely to mandate the write-down of an investment based on a valuation than it is to allow a write-up. While SBA is not adopting a general policy of allowing Early Stage SBICs to write up investments based on independent valuations, this final rule does provide Early Stage SBICs with a degree of assurance that they will continue to receive credit for their Class 2 Appreciation when it is supported by an acceptable third party valuation.
SBA received three sets of comments suggesting various changes to the proposed definition. SBA particularly sought input from the public on whether 50 percent was appropriate as the required minimum level of early stage investments, and all comments received on the definition focused on this issue. One commenter suggested that an Early Stage SBIC should be required to invest at least 75 percent of its total financing dollars in small businesses classified as “early stage” at the time of the SBIC's initial investment. The commenter felt that later stage investments would not support the intent of the initiative and could distract SBIC managers from focusing on their early stage investments. The commenter also viewed early stage investing as a specialized skill. In contrast, two other commenters suggested a change in the
SBA has not adopted either of these comments because it believes the commenters' contrasting points of view illustrate the benefits of maintaining the flexibility that the proposed definition provided. SBA expects that some management teams will focus exclusively on early stage companies, while others will opt for a mixed portfolio. Applicants may propose to manage risk in a number of different ways, including making some later-stage investments, taking less than one tier of leverage, or using leverage primarily for follow-on investments in portfolio companies that are performing well. SBA believes that fund managers are in the best position to develop an investment strategy based on their own skills, experience and analysis of market opportunities.
The only other comment received on the Early Stage definition was a suggested clarification. Two commenters thought it would be helpful for the definition to refer specifically to § 107.1810(f)(11), which specifies the time frame within which an Early Stage SBIC must satisfy the early stage investment requirement. SBA agrees and has added a cross-reference to the cited section.
The other key points of the definition were that: (1) An Early Stage SBIC must be organized as a limited partnership; and (2) a small business would be considered “early stage” if it has not yet achieved positive cash flow from operations in any full fiscal year. SBA received no comments on these aspects of the definition and is finalizing them without change.
SBA proposed special distribution rules in § 107.1180 which would require Early Stage SBICs to make mandatory prepayments of outstanding debentures at the same time they make distributions to their private limited partners. The proposed revision of the “Payment Date” definition in § 107.50 designated March 1, June 1, September 1, and December 1 of each year as the dates on which debenture prepayments could be made and required interest payments would be due.
SBA received two comments suggesting a requirement for semi-annual interest payments (the same as for standard debentures), while preserving the option for an Early Stage SBIC to prepay debentures and make interest payments on a quarterly basis. The commenters reasoned that this added flexibility would be a better fit with the type of investing that Early Stage SBICs will do.
SBA proposed the quarterly Payment Date structure expressly to provide Early Stage SBICs with more frequent distribution opportunities than standard debentures afford. SBA believes that a hybrid structure with both required and optional interest payments would result in excessive administrative burden for SBICs, SBA, and debenture purchasers. Accordingly, SBA is finalizing the Payment Date definition as proposed.
Two commenters noted that SBA will consider geographic diversity as one factor in evaluating applicants for an Early Stage SBIC license. Based on the presumption that a fund investing in underserved areas might be able to operate effectively with less than $20 million of capital, they suggested language that would allow SBA to license an Early Stage SBIC with Regulatory Capital as low as $10 million, provided SBA is satisfied that the fund would be economically viable.
In the proposed rule, SBA specifically requested public input on the $20 million private capital minimum. The very limited response to this request suggests that the proposed minimum capital requirement was acceptable to most readers. Although SBA recognizes that operating costs differ across geographic locations, SBA's experience in the regular debenture program has not shown a strong connection between the geographic areas in which an SBIC plans to invest and the amount of capital it raises. In light of historical data showing that SBA has experienced higher loss rates on smaller SBICs, with performance statistics improving as private capital approaches $20 million, SBA does not see a compelling reason to reduce the minimum capital requirement and is finalizing § 107.210 as proposed.
The commenters also urged SBA to cease adding $10,000 to the application fee because an applicant is organized as a partnership. The intent of this comment is unclear. For many years, § 107.300 has included an additional $5,000 charge for partnerships, and the proposed rule did not change that provision. SBA imposed this additional cost because of the more extensive document review that a partnership application requires. It is possible that the commenters intended to address the $10,000 difference in the licensing fee for an Early Stage SBIC applicant versus a regular debenture applicant ($25,000 versus $15,000, assuming both are organized as partnerships). SBA believes the difference is justified by processing differences between the two types of applications, including compressed processing times for Early Stage applications which will require SBA to supplement its licensing staff with outside consultants. Therefore, the proposed section has been finalized without change.
Proposed § 107.305(a) included experience in “implementing best practices for investment firms” as one aspect of management qualifications that SBA would evaluate. The two commenters described this criterion as an amorphous standard on which there is no consensus, and suggested deleting it. SBA disagrees. SBA believes that many best practices are widely acknowledged and disseminated by organizations such as the Institutional Limited Partners Association, the National Venture Capital Association, and the Private Equity Industry Guidelines Group.
Proposed § 107.305(b) included “the contribution of prior investments to the growth of portfolio company revenues and number of employees” as one of the factors SBA would consider in evaluating the performance of fund managers' prior investments. The two commenters suggested eliminating employment growth as a criterion because investment funds do not usually track this information. SBA understands that not all fund managers will have employment data for the companies in which they previously invested, and will not disqualify an applicant that does not have these data. However, job growth is a critical part of the SBIC program's mission and SBA believes it should be considered. In fact, the current SBIC license application (which Early Stage SBIC will also use) already requests information on the growth of portfolio company employees and revenues, and most applicants have been able to provide it.
Proposed § 107.305(c) included compliance with SBA regulations as a factor in SBA's evaluation of an applicant's investment strategy; proposed § 107.305(d) similarly included regulatory compliance with respect to an applicant's organizational structure and fund economics. The two commenters felt that compliance was relevant only to applicants that have previously managed an SBIC. However, the provisions relate not to an applicant's prior funds, but to the likelihood of compliance of the strategy and structure of the proposed new SBIC. Therefore, these provisions pertain to all applicants.
The proposed section also provided that SBA would accept Early Stage SBIC applications only during specified periods, which would be announced by
SBA also received two comments on the provision in proposed § 107.1180(b) that allowed debentures issued by Early Stage SBICs to be prepaid in whole but not in part. The commenters asked how SBA would handle a distribution if the amount received was not sufficient to pay off a debenture in full. SBA has experience with this issue through the participating securities program, which includes many SBICs that have also issued debentures. These SBICs have pre-planned their distributions so that the amount payable to SBA will be the amount needed to pay off one or more debentures in full. SBICs have the flexibility to issue debentures in fairly small increments, and most do so; as a result, it should not be difficult to arrange a distribution so that debenture prepayments work out properly.
Proposed § 107.1180(d) stated that SBA's share of a distribution would depend on the Early Stage SBIC's “highest ratio” of outstanding leverage to Leverageable Capital, and its Capital Impairment Percentage (CIP), as determined under existing § 107.1840. At a CIP of less than 50 percent, distributions would be allocated pro rata (based on the “highest ratio”) between SBA (up to the amount of the outstanding debenture leverage) and the Early Stage SBIC's investors. However, if the CIP reached 50 percent or more, SBA would receive 100 percent of any distribution until all outstanding debentures have been repaid. If the Early Stage SBIC reduced its CIP below 50 percent, it could resume distributions to its investors.
SBA received one comment on these distribution priority provisions. The commenter stated that for Early Stage SBICs that maintain a low ratio of leverage to Leverageable Capital (for example, funds that raise $2 or $3 of private capital for every $1 of leverage), SBA should not take all distributions when the CIP reaches 50 percent because the SBA leverage would still be fully protected. The commenter proposed a variable formula to determine the CIP at which SBA would be entitled to priority in distributions, suggesting that this change would make the Early Stage initiative more attractive to potential investors. SBA believes that a variable threshold introduces too much complexity, but also agrees that an Early Stage SBIC that takes substantially less than one tier of leverage does represent a lower risk to SBA and should receive the benefit of more favorable distribution rules. Accordingly, SBA is revising § 107.1180(d) so that SBA will be entitled to 100 percent of distributions only if the CIP is 50 percent or greater
The proposed rule provided an exception to the interest reserve requirement for leverage in the form of a discounted debenture, which will not require cash interest payments during the first five years of its term. Instead, the proceeds received by the Early Stage SBIC when the debenture is issued will be discounted; over the first five years following issuance, the carrying value of the debenture will accrete until it reaches face value, and semi-annual interest payments will be required beginning in year six.
For standard debentures, the proposed rule required a reserve sufficient to pay interest and Charges for the first 21 Payment Dates following issuance of a debenture, and both commenters thought the correct period should be 20 Payment Dates, to correspond to a five year period. However, SBA notes that the first of the 21 Payment Dates will come at the end of a “stub period” that is less than a full quarter. The proposed rule correctly provided for the stub period followed by 20 quarters.
Both commenters suggested that SBA should consider permitting Early Stage SBICs to issue discounted debentures as an alternative to the reserve requirements. SBA clearly stated its intention to do so in the preamble to the proposed rule. In the proposed and final rules, § 107.1181(a) states that the reserve requirement applies only to debentures that require periodic interest payments to SBA during the first five years of their term.
Finally, both commenters recommended that the regulation state explicitly that the required reserve on a debenture will be reduced each time the issuing Early Stage SBIC makes an interest payment. SBA believes this point is implicit in the regulation (it was also made explicitly in the preamble to the proposed rule), but has added it to the final rule for avoidance of doubt.
Second, under § 107.1810(f)(11), it is an event of default if an Early Stage SBIC fails to meet the requirement to invest at least 50 percent of its financing dollars in early stage companies, as defined under the proposed Early Stage SBIC definition in § 107.50. This provision would require an Early Stage SBIC to meet the 50 percent requirement as soon as the total dollars invested to date are equal to or greater than Regulatory Capital. Third, under proposed new § 107.1810(f)(12), it would be an event of default if an Early Stage SBIC fails to maintain the interest reserve required under proposed § 107.1181, as discussed earlier in this preamble.
The conditions in proposed § 107.1810(f)(11) and (f)(12) would both be in the category of events of default with opportunity to cure. If the Early Stage SBIC fails to cure to SBA's satisfaction, SBA could invoke the remedies in existing § 107.1810(g), which include the right to declare outstanding debenture leverage immediately due and payable.
Finally, § 107.1810(j) provides SBA with additional remedies to help maximize recoveries from Early Stage SBICs that have been transferred to a liquidation status. Under this section, if SBA must honor its guarantee and pay the interest and principal of an Early Stage SBIC's debentures, upon such payment SBA has the right to prohibit the SBIC from making additional investments without SBA approval (except for any investments the SBIC had already legally committed itself to make); to prohibit Distributions by the SBIC to any party other than SBA until all leverage and other amounts due to SBA have been repaid; to require all the SBIC's investor commitments to be funded at the earliest time(s) permitted under the SBIC's limited partnership agreement and other applicable documents; to review and re-determine the SBIC's approved Management Expenses (as defined in existing § 107.520); and to the appointment of SBA or its designee as receiver for the SBIC. The receivership would be for the purpose of continuing the SBIC's operations; the appointment of a liquidating receiver is governed by existing provisions of the Small Business Investment Act and is not affected by this rule.
Under § 107.1845, at the end of the initial 24 months, an Early Stage SBIC with “expiring” Class 2 appreciation will be able to request an extension. In considering this request, SBA may obtain its own valuation of the investments or require the Early Stage SBIC to obtain a valuation performed by an independent third party acceptable to SBA. SBA may also consider any other information that it deems relevant. If supported by the valuation and other information, SBA may grant an extension allowing the Early Stage SBIC to use all or part of the orginal Class 2 appreciation for up to an additional 24 months; reasons for granting a shorter or no extension might include a high degree of uncertainty associated with the valuation or the expectation that events occurring within a shorter period will further clarify or determine a company's value. At the end of any extension period, the Early Stage SBIC could request a further extension, repeating the original steps. SBA may
At the time of any extension request, an Early Stage SBIC will also be able to request an exception to the requirement to discount Class 2 appreciation by 50 percent in the “adjusted unrealized gain” calculation. SBA may grant this exception based on its consideration of relevant information, including its determination that the appreciation on the Early Stage SBIC's investment, based on its current fair value, is at least two times the original Class 2 appreciation. If the exception is granted, the Early Stage SBIC will be able to use the original Class 2 appreciation in its CIP computation without the 50 percent discount, for the duration of the extension period.
The Administrative Procedure Act (APA), 5 U.S.C. 553(d)(3), requires that “publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.”
The purpose of this provision is to provide interested and affected members of the public sufficient time to adjust their behavior before the rule takes effect. In the case of this rulemaking, however, there should be no need for any member of the public, including any SBIC, to make any changes in order to prepare for the rule taking effect. This rule implements changes to the SBIC program to stimulate private sector investment in early stage companies, which are expected to contribute to the important goals of creating jobs and fostering innovation. Any further delay in making leverage available to Early Stage SBICs will only hold back the potential benefits of investment in early stage small businesses. SBA therefore finds that there is good cause for making this rule effective immediately instead of observing the 30-day period between publication and effective date.
The Office of Management and Budget has determined that this rule is a “significant” regulatory action under Executive Order 12866. In the proposed rule, SBA set forth its initial regulatory impact analysis, which addressed the following: (1) Necessity of the regulation; (2) alternative approaches to the proposed rule; and (3) the potential benefits and costs of the regulation. SBA received comments which addressed both alternative approaches to and potential costs of the regulation. Those comments are discussed in the final Regulatory Impact Analysis set forth below:
The Small Business Investment Act of 1958 identifies the SBIC program's mission as follows: “to stimulate and supplement the flow of private equity capital and long-term loan funds which small business concerns need for the sound financing of their business operations and for their growth, expansion, and modernization, and which are not available in adequate supply * * *” Based on venture capital industry data (ThomsonOne VentureXpert), SBA believes that early stage businesses lack access to needed financing capital. Although the venture industry provided over $22 billion in financings to U.S. businesses in calendar year 2010, this represented over a 23% decline from 2007. Less than a third of these financing dollars went to early stage or start-up businesses. Given the decline in venture capital financings over the past 3 years, SBA seeks to expand access to early stage businesses by implementing an initiative to provide up to $1 billion in debenture leverage over five years (beginning in FY 2012) to a limited number of SBICs focused on early stage investments.
If SBA debenture leverage is to be used to finance early stage small businesses, the high risk associated with such investments indicates the need for more protections than those provided by the standard SBIC debenture and current regulations to mitigate risk and cost to the taxpayer. This final rule includes a number of regulatory changes to manage the risks associated with an early stage portfolio, including: (1) Limiting leverage for an individual Early Stage SBIC to 100 percent of Regulatory Capital or $50 million, whichever is less; (2) establishing special distribution rules to require repayment of leverage whenever an Early Stage SBIC makes distributions to its investors; and (3) implementing risk monitoring actions appropriate to SBA's leverage guarantor/creditor status. Even with these actions, in order to maintain an initial subsidy rate of zero for the debenture program while limiting the increase in leverage fees, SBA can only issue leverage to Early Stage SBICs as a very small percentage of its portfolio.
SBA considered several alternatives to these regulations. The first alternative was for SBA not to pursue the Early Stage initiative and continue with its current credit policy of not providing debenture leverage to SBICs that focus on early stage equity investing. SBA rejected this alternative because of the critical need for early-stage funding, particularly in the $1 to $5 million range that fits well with SBA's small business size standards.
SBA also considered seeking legislation for a new program specifically focused on investing in early stage small businesses. Although such an alternative could have provided an opportunity to introduce useful risk-management provisions, such as SBA profit sharing, SBA chose not to pursue this alternative because of the compelling need to begin assisting early stage small businesses as quickly as possible. A third alternative was for SBA to modify its credit policies to license and approve leverage to qualified early stage focused SBICs without changes in program regulations or in the terms of debenture leverage. SBA believes that doing so would not be financially responsible and would present an excessively high risk of losses to the taxpayer. Ultimately, SBA decided that it could responsibly license a limited number of early stage SBICs after implementing appropriate regulatory changes to manage the associated risk.
In proposing the definition for an Early Stage SBIC, SBA considered both the type of investment that should qualify as “early stage” and whether an Early Stage SBIC's portfolio should be limited to early stage investments exclusively. Many small businesses in the earliest stages of product
In determining the maximum amount of leverage for which an Early Stage SBIC would be eligible, SBA decided that a one-to-one match between leverage and private capital (one “tier” of leverage) would provide the best balance between program cost and attractiveness to fund managers and investors. A second tier of leverage would result in a much higher projected loss rate, and a correspondingly greater increase in annual leverage fees for all debenture SBICs receiving new leverage commitments. SBA also considered a model in which SBA would have provided only half a tier of leverage. This lower ratio of leverage to private capital would have a much lower impact on leverage fees but would be unlikely to attract some high quality fund managers and investors.
SBA also considered various dollar limits on the maximum leverage available to an Early Stage SBIC, in order to avoid an excessive concentration of risk in a small number of funds. A low dollar limit could allow more funds to be licensed, but could be unattractive to stronger applicants with the ability to raise and deploy larger amounts of capital. SBA believes the proposed limit of $50 million is sufficient to attract high quality applicants. SBA also believes that $50 million of leverage, in combination with at least $50 million of private capital, is more than adequate to support a primarily early stage portfolio, with most financings expected to be in the $1 to $5 million range.
SBA anticipates that this rule will provide significant benefit to early stage small businesses seeking investments by Early Stage SBICs. In estimating the impact, SBA considered that $1 billion in anticipated leverage will be matched by a minimum of $1 billion in private capital over the next 5 years, beginning in FY 2012. SBA expects that Early Stage SBICs will invest over a 5 to 7 year period after licensing. Allowing for payment of management expenses and interest, SBA estimates that the $1 billion in leverage guaranteed by the Early Stage initiative will result in approximately $125 million annually in financings to small businesses over an 8 to 10 year period.
As stated in the proposed rule, Early Stage debentures will impose additional cost in the form of increased annual fees on all debenture SBICs seeking new leverage commitments. The estimated cost has been incorporated into the program formulation model which determines the annual fee needed to keep the debenture program's original subsidy cost at zero, as required by law. For FY 2012, SBA has budgeted $150 million in leverage commitments to Early Stage SBICs, within the anticipated appropriated SBIC Debenture loan levels, representing approximately 7 percent of total expected debenture commitments. This 7 percent allocation would increase the annual fee on all new debenture commitments by approximately 13.7 basis points. For FY 2013, SBA has budgeted $200 million in leverage commitments to Early Stage SBICs, representing approximately 8.3 percent of all new expected debenture commitments. This 8.3 percent allocation would increase the annual fee on all new debenture commitments by approximately 11.5 basis points using updated model assumptions. The fee increases reflect the additional risk associated with the early stage equity investments contemplated by the Early Stage initiative. Early stage investing is higher-risk than the typical SBIC portfolio, and would have required fees in excess of statutory caps if operated on a stand-alone basis. To align fees and costs to the taxpayers with the overall policy goals, the Early Stage initiative incorporates terms designed to mitigate risk, and is limited to no more than $200 million per fiscal year to keep the annual fees at reasonable levels. The cost is expected to vary each year based on the factors and assumptions used to develop the annual fee, including the total amount of debenture leverage commitments estimated, the amount committed to Early Stage SBICs, and interest rates.
This action meets applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or presumptive effect.
A description of the need for this regulatory action and benefits and costs associated with this action is included above in the Regulatory Impact Analysis under Executive Order 12866.
In connection with the launch of the President's “Start-Up America Initiative”, SBA announced its commitment to making financing available to early stage small businesses through the SBIC program. In an effort to engage interested parties in this regulatory action, SBA has since made presentations at SBIC association meetings, Start-up America-related public events, and venture capital industry forums to discuss both the market need for new sources of early stage financing and key issues associated with the design of the Early Stage initiative. SBA announced a series of public Webinars regarding the Early Stage Initiative during the comment period. 76 FR 81430 (December 28, 2011). SBA also placed explanatory material on its Web site to assist the public with understanding the program, as proposed.
SBA has determined that this final rule will not have substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, Federalism, SBA has determined that this final rule has no federalism implications warranting the preparation of a federalism assessment.
SBA has determined that this final rule will not impose additional reporting or recordkeeping requirements. Early Stage SBIC applicants will submit the same license application form as other SBIC program applicants (OMB Control Number 3245–0062). Post-licensing, Early Stage SBICs will have the same recordkeeping and reporting requirements as any other licensed SBIC.
When an agency promulgates a rule, the Regulatory Flexibility Act (5 U.S.C. 601–612) requires the agency to prepare a final regulatory flexibility analysis (FRFA) describing the potential economic impact of the rule on small entities and alternatives that may minimize that impact. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing a FRFA, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. This final rule affects all SBICs issuing debentures, of which there are approximately 150, most of which are small entities. Therefore, SBA has determined that this final rule will have an impact on a substantial number of small entities. However, SBA has determined that the impact on entities affected by the rule will not be significant. SBA intends to maintain the SBIC program's initial subsidy cost to taxpayers at zero by charging up front and annual fees on its leverage. SBA calculates the annual fee each year using historical data to assess the appropriate fee to offset expected losses. The actual costs for SBIC guarantees may be higher or lower, and SBA will monitor program performance closely. Because SBA expects Early Stage SBICs to be riskier than standard SBICs, the annual fees needed to keep the debenture program's original subsidy cost at zero are higher than if there were no Early Stage SBICs. For FY 2012, SBA estimates $150 million in leverage commitments to Early Stage SBICs, which increases the annual fee charged to all SBICs seeking new debenture commitments by approximately 13.7 basis points. For FY 2013, SBA estimates $200 million in leverage commitments to Early Stage SBICs, which increases the annual fee charged to all SBICs seeking new debenture commitments by approximately 11.5 basis points. Since annual leverage fees were introduced in FY 1998, the annual fee has ranged from a high of 100 basis points (1 percent) to a low of 29 basis points, with a 13-year median of 88 basis points. Although the cost will vary in the future based on economic factors and assumptions used to develop the annual fee, SBA expects the fee to remain under 1 percent, comparable to historical annual fees and below the statutory maximum of 1.38 percent. For debenture leverage committed and drawn by SBICs in FY 2012, SBA estimates that the sum of the debenture interest rate plus the annual fee will be in the vicinity of 5 percent. Debenture SBICs typically use the proceeds of debenture leverage to make loans to small businesses at interest rates in the 12 to 16 percent range, providing them with a significant spread over their cost of funds. Accordingly, the Administrator of the SBA hereby certifies that this final rule will not have a significant impact on a substantial number of small entities. In the proposed rule, SBA solicited comments from the public regarding any perceived significant impact, either on SBICs or on companies that receive funding from SBICs, and received none.
Investment companies, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, SBA amends part 107 of title 13 of the Code of Federal Regulations as follows:
15 U.S.C. 681
(1) For a Participating Securities issuer, each February 1, May 1, August 1, and November 1 during the term of a Participating Security, or
(2) For an Early Stage SBIC, each March 1, June 1, September 1, and December 1 during the term of a Debenture.
When applying for a license, and while you have a license, you must show, to the satisfaction of SBA, that your current or proposed management team is qualified and has the knowledge, experience and capability necessary for investing in the types of businesses contemplated by the Act, the regulations in this part 107, and your business plan. * * *
(a) * * *
(1)
(3)
The license application must be submitted on SBA Form 2181 together with all applicable exhibits on SBA Form 2182 and a non-refundable processing fee computed as follows:
(d) All applicants seeking to be licensed as Early Stage SBICs will pay the fee for a Partnership Licensee plus an additional $10,000 fee, for a total of $25,000.
SBA will evaluate a license applicant based on the submitted application materials, any interviews with the applicant's management team, and the results of background investigations, public record searches, and other due diligence conducted by SBA and other Federal agencies. SBA's evaluation will consider factors including the following:
(a) Management qualifications, including demonstrated investment skills and experience as a principal investor; business reputation; adherence to legal and ethical standards; record of active involvement in making and monitoring investments and assisting portfolio companies; successful history of working as a team; and experience in developing appropriate processes for evaluating investments and implementing best practices for investment firms.
(b) Performance of managers' prior investments, including investment returns measured both in percentage terms and in comparison to appropriate industry benchmarks; the extent to which investments have been realized as a result of sales, repayments, or other exit mechanisms; and the contribution of prior investments to the growth of portfolio company revenues and number of employees.
(c) Applicant's proposed investment strategy, including clarity of objectives; strength of management's rationale for pursuing the selected strategy; compliance with this part 107 and applicable provisions of part 121 of this chapter; fit with management's skills and experience; and the availability of sufficient resources to carry out the proposed strategy.
(d) Applicant's proposed organizational structure and fund economics, including compliance with this part 107; soundness of financial projections and underlying assumptions; a compensation plan that provides managers with appropriate economic incentives; a reasonable basis for allocations of profits and fees to Persons not involved in management; and governance procedures that provide appropriate checks and balances.
From time to time, SBA will publish a Notice in the
SBA will evaluate an Early Stage SBIC license applicant based on the same factors applicable to other license applicants, as set forth in § 107.305, with particular emphasis on managers' skills and experience in evaluating and investing in early stage companies. In addition, SBA reserves the right to maintain diversification among Early Stage SBICs with respect to:
(a) The year in which they commence operations, and
(b) Their geographic location.
If you are an Early Stage SBIC and you have outstanding Leverage or a Leverage commitment, you must get SBA's prior written approval to have, incur, or refinance any third-party debt other than accounts payable from routine business operations.
You must obtain SBA's prior written approval to reduce your Regulatory Capital by more than two percent in any fiscal year, unless otherwise permitted under §§ 107.1560 and 107.1570,
(c) * * *
(4) If you are an Early Stage SBIC with outstanding Leverage or Leverage commitments, you will pay an additional charge equal to 10% of your base fee;
(d) * * *
(k) If you are an Early Stage SBIC, certify in writing that in accordance with § 107.1810(f)(11), at least 50 percent of the aggregate dollar amount of your Financings will be provided to “early stage” companies as defined under the definition of Early Stage SBIC in § 107.50 of this part.
(d) * * *
(1)
(2)
A Section 301(c) Licensee, other than an Early Stage SBIC, may have maximum outstanding Leverage as set forth in paragraphs (a) through (c) of this section. An Early Stage SBIC may have maximum outstanding Leverage as set forth in paragraph (d) of this section. * * *
(c)
(1) The total amount of any and all Leverage commitments you receive from SBA shall not exceed 100 percent of your highest Regulatory Capital or $50 million, whichever is less;
(2) On a cumulative basis, the total amount of Leverage you have issued shall not exceed the total amount of capital paid in by your investors; and
(3) The maximum amount of Leverage you may have outstanding at any time is the lesser of:
(i) 100 percent of your Leverageable Capital, or
(ii) $50 million.
(a)
(b)
(c)
(d)
(1) Determine the highest ratio of outstanding Leverage to Leverageable Capital that you have ever attained (your “Highest Leverage Ratio”). For the purpose of determining your Highest Leverage Ratio, any deferred interest Debentures issued at a discount must be included in the computation at their face value.
(2) Determine SBA's percentage share of cumulative Distributions:
(i) If your Capital Impairment Percentage under § 107.1840 is less than 50 percent as of the Distribution date or your Highest Leverage Ratio equals 0.5 or less, except as provided in paragraph (d)(2)(iii) of this section, SBA's percentage share of cumulative Distributions equals:
(ii) If your Capital Impairment Percentage under § 107.1840 is 50 percent or greater as of the Distribution date and your Highest Leverage Ratio is greater than 0.5, SBA's percentage share of cumulative Distributions equals 100 percent.
(iii) If you have a condition of Capital Impairment under § 107.1830 and your Highest Leverage Ratio equals 0.5 or less as of the Distribution date, SBA's percentage share of cumulative Distributions equals 100 percent.
(3) Multiply the sum of all your prior Distributions and your current proposed Distribution (including Distributions to SBA, your limited partners and your General Partner) by SBA's percentage share of cumulative Distributions as determined in paragraph (d)(2) of this section.
(4) From the result in paragraph (d)(3) of this section, subtract the sum of all your prior Distributions to SBA under this § 107.1180.
(5) The amount of your Distribution to SBA will be the least of:
(i) The result in paragraph (d)(4) of this section;
(ii) Your current proposed Distribution; or
(iii) Your outstanding Leverage.
(e)
(a)
(1) Binding unfunded commitments from your Institutional Investors that cannot be called for any purpose other than the payment of interest and Charges to SBA, or the payment of any amounts due to SBA; and
(2) Cash maintained in a separate bank account or separate investment account permitted under § 107.530 of this part and separately identified in your financial statements as “restricted cash” available only for the purpose of paying interest and Charges to SBA, or for the payment of any amounts due to SBA.
(b) The required reserve associated with an individual Debenture shall be reduced on each Payment Date upon payment of the required interest and Charges. If you prepay a Debenture prior to the 21st Payment Date following its date of issuance, the reserve requirement associated with that Debenture shall be correspondingly eliminated.
(c) Your limited partnership agreement must incorporate the reserve requirement in paragraph (a) of this section.
(a) If you are an Early Stage SBIC, you must compute your Capital Impairment Percentage and determine whether you have a condition of Capital Impairment in accordance with §§ 107.1830 and 107.1840 of this part.
(b) You must promptly notify SBA in writing if your Capital Impairment Percentage is at least 50 percent, even if your maximum permitted Capital Impairment Percentage is higher.
(c) Upon receipt of your notification under paragraph (b) of this section, or upon making its own determination that your Capital Impairment Percentage is at least 50 percent, SBA has the right to require you to engage, at your expense, an independent third party, acceptable to SBA, to prepare valuations of some or all of your Loans and Investments, as designated by SBA.
(f) * * *
(2) * * *
(ii) Payments from Retained Earnings Available for Distribution based on either the shareholders' pro-rata interests or the provisions for profit distributions in your partnership agreement, as appropriate;
(iii) Distributions by Participating Securities issuers as permitted under §§ 107.1540 through 107.1580; and
(iv) Distributions by Early Stage SBICs as permitted under § 107.1180.
(11)
(12)
(j)
(1) To prohibit you from making any additional investments except for investments under legally binding commitments you entered into before such payment by SBA and, subject to SBA's prior written approval, investments that are necessary to protect your investments;
(2) Until all Leverage is repaid and amounts related thereto are paid in full, to prohibit Distributions by you to any party other than SBA, its agent or Trustee;
(3) To require all your commitments from investors to be funded at the earliest time(s) permitted in accordance with your Articles;
(4) To review and re-determine your approved Management Expenses; and
(5) To the appointment of SBA or its designee as your receiver under section 311(c) of the Act for the purpose of continuing your operations.
(d) * * *
(3) * * *
(iii) Except as provided for Early Stage SBICs in § 107.1845, such financing occurred within 24 months of the date of the Capital Impairment computation, or the Small Business's pre-tax cash flow from operations for its most recent fiscal year was at least 10 percent of the Small Business's average contributed capital for such fiscal year.
(4) Except as provided for Early Stage SBICs in § 107.1845, perform the appropriate computation from the following table:
This section applies to Early Stage SBICs only. Except as modified by this section, all provisions of § 107.1840 apply to an Early Stage SBIC.
(a) To determine your Class 2 Appreciation under § 107.1840(d)(3), use the following provisions instead of § 107.1840(d)(3)(iii):
(1) Such financing occurred within 24 months of the date of the Capital Impairment computation. At the end of the 24 month period following the financing, you may request SBA's written approval to retain the use of the original Class 2 Appreciation on the investment for up to 24 additional months.
(2) In considering your request, SBA may obtain its own valuation of the investment, require you to obtain a valuation performed by an independent third party acceptable to SBA, and may consider any other information that it deems relevant. To the extent that the valuation and any other relevant information conclusively support the original Class 2 appreciation, SBA may approve an extension to use all or part of the original Class 2 Appreciation for up to an additional 24 months (the “extension period”).
(3) At the end of any extension period, you may submit a new request to retain the use of the original Class 2 Appreciation, repeating the steps in paragraphs (a)(1) and (2) of this section.
(4) SBA may reconsider its approval to retain the use of the original Class 2 Appreciation at any time based on information that may affect the value of an investment.
(b) Any time you submit a request for SBA approval to retain the use of the original Class 2 Appreciation under paragraph (a) of this section, you may also request SBA's written approval to modify your computation of Adjusted Unrealized Gain under § 107.1840(d)(4) as provided in paragraph (c) of this section.
(c) If SBA determines that the appreciation on an investment, based on its current fair value, is at least two times the original Class 2 Appreciation on the investment, SBA may allow you, based on relevant information, to compute your Adjusted Unrealized Gain for the duration of the extension period as follows:
(1) Compute Adjusted Unrealized Gain in accordance with § 107.1840(d)(4).
(2) If your result in paragraph (c)(1) of this section was computed using the first line of the table in § 107.1840(d)(4):
(i) Calculate 50 percent of the original Class 2 Appreciation on the individual investment that is the subject of this paragraph (c), and
(ii) Add it to the result from paragraph (c)(1) of this section to determine your Adjusted Unrealized Gain.
(3) If your result in paragraph (c)(1) of this section was computed using the second line of the table in § 107.1840(d)(4):
(i) Calculate 50 percent of the original Class 2 Appreciation on the individual investment that is the subject of this paragraph (c).
(ii) Subtract your Class 1 Appreciation from your Net Appreciation, and multiply the result by 50 percent.
(iii) Add the lesser of (c)(3)(i) and (ii) of this section to the result from paragraph (c)(1) of this section to determine your Adjusted Unrealized Gain.
Bureau of Industry and Security, Commerce.
Final rule.
This rule amends the Export Administration Regulations (EAR) by adding sixteen persons under eighteen entries to the Entity List. The persons who are added to the Entity List have been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States. These persons will be listed on the Entity List under the countries of Afghanistan, Pakistan and the United Arab Emirates (U.A.E.).
The Entity List provides notice to the public that certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of license exceptions in such transactions is limited.
Karen Nies-Vogel, Chair, End-User Review Committee, Office of the Assistant Secretary, Export Administration, Bureau of Industry and Security, Department of Commerce, Phone: (202) 482–5991, Fax: (202) 482–3911, Email:
The Entity List (Supplement No. 4 to Part 744) provides notice to the public that certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require a license from BIS and that the availability of license exceptions in such transactions is limited. Entities are placed on the Entity List on the basis of certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.
The End-user Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.
This rule implements the decision of the ERC to add sixteen persons under eighteen entries to the Entity List on the basis of Section 744.11 (license requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The eighteen entries added to the Entity List consist of twelve entries in Afghanistan, three in Pakistan, and three in the U.A.E. Two of the eighteen entries cover multiple addresses, in different countries for two of the persons being added to the Entity List.
The ERC reviewed Section 744.11(b) (Criteria for revising the Entity List) in making the determination to add these persons to the Entity List. Under that paragraph, persons for which there is reasonable cause to believe, based on specific and articulable facts, that the persons have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List pursuant to Section 744.11. Paragraphs (b)(1)–(b)(5) of Section 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States. All sixteen persons are believed to have been involved in activities described under paragraphs (b)(1) and (b)(2) of Section 744.11. Specifically, the sixteen persons are being added to the Entity List on the basis of their provision of support to persons engaged against U.S. and Coalition forces in Afghanistan. All sixteen of the persons are involved in supply networks that provide components used to make improvised explosive devices (IEDs) used against U.S. and coalition troops in Afghanistan.
For the sixteen persons added to the Entity List under eighteen entries, the ERC specified a license requirement for all items subject to the EAR, and established a license application review policy of a presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to such persons or in which such persons act as purchaser,
This final rule adds the following sixteen persons under eighteen entries to the Entity List:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(1)
(2)
(3)
(1)
(2)
(3)
Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on April 27, 2012, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730–774) is amended as follows:
50 U.S.C. app. 2401
The additions read as follows:
Office of National Marine Sanctuaries (ONMS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Final rule; Public availability of final management plan and environmental assessment.
The National Oceanic and Atmospheric Administration (NOAA) is amending the regulations for Flower Garden Banks National Marine Sanctuary to improve vessel and user safety, protect sanctuary resources from user impacts, clarify discharge language, and make other technical changes and corrections.
Copies of the final management plan (FMP) and environmental assessment (EA) described in this rule and the Finding of No Significant Impact (FONSI) are available upon request to Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, Galveston, TX 77551. The FMP and EA can also be viewed on the Web and downloaded at
George Schmahl, Superintendent, Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, Galveston, TX 77551.
The National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431
NOAA designated Flower Garden Banks National Marine Sanctuary (FGBNMS or sanctuary) on December 5, 1991 (56 FR 63634). Congress subsequently passed a law recognizing the designation in January 1992 (Pub. L. 102–251, Title I, Sec. 101). At the time, the Sanctuary consisted of two areas known as East and West Flower Garden Banks (56 FR 63634). Congress later added Stetson Bank in 1996 (Pub. L. 104–283).
These three areas are located in the northwestern Gulf of Mexico and are described as underwater hills formed by rising domes of ancient salt. The sanctuary ranges in depth from 55 feet to nearly 500 feet, providing conditions that support several distinct habitats, including the northern-most coral reefs in the continental United States. These and similar formations throughout the northern Gulf of Mexico provide the foundation for essential habitat for a variety of species. The combination of location and geology makes the sanctuary an extremely productive and diverse ecosystem, but it also presents a unique set of challenges for managing and protecting its natural wonders.
The FGBNMS regulations implementing the sanctuary were first published on December 5, 1991 (56 FR 63634). Those regulations became effective on January 18, 1994 (58 FR 65664). Among other things, the regulations set forth the sanctuary boundaries, prohibit a relatively narrow range of activities, and establish permit and certification procedures. The regulations were revised in December 2000 to add Stetson Bank to the boundary pursuant to Public Law 104–283 (65 FR 81176). NOAA amended the FGBNMS regulations again in 2001 (66 FR 58370) to conform to the regulations adopted by the International Maritime Organization and prohibit all anchoring in the sanctuary and restrict mooring to vessels 100 feet (30.48 meters) or shorter.
The ONMS is required by NMSA Section 304(e) to periodically review sanctuary management plans to ensure that sanctuary management continues to best conserve, protect, and enhance the sanctuaries' nationally significant living and cultural resources. Management plans generally outline regulatory goals, describe boundaries, identify staffing and budget needs, and set priorities and performance measures for resource protection, research, and education programs. The plans also guide the development of future management activities.
The FGBNMS management plan review process began in the fall of 2006 with the release of the
NOAA is now amending the FGBNMS regulations to reflect these new strategies. The changes address: Potential conflicts between vessels and divers; protection of rays and whale sharks; and discharges and deposits. The changes also eliminate outdated references to paragraphs that no longer exist, update cross references to other paragraphs, and establish definitions for various new terms adopted in this rulemaking.
This rulemaking:
1. Requires any vessel moored in the sanctuary to exhibit the blue and white International Code flag “A” (“alpha” dive flag) or red and white “sports diver” flag whenever a SCUBA diver from that vessel is in the water and
2. Clarifies and updates the prohibition on discharges or deposits of any material or other matter;
3. Prohibits killing, injuring, attracting, touching, or disturbing a ray or whale shark; and
4. Makes technical corrections.
NOAA is requiring any vessel engaged in diving activity within the FGBNMS to clearly exhibit the blue and white International Code flag “A” (“alpha” dive flag) or the red and white “sports diver” flag whenever a SCUBA diver from that vessel is in the water and remove the “alpha” dive flag or “sports diver” flag after all SCUBA divers exit the water and return on board the vessel. This is consistent with U.S. Coast Guard guidelines relating to sports diving as contained within “Special Notice to Mariners” (00–208) for the Gulf of Mexico. Specifically, the U.S. Coast Guard (USCG) requires any vessel in federal waters engaged in diving operations to use an “alpha” dive flag, when that vessel is of a size that makes it impracticable to exhibit all lights and shapes prescribed in USCG regulations (33 CFR 83.27). However, the U.S. Coast Guard makes the distinction between diving operations where divers are attached to the vessel (i.e. surface supplied diving) vs. “free swimming” divers (i.e. SCUBA).
In a “Special Notice to Mariners” (00–2008) for the Gulf of Mexico (“Special Notice to Mariners”), issued in 2009 (available online at:
NOAA acknowledges that Federal law and policy strongly favor uniform rules wherever it is deemed practical and appropriate. Because the entire sanctuary is within federal waters, NOAA proposes to make the regulations consistent with USCG dive flag requirements.
NOAA is updating and amending the prohibition on discharges or deposits (hereafter referred collectively as “discharges”) in the FGBNMS regulations by: (1) Clarifying that the prohibition applies to discharges into the sanctuary as well as from within the sanctuary boundaries; (2) modifying the exception for the discharge of fish parts; (3) revising the exception for effluent from marine sanitation devices (MSDs); (4) requiring that MSDs be locked; (5) eliminating the word “biodegradable” and replacing that term with a more clear standard; and (6) clarifying the scope of the exception for discharges associated with “routine vessel operation.”
1. Clarification of a “direct discharge.” Since the sanctuary was designated in 1992, NOAA has prohibited discharges or deposits of material or other matter. In doing so, NOAA's regulations have differentiated between discharges that originate from within the boundaries of the sanctuary (hereafter referred to as “direct discharges”) and those that originate from beyond the sanctuary boundaries, enter the sanctuary, and injure sanctuary resources. The primary difference between these two classes is that proof of injury is required with respect to the latter class for there to be a violation whereas no such proof is required for a violation arising from a direct discharge.
To clarify the intended application of the direct discharge prohibition and to ensure consistency among the regulations for other sanctuaries, this rule clarifies that the prohibition on discharging or depositing any material or other matter applies to discharges or deposits from within “or into” the sanctuary.
By adding the words “or into”, NOAA is clarifying that the prohibition does not only apply to discharges originating in the waters of the sanctuary, the prohibition also applies, for example, to immediate discharges and deposits into the sanctuary from aircraft, when waste is thrown into the sanctuary from a vessel, or from other similar activities.
This regulatory change will not have an effect on the existing oil and gas activities in the vicinity of the sanctuary. For example, the two existing platforms closest to the sanctuary are: (a) High Island 384, located 0.26 miles (1373 feet) from the boundary of West Flower Bank; and (b) High Island 376, located 0.22 miles (1162 feet) from East Flower Garden Bank. Because of the distance between those platforms and the sanctuary boundaries, NOAA does not foresee that either platform would be impacted by the new rule because NOAA does not envision conditions that would enable a discharge from these platforms to be considered a direct discharge under sanctuary regulations and consequently violate 15 CFR 922.122(a)(3)(i).
The purpose of the regulation is not to create new restrictions on otherwise lawful activities occurring beyond, but adjacent to, the sanctuary boundaries. Rather, NOAA's goal is to ensure consistency among the regulations of other sanctuaries and clarify the discharge and deposit regulations. Discharges or deposits originating from beyond the sanctuary would still remain subject to the regulations at § 922.122(a)(3)(ii), which requires proof of entry into the sanctuary and injury to sanctuary resources to constitute a violation.
In the event NOAA decides to pursue sanctuary expansion (as described in the final management plan for the sanctuary, published concurrently with this rulemaking), NOAA will consider the need to revise this regulation and consult with stakeholders, including the oil and gas industry, to ensure adjacent activities are not unnecessarily affected.
2. Exception for discharges of fish parts. The rule also clarifies that the exception to the prohibition on discharges or deposits (hereafter referred collectively as “discharges”) for fish, fish parts, or chumming materials (bait) applies only to discharges made during the conduct of fishing with conventional hook and line gear within the sanctuary. This rule prevents the dumping of fish, fish parts, or chumming materials at all other times except for during fishing with conventional hook and line gear within the sanctuary.
3. Exception for MSD effluent. This rule clarifies that the exception for discharge or deposit of vessel waste generated by a federally approved marine sanitation device was not intended to allow the discharge of untreated sewage (e.g., discharges from Type III MSDs) into the sanctuary. Type
4. Locking MSDs. In addition, NOAA is requiring all MSDs be locked in a manner that prevents discharge or deposit of untreated sewage. The requirement that MSDs be locked (e.g., locking closed an overboard discharge valve) helps prevent both intentional and unintentional overboard discharges of untreated sewage within the sanctuary.
5. Standard for excepted discharges or deposits. The revised regulations would only allow a vessel to discharge clean effluent from a Type I or Type II MSD. The use of the word “clean” would replace the use of the word “biodegradable” in the regulations. Under the revised regulations, “clean” means not containing detectable levels of harmful matter; and “harmful matter” means any substance, or combination of substances, that because of quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed at 40 CFR 302.4 (§ 922.131) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C 9601(14)).
NOAA decided to remove the term “biodegradable” from the regulations because NOAA has determined that the term has no recognized legal definition, and products are labeled “biodegradable” without reference to a fixed set of standards. NOAA could define the term; however, it would not be reasonable to expect a vessel operator to know which of the wide spectrum of products labeled as “biodegradable” meet NOAA's definition. Defining the terms “clean” and “harmful matter” provide vessel operators with a definition of what is prohibited, and focuses on the types of contaminants that pose the greatest threat to water quality within the sanctuary.
6. Scope of discharges or deposits from routine vessel operations. NOAA is replacing the exception for “water generated from routine vessel operations” with an exception for clean deck wash down, clean cooling water, and clean bilge water provided they are free of detectable levels of “harmful matter” as defined by the regulations. This facilitates compliance by clearly identifying what types of discharges from routine vessel operations are allowed, and focusing on those contaminants that pose the greatest threat to water quality. The requirement also makes the regulations consistent with recent requirements governing other national marine sanctuaries.
Approximately 20 species of sharks and rays have been documented at the Flower Garden and Stetson Banks; some are seasonal, and others frequent the sanctuary year-round. During the winter months, spotted eagle rays (
Whale sharks and rays are transient creatures and migrate between areas for feeding and mating. The sanctuary is a place where rays and whale sharks should be protected from human-induced death, injury, or other harm. Humans can physically harm rays and whale sharks by attracting, touching, riding, or pursuing these animals. Their external sensory systems are affected by unnatural activation, which has unknown consequences on their ability to sense their environment. These animals may actively avoid diver interaction by changing direction or diving, and may exhibit violent shuddering. When these responses occur, rays and whale sharks expend energy in ways other than feeding and other natural activities, which can adversely affect their overall health. In addition, people can injure the skin of these animals through touching, and can expose the animals to other potential injuries. Finally, attracting rays and whale sharks changes their behavior and may negatively impact their health. As an example of how rays have been affected by divers, stingrays in the Cayman Islands have developed shoaling behavior and altered feeding habits, as well as exhibit skin abrasions from handling. Scientific citations regarding the concerns and examples here can be found in the references section of the environmental assessment (see
Rays and whale sharks are not listed under the Endangered Species Act (ESA). These species are also not designated as depleted under the Marine Mammal Protection Act (MMPA) because they are not mammals. Therefore, they are not protected in the same manner as threatened or endangered species protected under the ESA or depleted marine mammals protected under the MMPA. With this final rule, NOAA is strengthening the protection of rays and whale sharks from harm (or likelihood thereof) in the sanctuary by prohibiting killing, injuring, attracting, touching, or disturbing these animals. The intent is to prevent intentional human interaction with rays and whale sharks in such a manner that the animals change direction, dive away from human interaction, shudder, or have any other adverse behavioral or physical reaction. An exception to this new prohibition is made for incidental by-catch of a ray or whale shark when using conventional hook-and-line fishing gear. In order to make this new prohibition as clear as possible, NOAA is adding definitions for the terms “attract or attracting” and “disturb or disturbing a ray or whale shark” in § 922.121.
NOAA is making a technical correction to eliminate the references in the regulations to § 922.122(a)(4), because that clause no longer exists. This subparagraph references a specific prohibition on vessel anchoring activities that was eliminated from the FGBNMS regulations in 2001 (66 FR 58370).
NOAA also is updating cross references in § 922.122(c) through (g) and updating cross references in § 922.123(a) and (c) that may change as a result of the re-designation of paragraphs associated with this rule.
Last, NOAA is amending the regulations to update the sanctuary office address in § 922.123(b). The sanctuary office moved from Bryan, TX to Galveston, TX in 2006, and the regulations were not amended immediately following the move.
The Administrative Procedure Act (APA) notice-and-comment process (5 U.S.C. 553) contemplates that changes may be made to the proposed rule without triggering an additional round
A. NOAA is amending the “alpha” dive flag requirement (proposed as § 922.122(a)(2)(iii)). The proposed rule published in October 2010 only required the use of the “alpha” flag (75 FR 65256). In this final rule, NOAA is requiring any vessel engaged in diving activity within the FGBNMS to clearly exhibit the blue and white International Code flag “A” (“alpha” dive flag) or the red and white “sports diver” flag whenever a SCUBA diver from that vessel is in the water and remove the “alpha” dive flag or “sports diver” flag once all SCUBA divers exit the water and return on board the vessel. This is consistent with U.S. Coast Guard guidelines relating to sports diving as contained within “Special Notice to Mariners” (00–208) for the Gulf of Mexico. NOAA is making this change in the final rule to ensure consistency with the U.S. Coast Guard regulations and the Special Notice to Mariners (available online at:
B. NOAA is amending the definition for “disturb or disturbing a ray or whale shark”. NOAA received many public comments requesting a change to the definition proposed in the Notice of Proposed Rulemaking published in 75 FR 65256. The public was mainly concerned that under the definition (as originally proposed) a violation could arise if the animal initiated interaction or if the animal exhibited some natural behavioral traits (like shuddering) without provocation. That was not NOAA's intent. Therefore, in response to these comments, the final rule clarifies that behavioral responses by the animal produced by passive interaction with a human does not constitute a violation of the regulations. NOAA is only concerned with active human conduct that disturbs a ray or whale shark, through (but not limited to) touching, handling, riding, pursuing, chasing, hunting, or restraining the animal.
C. NOAA is creating a new exception for the prohibition on killing, injuring, attracting, touching or disturbing a ray or whale shark. Public comments received by NOAA indicate that some small rays such as sting rays can sometimes be caught as by-catch by lawful hook-and-line fishing. NOAA's intention with this new regulation was not to impose restrictions on users of conventional hook and line gear, as the species of rays and whale sharks NOAA is concerned about protecting would not be likely by-catch of hook and line recreational fishing. By adding an exception for the use of conventional hook and line gear, NOAA clarifies that the prohibition on killing, injuring, attracting, touching or disturbing rays and whale sharks does not apply to incidental by-catch during lawful fishing in the sanctuary.
D. NOAA is amending the regulations to update the sanctuary office address in § 922.123(b). The sanctuary office moved from Bryan, TX to Galveston, TX in 2006, and the regulations were not amended immediately following the move. NOAA finds good cause to change the address because the public must be able to contact the office for permit applications and other reasons, and the modification is exempt from normal notice and comment procedures since it is a minor technical change affecting current agency organization or practice.
E. NOAA is amending § 922.122(a)(4) to clarify that the only exception to the prohibition on drilling into, dredging or otherwise altering the seabed is for activities conducted in areas of the sanctuary outside the no-activity zones and incidental to exploration for, development of, or production of oil or gas in those areas (§ 922.122(c)). The original regulatory language provided a broad exception for anchoring; however, this was rendered obsolete with the promulgation of the anchoring prohibition in 2001 (66 FR 58370). Since the only anchoring currently allowed in FGBNMS pertains to § 922.122(c), NOAA finds good cause to clarify the regulations. NOAA views this as a technical change and logical outgrowth of the 2001 rulemaking. This change does not alter the intent of the regulations, nor is it expected to substantially impact any users of the sanctuary since the existing anchoring prohibition in FGBNMS has been in effect for more than a decade; therefore, no changes were made to the environmental assessment associated with this rulemaking and additional notice and comment is not required under the APA.
For ease of reference and understanding, NOAA is reprinting section 922.122 as it would read in its entirety as amended, and section 922.123(a) through (c), rather than printing individual, editorial instructions to the
The National Oceanic and Atmospheric Administration (NOAA) conducted two public hearings to gather input on the FGBNMS draft management plan (DMP)/programmatic environmental assessment (PEA) and proposed rule during the public comment period from October 22, 2010 to January 20, 2011. All written and verbal comments received during the public comment period were compiled and grouped into eight categories. Similar comments from multiple submissions have been treated as one comment for purposes of response. NOAA considered all comments (including editorial comments on the DMP/PEA) and, where appropriate, made changes that are reflected in this final rule, the final management plan (FMP), and the programmatic environmental assessment (EA). Substantive comments received are summarized below, followed by NOAA's response.
The National Marine Sanctuaries Act (NMSA) authorizes the Secretary of Commerce to designate and protect areas of the marine environment with special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities as national marine sanctuaries. It is this concept of special places that persuades us to protect and enhance certain marine areas, even before impacts occur or without immediate
The sanctuary expansion action plan does not make any determination regarding the various options for expanding the sanctuary or regulations within expansion areas. The action plan only lays out the framework for conducting a thorough environmental review required by NEPA and NMSA. Alteration to the boundaries of FGBNMS (or expanding the sanctuary) would necessitate a change to the FGBNMS terms of designation, regulations, and coordinates. Should NOAA decide to pursue boundary expansion, NOAA would prepare a draft environmental impact statement (DEIS) and conduct extensive public review.
Other means of protecting additional reefs and banks in the Gulf of Mexico include, for example, No Activity Zones managed by the Bureau of Ocean Energy Management (BOEM) or Habitat Areas of Particular Concern managed by NOAA's National Marine Fisheries Service. These kinds of conservation measures have specific purposes and are not designed to address the need to protect an ecosystem from a holistic perspective.
This final rule does not expand any area of the Sanctuary. NOAA has yet to determine potential areas to be added to the sanctuary or what regulations are needed in possible new expansion areas. The management plan states that new areas would be subject to the regulations of the current sanctuary, which generally allow fishing and diving; however, site specific regulations may be appropriate. The current FGBNMS management plan would apply or a new management plan would be written and applied to any new areas. Should NOAA decide to pursue boundary expansion, NOAA would prepare a DEIS and conduct extensive public review.
Activity 1.1 of the sanctuary expansion action plan in the final management plan states that NOAA will develop a DEIS to evaluate alternatives for incorporating additional reefs and banks in the northwestern Gulf of Mexico into FGBNMS. The DEIS will discuss the consequences of sanctuary expansion on the human environment or the socioeconomic resources of the region. The socioeconomic impact analysis will focus on the industries/user groups that depend on the resources of the current FGBNMS and the banks currently being evaluated for inclusion in FGBNMS through sanctuary expansion.
NOAA agrees that mooring buoys are a useful tool to promote sanctuary use that is compatible with resource protection. Activity 3.1 of the visitor use action plan in the final management plan proposes to create a mooring buoy plan that will evaluate the need for additional buoys, both in the existing sanctuary and in the event any new areas are considered in a sanctuary expansion process. The sanctuary expansion action plan does not make any determination regarding the various options for expanding the sanctuary or regulations within expansion areas. The action plan only lays out the framework for conducting a thorough environmental review required by NEPA and NMSA. Alteration to the boundaries of FGBNMS (or expanding the sanctuary) would necessitate a change to the FGBNMS terms of designation, regulations, and coordinates. Should NOAA decide to pursue boundary expansion, NOAA will prepare a draft environmental impact statement (DEIS) and conduct extensive public review. NOAA has yet to determine the areas to be potentially added to the sanctuary or what regulations are needed in possible new expansion areas. The management plan states that as an extension of the current sanctuary, it is assumed that if any areas are considered for future addition those new areas will be subject to the regulations of the current sanctuary; however, site specific regulations may be appropriate. The current FGBNMS management plan would apply or a new management plan would be written and applied to any new areas. Should NOAA decide to pursue boundary expansion, NOAA would prepare a DEIS and conduct extensive public review.
The criteria for evaluation of potential new sites were based on the primary NMSA mandate of resource protection. The benefits of a comprehensive management approach offered by sanctuary designation could outweigh any risk that might exist from increased visibility and activity by fishers and divers. Should NOAA decide to pursue boundary expansion, NOAA will prepare a DEIS that would include an analysis of the potential impacts of increased visibility and visitation.
Research results and information provided on both the FGBNMS Web site and the National Coastal Data Development Center (NCDDC) Web site are in the public domain and intended for use by sanctuary users and constituents. One of the purposes and policies of the NMSA is to enhance public awareness, understanding, appreciation, and wise and sustainable use of the marine environment, and the natural, historical, cultural, and archeological resources of the National Marine Sanctuary System. NOAA's goal is to make people aware of their impacts and give them the knowledge and skills to become good stewards of the sanctuary and the regional marine environment.
NOAA is not proposing to change regulations associated with spearfishing, or any other type of fishing, at this time. If the boundary of FGBNMS is expanded, however, any regulations related to fishing, including spearfishing, would be evaluated through a public process for each new area under consideration.
Spearfishing has been prohibited in FGBNMS since its designation in 1992. The prohibition was due primarily to concerns raised by studies that demonstrated that spearfishing could be detrimental to fisheries resources through the selective removal of large predator species. Research conducted since sanctuary designation supports this concern and reinforces the rationale for a spearfishing prohibition. A summary of this research is available on the sanctuary Web site (
Sanctuary regulations prohibit the possession of any type of fishing equipment (including spearguns), except for conventional hook and line gear, unless passing through without interruption. The reason for this restriction is related to the ability to reasonably enforce the regulation. It is difficult to enforce a spearfishing prohibition if the possession of spearfishing equipment is allowed in the sanctuary. If only the use of such equipment is prohibited, it would require that direct observation of spearfishing activity be made by a law enforcement entity. In a remote location such as FGBNMS, where the activity would occur 70–100 feet below the surface, enforcement by observation only would be nearly impossible. The existing regulation has been in effect since designation 20 years ago, and it has not resulted in undue restriction on visitor use and activity. Therefore, the regulation will remain as written. If expansion is considered in future analysis, when regulations are considered for any potential new areas to be added to the sanctuary, the use and possession of spearguns would be evaluated on an individual area basis.
National marine sanctuaries are managed by NOAA to protect and conserve their resources, and to allow uses that are compatible with resource protection. Current FGBNMS regulations limit fishing within the sanctuary to conventional hook and line gear. Fishing by use of any other gear, including spear guns, is prohibited.
During the scoping process for the revised management plan and in response to the DMP, many commenters asked NOAA to consider closing all or portions of the FGBNMS to fishing. Although fishing pressure is perceived to be moderate, the impact on local fish populations is not well known at this time. The spatial resolution of fishing data is currently not precise enough to quantitatively assess fishing pressure within the sanctuary. The research and monitoring action plan and the visitor use action plan in the final management plan lay out strategies to obtain information that would allow NOAA to evaluate compatible uses of the sanctuary. In addition, Activity 2.3 of the resource protection action plan addresses the need for additional measures to protect resources from impacts associated with inappropriate fishing gear.
At this time, NOAA is not proposing any regulations that would further restrict fishing activity.
It is well documented that most fishery stocks for which there are stock assessments in the northern Gulf of Mexico have undergone or are still undergoing overfishing. Many species, such as snapper, some species of grouper, amberjack and others have declined significantly in the Gulf of Mexico since records have been kept. Although there are recent data to suggest that some species (such as red snapper) have shown limited recovery in population size, they are still much lower than historical levels. It is logical to assume that fish populations within FGBNMS have also been similarly affected by the general decline of fish stocks throughout the Gulf of Mexico. However, the data that do exist, such as fish landing survey information, have not been collected at a scale to adequately evaluate impacts on an area the size of the sanctuary. Therefore, NOAA believes that the fishing and diving impact studies would provide valuable information for the management of the sanctuary.
ONMS embraces and welcomes diving at FGBNMS. The management strategies are not intended to discourage recreational diving within the sanctuary. Rather, NOAA is protecting the resource while enhancing visitor safety. Traditionally, recreational divers have been among the strongest supporters of the sanctuary—from leading the effort for sanctuary designation, to serving as naturalists onboard charter boats, to reporting observations when visiting the sanctuary. NOAA intends that the changes in sanctuary management will not diminish the recreational diver's experience. By working together with sanctuary users, especially recreational divers, NOAA can more effectively meet its goals and protect sanctuary resources.
The Blue Star program was established by Florida Keys National Marine Sanctuary management to recognize charter boat operators who promote responsible, sustainable, and educational diving and snorkeling practices. An activity to examine the implementation of the Blue Star program for FGBNMS was added to the Education and Outreach Action Plan (activity 3.3).
There are a variety of ray species that utilize the habitats within FGBNMS. In addition to the giant manta, there are other pelagic (free swimming) ray species commonly observed, including at least two species of
NOAA agrees. The definition has been revised to address this concern and additional information has been added to the preamble.
The purpose of the reference to the Cayman Island study on stingrays was to provide an example of an area that is experiencing visitor use that may be having potentially detrimental impacts on a species of ray. It is not anticipated
NOAA has supplemented the programmatic environmental assessment with additional information and references on the impacts of divers on rays and whale sharks.
NOAA agrees. The regulation has been revised to address this concern and make it consistent with USCG navigation rules.
Although NOAA agrees that a vessel registration system would provide information on visitor use dynamics, establishing a visitation permitting system would be difficult. NOAA plans to evaluate the effectiveness of the voluntary registration system before considering a mandatory visitation permitting system. NOAA is gathering more information about sanctuary use and has asked visitors to use the voluntary trip report form available on the FGBNMS Web site. Activities 1.1 and 1.2 of the visitor use action plan describe the need for and benefits of voluntary vessel registration and a visitor use monitoring program.
NOAA agrees. Currently, enforcement of sanctuary regulations is done with support from the U.S. Coast Guard and NOAA's Office of Law Enforcement. NOAA plans to increase collaboration with those entities as well as the Texas and Louisiana state law enforcement agencies. Enforcement at the sanctuary is logistically difficult due to the distance from shore. NOAA recognizes that partnering with industry to place monitoring or surveillance equipment on the production platform that lies within current sanctuary boundaries could greatly enhance enforcement capabilities. Therefore, NOAA has added an activity to the resource protection action plan in the final management plan to consider this more thoroughly.
NOAA is not prepared to prohibit all discharges within the sanctuary at this time. Given the distance from shore, water depth, number and type of vessels currently operating in the area, and current scientific knowledge, NOAA feels that allowing clean discharges will provide adequate protection for sanctuary resources while still allowing compatible uses.
By adding the words “or into”, NOAA is clarifying that the prohibition does not only apply to discharges originating in the sanctuary, the prohibition also applies, for example, to immediate discharges and deposits into the sanctuary from aircraft, when waste is thrown into the sanctuary from a vessel, or from other similar activities.
This regulatory change will not have an effect on the existing oil and gas activities in the vicinity of the sanctuary. For example, the two existing platforms closest to the sanctuary are: (a) High Island 384, located 0.26 miles (1373 feet) from the boundary of West Flower Bank; and (b) High Island 376, located 0.22 miles (1162 feet) from East Flower Garden Bank. Because of the distance between those platforms and the sanctuary boundaries, NOAA does not foresee that either platform would be impacted by the new rule because NOAA does not envision conditions that would enable a discharge from these platforms to be considered a direct discharge under sanctuary regulations and consequently violate 15 CFR 922.122(a)(3)(i).
The purpose of the regulation is not to create new restrictions on otherwise lawful activities occurring beyond, but adjacent to, the sanctuary boundaries. Rather, NOAA's goal is to ensure consistency among the regulations of other sanctuaries. Discharges or deposits originating from beyond the sanctuary would still remain subject to the regulations at § 922.122(a)(3)(ii), which requires proof of entry into the sanctuary and injury to sanctuary resources to constitute a violation.
NOAA agrees and recognizes the need for increased volunteer involvement. The strategy to increase public support and stewardship of the sanctuary in the final management plan (EO.3, activity 3.2) includes an activity to enhance the FGBNMS volunteer program. The planned addition of a volunteer coordinator (OA.1, activity 1.1), subject to budget allocations, would enable NOAA to fully develop the FGBNMS volunteer program.
Due to limited budget for outreach, NOAA is currently focusing the majority of its sanctuary outreach efforts in the Galveston area in order to develop a strong local constituency in the region closest to the sanctuary. Nonetheless, NOAA agrees that outreach efforts should not be limited only to the Galveston area, and welcomes opportunities to work with partners throughout the region. For example, NOAA already has sanctuary outreach programs in the form of exhibits in the Audubon Aquarium of the Americas in New Orleans, LA, the Texas State Aquarium in Corpus Christi, TX and the Tennessee Aquarium in Chattanooga, TN. NOAA has also begun to develop avenues for communicating with fishermen and divers in Louisiana. In the event that the sanctuary is expanded to include banks off of Louisiana, education and outreach programs to reach that region would be developed at that time. The sanctuary expansion action plan does not make any determination regarding the various options for expanding the sanctuary or regulations within expansion areas. The action plan only lays out the framework for conducting a thorough environmental review required by NEPA and NMSA.
NOAA education and outreach presentations, programs, and products routinely include information about human impacts on marine habitats. NOAA also recognizes the value and importance of educating people about a variety of marine management techniques, including marine reserves. For example, NOAA produces lesson plans and activities on topics such as watersheds and marine debris. In addition, information about human impacts is incorporated throughout the FGBNMS Web site.
The FGBNMS is located within one of the most heavily developed offshore oil and gas exploration areas in the world. The potential for impact to the marine environment of the Flower Garden Banks from an oil-related incident has been considered since before the area became a national marine sanctuary. Beginning in the 1970s, the Minerals Management Service (now reorganized into the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE)), identified the Flower Garden Banks and many other reefs and banks of the northwestern Gulf of Mexico as areas that warranted special protection. They developed a set of requirements, called stipulations, to help minimize the threat of impact from offshore oil and gas activities (Reference: Notice to Lessees, NTL No. 2009–G39, “Biologically-Sensitive Underwater Features and Areas”, Effective Date: January 27, 2010). The earliest such stipulations were published in the Final Environmental Impact Statement for the Gulf of Mexico Outer Continental Shelf (OCS) lease sale 34 in May 1974. Since the time that these, and other stipulations, have been in place, they have shown to be very effective in protecting the sanctuary from routine operations associated with offshore oil and gas exploration and development.
Planning for an appropriate response to an oil spill or other hazardous material release in the vicinity of the Flower Garden Banks is of the highest priority for the sanctuary. The Oil Pollution Act of 1990 requires the U.S. Coast Guard to develop an Area Contingency Plan (ACP) for each region of coastal waters. NOAA continues to coordinate with the USCG on updating and refining the ACP for Texas and Louisiana offshore waters. In addition, NOAA will assist the USCG in the development of a specific sub-area contingency plan for oil spill response for the Flower Garden Banks National Marine Sanctuary area, as described in Activity 2.4 of the Resource Protection Action Plan.
Prior to the Deepwater Horizon event in April 2010, which occurred slightly east of the northwestern Gulf of Mexico, there had not been a significant hydrocarbon spill or other incident in the region since the designation of FGBNMS. However, a similar incident could potentially occur in an area that would threaten the health of sanctuary resources. For that reason, NOAA is working closely with BOEM and EPA in reviewing, and revising, if necessary, environmental policies related to offshore oil and gas leasing and development to ensure the highest level of protection of sensitive biological communities.
Given these existing various mechanisms geared toward protecting the FGBNMS from the disastrous effects of a potential oil spill, NOAA did not include a specific action plan on this topic in the revised management plan. Rather, staff effort will focus on continuing to coordinate with other agencies. Similarly, NOAA did not revise the sanctuary regulations. NOAA believes the current regulations in place addressing disturbance of the seafloor and discharges in the sanctuary are adequate at this time.
NOAA recognizes that climate change is a potential threat to sanctuary resources. In 2010, NOAA finalized a Climate Strategy for national marine sanctuaries and implemented a “Climate-Smart Sanctuaries” Initiative. Language has been added to the operation and administration and education and outreach action plans to incorporate various aspects of this initiative. In addition, NOAA will develop a climate change site scenario and climate change action plan for FGBNMS and plans to pursue Climate-Smart Sanctuary Certification as detailed in activity 2.6 of the resource protection action plan in the final management plan.
There are no artificial reefs in FGBNMS. If presented with opportunities to make recommendations during decommissioning processes for platforms within sanctuary boundaries, NOAA would examine the options on a case-by-case basis.
Lionfish have been observed in sanctuary waters since July 2011. As stated in Activity 5.2 of the research and monitoring action plan in the final management plan, NOAA is currently developing research priorities and a response plan to study and manage the impacts of invasive species, including lionfish, on sanctuary resources.
At this time, NOAA's policy is to remove any lionfish encountered in sanctuary boundaries using prescribed protocols. Permits for the removal of lionfish have been issued to some dive masters of recreational dive charters that frequent the sanctuary to assist in this effort. The diving public is also encouraged to help monitor the situation by reporting any lionfish sightings, including date, time, location, size of the lionfish, and any other information about the habitat or the behavior of the fish to sanctuary staff.
The budget estimates given in the draft management plan are those necessary to support all of the activities identified within the various action plans. While the plan was developed with realistic expectations, NOAA recognizes that not all of the activities can or will be carried out due to budgetary restrictions or other factors. Therefore, NOAA agrees with the suggestion that activities should be prioritized in the plan, and this has been added to the document. However, over the years, NOAA has taken a number of steps to increase resources available for sanctuaries. These have included pursuing outside funding sources for critical operations such as grants, partner cost-sharing, donations, and special use permit fees. NOAA has also been successful in leveraging partner capabilities and in-kind support. For example, the U.S. Coast Guard has provided aerial overflights for surveillance and enforcement at FGBNMS.
During the preliminary evaluation of possible sanctuary expansion alternatives by the Sanctuary Advisory Council, budgetary factors were taken into consideration. For example, the areas presented for potential expansion
The effective operation of the
NOAA has prepared a final programmatic environmental assessment to analyze the potential environmental impacts of this rulemaking. The programmatic environmental assessment analyzes the administrative and programmatic activities associated with the No Action Alternative and the Preferred Alternative to revise the FGBNMS management plan and take regulatory actions. Administrative activities conducted within existing facilities, such as consultations, outreach, administrative frameworks, development of plans, and data analysis will have little to no potential to significantly affect the quality of the human environment according to NEPA standards. Activities to manage the sanctuary as outlined in the final management plan, considered together with the many natural and human-induced stressors to sanctuary resources, generally result in a cumulative beneficial impact to these resources. However, as with the administrative activities, the positive impacts do not meet the NEPA threshold for significance. This is because at a programmatic level, no single activity, when taken in consideration with others, will have significant beneficial or negative impacts on any individual or combined resource.
To the extent that future activities considered under any of the action plans (which range from infrastructure construction, management measures to implement sanctuary expansion, or establishment of an experimental closure to evaluate the impacts of diving and fishing) are conducted in the human environment, a NEPA review to analyze the impacts of alternatives would be conducted.
The programmatic environmental assessment on the final management plan and revised regulations for FGBNMS results in a Finding of No Significant Impact (FONSI). Accordingly, no environmental impact statement was prepared. Copies of the environmental assessment and FONSI are available at the address and Web site listed in the
Under Executive Order 12866, if the proposed regulations are “significant” as defined in section 3(f) of the Order, an assessment of the potential costs and benefits of the regulatory action must be prepared and submitted to the Office of Management and Budget. This rule has been determined to be not significant within the meaning of Executive Order 12866.
All of the actions occur in the Exclusive Economic Zone beyond state jurisdiction. NOAA has concluded this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.
This rule does not contain any new information or revisions to the existing information collection requirement that was previously approved for this rule by OMB (OMB Control Number 0648–0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601
All references that NOAA used as a basis for this rule can be made available to the public upon request as specified in the
Administrative practice and procedure, Coastal zone, Fish, Fisheries, Historic preservation, Intergovernmental relations, Marine resources, Monuments and memorials, Natural resources, Wildlife, Wildlife refuges, Wildlife management areas.
For the reasons discussed in the preamble, part 922, title 15 of the Code of Federal Regulations is amended as follows:
16 U.S.C. 1431
As used in this subpart:
(a) Except as specified in paragraphs (c) through (h) of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1) Exploring for, developing, or producing oil, gas, or minerals except outside of all no-activity zones and provided all drilling cuttings and drilling fluids are shunted to the seabed through a downpipe that terminates an appropriate distance, but no more than ten meters, from the seabed.
(2) (i) Anchoring any vessel within the Sanctuary.
(ii) Mooring any vessel within the Sanctuary, except that vessels 100 feet (30.48 meters) or less in registered length may moor to a Sanctuary mooring buoy.
(iii) Mooring a vessel in the Sanctuary without clearly displaying the blue and white International Code flag “A” (“alpha” dive flag) or the red and white “sports diver” flag whenever a SCUBA diver from that vessel is in the water and removing the “alpha” dive flag or “sports diver” flag after all SCUBA divers exit the water and return back on board the vessel, consistent with U.S. Coast Guard guidelines relating to sports diving as contained within “Special Notice to Mariners” (00–208) for the Gulf of Mexico.
(3)(i) Discharging or depositing from within or into the Sanctuary any material or other matter except:
(A) Fish, fish parts, chumming materials, or bait used in or resulting from fishing with conventional hook and line gear in the Sanctuary, provided that such discharge or deposit occurs during the conduct of such fishing within the Sanctuary;
(B) Clean effluent generated incidental to vessel use by an operable Type I or Type II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock marine sanitation devices in a manner that prevents discharge or deposit of untreated sewage;
(C) Clean vessel deck wash down, clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, or anchor wash;
(D) Engine exhaust;
(E) In areas of the Sanctuary outside the no-activity zones, drilling cuttings and drilling fluids necessarily discharged incidental to the exploration for, development of, or production of oil or gas in those areas and in accordance with the shunting requirements of paragraph (a)(1) of this section unless such discharge injures a Sanctuary resource or quality.
(ii) Discharging or depositing, from beyond the boundaries of the Sanctuary, any material or other matter, except those listed in paragraphs (a)(3)(i)(A) through (D) of this section, that subsequently enters the Sanctuary and injures a Sanctuary resource or quality.
(4) Drilling into, dredging, or otherwise altering the seabed of the Sanctuary (except as allowed under paragraph (c) of this section); or constructing, placing, or abandoning any structure, material, or other matter on the seabed of the Sanctuary.
(5) Injuring or removing, or attempting to injure or remove, any coral or other bottom formation, coralline algae or other plant, marine invertebrate, brine-seep biota, or carbonate rock within the Sanctuary.
(6) Taking any marine mammal or turtle within the Sanctuary, except as permitted by regulations, as amended, promulgated under the Marine Mammal Protection Act, as amended, 16 U.S.C. 1361
(7) Killing, injuring, attracting, touching, or disturbing a ray or whale shark in the Sanctuary. Notwithstanding the above, the incidental and unintentional injury to a ray or whale shark as a result of fishing with conventional hook and line gear is exempted from this prohibition.
(8) Injuring, catching, harvesting, collecting, or feeding, or attempting to injure, catch, harvest, collect, or feed, any fish within the Sanctuary by use of bottom longlines, traps, nets, bottom trawls, or any other gear, device, equipment, or means except by use of conventional hook and line gear.
(9) Possessing within the Sanctuary (regardless of where collected, caught, harvested or removed), except for valid law enforcement purposes, any carbonate rock, coral or other bottom formation, coralline algae or other plant, marine invertebrate, brine-seep biota, or fish (except for fish caught by use of conventional hook and line gear).
(10) Possessing or using within the Sanctuary, except possessing while passing without interruption through it or for valid law enforcement purposes, any fishing gear, device, equipment or means except conventional hook and line gear.
(11) Possessing, except for valid law enforcement purposes, or using explosives or releasing electrical charges within the Sanctuary.
(b) If any valid regulation issued by any Federal authority of competent jurisdiction, regardless of when issued, conflicts with a Sanctuary regulation, the regulation deemed by the Director as more protective of Sanctuary resources and qualities shall govern.
(c) The prohibitions in paragraphs (a)(2)(i), (a)(4), and (a)(11) of this section do not apply to necessary activities conducted in areas of the Sanctuary outside the no-activity zones and incidental to exploration for, development of, or production of oil or gas in those areas.
(d) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to activities necessary to respond to emergencies threatening life, property, or the environment.
(e)(1) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to activities being carried out by the Department of Defense as of the effective date of Sanctuary designation (January 18, 1994). Such activities shall be carried out in a manner that minimizes any adverse impact on Sanctuary resources and qualities. The prohibitions in paragraphs (a)(2)
(2) In the event of threatened or actual destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an untoward incident, including but not limited to spills and groundings, caused by a component of the Department of Defense, the cognizant component shall promptly coordinate with the Director for the purpose of taking appropriate actions to respond to and mitigate the harm and, if possible, restore or replace the Sanctuary resource or quality.
(f) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to any activity executed in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to § 922.48 and § 922.123 or a Special Use permit issued pursuant to section 310 of the Act.
(g) The prohibitions in paragraphs (a)(2) through (11) of this section do not apply to any activity authorized by any lease, permit, license, approval or other authorization issued after January 18, 1994, provided that the applicant complies with § 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities.
(h) Notwithstanding paragraphs (f) and (g) of this section, in no event may the Director issue a National Marine Sanctuary permit under § 922.48 and § 922.123 or a Special Use permit under section 10 of the Act authorizing, or otherwise approve, the exploration for, development of, or production of oil, gas, or minerals in a no-activity zone. Any leases, permits, approvals, or other authorizations authorizing the exploration for, development of, or production of oil, gas, or minerals in a no-activity zone and issued after the January 18, 1994 shall be invalid.
(a) A person may conduct an activity prohibited by § 922.122(a)(2) through (11) if conducted in accordance with the scope, purpose, terms, and conditions of a permit issued under this section and § 922.48.
(b) Applications for such permits should be addressed to the Director, Office of National Marine Sanctuaries; Attn: Superintendent, Flower Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, Galveston, TX 77551.
(c) The Director, at his or her discretion, may issue a permit, subject to such terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.122(a)(2) through (11), if the Director finds that the activity will: Further research related to Sanctuary resources; further the educational, natural or historical resource value of the Sanctuary; further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or assist in managing the Sanctuary. In deciding whether to issue a permit, the Director shall consider such factors as: The professional qualifications and financial ability of the applicant as related to the proposed activity; the duration of the activity and the duration of its effects; the appropriateness of the methods and procedures proposed by the applicant for the conduct of the activity; the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; the cumulative effects of the activity; and the end value of the activity. In addition, the Director may consider such other factors as he or she deems appropriate.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is temporarily changing the enforcement period for a special local regulation for one recurring marine event in the Fifth Coast Guard District, specifically, the “Ocean City Maryland Offshore Grand Prix,” hydroplane races on the North Atlantic Ocean near Ocean City, Maryland. The event consists of approximately 50 V-hull and twin-hull inboard hydroplanes racing in heats counter-clockwise around an oval race course, this regulation is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in portions of the North Atlantic Ocean near Ocean City, Maryland during the event.
This rule is effective from 11 a.m. to 5 p.m. on May 13, 2012.
Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0046 and are available online by going to
If you have questions on this temporary rule, call or email LCDR Hector Cintron, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone 757–668–5581, email
On March 16, 2012, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulation for Marine Events; Temporary Change of Dates for Recurring Marine Events in the Fifth Coast Guard District, Ocean City Maryland Offshore Grand Prix, Ocean City, Maryland in the
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
Marine events are frequently held on the navigable waters within the boundary of the Fifth Coast Guard District. The water activities that typically comprise marine events include sailing regattas, power boat races, swim races and holiday parades. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.
This regulation will temporarily change the enforcement period of special local regulations for one recurring marine event within the Fifth Coast Guard District. This regulation applies to one marine event in 33 CFR 100.501, Table to § 100.501.
The Offshore Performance Association (OPA) Racing LLC annually sponsors the “Ocean City Maryland Offshore Grand Prix”, on the waters of the North Atlantic Ocean near Ocean City, Maryland. This year, the event will be held on May 13, 2012. The regulation at 33 CFR 100.501 is effective annually for the Ocean City Offshore Challenge marine event. The event consists of approximately 50 V-hull and twin-hull inboard hydroplanes racing in heats counter-clockwise around an oval race course. A fleet of spectator vessels is expected to gather near the event site to view the competition. Therefore, to ensure the safety of participants, spectators, support and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the hydroplane races. The regulation at 33 CFR 100.501 would be enforced for the duration of the event. Under the provisions of 33 CFR 100.501, from 11 a.m. to 5 p.m. on May 13, 2012, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.
The Coast Guard did not receive comments in response to the notice of proposed rulemaking (NPRM) published in the
The Coast Guard is establishing a temporary special local regulation on specified waters of the North Atlantic Ocean, in Ocean City, Maryland. The regulated area will be established in the interest of public safety during the “Ocean City Offshore Grand Prix”, and will be enforced from 11 a.m. to 5 p.m. on May 13, 2012. The Coast Guard, at its discretion, when practical will allow the passage of vessels when races are not taking place. Except for participants and vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this rule prevents traffic from transiting a portion of certain waterways during specified times, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR 100.501, Table to § 100.501. In some cases vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
The rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor on the North Atlantic Ocean in the vicinity of Ocean City, Maryland from 11 a.m. until 5 p.m. on May 13, 2012.
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 offer to assist small entities in understanding the rule so that they can
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 determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
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.
This rule is not a “significant energy action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation on the Trenton Channel of the Detroit River, Wyandotte, Michigan. This action is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after the Hebda Cup Rowing Regatta. This special local regulation will establish restrictions upon, and control movement of, vessels in a portion of the Trenton Channel. During the enforcement period, no person or vessel may enter the regulated area without permission of the Captain of the Port.
This rule is effective from 7:30 a.m. until 4:30 p.m. on April 28, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2012–0340 and are available online by going to
If you have questions on this temporary rule, call or email LT Adrian Palomeque, Prevention Department, Sector Detroit, Coast Guard; telephone 313–568–9508, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to run would be impracticable and contrary to the public interest. The final details of this boat race were not received in sufficient time for the Coast Guard to solicit public comments before the start of the event. Thus, delaying this temporary rule to wait for a notice and comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the hazards associated with this boat race, which are discussed further below.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On April 28, 2012, the Wyandotte Boat Club is holding a rowing race that will require the immediate area to be clear of all vessel traffic. The rowing race will occur between 7:30 a.m. until 4:30 p.m. on April 28, 2012. The Captain of the Port Detroit has determined that the likely combination of recreation vessels, commercial vessels, and large numbers of spectators in close proximity to the boat race along the water could easily result in serious injuries or fatalities.
In light of the aforesaid hazards, the Captain of the Port Detroit has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass all waters, starting at a point on land at position 42°10′58″ N, 083°9′13″ W; following the Trenton Channel north to position 42°11′44″ N, 083°8′56″ W; and will be enforced on April 28, 2012, from 7:30 a.m. until 4:30 p.m. All geographic coordinates are North American Datum of 1983 (NAD 83).
Entry into, transiting, or anchoring within the regulated area is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The Coast Guard's use of this special local regulation will be of relatively short duration, and it is designed to minimize the impact on navigation. Moreover, vessel may, when circumstances allow, obtain permission from the Captain of the Port to transit through the area affected by this special local regulations. Overall, the Coast Guard expects insignificant adverse impact to mariners from the enforcement of this special local regulation.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this portion of the Trenton Channel near Wyandotte, MI between 7:30 a.m. until 4:30 p.m. on April 28, 2012.
This special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will only be in effect and enforced for nine hours on one day. The race event will be temporarily stopped for any deep draft vessels transiting through the shipping lanes. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect, allowing vessel owners and operators to plan accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
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 determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(h), of the Instruction. This rule involves a special local regulation issued in conjunction with a regatta or marine parade, therefore (34)(h) of the Instruction applies. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(c)
(d) Vessel operators desiring to enter or operate within the regulated area shall contact the Coast Guard Patrol Commander to obtain permission to do so. Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the Coast Guard Patrol Commander.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation in Galveston Bay in the vicinity of Kemah, Texas. This temporary special local regulation is necessary to provide for the safety of swimmers participating in the Memorial Hermann Kemah Triathlon. All vessels will be prohibited from transiting in or near the area except as specifically authorized by the Captain of the Port or a designated representative.
This rule is effective on April 29, 2012 from 6 a.m. until 12 noon.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2012–0170 and are available online by going to
If you have questions on this temporary rule, call or email LT Margaret Brown, Coast Guard; telephone 713–678–9001, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. The intended date for this charitable event is April 29, 2012. Publishing an NPRM is impracticable because it would delay the effective date for this special local regulation.
This event and special local regulation are part of a Direct Final Rule (DFR) creating a list of annually recurring special local regulations under 33 CFR part 100, taking place in the Eighth Coast Guard District. The DFR published in the
For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The swimming portion of the Memorial Hermann Triathlon will feature swimmers entering the water from a vessel and swimming approximately one mile to shore. This
The Coast Guard is establishing a temporary special local regulation in Galveston Bay. The area regulated begins at Latitude 29°32′38.02″ N, Longitude 095°00′58.30″ W thence east to Latitude 29°32′46.73″ N, Longitude 094°59′50.36″ W, thence south to Latitude 29°32′36.98″ N, Longitude 094°59′50.32″ W, thence west to 29°32′30.86″ N, Longitude 095°00′56.91″ W thence along the shoreline to the point of beginning. This rule is established to allow for the safety of swimmers participating in a triathlon. Vessels will not be allowed to transit within the designated area immediately before, during, and after the swim portion of the triathlon.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
This regulation will only be in effect for six hours. Notifications to the marine community will be made through broadcast notice to mariners and electronic mail. The special local regulation will not affect channel navigation and will only affect few recreational vessels. The impacts on routine navigation are expected to be minimal.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will not affect small entities because the special local regulation does not inhibit navigation. Recreational vessels may navigate around the restricted area. If you are a small business entity and are significantly affected by this regulation please contact LT Margaret Brown, Coast Guard Sector Houston-Galveston, at (713) 678–9001.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
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 determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 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.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(h), of the Instruction. This rule involves establishing a special local regulation, requiring a permit wherein an analysis of the environmental impact of the regulations was performed. Under figure 2–1, paragraph (34)(h), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(c)
(2) Vessels shall not transit through or within the restricted area during the swimming portion of the triathlon event.
(3) No vessel shall anchor, block, loiter, or impede the swimming portion of this triathlon event.
(4) Persons or vessels requiring deviation from these restrictions must request permission from the Captain of the Port Houston-Galveston, or a designated representative. They may be contacted at “Sector Houston-Galveston” on VHF–FM Channels 16, or by phone at (713) 671–5113. Requests to deviate from these restrictions will be reviewed on a case-by-case basis.
(5) All persons and vessels shall comply with the instructions of the Captain of the Port Houston-Galveston and designated on-scene U.S. Coast Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel include commissioned, warrant, and petty officers of the U.S. Coast Guard.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation on the Trenton Channel of the Detroit River, Wyandotte, Michigan. This action is necessary and intended to ensure safety of life on the navigable waters immediately prior to, during, and immediately after the Wy-Hi Rowing Regatta. This special local regulation will establish restrictions upon, and control movement of, vessels in a portion of the Trenton Channel. During the enforcement period, no person or vessel may enter the regulated area without permission of the Captain of the Port.
This rule is effective from 7:30 a.m. until 4:30 p.m. on May 5, 2012.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2012–0342 and are available online by going to
If you have questions on this temporary rule, call or email LT Adrian Palomeque, Prevention Department, Sector Detroit, Coast Guard; telephone (313) 568–9508, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to run would be impracticable and contrary to the public interest. The final details of this regatta were not received in sufficient time for the Coast Guard to solicit public comments before the start of the event. Thus, delaying this temporary rule to wait for a notice and comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the hazards associated with this event, which are discussed in further detail below. Alternately, delaying this temporary rule would require the event sponsor and participants to reschedule, which is contrary to the public interest of
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On May 5, 2012, the Wyandotte Boat Club is holding a rowing race that will require the immediate area to be clear of all vessel traffic. The rowing race will occur between 7:30 a.m. until 4:30 p.m. on May 5, 2012. The Captain of the Port Detroit has determined that the likely combination of recreation vessels, commercial vessels, and large numbers of spectators in close proximity to rowing regatta could easily result in serious injuries or fatalities.
In light of the aforesaid hazards, the Captain of the Port Detroit has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass all waters, starting at a point on land at position 42°10′58″ N, 083°9′13″ W; following the Trenton Channel north to position 42°11′44″ N, 083°8′56″ W; and will be enforced on May 5, 2012, from 7:30 a.m. until 4:30 p.m. All geographic coordinates are North American Datum of 1983 (NAD 83).
Entry into, transiting, or anchoring within the regulated area is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.
We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The Coast Guard's use of this special local regulation will be of relatively short duration, and it is designed to minimize the impact on navigation. Moreover, vessel may, when circumstances allow, obtain permission from the Captain of the Port to transit through the area affected by this special local regulations. On the whole, the Coast Guard expects insignificant adverse impact to mariners from the enforcement of this special local regulation.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in this portion of the Trenton Channel near Wyandotte, MI between 7:30 a.m. until 4:30 p.m. on May 5, 2012.
This special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will only be in effect and enforced for nine hours on one day. The race event will be temporarily stopped for any deep draft vessels transiting through the shipping lanes. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect, allowing vessel owners and operators to plan accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
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 determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
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.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(h), of the Instruction. This rule involves a special local regulation issued in conjunction with a regatta or marine parade, therefore (34)(h) of the Instruction applies. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C. 1233.
(a)
(b)
(c)
(d) Vessel operators desiring to enter or operate within the regulated area shall contact the Coast Guard Patrol Commander to obtain permission to do so. Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the Coast Guard Patrol Commander.
Coast Guard, DHS.
Notice of temporary deviation from regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Montlake Bridge across the Lake Washington Ship Canal, mile 5.2, at Seattle, WA. This deviation is necessary to accommodate the Beat the Bridge charity foot race scheduled for Sunday, May 20, 2012. This deviation allows the bridge to remain in the closed position to allow safe movement of event participants.
This deviation is effective from 7:30 a.m. on May 20, 2012 through 9 a.m. May 20, 2012.
Documents mentioned in this preamble as being available in the docket are part of docket USCG–2012–0280 and are available online by going to
If you have questions on this rule, call or email the Bridge Administrator, Coast Guard Thirteenth District; telephone 206–220–7282 email
The Washington State Department of Transportation has requested that the Montlake Bridge remain closed to vessel traffic to facilitate safe passage of participants of the Beat the Bridge charity event. Beat the Bridge is an annual foot race held in Seattle, WA to benefit diabetes research. The race course passes over the Montlake Bridge. The Montlake Bridge crosses the Lake Washington Ship Canal at mile 5.2 and while in the closed position provides 30
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing safety zones encompassing the work trestles and construction cranes involved in the construction of the TriMet Bridge on the Willamette River, in Portland, OR. This action is necessary to ensure the safety of recreational vessels and commercial vessels transiting in close proximity to cranes and overhead work associated with this construction project. These safety zones replace the prior safety zones established for the TriMet Bridge construction site and are more focused in nature than the previous safety zone. During the enforcement period, all vessels will be required to transit the area at a safe distance from the work being conducted.
This rule is effective from April 27, 2012 until October 31, 2014.
Documents indicated in this preamble as being available in the docket are part of docket USCG–2011–1173 and are available online by going to
If you have questions on this temporary rule, call or email ENS Ian McPhillips, Waterways Management Division, Coast Guard MSU Portland; telephone 503–240–9319, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest”.
Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because to do so would be impracticable, since bridge construction is already underway and the safety zone continues to be immediately necessary to help ensure the safety of recreational and commercial vessels transiting in close proximity to cranes, barges, and temporary structures associated with this construction project.
Under 5 U.S.C. 553(d)(1), the Coast Guard finds that this rule may be made effective less than 30 days after publication in the
Currently, a safety zone exists around the TriMet Bridge Project on the Willamette River. This temporary rule is being published to modify the safety zone at issue, so that the exclusionary zone does not extend from riverbank to riverbank in this section of the river, and also to clarify that the safety zones are only temporary. The new zones will require vessels passing through the area to remain a distance of 100 feet in all directions away from the work trestles and 140 feet in all directions from the cranes. To ensure the safety of construction crews on the barges, temporary structures, and cranes, two safety zones on each side of the river are being established to require vessels in the vicinity of the construction area to remain outside of the two designated safety zones. Additionally, this will ensure that the vessels operating in the vicinity of the designated areas will not be in any dangerous areas.
The two safety zones created by this rule cover all waters of the Willamette River; however, the establishment of the safety zones does not close this section of the Willamette River to vessels desiring to pass through the area when transiting up-bound or down-bound. The section of the Willamette River between the safety zones will remain open for vessel transits throughout the entirety of the project unless otherwise specified by the Captain of the Port Columbia River. Vessels passing through the area will be required to remain a distance of 100 feet in all directions away from the work trestles and 140 feet in all directions of the cranes. The safety zones will ensure the safety of all vessels and crew that are working and transiting in the construction areas. Other maritime users, such as dragon boats, kayaks, and canoes, will also be able to transit through the open section.
The Coast Guard developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard has made this determination based on the fact that the safety zones created by this rule will not significantly affect the maritime public because vessels may still transit in the vicinity of the safety zones.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), The Coast Guard has considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners and operators of vessels intending to operate in the area covered by the safety zones. The safety zones will not have a significant economic impact on a substantial number of small entities because the area can still be used to transit through this section of the river. Other maritime users, such as dragon boats, kayaks, and canoes, will be able to transit through the open section.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), the Coast Guard offers to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
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 State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. The Coast Guard has analyzed this rule under that Order and has determined that it does not have implications for Federalism.
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.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
The Coast Guard has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
The Coast Guard has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Coast Guard has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
The Coast Guard has analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
Postal Service
Final rule.
The Postal Service will revise
Nii-Kwashie Aryeetey 202–268–7442 or Suzanne Newman at 202–268–5581.
The use of picture permit imprint indicia is designed to improve the effectiveness of a mailpiece by including a business-related color image within the permit imprint indicia. When tested, indicia placed in the upper right corner of the mailpiece that contained color images did not impede the Postal Service's ability to obtain the required postage payment information from the permit indicia.
Additionally, market research shows that customers believe that picture permit imprint indicia will enhance the perception of mail. Mailers indicated that they would use picture permit imprints for existing mail volume and some said they would increase their mail volumes if picture permit imprint indicia were allowed.
Therefore, this final rule expands current permit imprint standards to allow mailers to, subject to additional Postal Service standards, include a color image of a business-related design, such as corporate logos or trademarks, as part of their permit imprint indicia on full service automation IMb
Pending favorable action by the Postal Regulatory Commission on the Postal Service's March 28, 2012 filing of the price and classification changes related to charges for picture permit imprint indicia, the Postal Service adopts the following changes to
Administrative practice and procedure, Postal Service.
Accordingly, 39 CFR Part 111 is amended as follows:
5 U.S.C. 552(a); 13 U.S.C. 301–307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001–3011, 3201–3219, 3403–3406, 3621, 3622, 3626, 3632, 3633, and 5001.
* * * A picture permit imprint indicia (5.4) may not be used on reply mail pieces.
A mailer may obtain a permit to use a permit imprint indicia by submitting PS Form 3615,
* * * The indicia may not be placed below the address or encroach on reserved space (e.g., ACS participant code, delivery point barcode). The indicia can be placed in one of these four positions:
a. Upper right corner of the mailpiece. (Also the recommended location for picture permit imprint indicia)
c. Upper right area (not lower than the address area) on an affixed address label or when printed in an address block.
Unless prepared under 5.3.12 or 5.4, permit imprint indicia on mailpieces must be prepared in one of the formats in Exhibit 5.3.11, as applicable to the price claimed or type of mail. (Not all permissible combinations of content elements are shown.) Specific markings may be required as applicable for the price claimed.
As options to the basic format under 5.3.11, permit imprint indicia may be prepared as picture permit imprint indicia under 5.4 or in other formats subject to these conditions:
Picture permit imprint indicia may contain business-related color images, such as corporate logos, brand, trademarks and other pictorial business images (5.4.3 5.4.5). These images are known as picture permit imprints and may be used to pay postage and extra service fees on full service IMb mailings of First-Class Mail automation letters and postcards, and Standard Mail letters.
Picture permit imprint is charged a per piece fee, in addition to the postage applicable for the class of mail. See Notice 123—
Color images used in picture permit imprint indicia must maintain neutrality on social or political issues in order to avoid the creation of a public forum for the debate or dissemination of political ideas by private parties and must also adhere to the following prohibitions:
a. Must not resemble or imitate U.S. postage stamps, a postage evidencing system indicia (604.4), postcard postage, Customized Postage, postage printed from USPS Automated Postal Centers (APCs) and USPS Certified 3rd Party Kiosks, precancelled postage stamps or other postage payment methods.
b. The color image used in picture permit imprint indicia must not include USPS-registered trademarks or words, symbols, or designs used by the USPS to identify a class of mail, price of postage, or level of service, unless such elements are correctly used under the applicable standards for the mailpiece on which they appear and the corresponding postage and fees have been paid.
c. Two-toned, black and white images are not permitted.
d. Only commercial images and/or text are eligible for inclusion.
e. Eligible commercial images and/or text must not: (1) Be indecent or obscene; (2) depict violent or sexual material that would be harmful to minors; (3) be unlawful or legally actionable; (4) compete with a Postal Service product or service; or (5) promote alcohol, tobacco, weapons, or gambling.
f. A picture permit imprint indicia (5.4) may not be used on reply mail pieces.
A Picture Permit Imprint Application must be completed and Postal Service authorization must be obtained for individual picture permit imprint indicia prior to the acceptance of mailpieces bearing these indicia. Customers must sign an indemnification statement and, upon request, provide a valid addressed sample of mailpieces bearing the color images for testing. Contact the manager, Transaction and Correspondence (608.8.1) for more information. Additional information on the customer agreement is available at
As options to the basic format under 5.3.11, permit imprint indicia may be prepared in Picture Permit Imprint format subject to these conditions:
a. Indicia elements must be OCR readable (prefer sans serif) and no smaller than 8 point font.
b. The class of mail must be printed in all capital letters.
c. Indicia must not be placed in any location lower than the complete address information. The upper right corner of the mailpiece is the preferred location.
d. A clear space of at least
e. A clear space of at least 0.050 inch must be maintained to the left and below the picture permit imprint indicia.
f. Mailpieces bearing picture permit indicia must be presented as full service automation IMb mailings, under 705.24.
g. All pieces in the mailing must bear a picture permit.
h. Imprint (i.e.: image and text area) dimensions may be between 1.625″ to 2.00″ in height and between 1.31″ to 1.50″ in width.
i. Image dimensions may be between .84″ to 1.00″ in height and between 1.31″ to 1.5″ in width.
j. A clear space of 5/32 inch (+/− 1/32 inch) on all sides must be maintained between the color image and indicia text.
k. Only color images are permitted in image area (two-tone, black and white print is prohibited).
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Hawaii State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC), oxides of nitrogen (NO
This rule is effective on June 26, 2012 without further notice, unless EPA receives adverse comments by May 29, 2012. If we receive such comments, we will publish a timely withdrawal in the
Submit comments, identified by docket number EPA–R09–OAR–2012–0082, by one of the following methods:
1.
2.
3.
Nicole Law, EPA Region IX, (415) 947–4126,
Throughout this document, “we,” “us,” and “our” refer to EPA.
Table 1 lists the rules we are approving with the dates that they were adopted by the local air agency and submitted by the Hawaii Department of Health (HDOH).
On January 27, 2012, EPA determined that the submittal for Hawaii Department of Health Chapter 60.1 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
There are no previous versions of Rules 11–60.1–4, 11–60.1–14, 11–60.1–40, 11–60.1–41, 11–60.1–42, and 11–60.1–51 in the SIP. We approved earlier versions of Rules 11–60.1–1 (formerly numbered 11–60–1), 11–60.1–2 (11–60–17), 11–60.1–8 (11–60–10), 11–60.1–11 (11–60–15 and 11–60–6), 11–60.1–15 (11–60–16), 11–60.1–16 (11–60–16), 11–60.1–17 (11–60–35), 11–60.1–20 (11–60–38), 11–60.1–32 (11–60–24), 11–60.1–34 (11–60–25), 11–60.1–53 (11–60–19), 11–60.1–54 (11–60–20), and 11–60.1–56 (11–60–22) into the SIP on August 18, 1983 (48 FR 37402). The HDOH adopted revisions to the SIP-approved versions on November 14, 2003 and submitted them to us on December 14, 2011.
VOCs and NO
Generally, SIP rules must be enforceable (see section 110(a) of the Act), and must not relax existing requirements (see sections 110(l)). Section 193 of the CAA does not apply to this action because the entire State of Hawaii is designated unclassifiable/attainment for all of the current NAAQS.
We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSD has more information on our evaluation.
As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this
Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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 EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
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 June 26, 2012. 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
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, 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
The amendments to paragraph(c) read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Denial of petitions for reconsideration.
The EPA is providing notice that it has denied two petitions for reconsideration of a final rule published in the
Ms. Amy Hambrick, Sector Policies and Programs Division (E143–03), Office of Air Quality Planning and Standards, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–0964; fax number: (919) 541–3470; email address:
This
This
Any petitions for review of the letters denying the petitions for
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Federal Communications Commission.
Final rule.
In this document, the Commission extends the outage reporting requirements of the Commission's rules to interconnected Voice over Internet Protocol (VoIP) service providers and defers action with respect to reporting of outages of broadband Internet services. In addition, the NPRM for The Proposed Extension of Part 4 of the Commission's Rules Regarding Outage Reporting to Interconnected Voice Over Internet Protocol Service Providers and Broadband Internet Service Providers proposal included reporting of both outages based on the complete loss of service and those where, while service is technically available, technical conditions effectively prevent communication. The rule adopted applies only to outages resulting from complete loss of service and only to interconnected VoIP services. Collecting this data will help the Commission help ensure the Nation's 9–1–1 systems are as reliable and resilient as possible and also allow the Commission to monitor compliance with the statutory 9–1–1 obligations of interconnected VoIP service providers.
The rules in this document contain information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the
Gregory Intoccia, Special Counsel, Cybersecurity and Communications Reliability Division, Public Safety and Homeland Security Bureau, (202) 418–1470 or
This is a summary of the Commission's Report and Order in PS Docket No. 11–82, FCC 12–22, released to the public on February 21, 2012, and NPRM released in
Document FCC 11–184 seeks comment on potential new information collection requirements. If the Commission adopts any new information collection requirement, the Commission will publish another notice in the
1. Consumers are increasingly using interconnected VoIP services in lieu of traditional telephone service. Interconnected VoIP services allow a wireline or wireless user generally to receive calls from and make calls to the legacy public telephone network, including calls to 9–1–1. As of the end of 2010, 31 percent of U.S. residential telephone subscriptions were provided by interconnected VoIP providers, an increase of 21 percent from the previous year. The public's increased reliance on interconnected VoIP services is also reflected in 9–1–1 usage trends; approximately 31 percent of residential wireline 9–1–1 calls are made using VoIP service. The availability and resilience of our communications infrastructure, specifically 9–1–1, directly impacts public safety and the ability of our first responders to fulfill their critical mission. The most effective way to maintain emergency preparedness is to work continuously to minimize the incidence of routine outages.
2. The Commission's public safety mission is one of its core functions. In 2008, Congress affirmed the Commission's efforts to accomplish this mission by codifying the requirement for interconnected VoIP providers to provide 9–1–1 services. Also, Presidential Directives and Executive Orders and related documents charge the Commission with ensuring the resilience and reliability of the Nation's commercial and public safety communications infrastructure. The Commission also has the responsibility to ensure continuous operations and reconstitution of critical communications and services, and plays an active role in Emergency Support Function 2 (ESF2), the communications branch of the National Response Framework, which guides the Nation's conduct during an all-hazards response. Executive Order 12472, which establishes the National Communications System, the functions of which include coordination of the planning for and provision of national security and emergency preparedness communications for the Federal government, also requires Commission participation.
3. There is cause to be concerned about the ability of interconnected VoIP subscribers to reach emergency services when they need them. In the past several years, a series of significant VoIP outages has increased our concern about the availability of 9–1–1 over VoIP service. Unlike other outages of voice service, VoIP outages are not reported to the Commission because the current outage reporting requirements apply only to traditional voice and paging communications services over wireline, wireless, cable, and satellite, but not to outages affecting interconnected VoIP services. Without detailed information about these outages, the Commission is unable to know whether and how well providers are meeting their statutory obligation to provide 9–1–1 and Enhanced 9–1–1 (E9–1–1) service.
4. Seeking to ensure the availability of 9–1–1 service, this Report and Order: Extends the Commission's mandatory
5. To perform our statutory and administrative duties effectively, the Commission needs timely, accurate information about the Nation's communications infrastructure. Since 1992, the Commission has required wireline providers to report major disruptions to their communications services. In 2004, the Commission extended reporting requirements to providers of wireless (including paging), cable, and satellite communications. Reports are submitted online via the Commission's Network Outage Reporting System (NORS). The Commission uses outage information submitted pursuant to Part 4 of the rules to carry out its statutory mission to promote “safety of life and property.” Specifically, Commission staff analyzes NORS data to spot statistically meaningful outage trends, then works either with an individual providers or through industry groups, as appropriate, to identify the cause of outages and best practices that would reduce the incidence of such outages. As a result of reporting and our subsequent analysis, measureable reliability improvements have been achieved, and reporting has led to improvements in communications infrastructure and services and emergency readiness.
6. For example, wireline outages spiked in 2008, decreasing the reliability of 9–1–1 services. Systematic analysis of monthly wireline outages and subsequent work helped to understand the root causes of this trend, and resulting in improved industry practices that reduced the estimated number of lost wireline 9–1–1 calls by 40 percent.
7. Before the adoption of this rule, interconnected VoIP services were not covered by the Commission's outage reporting rules, which meant that the Commission had little knowledge of the reliability of these services, including with respect to 9–1–1, and could not include these services in the process of continual evaluation and improvement. Yet, the Communications Act and Commission rules impose 9–1–1-related obligations on interconnected VoIP service providers. Outages of interconnected VoIP service negatively affect the ability of interconnected VoIP service providers to meet basic and enhanced 9–1–1 service obligations.
8. To remedy this situation, on May 12, 2011, we adopted an NPRM proposing to extend outage reporting obligations under Part 4 of the rules to interconnected VoIP services for both complete service outages and situations where, though service is technically available, performance conditions prevent communication. In the NPRM, we also proposed to apply the Part 4 outage reporting rules to both broadband access and broadband backbone Internet services for both complete and technical performance outages. In this Report and Order, we extend Part 4 reporting obligations to interconnected VoIP services with respect to complete service outages, and defer action on technical performance outages. We also defer action on all outage reporting of broadband Internet services.
9. We conclude that significant outages of interconnected VoIP service should be reported to the Commission. In the NPRM, we proposed to extend the Part 4 outage reporting requirements to both facilities- and non-facilities-based interconnected VoIP services. The Commission recognized that monitoring and analysis of outages is needed in light of increasing evidence that major VoIP service outages are occurring and given that such outages may disable 9–1–1 and other service capabilities.
10.
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12. The Commission is uniquely positioned to piece together an overall picture of aggregated network performance because of the ability to collect and analyze outage data provided by communications providers that would otherwise be disinclined to share sensitive outage data. The Commission's ability to look at information received from different providers allows us to assess large-scale outages when they occur, thereby increasing the opportunities for federal assistance in dealing with the immediate problem. Analysis of NORS data has served as a uniquely effective precipitating force for improving network reliability, and thus the reliability of 9–1–1 services. This happens via a number of mechanisms:
13. First, the Commission regularly provides the Network Reliability Steering Committee (NRSC) with aggregated outage data across all entities subject to Part 4 of the rules and draws attention to those categories of outages showing a statistically significant trend upward in the number of outages. Depending on the type of outage, the Commission may request that the NRSC create a team to recommend procedures, best practices and, in some cases, equipment design alterations to address the underlying issue. For example, following this process, in one six-month period in the 2008–2009 time frame, the Commission worked with the NRSC to reverse the trend in an increase in wireline outages, and consequently there was a more than 40-percent reduction in the estimated lost 9–1–1 calls due to wireline outages.
14. Second, using outage reporting data and coordinating with providers, the Commission has been able to spot
15. Third, the Commission staff can identify industrywide issues through NORS analysis. In 2010, Commission staff discerned from outage reports that a significant number of outages associated with delivery of 9–1–1 services were being caused by a relatively small number of factors, each of which could be addressed by applying known best practices, and a Public Notice was released identifying these particular practices and urging communications providers to implement them widely in their networks.
16. Fourth, the Commission can leverage outage data to assist in emergency responses. For example, during emergency situations, the Commission can provide “Notification” data in NORS to the U.S. Department of Homeland Security, where it is used to support the emergency response.
17. In these ways, the Commission's intervention has resulted in tangible improvements to the communications reliability necessary to support 9–1–1 service. No single provider has the data to spot trends across industry and lead efforts to address reliability problems. Therefore, we disagree with commenters that argue that market incentives eliminate the need for network outage reporting. In addition, we are not persuaded that outage reporting is unnecessary because broadband technologies reliably reroute traffic, particularly in light of the rise in the incidence of significant VoIP outages. Observers in critical infrastructure industries and in government, domestically and abroad, are becoming increasingly aware of the need to track reliability data obtained from services relying on broadband technologies to help ensure the reliability of emergency services and critical communications.
18. Further, reporting outage data is the most efficient means for the Commission to ensure that interconnected VoIP service providers are complying with their statutory obligation to provide 9–1–1 service, and to obtain critical information needed to monitor the reliability and availability of VoIP 9–1–1/E9–1–1 services. Both the Act and the Commission's rules mandate that interconnected VoIP service providers provide 9–1–1 and E9–1–1 service. The rules we adopt today will provide the Commission with a mechanism in place to monitor whether these providers are complying with this basic obligation. Requiring interconnected VoIP service providers to promptly file reports when they experience outages that meet certain thresholds appears vastly superior, for example, to a complaint-driven process; the latter would likely be ineffective in enabling the Commission to detect and resolve quickly.
19. We conclude that reporting significant outages of interconnected VoIP service should be mandatory, as was proposed in the NPRM. Mandatory reporting would permit the Commission to obtain a comprehensive, nationwide view of significant outages and assess and address their impact on 9–1–1 and other services, while voluntary reporting would likely create substantial gaps in data that would thwart efforts to monitor compliance with statutory obligations and to analyze and facilitate improvement of the Nation's 9–1–1 system.
20.
21.
22. We are also not persuaded that any new outage reporting process should apply the voluntary DIRS model. DIRS is a reporting system for use during large-scale disasters. DIRS is rarely activated, and the urgent events that lead to its activation tend to motivate communications providers to cooperate. Outage reporting, on the other hand, is designed to enable the Commission to identify key network failures quickly to facilitate restoration and, over time, to create a consistent body of data to permit analysis of trends. Moreover, apart from the outage reports themselves, the Commission may otherwise be unaware of the underlying cause of the outage, such as an internal network failure, whereas outages reported under DIRS are generally widely known and created by an external event.
23. The Commission's poor experience with voluntary outage reporting is not unique. The New York Public Service Commission, for example, comments that—based on its experience—voluntary reporting does not ensure that providers “will provide timely, accurate outage information.” Likewise, the Japanese government finds it necessary to require mandatory outage reporting from broadband communications providers, including high-quality VoIP service.
24. As we observed, the Commission attempted a voluntary outage reporting trial without success before adoption of the Part 4 rules. The record in this proceeding provides us no reason to believe that long-term, voluntary reporting would fare any better this time around. We believe a mandatory reporting requirement best meets the needs of the Commission to ensure the statutory mandate that interconnected VoIP service providers deliver reliable 9–1–1 service.
25. In short, given the long-term upward trend in VoIP subscription and
26. The rules adopted modify significantly the proposal in the NPRM, in part in response to providers' concerns regarding the costs and burdens. In the NPRM, we proposed to extend Part 4 to broadband Internet in addition to interconnected VoIP services. In addition, we proposed to require reporting of both loss of service/connectivity as well as situations where, though service is technically being provided, packet loss, latency or jitter were experienced at a level that effectively prevented communication. We are not acting at this time on the extension of Part 4 rules to broadband Internet service providers or to outages based on performance degradation, both of which were sharply opposed by industry in part based on the expected costs. The rules we adopt to extend outage reporting to interconnected VoIP services received broad support in the record, and no commenter has argued that this type of reporting would be unduly burdensome. The reporting obligation we impose will allow us to fulfill our own obligations and to adequately monitor providers' compliance with statutory 9–1–1 obligations.
27. The record in this proceeding reflects that the additional costs of compliance with our data collection requirement would be minor and significantly outweighed by the benefits. We require the reporting only of significant outages where customers lose service and/or connectivity and, therefore, the ability to access 9–1–1 services. Given providers' incentives to satisfy their customers, it is reasonable to conclude that every such provider is already tracking this sort of information. The configuration of VoIP service should already make this information available. For example, the Network Management System (NMS) of interconnected VoIP providers is able to auto-poll or execute a manual poll of a portion or all of its VoIP-enabled devices to see if they have connectivity. Thus, interconnected VoIP service providers have the ability to monitor their end-user devices to determine if connectivity to those devices has been lost. The record shows that the costs involved in determining whether customers are completely out of service do not impose an undue burden. A wide array of commenters submit that the type of outage reporting requirement we are adopting today is either reasonable, not unduly burdensome, or could be applied so as not to be unduly burdensome. Even small providers do not assess our outage reporting requirement to be a burden. This Report and Order limits outage reporting to a complete loss of interconnected service, an approach that achieves Commission purposes but is sensitive to costs.
28. As interconnected VoIP service providers are driven by business reasons to monitor for service outages, it follows that tracking such information under our rules should not be unduly burdensome. It is significant that not one commenter has stated that it would have to install any additional equipment into its network to detect when a large number of VoIP customers are out of service. We find that mandatory reporting of significant outages is minimally intrusive and fully justified by the benefits of ensuring compliance with statutory 9–1–1 statutory obligations and benefits to public safety through robust 9–1–1 communications that we expect to result from our analysis and use of the reports.
29. Because service providers already have business reasons to routinely collect outage information, the costs of compliance with a reporting requirement are essentially those of identifying reportable outages, then electronically reformatting and uploading that information into NORS. Many of the interconnected VoIP customers are served by providers that already have years of experience filing outage reports in NORS with respect to other services. Industry-wide, the total operating cost for reporting on interconnected VoIP outages and administering outage reporting programs likely is less than $1 million in the first year and less than $500,000 per year thereafter for all the providers who will report.
30. In arriving at our decision, we considered feasible alternatives. We evaluated the cost effectiveness of our adopted approach against a less stringent option as well as several more stringent options. We also considered other mechanisms, such as certification. Our approach captures most of the expected benefits while avoiding the much larger costs associated with more intrusive options. Even a modest improvement in the reliability of 9–1–1 services potentially represents lives saved. Based on the record, our analysis concluded the net benefits will be greater with the approach we are adopting. With respect to the less stringent option, our adopted approach provides all the benefits of increased reliability at a nominal cost estimated to be less than $1 million industrywide. With respect to the more stringent option, our approach captures most of the expected benefits while avoiding the much larger costs associated with those options.
31. While some commenters urge a period of transition before any mandatory outage reporting requirements go into effect, we find any significant delay unjustified in light of the fact that providers already monitor this type of activity in the ordinary course of their business and that the costs of electronically reporting related outages will not be substantial. Also, the vast majority of interconnected VoIP services are provided by an entity that also provides legacy services and, therefore, has years of experience filing in NORS. Finally, as our ultimate approach is much more circumscribed than the one proposed in the NPRM, implementing the required reporting will be far less complicated. However, to ensure that NORS updates are completed to receive these new reports and that PSHSB has an opportunity to present the updates to reporting providers and resolve questions, the mandatory reporting requirement will become effective after data collection approval from the Office of Management and Budget, and we will publish in the
32. In the NPRM, we requested comment on the Commission's legal authority to extend the Part 4 outage reporting rules to interconnected VoIP service providers. We conclude that the Commission has sufficient legal authority to require the reporting of outages of interconnected VoIP service.
33.
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35. We disagree with commenter assessments of the relationship between Section 615a–1 and our authority. AT&T, for instance, argues that section 615a–1 is not an express grant of authority to the Commission to order the regulation of VoIP service providers, but rather the Commission's role under that provision is to “pave the way” for VoIP service providers to provide 9–1–1 and E9–1–1 service by adopting regulations applicable to the owners and controllers of 9–1–1 facilities, who are ILECs, CLECs, and third-party providers, to make that possible. AT&T points to the context of the enactment of section 615a–1 as indicative of the limited nature of its scope.
36. AT&T's arguments are inconsistent with the express terms of the statute, which covers VoIP service providers and plainly is not limited to the owners and controllers of trunks and routers. Among the Commission rules that section 615a-1 codified are rules directly applicable to VoIP service providers. These rules impose detailed obligations on the manner in which interconnected VoIP providers provide E9–1–1. Further, AT&T's arguments are inconsistent with the Commission's previous views on the scope of section 615a-1. Following enactment of the NET 911 Improvement Act, the Commission in implementing section 615a-1 adopted rules in the NET 911 Report and Order, which requires interconnected VoIP service providers to comply with all applicable industry network security standards to the same extent as traditional telecommunications carriers when accessing capabilities traditionally used by carriers. This standard is comprehensive and not limited to network security standards that are ostensibly E9–1–1–related.
37. With respect to CTIA's concern about technological neutrality expressed in section 615a-1(e)(1) limitation, nothing in this Report and Order violates that limitation. The outage reporting requirement and threshold in this Report and Order do not favor or disfavor any particular technology. To the contrary, our action arguably corrects an imbalance that existed by requiring some providers of voice and 9–1–1 service to report outages, but not others.
38. The Commission has ancillary authority to ensure both that interconnected VoIP providers fulfill their duty to provide 9–1–1 services and to address major obstacles to their doing so, such as failures in underlying communications networks. For example, CTIA argues that “the proposed rules sweep too broadly to be linked to the expressly delegated responsibility to provide 9–1–1 services, and Verizon argues that the Commission has provided no explanation regarding how its proposed requirements would result in ensuring that VoIP providers meet their statutory duty to provide 9–1–1 service. The relationship between network reliability and reliable 9–1–1 service is clear: without reliable network operations, there can be no reliable 9–1–1 service. As explained throughout the decision, reporting obligations act as a critical element to enable the Commission to identify and evaluate lapses in the provision of 9–1–1 service in order to enable providers to meet their obligations under the statute. Indeed, as a general matter, the Commission regularly imposes reporting requirements on its regulatees to ensure compliance with statutory and regulatory obligations. The imposition of such reporting requirements in this instance is appropriate not only to enable the Commission to ensure that providers are complying with their legal obligations, but also to enhance the reliability of such service industry-wide.
39. Facilities-Based vs. Non-Facilities-Based Interconnected VoIP Services. We conclude that the outage reporting requirements should apply to both facilities- and non-facilities-based interconnected VoIP services. Given that interconnected VoIP services increasingly are now viewed by consumers as a substitute for traditional telephone service, in the NPRM, we proposed to extend our outage reporting rules to both facilities-based and non-facilities-based interconnected VoIP service providers.
40.
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42. Accounting for technical differences between facilities-based and non-facilities based interconnected VoIP service providers, we require non-facilities-based VoIP service providers to report service outages that involve facilities that they own, operate, lease, or otherwise utilize. Non-facilities-based VoIP providers must report service outages that meet the threshold to the extent that they have access to information on service outages affecting their customers. As both facilities- and non-facilities-based interconnected VoIP providers are able to use NMS to determine the connectivity of their end-devices, we expect that they will be able to report on the loss of service and/or connectivity to their customers' terminals. The non-facilities VoIP providers may not be able to tell where connectivity has failed if the failure has occurred in another provider's network, but it can tell that its call management cannot reach the end-user devices, and thus, an outage has occurred that affects its customers. They should be able to report significant outages where their call management systems have lost connectivity to their customers' end-user devices. Also, even where broadband networks provide facilities-based VoIP service, there will still be a number of end-users that will use a non-facilities-based interconnected VoIP service instead of the broadband service associated with the facilities-based interconnected VoIP service provider. Thus, the Commission would not know the true loss of voice service to end-users, as it is actually facilities-based plus non-facilities-based outages that should be counted. Thus, we will require both facilities-based and non-facilities-based interconnected VoIP to report service outages.
43.
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45. Several commenting parties do not support the concept of “loss of generally-useful availability or connectivity” in differentiating among outages. MetroPCS argues that a broad standard of “loss of generally-useful availability and connectivity” exacerbates the problem of precisely associating an outage with underlying network conditions. Vonage argues that the measures proposed in the NPRM—packet loss, latency, and jitter—do not relate to actual outages, but are instead measures of call quality. Vonage further argues that the collection of such quality of service information simply will not indicate when a VoIP customer loses the ability to make an emergency call.
47.
47. We are persuaded by arguments that the proposed reporting of an interconnected VoIP outage be based on the “the complete loss of service or connectivity to customers.” We agree with the rationale that triggering the reporting of an interconnected VoIP outage based on the loss of a user's ability to make or receive a call, as opposed to the loss of generally-useful availability and connectivity, as measured by packet loss, latency, and jitter standards, would avoid the need to revise packet loss, latency, and jitter standards as providers continue to improve performance.
48. Furthermore, we accept that determining what constitutes a “loss of generally-useful availability and connectivity” in a broadband environment is considerably more complicated than in the legacy network context. In the environment in which interconnected VoIP service operates, voice is a real-time application that utilizes broadband connectivity and is more sensitive to network impairments than non-real-time applications such as email. Although we believe performance degradations affect the ability of facilities-based and non-facilities-based interconnected VoIP service providers to establish and maintain 9–1–1 calls, adopting bright-line reporting criteria reduces the burden on the providers while, we expect, delivering to us the information we need.
49.
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51. With respect to reporting outages or service degradation as a result of a major facility failure, Verizon states that it deploys many of these elements in a redundant, diverse manner such that an outage on a given network element may have no impact on a subscriber's ability to establish and maintain a channel of communications.
52.
53. We defer action at this time on the performance degradation reporting metrics and thresholds proposed in the NPRM. Based on the record, we believe that the simpler rules we adopt today will provide a clear view into E9–1–1 compliance as well as advance the goals we have laid out above with regard to working with industry to improve performance. The rules we adopt today are more consistent with the rules we apply to other providers under the existing rules. Therefore, we will not at this time require reporting based on packet loss, latency, or jitter. Instead, we will require the reporting of an interconnected VoIP outage based on the complete loss of service or connectivity.
54. With respect to reporting outages due to major facility failures, after carefully studying the record, we will not at this time adopt the proposal in the NPRM to require outage reporting when an interconnected VoIP service experiences a major facility failure. We believe the rules, as adopted, sufficiently account for major facility failures that result in reportable outages meeting the thresholds defined. We recognize a major facility failure, depending on how the interconnected VoIP service provider has engineered those major facilities, may not necessarily result in a reportable outage meeting the thresholds, and we, therefore, do not require, at this time, the reporting of outages on this basis.
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58. Verizon's suggested two-reporting system, in which a provider would file a notification within four hours and a final report within thirty days, makes more sense to us in situations that could have the potential to have a significant negative impact on the 9–1–1 infrastructure. A two-tier report system would still provide a measure of “situational awareness” to allow the Commission to become involved in significant outages early should it choose to do so. Final reports would still give the Commission the opportunity to obtain the full details within the same timeframe as it does so today. Yet, eliminating the initial report would reduce the providers' workloads, and if implemented in conjunction with a four-hour window for the notification, would likely still provide the Commission with valuable information at the outset of the outage.
59. We do not, however, adopt the 24-hour interval with respect to outages that may have a significant negative impact on the 9–1–1 infrastructure. For these outages, we adopt Verizon's suggested two-tier reporting structure and require notification for outages that may have a significant negative impact on the 9–1–1 infrastructure within four hours and a final report within 30 days. This provides a measure of “situational awareness” to allow the Commission to become involved in significant outages early should it choose to do so. Final reports would still give the Commission the opportunity to obtain the full details within the same timeframe as it does so today. Yet, eliminating the initial report would reduce providers' workloads considerably without harming the Commission's ability to react in the short term or facilitate the development and application of best practices in the long term.
60. Accordingly, the Commission will require all interconnected VoIP service providers to submit electronically a Notification to the Commission within four hours of discovering that they have experienced on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration that potentially affects a 9–1–1 special facility. In such situations, they also must notify, as soon as possible by telephone or other electronic means, any official who has been designated by the management of the affected 9–1–1 facility as the provider's contact person for communications outages at that facility, and the provider must convey to that person all available information that may be useful to the management of the affected facility in mitigating the effects of the outage on efforts to communicate with that facility. Such timing of the Notification targets conditions in which the 9–1–1 infrastructure is most likely to experience a negative impact, and balancing costs and burdens.
61. Interconnected VoIP service providers that experience a reportable outage that does not affect a 9–1–1 special facility must submit electronically a Notification to the Commission within twenty-four hours of discovering such an outage. This timing recognizes that these outages are less likely to impact the 9–1–1 infrastructure negatively, though the ability of users to make individual 9–1–1 calls may nonetheless be impaired. This distinction also balances different potential benefits with costs and burdens.
62. Regardless of which of the two above conditions prompts the Notification, not later than 30 days after discovering the outage, the provider must submit electronically a Final Communications Outage Report to the Commission. We adopt a very similar level of specificity in reporting content and the same electronic reporting processing as is required by NORS.
63. The process we adopt for reporting significant outages of interconnected VoIP service reduces the burden on providers from that proposed in the NPRM. Reducing the number of reports from three to two and extending the time frame for reporting will provide the Commission with the information it needs while reducing the reporting burden on the providers. It is likely that most interconnected VoIP service providers currently collect information on significant outages in the ordinary course of their business in order to serve their customers effectively. We conclude that the reporting burden is minimal and well-justified by the benefits to 9–1–1 reliability.
64. We clarify that Part 4 of the rules currently covers all providers of Commercial Mobile Radio Service (CMRS) voice (and paging) service regardless in which spectrum band the service is provided and that the process that applies to reporting outages of these services should be the process in the current Part 4 rules. In 2004, when the Commission extended in its outage reporting requirements beyond wireline providers in its 2004 Part 4 Order to include wireless providers, the Commission enumerated several types of licensees providing wireless service that would be covered by the Part 4 outage reporting obligations. Since that time, licensing in additional spectrum bands,
65.
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67. We are not persuaded by commenters' arguments that AWS and 700 MHz services should be exempt from outage reporting requirements. To provide an exemption for AWS and 700 MHz would lead to an unlevel playing field among competing mobile service providers. These newer wireless technologies are forming the core of major deployments where an outage could impact an increasingly large number of users.
68.
69. We will apply the same confidential treatment and restricted information sharing to reports of interconnected VoIP service outages as currently apply to outage reports of services already subject to Part 4 of the rules. The NPRM proposed to treat outage reports filed with respect to interconnected VoIP service as presumptively confidential, the same manner outage reporting data is currently treated under Part 4. The NPRM also sought comment on making aggregated information across companies public, and whether the Commission should share this new outage information with other Federal agencies on a presumptively confidential basis.
70.
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72. The NPRM addressed whether the Commission should extend its outage reporting requirements to significant outages of broadband Internet service, and if so, what outage metrics and thresholds should apply. The technical issues involved in identifying and reporting such outages require further study. The record in this proceeding shows a willingness by broadband Internet service providers to participate in a voluntary process to improve the Commission's understanding of the underlying technical issues associated with broadband Internet service outages to assist public safety and first responders.
73. We adopt outage reporting requirements for interconnected VoIP service providers and conclude that this action will best serve the public interest by enabling the Commission to obtain the necessary information regarding services disruptions in an efficient and expeditious manner. This action addresses the need for information on service disruptions that could affect homeland security, public health and safety, including the reliability of the Nation's 9–1–1 system. This action takes into account the associated costs and burdens, the trend in greater VoIP service usage and its potential impact on the Nation's 9–1–1 infrastructure, and the increasing importance of IP networks.
74. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202–418–0530 (voice), 202–418–0432 (tty).
75. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 604, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of the possible significant economic impact on small entities of the policies and rules addressed in this document. The FRFA is set forth in Appendix B of the document.
76. The Report and Order contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other interested parties are invited to comment on the new information collection requirements contained in this proceeding.
77. We note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506 (c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. We have described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the FRFA in Appendix B, infra.
78. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).
79. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was included in the NPRM in PS Docket No. 11–82. The Commission sought written comment on the proposals in this docket, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
80. Accordingly,
81.
82.
Communications common carriers, Communications equipment.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 4 as follows:
Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 154, 155, 201, 251, 307, 316, 615a–1, 1302(a), and 1302(b).
(f)
(h)
(e) * * *
(1) Assigned telephone number minutes (as defined in paragraph (c) of this section), for telephony, including non-mobile interconnected VoIP telephony, and for those paging networks in which each individual user is assigned a telephone number;
(2) The mathematical result of multiplying the duration of an outage, expressed in minutes, by the number of end users potentially affected by the outage, for all other forms of communications. For wireless service providers and interconnected VoIP service providers to mobile users, the number of potentially affected users should be determined by multiplying the simultaneous call capacity of the affected equipment by a concentration ratio of 8.
(g)
(i) Within 240 minutes of discovering that they have experienced on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration that potentially affects a 9–1–1 special facility (as defined in (e) of § 4.5), in which case they also shall notify, as soon as possible by telephone or other electronic means, any official who has been designated by the management of the affected 9–1–1 facility as the provider's contact person for communications outages at that facility, and the provider shall convey to that person all available information that may be useful to the management of the affected facility in mitigating the effects of the outage on efforts to communicate with that facility; or
(ii) Within 24 hours of discovering that they have experienced on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration:
(A) That potentially affects at least 900,000 user minutes of interconnected VoIP service and results in complete loss of service; or
(B) That potentially affects any special offices and facilities (in accordance with paragraphs § 4.5(a) through (d)).
(2) Not later than thirty days after discovering the outage, the provider shall submit electronically a Final Communications Outage Report to the Commission. The Notification and Final reports shall comply with all of the requirements of § 4.11.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This rule implements catch limits and associated measures for the Northeast skate complex fishery for the 2012–2013 fishing years. The action was developed by the New England Fishery Management Council pursuant to the provisions of the Northeast Skate Complex Fishery Management Plan. The catch limits are supported by the best available scientific information and reflect recent increases in skate biomass.
This rule is effective May 1, 2012.
An environmental assessment (EA) was prepared that describes the action and other considered alternatives, and provides a thorough analysis of the impacts of the proposed measures and alternatives. Copies of the EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. These documents are also available online at
Tobey Curtis, Fishery Policy Analyst, (978) 281–9273; fax: (978) 281–9135.
The New England Fishery Management Council (Council) is responsible for developing management measures for skate fisheries in the northeastern U.S. through the Northeast Skate Complex Fishery Management Plan (Skate FMP). Seven skate species are managed under the Skate FMP: Winter, little, thorny, barndoor, smooth, clearnose, and rosette. The Council's Scientific and Statistical Committee reviews the best available information on the status of skate populations and makes recommendations on acceptable biological catch (ABC) for the skate complex (all seven species). This recommendation is then used as the basis for catch limits and other management measures for the skate fisheries.
A detailed description of how the 2012–2013 skate ABC and associated specification measures were derived is provided in the proposed rule for this action (February 22, 2012, 77 FR 10463), and in its supplementary materials (see
NMFS is implementing the following specifications for the skate fishery for the 2012–2013 fishing years:
1. Skate ABC and annual catch limit (ACL) of 50,435 mt;
2. Annual catch target (ACT) of 37,826 mt;
3. Total allowable landings (TAL) of 21,561 mt (the skate wing fishery is allocated 66.5 percent of the TAL (14,338 mt) and the skate bait fishery is allocated 33.5 percent of the TAL (7,223 mt, divided into three seasons according to the regulations at § 648.322));
4. The skate bait possession limit is increased from 20,000 lb (9,072 kg) to 25,000 lb (11,340 kg) whole weight per trip for vessels carrying a valid Skate Bait Letter of Authorization; and,
5. The skate wing possession limits will remain at status quo levels, as defined in § 648.322(b): 2,600 lb (1,179 kg) wing weight per trip for Season I (May 1 through August 31), and 4,100 lb (1,860 kg) wing weight per trip for Season II (September 1 through April 30) for vessels fishing on a Northeast Multispecies, Monkfish, or Scallop Day-at-Sea. The Northeast Multispecies Category-B Day-at-Sea possession limit remains at 220 lb (100 kg) wing weight per trip, and the non-Day-at-Sea incidental possession limit remains at 500 lb (227 kg) wing weight per trip.
The proposed rule included reductions to the skate wing possession limits, as recommended by the Council, in an effort to prolong the fishing season and avoid implementation of the incidental skate wing possession limit before the end of the fishing year (i.e., closure of the directed skate wing fishery). The possession limit analysis used by the Council was based on skate landing rates in 2010 and early 2011 when landing rates were particularly high. However, landing rates slowed during 2011, and as of March 31, 2012, the wing fishery only landed 77 percent of its TAL, and is not projected to land its entire TAL before the end of the fishing year. Upon the reasonable assumption that landing rates in 2012 and 2013 will be similar to this year's, implementing the reduced possession limits recommended by the Council may prevent the TAL from being harvested. Therefore, there is no justification to reduce the skate wing possession limits for the 2012–2013 fishing years, and the proposed reduction is disapproved. The skate wing possession limits will remain at status quo levels.
For the reasons described in the proposed rule and environmental assessment for this action (see
Additionally, this final rule implements the requirement that skate bait transfers at sea, as recorded on vessel trip reports, be counted against the skate bait fishery quotas. Recent analysis indicated that bait transfers at sea, on average, represented approximately 18 percent of total skate landings, and need to be considered when monitoring catch.
Finally, in order to be consistent with the requirements of Amendment 3, this final rule removes a reference to Northeast multispecies sectors in the skate wing possession limit regulations found at § 648.322(b). The skate wing possession limits were not intended to apply to sector vessels, and this reference should have been removed from the Amendment 3 final rule (June 16, 2010, 75 FR 34049).
On February 22, 2012, NMFS published a proposed rule soliciting public comment on the proposed skate fishery specifications, and accepted comments through March 23, 2012. NMFS received seven comments on the proposed rule. This section summarizes the principal comments contained in the comment letters, and NMFS's response to those comments.
The lack of documented enforcement actions citing illegal possession of thorny skates is not reflective of a total lack of enforcement of this prohibition. As described in NMFS's negative 90-day finding on a petition to list thorny skate as endangered under the Endangered Species Act (December 20, 2011, 76 FR 78891), between 2007 and 2010, thorny skate wings were found in less than 1 percent of sampled skate wing landings. Therefore, there is no basis for concluding that enforcement of this provision is inadequate, and NMFS has ongoing education and outreach efforts in the skate fishery to improve prohibited species compliance (e.g.,
In § 648.322(b)(1), the proposed change to the skate wing possession limits are not included in this final rule due to the disapproval of this proposed measure.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a determination that this rule is consistent with the Skate FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
The Office of Management and Budget has determined that this rule is not significant for the purposes of Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the requirement for a 30-day delay in effectiveness under the provisions of section 553(d) of the Administrative Procedure Act. This action would result in a benefit of additional revenues associated with a skate bait possession limit that is 25 percent higher, and provides more opportunity for skate bait vessels to harvest their full allocation of quota. This rule increases the possession limit for skate bait and, consequently, extends fishing opportunity for fishermen that would otherwise be constrained under the current possession limits, which are unnecessarily restrictive. If this rulemaking was delayed to allow for a 30-day delay in effectiveness, the fishery would likely forego some amount of landings and revenues during the delay period. While these restrictions would be alleviated after this rule becomes effective, fishermen may be not able to recoup the lost economic opportunity of foregone landings of skate bait that would result from a delay in the effectiveness of this action. For these reasons, the AA finds good cause to waive the 30-day delay and to implement this rule on May 1, 2012.
Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in support of this action. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, relevant analyses contained in the action and its EA, and a summary of the analyses completed to support the action in this rule. A copy of the analyses done in the action and EA are available from the Council (see
Seven comments were received on the proposed rule. For a summary of the comments, and NMFS's responses to them, see the Comments and Responses section above. None of the comments raised issues or concerns related to the IRFA, and no changes were made to the rule as a result of the comments.
These final specifications will impact vessels that hold Federal open access commercial skate permits that participate in the skate fishery. According to the Framework 1 final rule and its Final Regulatory Flexibility Analysis (76 FR 28328, May 17, 2011), as of December 31, 2010, the maximum number of small fishing entities (as defined by the SBA) that may be affected by this action is 2,607 entities (number of skate permit holders). However, during fishing year 2010, only 601 vessels landed any amount of skate.
This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This rule does not duplicate, overlap, or conflict with other Federal rules.
The purpose of this action is to specify catch limits and other management measures that reflect the best available scientific information and the requirements of the Skate FMP. The Council considered one ACL alternative (no action) to the preferred alternative being implemented. The preferred ACL and TALs are expected to extend the duration of the fishing season relative to the no action alternative, and help to prevent the negative economic impacts that would be associated with an early closure of the directed skate fisheries. Under the no action alternative, the skate catch limit would remain at 41,080 mt. This alternative was not selected because it does not represent the best available scientific information, and would likely result in negative economic impacts as compared to the preferred alternative. Compared to the other alternative considered, this action is expected to better maximize profitability for the skate fishery by allowing higher levels of landings for the duration of the 2012 and 2013 fishing years while still being consistent with requirements of the Magnuson-Stevens Act and other applicable law. Therefore, the economic impacts resulting from this action as compared to the no action alternative are positive, since the action would provide additional fishing opportunity for vessels participating in the skate fishery for the 2012–2013 fishing years.
The action is almost certain to result in greater revenue from skate landings. Based on recent landing information, the skate fishery is able to land close to the full amount of skates allowable under the quotas. The estimated potential revenue from the sale of skates under the revised catch limits is approximately $9.0 million, compared to $5.8 million if this action were not implemented. Due to the implications of closing the directed skate fisheries early in the fishing year, the higher catch limits associated with this action will result in additional revenue if fishing is prolonged. According to analyses in Framework 1, vessels that participate in the skate fishery derive most (an average of 96 percent) of their revenues from other fisheries (e.g., groundfish, monkfish). Therefore, relative to total fishing revenues, catch limits of other species would be expected to have more significant economic impacts than revenues derived from skates alone. However, as skate prices have begun increasing in recent years, more vessels are deriving a greater proportion of their income from skates.
The final possession limits in the skate wing and bait fisheries are also expected to result in positive economic impacts compared to the other alternatives considered. The reduced skate wing possession limits described in the proposed rule would have slightly reduced trip level revenues of skates. Maintaining the status quo skate wing possession limits, as implemented in this final rule, will help maintain consistent trip level revenues for skate wings, as well as allow the fishery to operate throughout the fishing year without closures. The increased skate bait possession limit implemented by this final rule is also expected to increase trip level revenue for bait skates, and may help the bait fishery land more of its allocated TAL in 2012 and 2013.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of permits for the skate fishery. The guide and this final rule will be available upon request, and posted on the Northeast Regional Office's Web site at
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:
16 U.S.C. 1801
(b)
(c) * * *
(4) The vessel owner or operator possesses or lands no more than 25,000 lb (11,340 kg) of only whole skates less than 23 inches (58.42 cm) total length, and does not possess or land any skate wings or whole skates greater than 23 inches (58.42 cm) total length.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues final specifications for the 2012 Atlantic bluefish fishery, including an annual catch limit, total allowable landings, a commercial quota and recreational harvest limit, and a recreational possession limit. This action establishes the allowable 2012 harvest levels and other management measures to achieve the target fishing mortality rate, consistent with the Atlantic Bluefish Fishery Management Plan.
The final specifications for the 2012 Atlantic bluefish fishery are
Copies of the specifications document, including the Environmental Assessment and Initial Regulatory Flexibility Analysis (EA/IRFA) and other supporting documents for the specifications, are available from Dr. Christopher M. Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 N. State Street, Dover, DE 19901. The specifications document is also accessible via the Internet at:
Carly Bari, Fishery Management Specialist, (978) 281–9224.
The Atlantic bluefish fishery is managed cooperatively by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission). The management unit for bluefish specified in the Atlantic Bluefish Fishery Management Plan (FMP) is U.S. waters of the western Atlantic Ocean. Regulations implementing the FMP appear at 50 CFR part 648, subparts A and J. The regulations requiring annual specifications are found at § 648.160.
The FMP requires the Council to recommend, on an annual basis, annual catch limit (ACL), annual catch target (ACT), and total allowable landings (TAL) that will control fishing mortality (F). The Council may also recommend a research set-aside (RSA) quota, which is deducted from the bluefish TALs (after any applicable transfer) in an amount proportional to the percentage of the overall TAL as allocated to the commercial and recreational sectors.
Pursuant to § 648.162, the annual review process for bluefish requires that the Council's Bluefish Monitoring Committee and Scientific and Statistical Committee (SSC) review and make recommendations based on the best available data. Based on the recommendations of the Monitoring Committee and SSC, the Council makes a recommendation to the NMFS Northeast Regional Administrator. Because this FMP is a joint plan, the Commission also meets during the annual specification process to adopt complementary measures.
The Council's recommendations must include supporting documentation concerning the environmental, economic, and social impacts of the recommendations. NMFS is responsible for reviewing these recommendations to assure they achieve the FMP objectives, and may modify them if they do not. NMFS then publishes proposed specifications in the
A description of the process used to estimate bluefish stock status and fishing mortality, as well as the process for deriving the ACL and associated quotas and harvest limits, is provided in the proposed rule and in the bluefish regulations at §§ 648.160–162. The stock is not overfished or experiencing overfishing, and the catch limits described below reflect the best available scientific information on bluefish. The final 2012 bluefish ABC, ACL, and ACT are specified at 32.044 million lb (14,535 mt).
The ACT is initially allocated between the recreational fishery (83 percent = 26.597 million lb, 12,064 mt) and the commercial fishery (17 percent = 5.448 million lb, 2,471 mt). After deducting an estimate of recreational discards (commercial discards are considered negligible), the recreational TAL would be 22.819 million lb (10,350 mt) and the commercial TAL would be 5.448 million lb (2,471 mt).
However, the FMP specifies that, if 17 percent of the ACT is less than 10.5 million lb, and recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial fishery may be allocated up to 10.5 million lb as its quota, provided that the combination of the projected recreational landings and the commercial quota does not exceed the ACT. The recreational harvest limit (RHL) would then be adjusted downward so that the ACT would be unchanged. Based on updated data, the recreational fishery landed 11,892,696 lb (5,394 mt) of bluefish in 2011. Assuming recreational landings in 2012 are consistent with those from 2011, the Council's proposed transfer of 5.052 million lb (2,291 mt) from the recreational sector to the commercial sector can be approved. This results in an adjusted commercial quota of 10.5 million lb (4,763 mt), and an adjusted RHL of 17.766 million lb (8,059 mt).
Three projects that will utilize bluefish RSA were approved by NOAA's Grants Management Division. A total RSA quota of 491,672 lb (223 mt) was approved for use by these projects during 2012. Proportional adjustments of this amount to the commercial and recreational allocations results in a final commercial quota of 10.317 million lb (4,680 mt) and a final RHL of 17.457 million lb (7,919 mt).
The current recreational possession limit of up to 15 fish per person is maintained to achieve the RHL.
The final state commercial allocations of the 2012 commercial quota are shown in Table 1, based on the percentages specified in the FMP.
The public comment period for the proposed rule ended on March 1, 2012. Five comments were received on the proposed rule. A summary and response to the concerns raised by the commenters are included below.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This final rule is exempt from review under Executive Order 12866. This final rule does not duplicate, conflict, or overlap with any existing Federal rules.
The FRFA included in this final rule was prepared pursuant to 5 U.S.C. 604(a), and incorporates the IRFA and a summary of analyses completed to support the action. No significant issues were raised by the public comment in response to the IRFA, other than the comment noted above. A public copy of the EA/RIR/IRFA is available from the Council (see
The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.
A description of the reasons why this action is being taken, and the objectives of and legal basis for this final rule are contained in the preambles to the proposed rule and this final rule and are not repeated here.
Five comments were submitted on the proposed rule. However, none were specific to the IRFA or to the economic impacts of the proposed rule more generally.
Small businesses operating in commercial and recreational (i.e., party and charter vessel operations) fisheries have been defined by the Small Business Administration as firms with gross revenues of up to $4.0 and $6.5 million, respectively. The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for Atlantic bluefish, as well as owners of vessels that fish for Atlantic bluefish in state waters. All federally permitted vessels fall into the definition of small businesses; thus, there would be no disproportionate impacts between large and small entities as a result of the final rule.
An active participant in the commercial sector was defined as any vessel that reported having landed 1 or more lb (0.45 kg) in the Atlantic bluefish fishery in 2010 (the last year for which there are complete data). The active participants in the commercial sector were defined using two sets of data. The Northeast seafood dealer reports were used to identify 718 vessels that landed bluefish in states from Maine through North Carolina in 2010. However, the Northeast dealer database does not provide information about fishery participation in South Carolina, Georgia, or Florida. South Atlantic Trip Ticket reports were used to identify 732 vessels that landed bluefish in North Carolina, and 827 vessels that landed bluefish on Florida's east coast. Some of these vessels were also identified in the Northeast dealer data; therefore, double counting is possible. Bluefish landings in South Carolina and Georgia were near zero in 2010, representing a negligible proportion of the total bluefish landings along the Atlantic Coast. Therefore, this analysis assumed that no vessel activity for these two states took place in 2010. In recent years, approximately 2,063 party/charter vessels may have been
No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.
Specification of commercial quota, recreational harvest levels, and possession limits is constrained by the conservation objectives of the FMP, under the authority of the Magnuson-Stevens Act. The commercial quota contained in this final rule is 10 percent higher than the 2011 quota and 113 percent higher than actual 2011 bluefish landings. All affected states will receive increases in their individual commercial quota allocation in comparison to their respective 2011 individual state allocations. However, the magnitude of the increase varies depending on the state's relative percent share in the total commercial quota, as specified in the FMP.
The RHL contained in this final rule is approximately 2 percent lower than the RHL in 2011. The small reduction in RHL is a reflection of a declining trend in recreational bluefish harvest in recent years. Because the 2012 RHL is greater than the total estimated recreational bluefish harvest for 2011, it does not constrain recreational bluefish harvest below a level that the fishery is anticipated to achieve. The possession limit for bluefish will remain at 15 fish per person, so there should be no impact on demand for party/charter vessel fishing and, therefore, no impact on revenues earned by party/charter vessels. No negative economic impacts on the recreational fishery are anticipated.
The impacts on revenues associated with the proposed RSA quota were analyzed and are expected to be minimal. Assuming that the full RSA quota 491,672 lb (223 mt) is landed and sold to support the proposed research projects, then all of the participants in the fishery would benefit from the improved fisheries data yielded from each project.
Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal permits issued for the Atlantic bluefish fishery.
In addition, copies of this final rule and guide (i.e., permit holder letter) are available upon request, and posted on the Northeast Regional Office's Web site at
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; quota transfer.
NMFS announces that the State of North Carolina is transferring a portion of its 2012 commercial summer flounder quota to the Commonwealth of Virginia. NMFS is adjusting the quotas and announcing the revised commercial quota for each state involved.
Effective April 26, 2012, through December 31, 2012.
Carly Bari, Fishery Management Specialist, 978–281–9224.
Regulations governing the summer flounder fishery are in 50 CFR part 648, and require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100.
The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider the criteria in § 648.102(c)(2)(i) to evaluate requests for quota transfers or combinations.
North Carolina has agreed to transfer 180,061 lb (81,674 kg) of its 2012 commercial quota to Virginia. This transfer was prompted by summer flounder landings of 12 North Carolina vessels that were granted safe harbor in Virginia due to mechanical failures, between March 2, 2012, and March 31, 2012, thereby requiring a quota transfer to account for an increase in Virginia's landings that would have otherwise accrued against the North Carolina quota. The Regional Administrator has determined that the criteria set forth in § 648.102(c)(2)(i) have been met. The revised summer flounder quotas for calendar year 2012 are: North Carolina, 1,603,359 lb (727,271 kg); and Virginia, 4,603,985 lb (2,088,332 kg).
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
In proposed rule document 2012–9063 appearing on pages 22510 through 22514 in the issue of Monday, April 16, 2012, make the following correction:
On page 22513, in the second column, under
Nuclear Regulatory Commission.
Petition for rulemaking; consideration in the rulemaking process.
The U.S. Nuclear Regulatory Commission (NRC or the Commission) will consider the issues raised in the petition for rulemaking (PRM), PRM–50–102, submitted by the Natural Resources Defense Council, Inc. (NRDC or the petitioner), in the rulemaking process. The petitioner requested that the NRC amend its regulations to require more realistic, hands-on training and exercises on Severe Accident Management Guidelines (SAMGs) and Extensive Damage Mitigation Guidelines (EDMGs). The NRC determined that the issues raised in the PRM are appropriate for consideration and will consider them in the ongoing Fukushima Near Term Task Force (NTTF) Recommendation 8 rulemaking.
The docket for the petition for rulemaking, PRM–50–102, is closed on April 27, 2012.
Further NRC action on the issues raised by this petition will be accessible on the Federal rulemaking Web site,
You can access publicly available documents related to the petition, which the NRC possesses and is publicly available, using the following methods:
•
•
•
Robert Beall, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone: 301–415–3874; email:
On September 20, 2011, the NRC published a notice of receipt (76 FR 58165) of six PRMs filed by the NRDC, including PRM–50–102. The petitioner solely and specifically cited the “Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident” (NTTF Report, ADAMS Accession No. ML111861807), dated July 12, 2011, as the rationale for the PRMs. For PRM–50–102, the petitioner cites Section 4.2.5, pages 46–50, of the NTTF Report, regarding the strengthening and integration of onsite emergency response capabilities such as emergency operating procedures (EOPs), SAMGs, and EDMGs. At the time of receipt of the PRMs, the Commission was still in the process of reviewing the NTTF Report, and the NRC did not institute a public comment period for the PRMs.
In PRM–50–102, the petitioner requests the NRC to institute a rulemaking proceeding applicable to nuclear facilities licensed under Title 10 of the
The Commission has established a process for addressing a number of the recommendations in the NTTF Report, and the NRC determined that the issues raised in PRM–50–102 are appropriate for consideration and will consider them in the ongoing NTTF Recommendation 8 rulemaking based on Section 4.2.5 of the NTTF Report.
The public will have the opportunity to provide comments on the issues raised by the petitioner in PRM–50–102 as part of the NTTF Recommendation 8 rulemaking. The NRC will consider the
For the Nuclear Regulatory Commission.
Office of the Secretary (OST), Department of Transportation (DOT).
Notice of Public Meeting.
This document announces a public meeting on a Notice of Proposed Rulemaking (NPRM) issued on July 15, 2011. The NPRM proposed changes regarding reporting of airline ancillary passenger revenues, computation of mishandled baggage rates, and collection of separate statistics for mishandled wheelchairs and scooters used by passengers with disabilities. During the public meeting, DOT staff will provide a summary of the proposals in the NPRM and seek input on costs and benefits associated with the implementation of the proposals.
The meeting will be held in the Oklahoma City Conference Room (located on the lobby level of the West Building) at the U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC. Attendance is open to the public; however, since access to the U.S. DOT headquarters building is controlled for security purposes, any member of the general public who plans to attend this meeting must notify the Department contacts noted below at least ten (10) calendar days prior to the meeting.
Charles E. Smith, Trial Attorney, Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590, 202–366–9342 (phone), 202–366–7152 (fax),
On July 15, 2011, the Department of Transportation (DOT or Department) published a notice of proposed rulemaking in the
Below are examples of questions that the Department intends to pose at the public meeting.
• What is the current industry practice regarding ancillary fee revenue reporting for the Form 41 financial data? The Department would like to understand the process and logistics of how ancillary revenues are collected and transferred into reporting formats. It would also be helpful to know the amount of staff time required to develop the quarterly and semi-annual Form 41 reports.
• How would the aforementioned systems and processes be adapted for carriers to comply with the proposed reporting requirement?
• What new systems and processes would be necessary for carriers to comply with the proposed reporting requirement?
• What other resource requirements, e.g. additional personnel and training, would be necessary for carriers to comply with the proposed reporting requirement? What would be the dollar cost of providing those resources?
• The Department assumes that, as a matter of good business practice, airlines already collect the ancillary fee revenue identified in the proposed reporting requirement. Under this assumption, the costs of compliance with the new reporting requirement are estimated to be the necessary one-time programming costs to adapt existing computer systems (about 40 hours of programming for each carrier to capture the ancillary revenue items), in addition to any recurring annual expenses (e.g. staff time) for developing the additional reports. Are there airlines that don't already gather information about the ancillary fee revenue identified in the NPRM?
• How much lead time is necessary to implement the proposed reporting requirement?
• Is there any other information that the Department should consider regarding the reporting of ancillary fee revenue?
• What is the current industry practice regarding processing and accounting for checked bags that are checked at the check-in counter, at the self-service bag drop, at the gate, or at the jet bridge? The Department would like to understand the entire process from what happens on the ground and the associated data systems when passengers check a bag, to what happens on the ground and the associated data systems when passengers claim the bag upon arrival, whether that is at the baggage carousel or at the gate or jet bridge.
• What are the existing processes and data systems associated with reporting mishandled bags? The Department would like to understand the reporting process from the time the passenger
• How could the aforementioned systems and processes be adapted to accommodate the proposed reporting requirement?
• What new systems and processes would be necessary for carriers to comply with the proposed reporting requirement?
• What other resource requirements, e.g. additional personnel and training, would be necessary for carriers to comply with the proposed reporting requirement?
• What would be the dollar cost of adjustments to existing systems and processes, new systems and processes, and other resource requirements?
• The Department assumes that, as a matter of good business practice, airlines already gather and maintain information on the total number of counter-checked bags, gate-checked bags, and valet bags transported in the aircraft compartment. Under this assumption, the costs of compliance would include the adaption of the current reporting systems and processes (or, if they do not exist, the development and implementation of new systems and processes) that gather existing data for the new reporting requirements, in addition to any recurring annual expenses (e.g. staff time) for developing such reports. We are interested in learning if our assumption about current industry practice is inaccurate.
• How much lead time is necessary to implement the proposed reporting requirement?
• Is there any other information that the Department should consider regarding the metric used to calculate mishandled baggage rates?
• What is the current industry practice regarding processing and accounting for wheelchairs and scooters that are checked at the check-in counter, at the self-service bag drop, at the gate, or at the aircraft door? Are they accounted for separately from other baggage? The Department would like to understand the entire process from what happens on the ground and the associated data systems when passengers check their wheelchairs or scooters, to what happens on the ground and the associated data systems when passengers claim the assistive device upon arrival whether that is at the baggage carousel, the gate or jet bridge.
• What are the existing processes and data systems associated with reporting mishandled wheelchairs and scooters transported in the cargo hold?
• How could the aforementioned systems and processes be adapted to accommodate the proposed reporting requirement?
• What new systems and processes would be necessary for carriers to comply with the proposed reporting requirement?
• What other resource requirements, e.g. additional personnel and training, would be necessary for carriers to comply with the proposed reporting requirement?
• What would be the dollar cost of adjustments to existing systems and processes, new systems and processes, and other resource requirements?
• The Department assumes that, as a matter of good business practice, airlines already gather and maintain information on damage, delay, and loss of wheelchairs and scooters transported in the aircraft cargo compartment. Under this assumption, the costs of compliance would include the adaption of the current reporting systems and processes (or, if they do not exist, the development and implementation of new systems and processes) that gather existing data for the new reporting requirements, in addition to any recurring annual expenses (e.g. staff time) for developing such reports. We are interested in learning if our assumption about current industry practice is inaccurate.
• How much lead time is necessary to implement the proposed reporting requirement?
• Is there any other information that the Department should consider regarding the reporting of mishandled wheelchairs and scooters?
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish special local regulations during the “Swim Across the Potomac River” swimming competition, to be held on the waters of the Potomac River on July 8, 2012. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the Potomac River during the event.
Comments and related material must be received by the Coast Guard on or before May 29, 2012. The Coast Guard anticipates that this proposed rule will be effective and enforced on July 8, 2012.
You may submit comments identified by docket number USCG–2012–0276 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Mr. Ronald Houck, U.S. Coast Guard Sector Baltimore, MD; telephone 410–576–2674, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
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. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one on or before the end of the comment period, using one of the methods specified under
On July 8, 2012, the National Harbor Marina of Oxon Hill, Maryland, will sponsor a swimming competition across the Potomac River between Alexandria, Virginia and Oxon Hill, Maryland. The event consists of up to 250 swimmers on a 1.3-mile linear course located downriver from the Woodrow Wilson Memorial (I–495/I–95) Bridge. The swimmers will be supported by sponsor-provided watercraft. The start will be located at North Point in Jones Point Park and the finish will be located along the shore at National Harbor Marina. Portions of the swim course will cross the Potomac River federal navigation channel and the National Harbor Access Channel. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels.
The Coast Guard proposes to establish temporary special local regulations on specified waters of the Potomac River. The regulations will be in effect from 7 a.m. to 11 a.m. on July 8, 2012. The regulated area, approximately 1,900 yards in length and 350 yards in width, extends across the entire width of the Potomac River between the Virginia and Maryland shorelines and includes all waters of the Potomac River, within lines connecting the following positions: From latitude 38°47′35″ N, longitude 077°02′22″ W, thence to latitude 38°47′12″ N, longitude 077°00′57″ W, and from latitude 38°47′24″ N, longitude 077°03′03″ W to latitude 38°46′54″ N, longitude 077°01′09″ W. The effect of this proposed rule will be to restrict general navigation in the regulated area during the event. Vessels intending to transit the Potomac River through the regulated area, including the National Harbor Access Channel, will only be allowed to safely transit the regulated area when the Coast Guard Patrol Commander has deemed it safe to do so. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.
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.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation will prevent traffic from transiting portions of the Potomac River and National Harbor Access Channel during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners and marine information broadcasts, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit safely through a portion of the regulated area, but only after the last participant has cleared that portion of the regulated area and when the Coast Guard Patrol Commander deems it safe to do so.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises
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. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the effected portion of the Potomac River, including and National Harbor Access Channel, during the event.
Although this regulation prevents traffic from transiting portions of the Potomac River and the National Harbor Access Channel during the event, this proposed rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would be in effect for only a limited period. Though the regulated area extends across the entire width of the river, vessel traffic may be permitted to safely transit a portion of the regulated area, but only after all participants have safely cleared that portion of the regulated area and when the Coast Guard Patrol Commander deems it safe for vessel traffic to do so. All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz). Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.
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 so that they can better evaluate its effects on them and participate in the rulemaking. 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 Coast Guard Sector Baltimore, MD. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
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.
This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves implementation of regulations within 33 CFR Part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add a temporary section, § 100.35T05–0276 to read as follows:
(a)
(b)
(2)
(c)
(2) Persons desiring to transit the regulated area must first obtain authorization from the Captain of the Port Baltimore or his designated representative. To seek permission to transit the area, the Captain of the Port Baltimore and his designated representatives can be contacted at telephone number 410–576–2693 or on Marine Band Radio, VHF–FM channel 16 (156.8 MHz). All Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF–FM channel 16 (156.8 MHz).
(3) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF–FM marine band radio announcing specific event date and times.
(d)
Department of Veterans Affairs.
Withdrawal of proposed rule.
In a document published in the
The proposed rule is withdrawn as of April 27, 2012.
Sarah W. Fusina, Legal Consultant, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420, (202) 461–9700. (This is not a toll-free number.)
On December 11, 2009, VA published a proposed rule in the
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Imperial County Air Pollution Control District (ICAPCD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO
Any comments must arrive by May 29, 2012.
Submit comments, identified by docket number EPA–R09–OAR–2012–0274, by one of the following methods:
1.
2.
3.
Andrew Steckel, EPA Region IX, (415) 947–4115,
Throughout this document, “we,” “us” and “our” refer to EPA.
Table 1 lists the rule addressed by this proposal with the date that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).
On August 25, 2010, EPA determined that the submittal for ICAPCD Rule 400.2 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.
There are no previous versions of Rule 400.2.
NO
Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each NO
Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:
1. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “State Implementation Plans for Serious PM–10 Nonattainment Areas, and Attainment Date Waivers for PM–10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998 (August 16, 1994).
5. “PM–10 Guideline Document,” EPA 452/R–93–008, April 1993.
6. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters,” CARB, July 18, 1991.
7. “Alternative Control Techniques Document—NO
8. “Alternative Control Techniques Document—NO
We believe this rule is consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSD has more information on our evaluation.
The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule but are not currently the basis for rule disapproval.
Because EPA believes the submitted rule fulfills all relevant requirements, we are proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• 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 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
Air pollution control, Environmental protection, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to approve revisions to the Hawaii State Implementation Plan (SIP). These revisions concern volatile organic compound (VOC), oxides of nitrogen (NO
Any comments on this proposal must arrive by May 29, 2012.
Submit comments, identified by docket number EPA–R09–OAR–2012–0082, by one of the following methods:
1.
2.
3.
Nicole Law, EPA Region IX, (415) 947–4126,
This proposal addresses the following local rules: Hawaii State Department of Health Rules 11–60.1–1, 11–60.1–2, 11–60.1–4, 11–60.1–8, 11–60.1–11, 11–60.1–14, 11–60.1–15, 11–60.1–16, 11–60.1–17, 11–60.1–20, 11–60.1–32, 11–60.1–34, 11–60.1–40, 11–60.1–41, 11–60.1–42, 11–60.1–51, 11–60.1–53, 11–60.1–54, and 11–60.1–56. In the Rules and Regulations section of this
We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action.
Federal Communications Commission.
Proposed rule.
This document requests comments on a petition for rulemaking filed by Katherine Pyeatt, proposing the allotment of Channel 267A at Midway, Texas, as its first local service; and the substitution of Channel 232A for vacant Channel 267A at Centerville, Texas to accommodate the proposed Midway allotment. Channel 267A can be allotted to Midway consistent with the minimum distance separation requirements of the Rules with a site restriction 7.6 kilometers (4.7 miles) northwest of the community. The reference coordinates for Channel 267A at Midway are 31–03–42 NL and 95–49–06 WL. Additionally, Channel 232A can be allotted to Centerville consistent with the minimum distance separation requirement of the Rules with a site restriction 10.6 kilometers (6.6 miles) northwest of Centerville. The reference coordinates for Channel 232A at Centerville are 31–19–03 NL and 96–03–54 WL.
Comments must be filed on or before May 29, 2012, and reply comments on or before June 13, 2012.
Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner as follows: Katherine Pyeatt, 2215 Cedar Springs Road, #1605, Dallas, Texas 75201.
Rolanda F. Smith, Media Bureau, (202) 418–2700.
This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 12–92, adopted April 5, 2012, and released April 6, 2012. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY–A257, 445 Twelfth Street SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone 1–800–378–3160 or via email
Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.
Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all
For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
1. The authority citation for part 73 continues to read as follows:
47 U.S.C. 154, 303, 334, 336 and 339.
2. Section 73.202(b), the Table of FM Allotments under Texas, is amended by removing Channel 267A and by adding Channel 232A at Centerville; and by adding Midway, Channel 267A.
Fish and Wildlife Service, Interior.
Notice of 5-year reviews.
We, the U.S. Fish and Wildlife Service, are initiating 5-year reviews for 25 species under the Endangered Species Act of 1973, as amended (Act). We conduct these reviews to ensure that our classification of species on the Lists of Endangered and Threatened Wildlife and Plants as threatened or endangered is accurate. A 5-year review assesses the best scientific and commercial data available at the time of the review. We are requesting any information that has become available since our last 5-year review of each of these species. Based on review results, we will determine whether we should change the listing status of any of these species. In this notice, we also announce 5-year reviews that were completed for 28 species in California and Nevada between March 17, 2011, and February 29, 2012.
To ensure consideration, please send your written information by June 26, 2012.
For how and where to send comments or information, see “VIII., Contacts.”
For species-specific information, contact the appropriate person listed under “VIII., Contacts.” For contact information about completed 5-year reviews, see “IX., Completed 5-Year Reviews.”
Under the Act (16 U.S.C. 1531
In classifying, we use the following definitions, from 50 CFR 424.02:
(A)
(B)
(C)
We must support delisting by the best scientific and commercial data available, and only consider delisting if data substantiate that the species is neither endangered nor threatened for one or more of the following reasons (50 CFR 424.11(d)):
(A) The species is considered extinct;
(B) The species is considered to be recovered; or
(C) The original data available when the species was listed, or the interpretation of data, were in error.
Our regulations at 50 CFR 424.21 require that we publish a notice in the
This notice announces our active 5-year status reviews of the species in Table 1.
We consider all new information available at the time we conduct a 5-year status review. We consider the best scientific and commercial data that has become available since our current listing determination or most recent status review, such as:
(A) Species biology, including but not limited to population trends, distribution, abundance, demographics, and genetics;
(B) Habitat conditions, including but not limited to amount, distribution, and suitability;
(C) Conservation measures that have been implemented that benefit the species;
(D) Threat status and trends (see five factors under heading “IV., How Do We Determine Whether a Species Is Endangered or Threatened?”); and
(E) Other new information, data, or corrections, including but not limited to taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.
We specifically request information regarding data from any systematic surveys, as well as any studies or analysis of data that may show population size or trends; information pertaining to the biology or ecology of these species; information regarding the effects of current land management on population distribution and abundance; information on the current condition of habitat; and recent information regarding conservation measures that have been implemented to benefit the species. Additionally, we specifically request information regarding the current distribution of populations and evaluation of threats faced by the species in relation to the five listing factors (as defined below and in section 4(a)(1) of the Act) and the species' listed status as judged against the definition of threatened or endangered. Finally, we request recommendations pertaining to the development of, or potential updates to, recovery plans and additional actions or studies that would benefit these species in the future.
Section 4(a)(1) of the Act requires that we determine whether a species is endangered or threatened based on one or more of the five following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
Under section 4(b)(1) of the Act, we must base our assessment of these factors solely on the best scientific and commercial data available.
For each species under review, if we find new information that indicates a change in classification may be warranted, we may propose a new rule that could do one of the following:
(A) Reclassify the species from threatened to endangered (uplist);
(B) Reclassify the species from endangered to threatened (downlist); or
(C) Remove the species from the List (delist).
To ensure that a 5-year review is complete and based on the best available scientific and commercial information, we request new information from all sources. See “III., What Information Do We Consider in Our Review?” for specific criteria. If you submit information, support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.
Submit your comments and materials to the appropriate Fish and Wildlife Office listed under “VIII., Contacts.”
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. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the offices where the comments are submitted.
Send your comments and information on the following species, as well as requests for information, to the corresponding contacts/addresses. You may view information we receive in response to this notice, as well as other documentation in our files, at the following locations by appointment, during normal business hours.
For the Menzies' wallflower, send information to Field Supervisor, Attention: 5-Year Review, U.S. Fish and Wildlife Service, Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521. Information may also be submitted electronically at
For the Peirson's milk-vetch, Riverside fairy shrimp, San Bernardino bluegrass, San Diego fairy shrimp, Vail Lake ceanothus, and Willowy monardella, send information to Field Supervisor, Attention: 5-Year Review, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Information may also be submitted electronically at
For the Independence Valley speckled dace and Paiute cutthroat trout, send information to State Supervisor, Attention: 5-Year Review, U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial Blvd., Suite 234, Reno, Nevada 89502–7147. Information may also be submitted electronically at
For the Burke's goldfields, Butte County meadowfoam, Colusa grass, Contra Costa goldfields, few-flowered navarretia, Greene's tuctoria, Sacramento Orcutt grass, Sebastopol meadowfoam, and Sonoma sunshine, send information to Field Supervisor, Attention: 5-Year Review, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W–2605, Sacramento, CA 95825. Information may also be submitted electronically at
For the Ben Lomond wallflower, island barberry, island phacelia, Lyon's pentachaeta, marsh sandwort, purple amole, and Sierra Nevada bighorn sheep, send information to Field Supervisor, Attention: 5-Year Review, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003. Information may also be submitted electronically at
All electronic information must be submitted in Text format or Rich Text format. Include the following identifier in the subject line of the email: Information on 5-year review for [NAME OF SPECIES], and include your name and return address in the body of your message.
We also take this opportunity to inform the public of 5-year reviews that we completed between March 17, 2011, and February 29, 2012, for 28 species in California and Nevada (Table 2). Reviews for these 28 species can be found at
We publish this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments.
NMFS announces that the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) have submitted Amendment 11 to the Fishery Management Plan for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic (FMP) for review, approval, and implementation by NMFS. Amendment 11 proposes to limit spiny lobster fishing using trap gear in certain areas in the exclusive economic zone off the Florida Keys to protect threatened species of corals.
Written comments must be received on or before June 26, 2012.
You may submit comments on the amendment identified by “NOAA–NMFS–2011–0223” by any of the following methods:
•
•
To submit comments through the Federal e-Rulemaking Portal:
Comments received through means not specified in this notice will not be considered.
For further assistance with submitting a comment, see the “Commenting” section at
Electronic copies of Amendment 11 may be obtained from the Southeast Regional Office Web site at
Susan Gerhart, telephone: 727–824–5305, or email:
The spiny lobster fishery of the Gulf of Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR parts 622 and 640 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
As required under the Endangered Species Act (ESA), NMFS completed a formal consultation, and resulting biological opinion, on the continued authorization of the Gulf of Mexico and South Atlantic spiny lobster fishery in 2009 (
Amendment 11 considered actions to prohibit spiny lobster trap fishing in designated areas in the Florida Keys to protect threatened
The ESA requires analyses to determine whether, and to what extent, fishing operations impact threatened species such as threatened staghorn and elkhorn corals. The 2009 biological opinion on the spiny lobster fishery requires NMFS and the Councils to work together to protect areas of staghorn and elkhorn coral. RPMs included expansion of existing or creation of new areas closed to lobster trap fishing where colonies of these threatened coral species are present.
Staff from the Councils and NMFS worked with various stakeholders to develop the proposed lobster trap gear closed areas. Areas were chosen to protect colonies with high conservation value and areas of high coral density. Lobster trap fishing would be prohibited in the proposed closed areas. The 60 proposed closed areas would cover 5.9 mi
As described in Amendment 11, trap lines or rope are consistently found as marine debris and most frequently recovered without the buoys or traps still attached. These conditions cause significant difficulty for NMFS and other agencies when determining if line found in the environment, or entangling protected species, originated from the spiny lobster trap fishery. Trap line marking requirements are intended to allow greater accuracy in identifying fishery interaction impacts to benthic habitats and protected species by leading to more targeted measures to reduce the level and severity of those impacts. However, costs and labor for the spiny lobster fishery to mark their lobster trap gear could be high, with little evidence of the durability of the markings. The Florida Fish and Wildlife Conservation Commission is currently conducting a study of various methods
A proposed rule that would implement measures outlined in Amendment 11 has been drafted. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the
The Councils submitted Amendment 11 for Secretarial review, approval, and implementation on April 05, 2012. NMFS' decision to approve, partially approve, or disapprove Amendment 11 will be based, in part, on consideration of comments, recommendations, and information received during the comment period on this notice of availability.
Public comments received on or before June 26, 2012, will be considered by NMFS in its decision to approve, partially approve, or disapprove Amendment 11. All comments received by NMFS on Amendment 11 or the proposed rule for Amendment 11 during their respective comment periods will be addressed in a final rule.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule, request for comments.
NMFS proposes to modify the regulations implementing the Northeast (NE) Multispecies Fishery Management Plan (FMP) to allow vessels issued a Federal skate permit and a Skate Bait Letter of Authorization to fish for skates in a portion of southern New England from July through October of each year, outside of the NE multispecies days-at-sea (DAS) program. This action would allow vessels to harvest skates in a manner that is consistent with the bycatch reduction objectives of the NE Multispecies FMP.
Comments must be received no later than 5 p.m., eastern daylight time, on May 14, 2012.
An environmental assessment (EA) was prepared for the Secretarial Amendment that describes the proposed action and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of the Secretarial Amendment, including the EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Daniel Morris, Acting Regional Administrator, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also available online at
You may submit comments, identified by FDMS docket number NOAA–NMFS–2012–0098, by any one of the following methods:
• Written comments (paper, disk, or CD–ROM) should be sent to Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. Mark the outside of the envelope, “Comments on Skate Bait Exempted Fishery.”
• Comments also may be sent via facsimile (fax) to (978) 465–3116.
• Submit all electronic public comments via the Federal e-Rulemaking Portal:
Instructions: Comments will be posted for public viewing as they are received. All comments received are a part of the public record and will generally be posted to
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Travis Ford, Fishery Management Specialist, 978–281–9233; fax 978–281–9135; email:
Current regulations, implemented under Framework Adjustment 9 (60 FR 19364, April 18, 1995) and expanded under Amendment 7 to the FMP (61 FR 27710, May 31, 1996), contain a NE multispecies fishing mortality and bycatch reduction measure that is applied to the Gulf of Maine (GOM), Georges Bank (GB), and Southern New England (SNE) Exemption Areas found in 50 CFR 648.80. A vessel may not fish in these areas unless it is fishing under a NE multispecies or a scallop DAS allocation, is fishing with exempted gear, is fishing under the Small Vessel Handgear (A or B) or Party/Charter permit restrictions, or is fishing in an exempted fishery. The procedure for adding, modifying, or deleting fisheries from the list of exempted fisheries is found in § 648.80. A fishery may be exempted by the Regional Administrator (RA), after consultation with the New England Fishery Management Council (Council), if the RA determines, based on available data or information, that the bycatch of regulated species is, or can be reduced to, less than 5 percent by weight of the total catch and that such exemption will not jeopardize the fishing mortality objectives of the FMP.
Representatives from the NE multispecies sector fleet submitted an exempted fishery request to the RA on April 1, 2011. The petitioners requested that NMFS consider an exempted
NEFOP and ASM data were compiled and analyzed with reference to groundfish vessels targeting skate in the area and months requested for the exemption. A second alternative was assessed that reduced both the size of the exempted area and the requested season to July through October (referred to in the EA and in this proposed rule as Alternative 1). The data best supported Alternative 1, revealing that bycatch of regulated species (primarily winter flounder and windowpane flounder) was substantially reduced from the original proposal by reducing the area and contracting the time period. It is important to note that large portions of the original area requested by industry had no associated observer data, and thus could not be evaluated. Therefore, the size of the exemption area was reduced to cover only areas where ASM and NEFOP covered trips existed.
For Alternative 1, all large mesh (6.5-inch mesh) DAS trips from 2010 to 2011 were analyzed, and the data showed that no trips caught more than 5 percent groundfish. Therefore, there were no trips that caught over 5 percent NE multispecies that would be exempted under this action. The data indicate that Alternative 2 (the non-preferred alternative) would likely result in a higher percentage of groundfish catch in the months of June and November than in July through October.
Exempted fisheries have a maximum allowable bycatch of 5 percent regulated groundfish under § 648.80(a)(8)(i). For the months of July through October, from 2006 to 2011, the average percentage of regulated groundfish catch for trips in the directed SNE skate bait fishery was 1.25 percent, well under the 5 percent limit for an exempted fishery. No single month's average NE multispecies catch exceeded 2 percent of the total catch. The vast majority of groundfish bycatch species in the skate bait fishery are SNE winter flounder and southern windowpane flounder. Following a recent assessment, SNE winter flounder is no longer experiencing overfishing but remains overfished. Recent information has changed the status of the Southern windowpane flounder stock, which was previously experiencing overfishing but not overfished; it is currently not overfished, is no longer experiencing overfishing, and was rebuilt in 2009. The discards expected from this exemption should not cause the ACL for these species to be exceeded.
Further, because of the relationship between the skate bait fishery and the lobster fishery, this action is not likely to increase effort in the skate bait fishery. Although this action would exempt vessels targeting skate bait from the NE multispecies regulations, the demand for skate bait is dependent on the lobster fishery's demand for bait. Consequently, this exemption is not expected to increase the demand for skate bait. Further, the skate bait fishery is controlled by a Total Allowable Landing (TAL) limit that prevents the overharvesting of skate bait. Because it would neither increase demand for skate bait nor significantly affect other regulated species, this action is not expected to jeopardize mortality objectives of any stock and would ease some of the burdens on vessels participating in the NE multispecies fishery.
The RA has determined that an exempted skate bait trawl fishery in a specifically defined portion of SNE meets the exemption requirements in § 648.80(a)(8)(i) because, based on the analysis of available data, the bycatch of regulated species by vessels targeting skate bait in a portion of SNE is less than 5 percent, by weight, of the total catch. Therefore, this rule proposes to implement an exempted fishery for eligible vessels when using 6.5-inch mesh trawl gear in a portion of SNE from July through October of each year. The area of this proposed exempted fishery would be referred to as the SNE Skate Bait Trawl Exemption Area.
The SNE Skate Bait Trawl Exemption Area is defined by the straight lines connecting the following points in the order stated (copies of a chart depicting the area are available from the RA upon request):
As required by existing regulations, Vessels participating in the exempted skate fishery would need to hold a Federal skate permit and a valid Skate Bait Letter of Authorization (LOA) from the RA containing an exemption from the skate wing possession limits, which allows them to land whole skates for use as bait. A participating vessel may possess and land up to 20,000 lb (9,072 kg) of whole skates of less than 23 inches (59 cm) total length. In addition, vessels would be limited by the skate bait TAL that is divided into three seasons to help maintain a supply of bait throughout the fishing year. When 90 percent of the seasonal quota is landed in either Season 1 or 2, or when 90 percent of the annual skate bait TAL is landed, the RA would close the directed fishery by reducing the skate bait possession limit to the whole weight equivalent of the skate wing possession limit in effect at that time (either 5,902 lb (2,677 kg), 9,307 lb (4,222 kg), or 1,135 lb (515 kg)).
Granting the SNE Skate Bait Trawl Exemption Area should result in a more accurate discard calculation for skate bait and NE multispecies DAS trips. Exempted skate bait trips would be exempt from NE multispecies regulations. Discards of regulated NE multispecies from skate bait trips would no longer be deducted from sector or common pool sub-ACLs that make up the commercial groundfish sub-ACL. Instead, the calculated discards would be deducted from the “other subcomponents” sub-ACL.
In the NE multispecies fishery, calculated discard rates for regulated
NMFS has determined that this proposed rule is consistent with the FMP and preliminarily determined that the rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which describes the economic impacts that this proposed rule, if adopted, would have on small entities. A description of the reasons why this action is being considered, as well as the objectives of and legal basis for this proposed rule, can be found in the preamble to this proposed rule and are not repeated here. There are no Federal rules that duplicate, overlap, or conflict with the proposed rule. This proposed rule does not include any new reporting, recordkeeping or other compliance requirements. This action proposes to create a new skate bait trawl exemption area for trawl vessels targeting skate bait in SNE.
This action was compared to two different alternatives for the exemption. Alternatives to the proposed exemption include exempting a larger portion of SNE for a longer period of time, from June through November, and a No Action alternative, which would continue to require vessels targeting skate bait in this area to be on a declared NE multispecies trip from July through October.
The Small Business Administration (SBA) defines a small commercial fishing entity as a firm with gross receipts not exceeding $4 million. In Rhode Island, there are two major dealers involved in the skate bait market. One reports supplying skate bait to 100 lobster businesses located in Point Judith, Wickford, Newport, Westerly, and Jamestown, RI, along with businesses scattered throughout Connecticut and Massachusetts. The company buys skate bait from 12–15 vessels throughout the year. The lobster businesses supplied by the company employ between 2–4 crewmembers per vessel. The other major skate dealer in Rhode Island supplies local Newport, Sakonnet, and New Bedford, MA vessels and numerous offshore lobster vessels fishing in the Gulf of Maine. Skates are supplied to this dealer from draggers working out of Newport and Tiverton, RI, and New Bedford, MA.
Due to direct, independent contracts between draggers and lobster vessels, landings of skates are estimated to be under-documented. While skate bait is always landed (rather than transferred at sea), it is not always reported because it can be sold directly to lobster vessels by non-federally permitted vessels, which are not required to report as dealers. A more complete description of the skate bait fishery can be found in Amendment 3 to the NE Skate Complex FMP, available from the Council (
Compared to the No Action alternative, the Preferred Alternative (Alternative 1) is expected to benefit the local fishing communities that have historically depended on the skate bait fishery in SNE. This exemption was requested by members of the NE multispecies fishing industry, specifically members of a sector in the SNE area. The cost of fishing for skate bait has become increasingly high primarily due to the deduction of calculated discards from each vessel's sector ACE when fishing under a groundfish DAS. Thus, the proposed exemption will allow vessels to target skate bait outside of the DAS program, which will prevent the discards being deducted from their sector's ACE at a higher rate than is actually occurring. The EA for this proposed action estimates that the exemption could save the fleet approximately $24,490 a year in discards and DAS alone.
With the elimination of these low discard trips from the sector's discard stratum, the overall discard rate for the sector will likely increase because skate bait trips that were observed were keeping the discard rate for trips targeting groundfish artificially low. While this change will result in an increase of the overall sector's discard rate, the increase will not represent a significant cost to the SNE sector vessels that are not participating in the exemption. In addition, the calculated discard rates for both groundfish vessels and skate bait vessels will be more accurate as a result of the exemption; more accurate discards are not expected to have an economic effect on the fishing community as a whole.
The impacts of Alternative 2, which extends the exemption an additional 2 months over a larger area, would be expected to be similar to the impacts of the Preferred Alternative, but the expanded area and time would allow more vessels a greater opportunity to participate in the exempted fishery. The EA for this action estimates that Alternative 2 would save the industry an additional $ 3,739.37 compared to Alternative 1. However, the months of June and November showed an increased number of trips that caught over 5 percent groundfish, and a large portion of the area could not be evaluated because there was no observer or ASM data available. Providing an exemption for trips that caught over 5 percent groundfish, or areas where no data is available, would be contrary to the purpose and requirements of the Magnuson Stevens Conservation and Management Act and its implementing regulations. For these reasons, this alternative was not selected.
The No Action Alternative would have a negative economic impact on SNE skate bait vessels relative to the preferred alternative. This exemption was requested because of the economic burden that the cost of DAS and calculated discards had on sector fishermen targeting skate bait. As described above it is estimated that this exemption could save the fleet approximately $24,490 a year in discards and DAS alone compared to
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:
1. The authority citation for part 648 continues to read as follows:
16 U.S.C. 1801
2. In § 648.14, paragraph (k)(5)(i) is revised to read as follows:
(k) * * *
(5) * * *
(i) Violate any of the provisions of § 648.80, including paragraphs (a)(5), the Small-mesh Northern Shrimp Fishery Exemption Area; (a)(6), the Cultivator Shoal Whiting Fishery Exemption Area; (a)(9), Small-mesh Area 1/Small-mesh Area 2; (a)(10), the Nantucket Shoals Dogfish Fishery Exemption Area; (a)(11), the GOM Scallop Dredge Exemption Area; (a)(12), the Nantucket Shoals Mussel and Sea Urchin Dredge Exemption Area; (a)(13), the GOM/GB Monkfish Gillnet Exemption Area; (a)(14), the GOM/GB Dogfish Gillnet Exemption Area; (a)(15), the Raised Footrope Trawl Exempted Whiting Fishery; (a)(16), the GOM Grate Raised Footrope Trawl Exempted Whiting Fishery; (a)(18), the Great South Channel Scallop Dredge Exemption Area; (b)(3), exemptions (small mesh); (b)(5), the SNE Monkfish and Skate Trawl Exemption Area; (b)(6), the SNE Monkfish and Skate Gillnet Exemption Area; (b)(8), the SNE Mussel and Sea Urchin Dredge Exemption Area; (b)(9), the SNE Little Tunny Gillnet Exemption Area; (b)(11), the SNE Scallop Dredge Exemption Area; or (b)(12), the SNE Skate Bait Trawl Exemption Area. Each violation of any provision in § 648.80 constitutes a separate violation.
3. In § 648.80, paragraph (b)(2)(vi) is revised, and paragraph (b)(12) is added to read as follows:
(b) * * *
(2) * * *
(vi)
(12)
(i)
(ii)
(B) Vessels must use trawl gear, as specified in § 648.80(b)(2)(i).
(C) Vessels must possess an active skate bait letter of authorization issued by the Regional Administrator, as specified in § 648.322(c) and fish pursuant to the terms of authorization.
(D) Fishing may only occur from July 1 through October 31 of each fishing year.
Administrative Conference of the United States.
Notice of public meeting.
Notice is hereby given of a public meeting of the Committee on Adjudication of the Assembly of the Administrative Conference of the United States. At this meeting, the committee will continue consideration of the draft recommendation based on the Conference's Immigration Adjudication Project as noted below. Complete details regarding the committee meeting, the nature of the project, how to attend (including information about remote access and obtaining special accommodations for persons with disabilities), and how to submit comments to the committee can be found on the Conference's Web site, at
Comments may be submitted by email to
The meetings will be held at 1120 20th Street NW., Suite 706 South, Washington, DC 20036.
Funmi E. Olorunnipa (Committee on Adjudication), Designated Federal Officer, Administrative Conference of the United States, 1120 20th Street NW., Suite 706 South, Washington, DC 20036; Telephone 202–480–2080; Email:
A meeting of the Committee on Adjudication has been scheduled for May 7, 2012. At the meeting, the Committee on Adjudication will continue to consider and vote on the draft recommendation in the Conference's Immigration Adjudication Project. The draft recommendation is based in part on a report, prepared by Professor Lenni B. Benson (New York Law School) and Russell Wheeler (Brookings Institution), which presents the findings of a study of potential improvements to the procedures for immigration adjudication. Funmi E. Olorunnipa is the Designated Federal Officer for the committee. More information can be found in the “About” section of the Conference's Web site, at
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this existing information collection. This collection is a revision of a currently approved collection for reporting school programs data on a monthly basis for the National School Lunch Program, the School Breakfast Program, and the Special Milk Program.
Written comments must be received on or before June 26, 2012.
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 will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to Jon Garcia, Acting Branch Chief, Program Analysis and Monitoring Branch, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 640, Alexandria, VA 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go to
All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Room 640, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.
Requests for additional information or copies of this information collection should be directed to Jon Garcia at (703) 305–2600.
See the table below for estimated total annual burden for each type of respondent.
Food and Nutrition Service, USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on the proposed collection. This information collection is based on the Robert T. Stafford Disaster Relief and Emergency Assistance Act and Section 5(h) of the Food and Nutrition Act of 2008, which provide the Secretary of Agriculture with the authority to develop a Disaster Supplemental Nutrition Assistance Program (D–SNAP) to address the needs of families temporarily in need of food assistance after a disaster. The information collection under this notice is required for the establishment and operation of a D–SNAP.
Written comments must be received on or before June 26, 2012.
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 of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to Angela Kline, Chief, Certification Policy Branch, Program Development Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 812, Alexandria, VA 22302. Comments may also be faxed to the attention of Ms. Kline at (703) 305–2486. The Internet address is:
All written comments will be open for public inspection at the office of the FNS during regular business hours (8:30 a.m. to 5:00 p.m., Monday through Friday) at 3101 Park Center Drive, Room 800, Alexandria, Virginia 22302.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will be a matter of public record.
Requests for additional information should be directed to Ms. Kline at (703) 305–2495.
The number of disasters that occur annually and the average number of households affected by the disasters cannot be predicted. During the period from calendar year 2006 through calendar year 2011, the number of State requests for disaster programs ranged from 4 to 25 requests. These included program modifications requested by some States to accommodate evacuees from disasters which did not directly affect the States themselves. The information collection under this reporting burden is limited to the burden experienced by State agencies in preparing their requests to operate D–SNAPs. The burden associated with the actual operation of D–SNAPs, including the processing of applications from households affected by disasters, is included under OMB information collection No. 0584–0064, titled ”Food Stamp Forms: Applications, Periodic Reporting, Notices” (expiration date 03/31/2013), which includes all information collection activities associated with the certification of participating and applicant households. The D–SNAP participation and issuance form FNS–292–B, Report of Disaster Supplemental Nutrition Assistance Benefit Issuance, is covered under the OMB information collection No. 0584–0037 (expiration date: 07/31/2014) and will not be reflected in this submission.
FNS estimates that approximately 10 hours of State personnel time are required to prepare D–SNAP requests. The burden associated with preparing requests to operate a D–SNAP does not vary significantly from disaster to disaster and is relatively independent of the scope of the disaster. Major disasters require little additional document preparation time than relatively minor disasters. Based on an estimate of 14 State agency requests per year to operate D–SNAPs and 10 hours of State agency personnel time to prepare each application, FNS has calculated an estimated burden of 140 hours per year in an average year. No increase in burden was estimated under this collection.
Forest Service, USDA.
Notice of intent to prepare a supplemental environmental impact statement.
The Department of Agriculture, Forest Service will prepare a Supplemental Environmental Impact Statement (EIS) for a proposed amendment of the Land Management Plans for the Angeles, Cleveland, Los Padres, and San Bernardino National Forests (hereinafter referred to as Land Management Plans). This notice describes the specific portions of the current Land Management Plans to be amended, estimates dates for filing the supplemental environmental impact statement, information concerning public participation, and the names and contact information of the agency officials who can provide additional information. The Forest Service proposes to amend the Land Management Plans to change Land Use Zone allocations within select Inventoried Roadless Areas (IRAs) in the four southern California National Forests. The amendment also proposes to change the Land Management Plan monitoring protocols for the four forests. This joint planning process will maintain the consistent management direction and format across the four Forests. One Supplemental Environmental Impact Statement (EIS) will be prepared with a Record of Decision (ROD) for each Land Management Plan.
Comments concerning the scope of the analysis must be received by June 11, 2012. The draft supplemental environmental impact statement is expected November 2012. There will be a 90 day comment period on the draft supplemental environmental impact statement. The final supplemental environmental impact statement is expected June 2013.
Send written comments to Cleveland National Forest, 10845 Rancho Bernardo Road, Suite 200, San Diego, CA 92127–2107, ATTN: LMP Amendment. Comments may also be sent via email to
Bob Hawkins, Project Manager at
The Southern California National Forests (the Angeles, Cleveland, Los Padres, and San Bernardino National Forests, collectively, “four forests”) propose to amend the Land Management Plans adopted in 2006. The proposed amendment revises land use zone allocations for select Inventoried Roadless Areas (IRAs) within the four forests and amends Land Management Plan monitoring protocols. This proposed Land Management Plan amendment is a result of the Settlement Agreement approved January 3, 2011 for
The purpose of the proposed action is to amend Land Management Plan land use zone allocations for select IRAs and to amend Land Management Plan monitoring protocols. This action is needed to respond to the terms of the Settlement Agreement between the Forest Service, State of California, and other settlement parties.
Land Management Plans are required by the National Forest Management Act (NFMA). They are an integrated document that describes the goals, objectives, and management direction for each component of the National Forest System. The original Land Management Plans for the four southern California national forests were adopted between 1986 and 1989, and revised in 2006 consistent with NFMA requirements. This proposed amendment to the 2006 Land Management Plans is limited in scope and designed to address the terms of the settlement agreement.
The action proposed by the Forest Service to meet the purpose and need is to modify the existing land use zones in the identified IRAs to include more Back Country Non-Motorized (BCNM) and Recommended Wilderness (RW) areas. An alternate monitoring framework is also proposed.
The proposed action would change the LUZ allocation to BCNM on approximately 300,000 acres, and change the LUZ allocation to RW on approximately 80,000 acres. The majority of the additional BCNM allocations are located in IRAs on the Los Padres National Forest, and San Bernardino National Forest. Additions to the RW allocations are within IRAs on the Angeles and Cleveland National Forests.
On the Angeles National Forest, the Fish Canyon and Salt Creek IRAs were combined to create the proposed 40,000 acre Fish Canyon RW area. On the Cleveland National Forest, the proposed 23,000 acre Eagle Peak RW area includes portions of the Eagle Peak, Sill Hill, and No Name IRAs, along with portions of the Cedar Creek and Upper San Diego River undeveloped areas. The 11,000 acre Barker Valley and 5,000 acre Caliente RW areas are also proposed on the Cleveland National Forest.
The proposed action monitoring and evaluation requirements are based on the current monitoring framework (Part 3, Appendix C of the Land Management Plans). Revisions include updates to the monitoring requirements for forest health, riparian condition, and biological resource condition. Monitoring indicators were also clarified to reflect current inventory methodology in several areas, and an indicator was added to track unclassified (unauthorized) roads and trails. The revision also include more details on how monitoring will be implemented, and how projects will be selected for monitoring.
The Forest Service is the lead federal agency for the Land Management Plan Amendment. The U.S. Fish and Wildlife Service, National Marine Fisheries Service, Environmental Protection Agency, State of California Natural Resources Agency (including the Departments of Fish and Game, Parks and Recreation, and Forestry and Fire
Cleveland National Forest Supervisor Will Metz is the lead Forest Supervisor for the joint planning effort between the Angeles, Cleveland, Los Padres, and San Bernardino National Forests and is the Responsible Official for purposes of this notice. If the proposed amendment results in a significant change to the LMPs (as described by Forest Service policy), Regional Forester Randy Moore will be the Responsible Official for the decision. If the proposed amendment does not result in a significant change to the LMP, each individual Forest Supervisor may act as the Responsible Official for the decision. Refer to Forest Service Manual section 1926 for more detail.
Given the purpose and need, the Responsible Official reviews the proposed action, the other alternatives, and the environmental consequences in order to determine whether the LMPs will be amended as proposed, modified by an alternative, or not at all. The decision framework is limited in scope to the proposed changes to the land use zone allocations for select IRAs and to the monitoring protocols.
This notice of intent initiates the scoping process, which guides the development of the supplemental environmental impact statement. The four forests will host a series of open house workshops during the scoping period. Forest Service staff will be available during the open house workshops to answer questions about the proposed action.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however anonymous comments will not provide the Agency with the information needed to provide the respondent with subsequent environmental documents.
The LMP amendment will be developed under the transition provisions of the new Forest Service planning rule found at 36 CFR 219.17, which provides that plan amendments may be initiated under the provisions of the prior planning regulations (see 74 FR 67062, December 18, 2009 for more information on the prior planning rule). Under those transition provisions, this plan amendment will be conducted under the 1982 planning rule, however, the pre-decisional administrative review process described under 36 CFR 219 subpart B will apply.
The Forest Service will be hosting multiple open house workshops during the scoping period. The content and format of each meeting will be the same. Forest Service staff will be available to answer questions about the proposed action. Maps of the proposed changes will be available for viewing. The meeting times and locations are:
May 29, 2012, 4 p.m. to 7 p.m., Avenue Adult Center, 550 N. Ventura Avenue, Ventura, CA 93001 (Hosted by Los Padres National Forest).
May 30, 2012, 4 p.m. to 7 p.m., Angeles National Forest Headquarters, 701 North Santa Anita Avenue, Arcadia, CA 91006.
May 31, 2012, 4 p.m. to 7 p.m., Santa Maria Red Cross, 3030 Skyway Drive, Santa Maria, CA 93455 (Hosted by Los Padres National Forest).
May 31, 2012, 4 p.m. to 7 p.m., Santa Clara Mojave Rivers Ranger District Office, 33708 Crown Valley Road, Acton, CA 93510.
May 31, 2012, 4 p.m. to 7 p.m., San Bernardino National Forest Headquarters, 602 S. Tippecanoe Ave., San Bernardino, CA 92408.
May 31, 2012, 4 p.m. to 7 p.m., Palomar Ranger District Office, 1634 Black Canyon Road, Ramona, CA 92065.
June 1, 2012, 1 p.m. to 4 p.m., Frazier Park Library, 3732 Park Drive, Frazier Park, CA 93225 (Hosted by Los Padres National Forest).
June 5, 2012, 4 p.m. to 7 p.m., Descanso Ranger District office, 3348 Alpine Blvd., Alpine, CA 91901.
June 5, 2012, 4 p.m. to 7 p.m., Trabuco Ranger District office, 1147 E. 6th Street, Corona, CA 92879.
Forest Service, USDA.
Reissuance of a notice of intent (NOI) to prepare an environmental impact statement (EIS).
The USDA, Forest Service, Los Padres National Forest, gives notice of intent to conduct an analysis and prepare an EIS for reissuance of a 20-year special use permit for the Winchester Canyon Gun Club (WCGC). This notice announces the beginning of scoping, describes the proposed action and the decision to be made, and estimates the dates for filing the draft and final EIS. This notice also provides information concerning public participation and the names and addresses of Agency officials, who can provide information. The Agency issued an NOI in the
Comments concerning the scope of the analysis must be received by June 11, 2012. The draft EIS is expected in the fall of 2012 and the final EIS is expected the end of 2012.
Send written comments to: Los Padres National Forest, 6755 Hollister Avenue, Suite 150, Goleta, CA 93117, attention: Jeff Bensen. Comments may also be sent via email to
Questions about the proposed action may be directed to Jeff Bensen, Project Team Leader, Los Padres National Forest, 6755 Hollister Avenue, Suite 150, Goleta, CA 93117; telephone: (805) 961–5744; email:
The WCGC has been authorized to operate on the Los Padres National Forest by a special use permit since the late 1960s. The last term permit expired in 1995, and from that time on, the WCGC has been authorized by annual special use permits. In 2007, an environmental assessment pertaining to the issuance of a 20-year special use permit was completed, and a Decision Notice/Finding of No Significant Impact was issued. The decision was appealed, and the R5 Regional Forester sent the decision back to the Los Padres National Forest for further analysis. The purpose of this action is to reinitiate the proposed action in an EIS.
The proposed action would authorize the renewal of a 20-year special use permit for the WCGC. The proposed action would require changes pertaining to historic activities and a reduction in the number of shooting facilities, as well as, the number of acres covered under the special use permit from what had been authorized previously. The total size of the permit area would be reduced from 140 acres, as previously permitted, to 96 acres. Maps are available upon request that display the location of the project area, the existing facilities, and the features of the proposed action. The permit would authorize the following existing facilities:
Shooting activities would be restricted to the existing rifle and pistol ranges, three trap ranges, one skeet range, and a sporting clay course, as listed above. Shotgun ranges would be used in a manner minimizing the size of shot-fall areas, minimize the areas of lead contamination, and minimize the area where lead must be collected and recycled. Sporting clay activities would be conducted in a manner ensuring that the shot fall would overlap the trap and skeet range shot-fall areas. The proposed action would not authorize use of the historic long-bore range in the San Jose basin.
The range would be open year-round, with use authorized from sunrise to sunset. The WCGC would offer access to both club members and the public. Club members would be allowed to access the permit area for appropriate target shooting seven days a week. The public would be allowed shotgun use on Wednesday, Saturday, and Sunday, with rifle/pistol use on Saturday and Sunday. The WCGC would also offer the rifle and pistol ranges to local law enforcement agencies and military affiliates, such as ROTC.
An access trail leading into the trap and skeet shot-fall areas would be constructed on the steep northern portion of the proposed permit area. The trail would be 50 inches wide and approximately
The objective of the proposed action is to isolate the WCGC from the adjoining San Jose basin to the greatest extent possible, maximize the physical separation of the two areas, and mitigate unavoidable effects. In 2011, the San Jose basin area was recommended as a Traditional Cultural Landscape (TCL), underlining the importance of this objective, and it will be managed as an area of cultural importance. A barrier fence constructed at the ridgeline between the proposed WCGC boundary and the San Jose basin would stop clay target and shot wad (shooting) debris, but noise and some lead shot would still carry into the basin area. This is discussed in greater detail below. The Forest Service and the WCGC are jointly developing an Environmental Stewardship Plan (ESP), which will incorporate a schedule of actions to mitigate effects of the target range on the San Jose basin.
In the San Jose basin, the existing 200-, 300-, and 600-yard-long bore ranges with target structures and impact berms will be permanently removed. Use of these ranges by the WCGC has been denied by the Forest Service since 1998. The structures have remained idle since that time. To access the range, an existing unused access road, which is
Continuing impacts to the San Jose basin are lead shotfall and shooting noise. A portion of the skeet range shot fall area overlaps into the northwest edge of the San Jose basin. The overlap would continue with mitigation measures to minimize lead and shooting debris accumulation in the basin area. The overlap is a wedge shaped 4.2 acre area. This area of continued impact is a reduction from 55 acres the WCGC was historically permitted to use in the basin area when the long bore range was included. Mitigation measures are listed below and include construction of a 12-foot high 200-foot long barrier fence along the ridgeline between the skeet range and the San Jose basin to stop shooting debris (target clays and shot wads) and some lead shot from entering the basin area. Mitigations also include monthly clean-up of any shooting debris entering the basin, and planned collection of lead shot in the shot fall area. The potential effects of this lead cleanup will be analyzed in the EIS. To partially mitigate the impact of noise, an MOA with the local Tribe has been developed to provide noise free days. The EIS will also analyze the impacts of noise to surrounding areas.
The ESP incorporates the findings from this environmental document to identify environmental concerns, evaluate and prioritize appropriate actions, and generate a list of short- and long-term action items and the steps necessary to implement each item to protect and manage the permitted area.
• Conduct an annual evaluation of progress by the WCGC and the Forest Service toward the environmental stewardship goals.
• Establish a testing and monitoring schedule for soil pH at target backstops and shotgun shot-fall zones. Soil pH will be maintained between 6.5 and 8.5.
• Establish a soil testing and monitoring schedule for lead content and stability on the site.
• Install physical barriers such as silt dams and berms as needed at target backstops and shot-fall zones to prevent lead migration off-site through groundwater and surface water.
• Use only “environmentally friendly” clay targets.
• Do not allow target clays and wads to accumulate on the trap, skeet, and sporting clay fields. The accumulated “environmentally friendly” and “black” targets on the accessible areas at the trap, skeet, and sporting clay zones will be cleaned up and removed from the site. This project will be completed 3 to 4 years after the permit is issued, and subsequent routine removal of the target debris will be established in the ESP.
• Collect and recycle lead at the rifle/impact berms.
• Collect and recycle lead from the trap and skeet ranges and shot-fall zones.
• Construct a 12-foot-high, 200- foot-long barrier fence on the eastern edge of the skeet range to stop shooting targets and some lead shot from crossing into the San Jose basin.
• Coordinate with the local Native American communities to establish “no shooting days” to mitigate the impact of noise.
• Remove the target frame racks and permanently discontinue use of the 200-, 300-, and 600-yard ranges in the basin, and remove the materials, contaminated soil, and access road when the rehabilitation project is completed.
• Construct a 50-inch-wide access trail into the north-facing trap and skeet range shot-fall zone for lead collection. Lead shot collection will initially be conducted within 50 feet of the trail up and downslope from the trail.
• Collect lead in the skeet range shot-fall overlap area in the San Jose basin by trimming brush only enough to facilitate access to areas of shot accumulation on the soil surface.
• Collect and remove lead for recycling using hand screening or small mechanized screening equipment if available. The collection methods will be consistent with the recommendations listed in the U.S. Environmental Protection Agency's guidelines entitled “Best Management Practices for Lead at Outdoor Shooting Ranges.” Lead shot collection and ground disturbance will be monitored and conducted to reduce the potential for off-site migration of lead.
All facilities will be available and accessible to all people without discrimination based on race, color, national origin, sex, religion, age, disability, political beliefs, or marital or familial status. An operation and maintenance plan, safety plan, and fire plan will be developed by both the WCGC and the Forest Service, attached to the permit, and monitored to ensure compliance.
A full range of alternatives will be considered, including non-renewal of the permit, renewal of the permit, and renewal of the permit with modifications. In addition, alternatives in response to issues generated during the scoping process will be considered. All alternatives will comply with the Los Padres National Forest Land Management Plan.
Peggy Hernandez, Forest Supervisor, Los Padres National Forest, Goleta, California, is the responsible official for this EIS and its Record of Decision. As the responsible official, the Forest Supervisor will document the decision and the reason for the decision in the Record of Decision. The decision will be subject to Forest Service Appeals Regulations (36 CFR Part 215).
The responsible official will make a decision by considering the following:
1. Whether the proposed action will proceed as proposed, with modifications, or not at all; and
2. What associated mitigation measures and monitoring requirements will be required.
Preliminary issues identified during earlier public involvement include the following:
1. Potential impacts of lead and other shooting contaminants on-site:
(a) At affected areas of San Jose basin from long-bore ranges, and
(b) From continued operation of existing facilities proposed to remain;
2. Potential for off-site migration of lead and other shooting contaminants;
3. Impacts on cultural sites in the San Jose basin;
4. Target range safety;
5. Target range potential for starting wildfires; and
6. Need for a controlled regulated shooting facility.
All scoping comments submitted to the Forest Service in response to the NOI dated December 2, 2009, will be carried through to this current scoping period. Previous respondents are not required to provide duplicate comments; however, all new comments relevant to this proposed action are encouraged and welcome. This scoping process guides the development of the EIS. The Forest Supervisor is seeking public and agency comment on the proposed action to identify issues that could arise. These issues may lead to other alternatives or additional mitigation measures and monitoring requirements. Comments may be provided at any time during the planning process, but it is important that reviewers provide their comments at a time and in a manner that will be most useful to the Agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. The submission of timely and specific comments in response to this Notice does not confer status for subsequent administrative appeal but does provide important information for preparation of the document and may be of importance for judicial review.
Rural Utilities Service, USDA.
Notice of Finding of No Significant Impact.
The Rural Utilities Service (RUS) has issued a Finding of No Significant Impact (FONSI) for the Environmental Assessment (EA) associated with a solar generation project. The EA was prepared in accordance with the National Environmental Policy Act (NEPA), the Council on Environmental Quality's
To obtain copies of the FONSI or EA, or for further information, contact: Ms. Lauren McGee, Environmental Scientist, USDA, Rural Utilities Service, 1400 Independence Avenue SW., Stop 1571, Room 2244–S, Washington, DC 20250–1571, telephone: (202) 720–1482, fax: (202) 690–0649, or email:
Turning Point Solar proposes to construct a 49.9 MW solar generating facility in Brookfield Township, Noble County, Ohio. The proposal involves the installation of high-efficiency monocrystalline photovoltaic panels mounted on fixed solar racking equipment and the construction of access roads, a powerhouse, transmission improvements, and other supporting facilities. The preferred site is located eight miles northwest of Caldwell, Ohio, on approximately 771 acres of reclaimed strip-mined land owned by Columbus Southern Power Company and Ohio Power Company, collectively American Electric Power Ohio (“AEP Ohio”). The land was mined by the Central Ohio Coal Company between 1969 and 1991, after which time it was reclaimed. The proposed generating facility would interconnect to AEP Ohio's South Cumberland 69kV substation, subject to completion of the Pennsylvania-New Jersey-Maryland (PJM) Generation Interconnection application process.
A Notice of Intent to prepare an EA and hold a scoping meeting was published in the
Turning Point Solar hired URS Corporation to prepare an EA for RUS that described the proposal and assessed its potential environmental impacts. RUS conducted an independent evaluation of the EA and concurred with its scope and content. In accordance with RUS's Environmental Policies and Procedures at 7 CFR 1794.41, RUS accepted the document as its EA.
Based on its EA, RUS has concluded that the proposal would have no significant impacts to water quality, wetlands, the 100-year floodplain, land use, aesthetics, transportation, or human health and safety. The proposal will have no adverse effects on historic properties listed or eligible for listing on the National Register of Historic Places. RUS has also concluded that the proposal is not likely to affect federally listed threatened and endangered species or designated critical habitat. The proposal would not disproportionately affect minority and low-income populations.
No other potential significant impacts resulting from the proposal have been identified. Therefore, RUS has determined that this FONSI fulfills its obligations under NEPA for its action related to the proposal. RUS is satisfied that the environmental impacts of the proposal have been adequately addressed. If RUS takes a federal action on the proposal, it will not result in significant impacts to the quality of the human environment. Accordingly, an Environmental Impact Statement will not be prepared for the proposal.
Economic Development Administration, Department of Commerce.
Notice and opportunity for public comment.
Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance (TAA) from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 7106, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
On March 2, 2012, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board filed an application submitted by the Economic Development Authority of Western Nevada, grantee of FTZ 126, requesting temporary/interim manufacturing (T/IM) authority, on behalf of Brightpoint North America L.P., to produce cell phone kits under FTZ procedures within FTZ 126—Site 23, in Reno, Nevada.
The application was processed in accordance with T/IM procedures, as authorized by FTZ Board Orders 1347 (69 FR 52857, 8/30/2004) and 1480 (71 FR 55422, 9/22/2006), including notice in the
Pursuant to Section 766.24 of the Export Administration Regulations (“EAR” or the “Regulations”),
OEE also has requested pursuant to Sections 766.23 and 766.24 of the Regulations that the following party also be named to the TDO as a related person to Aban Air and Ali Mahdavi, in order to prevent evasion of the TDO:
Pursuant to Section 766.24(b) of the Regulations, BIS may issue a TDO upon a showing that the order is necessary in the public interest to prevent an “imminent violation” of the Regulations. 15 CFR 766.24(b)(1). “A violation may be `imminent' either in time or degree of likelihood.” 15 CFR 766.24(b)(3). BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
OEE submits that three U.S.-origin Boeing 747 planes, Manufacturer Serial Number (“MSN”) 23408 (Tail Number C5–SAM), MSN 23224 (Tail Number C5–AKR), and MSN 23823 (Tail Number C5–SAG), items subject to the Regulations, classified under Export Control Classification Number 9A991.b, and controlled for Anti-Terrorism reasons, have been reexported or are intended for reexport to Iran, without the required U.S. Government authorization, as a result of a series of related transactions involving Sayegh Group Aviation, Sam Air Corporation Limited (“Sam Air”), Aviation Legacy (Gambia) Limited (“Aviation Legacy”), and Aban Air. Sayegh Group Aviation and Sam Air are located in the United Arab Emirates (“U.A.E.”), and are subsidiaries or affiliates of National Paints Factories Company Limited and the Sayegh Group, also located in the U.A.E. Aviation Legacy has addresses in the U.A.E. and Gambia, West Africa, and was, as discussed further below, created as a “clean” company for the purpose of facilitating the lease of the 747s to an Iranian airline or airlines. Aban Air is based in and operates out of Tehran, Iran.
On April 16, 2012, Abdullah Khaled Ramadan (“Ramadan”), Managing Director of both Sayegh Group Aviation and Sam Air, informed BIS and provided transaction documents indicating that three 747s at issue were obtained by Sayegh Group Aviation from Qantas Airlines in the United States in August 2010, sold to Sam Air in July 2011, and then sold yet again to Aviation Legacy on December 20, 2011. Less than ten days later, on or about December 29, 2011, Aviation Legacy leased one of the 747s for reexport to Aban Air in Iran. Ramadan also stated that this 747 aircraft, MSN 23408, is currently in Iran and is scheduled to be reexported again on or about April 30, 2012.
The lease was signed for Aviation Legacy by its chairman, Mahmoud Khalil Hamze (a/k/a Mahmoud Khalil, a/k/a Mahmoud Hamza Khalil), and for Aban Air by its chairman, Ali Mahdavi. Hamze was present when Ramadan made these statements to BIS, and did not contradict or seek to contradict any statements made by Ramadan.
Ramadan provided details about the transactions and the parties and aircraft involved. He was in possession of all of the pertinent Bills of Sale for the three aircraft as well as the subsequent leasing agreement to Aban Air. He admitted that the transactions were structured so that the lease to Aban Air would appear to be through a “clean” company, Aviation Legacy, created for reasons he vaguely described as having to do with an administrative dispute. He also indicated that Sam Air had been created at the order of Saleem Al Sayegh, the chief executive officer of Sam Air's parent company, the National Paints Factories Company Limited, but declined to explain the reasons why that had been necessary.
Under the terms of the lease, Aban Air's operations under the lease began on or about March 15, 2012, with the leased 747 (MSN 23408) to be reexported back and forth between Tehran, Iran, and Bangkok, Thailand. Ramadan denied that any of the Tehran-Bangkok flights had occurred, but indicated that this aircraft currently is located in Iran with Aban Air, and is expected to be flown out of Iran by on or about April 30, 2012.
Ramadan also indicated that the other two 747s have been flown in and out of various countries in the Middle East, including Syria, and that at least one of these 747s is currently located in the U.A.E.
OEE submits, in sum, that future violations of the EAR are imminent as defined in Section 766.24 of the Regulations. I agree. As provided in Section 746.7 of the Regulations, no person may export or reexport any item that is subject to the EAR, if such transaction is prohibited by the Iranian Transactions Regulations (31 CFR part 560) and has not been authorized by the Treasury Department's Office of Foreign Assets Control (“OFAC”). The evidence shows that the respondents have already reexported one Boeing 747 aircraft (MSN 23408) to Iran without having received the required OFAC authorization. Ramadan, Managing Director of both Sayegh Group Aviation and Sam Air, admitted this unauthorized reexport and admitted another such reexport of this aircraft was imminent in time. As noted above, these statements were made in the presence of Hamze, Aviation Legacy's chairman, who did not contradict the statements in any way. Moreover, Aviation Legacy was created by Sam Air/Ramadan in an attempt to make the lease to Aban Air appear to be by a “clean” company, and as discussed above, two other 747 aircraft are owned and intended for lease through Aviation Legacy.
Thus, the conduct in this case is deliberate, significant, and likely to occur again absent the issuance of a TDO. Therefore, I find that a TDO naming Sayegh Group Aviation Sam Air Corporation Limited, Abdullah Khaled Ramadan, Aviation Legacy (Gambia) Limited, Mahmoud Khali Hamze (a/k/a Mahmoud Khalil a/k/a Mahmoud Hamza Khalil), Aban Air, and Ali Mahdavi is necessary, in the public interest, to prevent an imminent violation of the EAR.
This Order is being issued on an
Section 766.24(c) of the Regulations provides that a temporary denial order may be made applicable to related persons in accordance with Section 766.23. 15 CFR 766.24(c). Section
Everex Global Cargo and Courier (“Everex”) has a significant corporate relationship with Aban Air and Ali Mahdavi. OEE has presented evidence that Ali Mahdavi, who is chairman of Aban Air and signed the lease discussed above that resulted in the unlawful reexport of a 747, also is the chairman of Everex. The two entities have the same offices at the Tehran, Iran Airport. Everex also lists its branch office in Tehran as the same location as Aban Air's Iranian headquarters. Finally, according to open source information obtained by OEE, Everex acts as the General Sales Agent for Aban Air in several countries, including Iran and the U.A.E.
I find pursuant to Section 766.23 that Everex Global Cargo and Courier is a related person to Aban Air and Ali Mahdavi, and that adding Everex Global Cargo and Courier to the TDO is necessary to prevent evasion of the TDO.
It is therefore ordered: FIRST, that the Respondents, SAYEGH GROUP AVIATION, P.O. Box 5822, Sharjah, United Arab Emirates; ABAN AIR, No. 1267, Vali Asr Avenue, Tehran, Iran 157177 36511; SAM AIR CORPORATION LIMITED, P.O. Box 5822, Sharjah, United Arab Emirates, and 18th Hill Street, Banjul, The Gambia, West Africa; AVIATION LEGACY (GAMBIA) LIMITED, c/o Mahmoud Khali Hamze, Flat 2907, Almeriki Tower, Sheikh Zayed Road, Dubai, United Arab Emirates, and G 15, Kanifing Housing Estate, The Gambia, West Africa; ABDULLAH KHALED RAMADAN, Managing Director, Sam Air Corporation Limited, P.O. Box 5822, Sharjah, United Arab Emirates; ALI MAHDAVI, Chairman Aban Air, No. 1267, Vali Asr Avenue, Tehran, Iran 157177 36511; MAHMOUD KHALI HAMZE (a/k/a MAHMOUD KHALIL a/k/a MAHMOUD HAMZA KHALIL), Managing Director, Aviation Legacy (Gambia) Limited, Flat 2907, Almeriki Tower, Sheikh Zayed Road, Dubai, United Arab Emirates; and EVEREX GLOBAL CARGO AND COURIER, Nos. 7 and 8, Opposite Terminal 2, Mahrabad International Airport, Tehran, Iran, and No. 1267, Vali Asr Avenue, Tehran, Iran 157177 36511, and each of their successors or assigns and, when acting for or on behalf of any of the foregoing, each of their officers, representatives, agents or employees (each a “Denied Person” and collectively the “Denied Persons”) may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Export Administration Regulations (“EAR”), or in any other activity subject to the EAR including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR.
SECOND, that no person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of a Denied Person any item subject to the EAR;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the EAR that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
THIRD, that, after notice and opportunity for comment as provided in section 766.23 of the EAR, any other person, firm, corporation, or business organization related to a Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order.
FOURTH, that this Order does not prohibit any export, reexport, or other transaction subject to the EAR where the only items involved that are subject to the EAR are the foreign-produced direct product of U.S.-origin technology.
In accordance with the provisions of Section 766.24(e) of the EAR, the Respondents may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202–4022.
BIS may seek renewal of this Order by filing a written request with the Assistant Secretary of Commerce for Export Enforcement in accordance with the provisions of Section 766.24(d) of the EAR, which currently provides that such a written request must be submitted not later than 20 days before the expiration date. A Respondent may oppose a request to renew this Order in accordance with Section 766.24(d), including by filing a written submission with the Assistant Secretary of Commerce for Export Enforcement, supported by appropriate evidence. Any opposition ordinarily must be received not later than seven days before the expiration date of the Order.
Notice of the issuance of this Order shall be given to Respondents in accordance with Sections 766.5(b) and 766.24(b)(5) of the Regulations. This Order also shall be published in the
This Order is effective immediately and shall remain in effect for 180 days.
Import Administration, International Trade Administration, Department of Commerce.
Scott Hoefke or Fred Baker, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4947 or (202) 482–2924, respectively.
On January 10, 2012, the Department of Commerce (the Department) published in the
Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires that the Department complete the final results of an administrative review within 120 days after the date on which notice of the preliminary results was published in the
The Department finds that it is not practicable to complete the final results of this review within the original time frame because the Department continues to require additional time to analyze issues raised in recently filed case and rebuttal briefs. Thus, the Department finds it is not practicable to complete this review by the current deadline (
This extension is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting a new shipper review of the antidumping duty order on seamless refined copper pipe and tube from Mexico for the period November 22, 2010, through April 30, 2011, in response to a request from GD Affiliates S. de R.L. de C.V. (GD Affiliates).
We preliminarily find that the U.S. sales of subject merchandise produced and exported by Golden Dragon
Dennis McClure or Joy Zhang, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–5973 or (202) 482–1168, respectively.
The Department published the antidumping duty order on seamless refined copper pipe and tube from Mexico on November 22, 2010.
On July 1, 2011, the Department issued its new shipper questionnaire to GD Affiliates. On August 22, 2011, Golden Dragon submitted its section A through D response. On September 6, 2011, the petitioners
The Department issued a second, third, and fourth supplemental questionnaire for section D, on December 21, 2011, January 30, 2012, and March 27, 2012. Golden Dragon submitted its responses to the section D supplemental on January 18, 2012, February 21, 2012, and April 6, 2012, respectively.
On December 23, 2011, the Department extended the deadline for the preliminary results to April 23, 2012.
For the purpose of the order, the products covered are all seamless circular refined copper pipes and tubes, including redraw hollows, greater than or equal to 6 inches (152.4 mm) in length and measuring less than 12.130 inches (308.102 mm) (actual) in outside diameter (OD), regardless of wall thickness, bore (
The scope of the order covers, but is not limited to, seamless refined copper pipe and tube produced or comparable to the American Society for Testing and Materials (ASTM) ASTM–B42, ASTM–B68, ASTM–B75, ASTM-B88, ASTM–B88M, ASTM–B188, ASTM-B251, ASTM–B251M, ASTM–B280, ASTM–B302, ASTM–B306, ASTM–359, ASTM–B743, ASTM–B819, and ASTM–B903 specifications and meeting the physical parameters described therein. Also included within the scope of the order are all sets of covered products, including “line sets” of seamless refined copper tubes (with or without fittings or insulation) suitable for connecting an outdoor air conditioner or heat pump to an indoor evaporator unit. The phrase “all sets of covered products” denotes any combination of items put up for sale that is comprised of merchandise subject to the scope.
“Refined copper” is defined as: (1) Metal containing at least 99.85 percent by weight of copper; or (2) metal containing at least 97.5 percent by weight of copper, provided that the content by weight of any other element does not exceed the following limits:
Excluded from the scope of the order are all seamless circular hollows of refined copper less than 12 inches in length whose OD (actual) exceeds its length. The products subject to the order are currently classifiable under subheadings 7411.10.1030 and 7411.10.1090 of the Harmonized Tariff Schedule of the United States (HTSUS). Products subject to the order may also enter under HTSUS subheadings 7407.10.1500, 7419.99.5050, 8415.90.8065, and 8415.90.8085. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
As the petitioners point out, this new shipper review was requested by GD Affiliates. In its initial questionnaire response, as the petitioners noted, GD Affiliates identified affiliated parties involved with the production and sale of subject merchandise from Mexico. Specifically, GD Affiliates identified the following affiliated parties, which are all wholly owned subsidiaries of Golden Dragon Precise Copper Tube Group, Inc., the corporate parent located in the People's Republic of China: (1) GD Copper Cooperatief U.A.; (2) Hong Kong GD Trading Co. Ltd.; (3) Golden Dragon Holding (Hong Kong) International, Ltd.; (4) GD Copper U.S.A. Inc.; (5) GD Affiliates Servicios S. de R.L. de C.V.; and (6) GD Affiliates. In questionnaire responses, these companies are collectively referred to as Golden Dragon.
In its responses, Golden Dragon explained that Hong Kong GD Trading Co. Ltd. buys the raw material on the world market and arranges to have it shipped to the production facility in Mexico, where it is converted to subject merchandise under consignment pursuant to a maquila agreement with GD Affiliates.
Based upon the record of this new shipper review, the Department preliminarily determines that Golden Dragon is the producer and exporter of subject merchandise and, therefore, is entitled to this new shipper review.
We preliminarily determine that these sales are
The period of review (POR) for this new shipper review is November 22, 2010, through April 30, 2011.
To determine whether Golden Dragon's sales of subject merchandise from Mexico were made in the United States at less than NV, we compared the monthly, weighted-average constructed export price (CEP) to the monthly, weighted-average NV, as described in
Pursuant to section 771(16)(A) of the Act, for purposes of determining appropriate product comparisons to the U.S. sales, the Department considers all products, as described in the “Scope of the Order” section of this notice above, that were sold in the comparison or third-country market in the ordinary course of trade. In accordance with sections 771(16)(B) and (C) of the Act, where there are no sales of identical merchandise in the comparison or third-country market made in the ordinary course of trade, we compared U.S. sales to sales of the most similar foreign like product based on the characteristics listed in sections B and C of our antidumping questionnaire: (1) Type and ASTM specification; (2) copper alloy unified number system; (3) outer diameter; (4) wall thickness; (5) physical form; (6) temper designation; (7) bore; (8) outer surface; and (9) attachments. We found that Golden Dragon had sales of foreign like product that were identical or similar in these respects to the merchandise sold in the United States, and therefore compared the U.S. product with identical or similar merchandise sold in the home market, based on the characteristics listed above, in that order of priority.
Pursuant to 19 CFR 351.401(i), the Department will normally use the date of invoice as the date of sale, unless a different date better reflects the date on which the material terms of sale are established. In its response to the Department's questionnaire, Golden Dragon reported the invoice date as the date of sale in both markets. However, in section A of Golden Dragon's response, Golden Dragon reported that the quantity of each transaction is not fixed until the shipment is made. In the case of consignment sales, when the product is withdrawn by a customer, the invoice date is the appropriate date of sale.
Section 772(b) of the Act defines CEP as “the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter,” as adjusted under sections 772(c) and (d) of the Act. For purposes of this new shipper review, Golden Dragon classified its U.S. sales as CEP sales because Golden Dragon's U.S. affiliate is responsible for the sale to the unaffiliated customer. Since Golden Dragon's U.S. affiliate is responsible for the sale to the unaffiliated customer in the United States, we are treating Golden Dragon's U.S. sales as CEP sales. We calculated CEP using the price Golden Dragon charged its unaffiliated customer. We made deductions and adjustments, where appropriate, from the starting price for international freight, inland insurance, U.S. warehouse expenses, U.S. brokerage and handling expenses, credit expenses, inventory carrying costs incurred in the United States, and other indirect selling expenses in the United States associated with economic activity in the United States.
Information about the specific adjustments and our analysis of the adjustments is business proprietary, and is detailed in the Memorandum to The File, through James Terpstra, Program Manager, from Dennis McClure, International Trade Analyst, Analysis Memorandum for Golden Dragon Affiliates S. de R.L. de C.V. for the Preliminary Results of the Antidumping Duty New Shipper Review of Seamless Refined Copper Pipe and Tube from Mexico, dated concurrently with this notice (Preliminary Analysis Memorandum).
In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (
In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the export price or CEP sales in the U.S. market. For further discussion of our LOT analysis, see Preliminary Analysis Memorandum.
After analyzing the information on the record with respect to the following selling activities: (1) Sales Forecasting;
In accordance with section 773(b)(2)(A) of the Act, to initiate a cost of production (COP) investigation the Department must have “reasonable grounds” to believe or suspect that sales of the foreign like product under consideration for the determination of NV have been made at prices below the COP of that product. An allegation will be deemed to have provided reasonable grounds if: (1) A reasonable methodology is used in the calculation of the COP including the use of the respondent's actual data, if available; (2) using this methodology, sales are shown to be made at prices below the COP; and (3) the sales allegedly made at below cost are representative of a broader range of foreign models which may be used as a basis for NV.
Golden Dragon alleges that the volatility in daily commodity metal prices poses unique issues that the Department's traditional antidumping methodology does not adequately address.
Golden Dragon claims that because of the risks associated with fluctuating copper prices, the company has developed a business practice where Golden Dragon and its customers agree to fix the copper price component of the sales of seamless copper pipe and tube based on published prices from a global commodity futures exchange, such as the London Metals Exchange (LME).
In
In the instant case, Golden Dragon claims that Hong Kong GD Trading Co., Ltd.'s metal purchasing and hedging mechanism is identical to the
In accordance with section 773(b)(3) of the Act, we calculated Golden Dragon's COP based on the sum of materials and conversion for the foreign like product, plus amounts for general and administrative expenses and interest expenses (
On a product-specific basis, pursuant to section 773(a)(1)(B)(i) of the Act, we compared the adjusted weighted-average COP to the home market sales prices of the foreign like product, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices (inclusive of billing adjustments, where appropriate) were exclusive of any applicable movement charges, discounts, direct and indirect selling expenses, and packing expenses.
In determining whether to disregard home market sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act whether: (1) within an extended period of time, such sales were made in substantial quantities; and (2) such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. In accordance with sections 773(b)(2)(B) and (C) of the Act, where less than 20 percent of the respondent's home market sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product because we determine that in such instances the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard the below-cost sales when: (1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act; and (2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.
We found that, for certain products, more than 20 percent of Golden Dragon's home market sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.
We calculated NV for Golden Dragon on the reported packed, delivered prices, FOB plant, or delivered to the customer's warehouse and sold on a consignment basis to comparison market customers. We made deductions from the starting price, where appropriate, for billing adjustments, early payment discounts, credit expenses, and inland freight, pursuant to section 773(a)(6)(B)(ii) of the Act.
We added U.S. packing costs and deducted home market packing costs, in accordance with sections 773(a)(6)(A) and (B)(i) of the Act. We also made adjustments, in accordance with 19 CFR 351.410(e), for indirect selling expenses incurred in the home market or the United States where commissions were granted on sales in one market but not in the other, the “commission offset.” Specifically, where commissions are incurred in one market, but not in the other, we will limit the amount of such allowance to the amount of either the indirect selling expenses incurred in the one market or the commissions allowed in the other market, whichever is less.
When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the variable cost of manufacturing for the foreign like product and subject merchandise.
We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act and 19 CFR 351.415(a) based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank.
As a result of our review, we preliminarily find, in accordance with 19 CFR 351.214(i)(1), that the following weighted-average dumping percentage margin exists for Golden Dragon for the period November 22, 2010, through April 30, 2011:
Upon completion of this new shipper review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b). The Department intends to issue assessment instructions for Golden Dragon directly to CBP 15 days after the date of publication of the final results of this new shipper review.
If Golden Dragon's weighted-average dumping margin is above
The following cash 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 new shipper review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for subject merchandise that is manufactured by Golden Dragon and exported by Golden Dragon established in the final results of this new shipper review, except no cash deposit will be required if its weighted-average dumping margin is
Further, effective upon publication of the final results, we intend to instruct CBP that importers may no longer post a bond or other security in lieu of a cash deposit on imports of seamless refined copper pipe and tube from Mexico, manufactured by Golden Dragon and exported by Golden Dragon. These cash deposit requirements, when imposed, shall remain in effect until further notice.
The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of public announcement.
Interested parties who wish to request a hearing or to participate if one is requested must submit a written request to the Assistant Secretary for Import Administration within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. Issues raised in the hearing will be limited to those raised in the case and rebuttal briefs.
The Department will issue the final results of this review, including the results of its analysis of issues raised in any written briefs, within 90 days of signature of these preliminary results, unless the final results are extended.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This new shipper review is issued and published in accordance with sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act, as well as 19 CFR 351.214(i).
Import Administration, International Trade Administration, Department of Commerce.
Dennis McClure or James Terpstra at 202–482–5973 or 202–482–3965, respectively, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On January 3, 2012, the Department of Commerce (the Department) initiated the third sunset reviews of the antidumping duty (AD) orders on corrosion-resistant carbon steel flat products (CORE) from Germany and South Korea (Korea), pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
On February 14, 2012, the Department published in the
In accordance with section 751(c)(5)(B) of the Act, the Department may extend the period of time for making its determination by not more than 90 days, if it determines that the sunset review is extraordinarily complicated. We determine that these AD sunset reviews are extraordinarily complicated, pursuant to section 751(c)(5)(C) of the Act, because of a large number of complex issues in each review that the Department must analyze pursuant to the
The preliminary results of these full sunset reviews of the AD orders on CORE from Germany and Korea are currently scheduled for April 23, 2012, and the final results of these reviews are scheduled for August 30, 2012. The Department is extending the deadlines for both the preliminary and final results of these full sunset reviews. As a result, the Department intends to issue the preliminary results of these full sunset reviews of the AD orders on CORE from Germany and Korea no later than July 21, 2012, and the final results of the reviews no later than November 28, 2012. These dates are 90 days from the original scheduled dates of the preliminary and final results of these full sunset reviews.
This notice is issued in accordance with sections 751(c)(5)(B) and (C)(v) of the Act.
Minority Business Development Agency, U.S. Department of Commerce.
Notice of an open meeting.
The National Advisory Council for Minority Business Enterprise (NACMBE) will hold its sixth meeting to discuss the work of the three subcommittees and deliberate on final recommendations to accelerate the growth of minority-owned businesses in fulfillment of the NACMBE's charter mandate. The agenda may change to accommodate Council business.
The meeting will be held on Tuesday, May 15, 2012 from 9 a.m. to 5 p.m. Eastern Time (ET).
This meeting will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
Demetria Gallagher, National Director's Office, Minority Business Development Agency (MBDA), U.S. Department of Commerce at (202) 482–1624
A limited amount of time, in the afternoon, will be available for pertinent brief oral comments from members of the public attending the meeting. Any member of the public may submit pertinent written comments concerning affairs of the NACMBE at
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Demetria Gallagher, at (202) 482–1624, or
Copies of the NACMBE open meeting minutes will be available to the public upon request.
National Institute of Standards and Technology, Commerce.
Notice of public meeting.
The National Institute of Standards and Technology (NIST) invites interested parties to attend a pre-consortium meeting on “Developing Standard Requirements for Fatigue Performance of Transvenous Cardiac Pacing and Defibrillation Leads.”
The meeting will take place on May 30, 2012 from 10 a.m. to 11 a.m.
The meeting will be held by teleconference. The dial-in number is 888–790–2057; the conference code is 32938.
For information about the meeting or joining the Consortium, contact Timothy Quinn, Cell and Tissue Mechanics Group, National Institute of Standards and Technology, 325 Broadway, Stop 853, Boulder, CO 80305–3328, (303) 497–3480,
The goal of the consortium will include determining methods that best measure the fatigue performance of transvenous cardiac pacing leads. This goal will be achieved by evaluating current practices used in industry and developing standard requirements. Consortium planning and standard development would be conducted by NIST staff along with at least one technical representative from each participating member entities and any outside technical experts they should designate. Each member of the consortium will be required to sign a Cooperative Research and Development Agreement (“CRADA”) with NIST. Membership fees for participation in the consortium will be Two Thousand ($2,000) per year. It is anticipated that the initial term of the consortium will be Two (2) years. The deadline for joining the consortium is June 29, 2012. After June 29, 2012 no new members will be able to join the Consortium.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Habitat and Environmental Protection (Habitat) Advisory Panel (AP) to provide input on measures in Comprehensive Ecosystem-Based Amendment 3 and other habitat related topics. See
The Habitat AP meeting will be held May 15, 2012, from 2 p.m. until 4 p.m.
The meeting will be held via webinar. The webinar is open to members of the public. Persons interested in participating in the webinar should contact Mike Collins via email at
Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405; telephone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769–4520; email:
Members of the Habitat AP will meet via webinar from 2 p.m. until 4 p.m. on May 15, 2012. The AP will review management measures currently in the draft Comprehensive Ecosystem-Based Management Amendment 3 (CE–BA 3). Measures under consideration include, but are not limited to, extension of existing deepwater Coral Habitat Areas of Particular Concern, and measures to reduce bycatch mortality on speckled hind and Warsaw grouper through the creation or expansion of marine protected areas. The AP will provide recommendations on measures for inclusion into a public hearing draft for CE–BA3 and discuss other habitat issues as needed.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council's (Council) Recreational Advisory Panel will meet to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
The meeting will be held on Tuesday, May 15, 2012 at 9 a.m.
The meeting will be held at the Sheraton Colonial, One Audubon Road Wakefield, MA 01880; telephone: (781) 245–9300; fax: (781) 245–0842.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The Recreational Advisory Panel (RAP) will meet to discuss Northeast Multispecies management measures for
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting and public workshop.
The South Atlantic Fishery Management Council (Council) will hold a meeting of Marine Protected Area (MPA) Expert Workgroup and Public MPA Workshop in Pooler, GA. See
The Expert Workgroup meeting will take place May 16–17, 2012. The public workshop will take place May 16, 2012. See
The meetings will be held at the Mighty Eighth Air Force Museum, 175 Bourne Avenue, Pooler, GA 31322; telephone: (912) 748–8888; fax: (912) 748–0209.
Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC, 29405; telephone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769–4520; email:
Members of the Marine Protected Area Expert Workgroup will meet from 1 p.m.–5 p.m. on May 16, 2012 and from 8:30 a.m. until 1 p.m. on May 17, 2012. The group of experts, including scientists and fishermen, will provide input on using MPAs to help address bycatch mortality of speckled hind and warsaw grouper. Selection of participants was based on knowledge and expertise of these two species, their habitat, and/or the fishery. Public input on data for the Expert Workgroup to consider will be taken from 5 p.m. until 5:30 p.m. on May 16, 2012.
The Marine Protected Area Public Workshop will begin at 6 p.m. on May 16, 2012. The workshop is part of a series of workshops being held to give the public the opportunity to provide data on locations of speckled hind and warsaw grouper, as well as important habitat locations for these two species. The Council will consider input from the workgroup and workshops during its June meeting in Orlando, FL.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will convene a meeting of the Ad Hoc Private Recreational Data Collection Advisory Panel.
The meeting will convene at 8:30 a.m. and conclude by 4 p.m. on Thursday, May 17, 2012.
The meeting will be held at the Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348–1630.
Dr. John Froeschke, Fishery Biologist-Statistician; Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630 x235.
The Ad Hoc Private Recreational Data Collection Advisory Panel will meet to discuss mechanisms to improve private recreational fisheries data collection in Gulf of Mexico fisheries. The Panel will help identify methods for improving private recreational angler data collection, potentially using additional data collection programs that would
Copies of the agenda and other related materials can be obtained by calling (813) 348–1630.
Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Advisory Panel will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit amendment.
Notice is hereby given that Paul E. Nachtigall, Ph.D., Marine Mammal Research Program, Hawaii Institute of Marine Biology, P.O. Box 1106, Kailua, Hawaii 96734 has been issued a minor amendment to Scientific Research Permit No. 978–1857.
These documents are also available upon written request or by appointment in the following offices:
Jennifer Skidmore or Amy Sloan, (301) 427–8401.
The requested amendment has been granted under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
The original permit, issued on May 17, 2007 (72 FR 29127) authorizes the permit holder to conduct acoustic studies on captive marine mammals at the Hawaii Institute of Marine Biology through May 31, 2012. The minor amendment (No. 978–1857–01) extends the duration of the permit through May 31, 2013, but does not: Change the manner in which animals may be taken, increase the number of animals authorized to be taken, or add new species or geographic locations.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information on spectrum management policy matters.
The meeting will be held on May 30, 2012, from 10 a.m. to 12 p.m., Eastern Daylight Time.
The meeting will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 4830, Washington, DC 20230. Public comments may be mailed to Commerce Spectrum Management Advisory Committee, National Telecommunications and Information Administration, 1401 Constitution Avenue NW., Room 4099, Washington, DC 20230, or emailed to
Bruce M. Washington, Designated Federal Officer, at (202) 482–6415 or
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 products to the Procurement List that will be furnished by the nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, Jefferson Plaza 2, Suite 10800, 1421 Jefferson Davis Highway, Arlington, Virginia, 22202–3259.
Barry S. Lineback, Telephone: (703) 603–7740, 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 products listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.
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. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will furnish the products to the Government.
2. If approved, the action will result in authorizing small entities to furnish the products 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 proposed for addition to the Procurement List.
Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.
The following products are proposed for addition to the Procurement List for production by the nonprofit agency listed:
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. If approved, the action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. If approved, the action may result in authorizing small entities to furnish the products 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 proposed for deletion from the Procurement List.
The following products are proposed for deletion from the Procurement List:
Commodity Futures Trading Commission.
10:00 a.m., Friday May 25, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202–418–5084.
Commodity Futures Trading Commission.
10 a.m., Friday, May 18, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, Enforcement Matters and a Rule Enforcement Review. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202–418–5084.
Commodity Futures Trading Commission.
10:00 a.m., Friday, May 4, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202–418–5084.
Commodity Futures Trading Commission.
10 a.m., Friday, May 11, 2012.
1155 21st St. NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance and Enforcement Matters. In the event that the times or dates of these or any future meetings change, an announcement of the change, along with the new time and place of the meeting will be posted on the Commission's Web site at
Sauntia S. Warfield, 202–418–5084.
Bureau of Consumer Financial Protection.
Notice and Request for Information.
Section 1028(a) of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act of 2010 (the “Dodd-Frank Act”) requires the Bureau of Consumer Financial Protection (the “Bureau”) to “conduct a study of, and * * * provide a report to Congress concerning, the use of agreements providing for arbitration of any future dispute between covered persons and consumers in connection with the offering or providing of consumer financial products or services” (the “Study”). As a preliminary step in undertaking the Study, the Bureau requests specific suggestions from the public to help identify the appropriate scope of the Study, as well as appropriate methods and sources of data for conducting the Study. Based on the information received, the Bureau may consider soliciting further feedback.
Comments must be submitted on or before June 23, 2012.
You may submit responsive information and other comments, identified by Docket No.
•
•
All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Sensitive personal information, such as account numbers or social security numbers, should not be included. Submissions will not be edited to remove any identifying or contact information.
Will Wade-Gery, Division of Research, Markets and Regulations, Consumer Financial Protection Bureau, at (202) 435–7700, or
12 U.S.C. 5518(a).
The Bureau seeks information in response to the questions listed below, which are intended to help identify the appropriate scope, methods, and sources of data for the Study required by section 1028(a) of the Dodd-Frank Act. Please feel free to respond to any or all of the questions below, but please be sure to identity the specific question or questions to which you are responding. Comments could include, where appropriate, data sources and study methods that the Bureau might consider. Submissions on scope or subject matter are more likely to provide useful information to the Bureau if the commenter also identifies associated data and applicable methods of study.
The Bureau is not seeking comment on how, if at all, it should exercise its rulemaking authority under section 1028(b) of the Dodd-Frank Act (12 U.S.C. 5518(b)). Thus, the Bureau is not seeking comment on either: (a) Whether it should, by regulation, prohibit or impose conditions or limitations on the use of pre-dispute arbitration agreements with respect to consumer financial products or services; or (b) whether any such regulation would serve to protect consumers or otherwise be in the public interest. Instead, this Notice and Request for Information is directed to the Bureau's mandate under section 1028(a) of the Dodd-Frank Act (12 U.S.C. 5518(a)) to complete a study of, and report to Congress on, the use of pre-dispute arbitration agreements in connection with the offering or providing of consumer financial products or services.
For purposes of this Notice and Request for Information, “consumers” means “consumers” of “consumer financial products and services” as the Dodd-Frank Act defines those terms at sections 1002(4) and (5) (12 U.S.C. 5481(4)–(5)); “covered person” has the meaning given at section 1002(6) of the Dodd-Frank Act (12 U.S.C. 5481(6)); and “pre-dispute arbitration agreements,” unless otherwise noted, “provid[e] for arbitration of any future dispute between covered persons and consumers in connection with the offering or providing of consumer financial products or services” (12 U.S.C. 5518(a)).
The Dodd-Frank Act requires the Bureau to study the “use” of pre-dispute arbitration agreements. The Bureau believes that obligation encompasses, at a minimum, a study of the prevalence of such agreements. As a result, the Bureau seeks information in response to the following questions.
i. Other than with respect to credit card agreements,
ii. Should the Bureau focus on particular markets for consumer financial products and services in reviewing prevalence?
iii. Should the Bureau focus on the prevalence of particular terms in pre-dispute arbitration agreements?
iv. Should the Bureau address how the prevalence of pre-dispute arbitration agreements and the prevalence of particular terms within them have changed over time?
v. To address the questions above, what new data, if any, should the Bureau seek and from which entities? What existing studies or sources of empirical data should the Bureau rely upon to address any of the above questions?
Pre-dispute arbitration agreements generally provide that the consumer may or must bring claims in arbitration.
i. Should the Bureau determine how often consumers bring claims in arbitration?
ii. Should the Bureau analyze the types of claims that consumers bring in arbitration?
iii. For claims that consumers bring in arbitration, should the Bureau seek to analyze: (a) the cost and speed of dispute resolution; and/or (b) the outcome of disputes?
iv. For consumers who bring claims in arbitration, should the Bureau seek to assess their understanding of, and satisfaction with, the resulting dispute resolution process? Should the Bureau seek to determine the factors that impact consumer understanding and satisfaction?
v. If the Bureau should address some or all of the issues addressed in 2.A.i–iv above, should the Bureau distinguish between claims that a consumer brings in arbitration: (a) in the first instance; and (b) after a covered person (or third party
vi. If the Bureau should address some or all of the issues identified in 2.A.i–v above, what methods of study should it use? What new data, if any, should the Bureau seek and from which entities? What existing studies or empirical data, if any, should the Bureau use? Should the Bureau focus on particular product markets? Should the Bureau focus on the impact to arbitral proceedings of particular terms in pre-dispute arbitration agreements?
Pre-dispute arbitration agreements also generally provide that a covered person may or must bring claims in arbitration. As a result, covered persons have brought claims—in particular, debt-collection claims—in
i. The Bureau is not aware of recent practice by covered persons to bring claims against consumers in arbitration.
ii. Should the Bureau analyze the types of claims that covered persons bring in arbitration? If covered persons no longer bring claims in arbitration, should the Bureau seek to answer this question for a period in which they did?
iii. For claims that covered persons have brought in arbitration, should the Bureau seek to analyze: (a) the cost and speed of dispute resolution; and/or (b) the outcome of disputes? If covered persons no longer bring claims in arbitration, should the Bureau seek to answer these questions for a period in which they did?
iv. For consumers involved in any such cases, should the Bureau seek to assess their understanding of, and satisfaction with, the resulting arbitration process? If covered persons no longer bring claims in arbitration, should the Bureau seek to answer this question for a period in which they did?
v. If the Bureau should address some or all of the issues identified in 2.B.i–iv above, what methods of study should it use? What new data, if any, should the Bureau seek and from which entities? What existing studies or empirical data, if any, should the Bureau use? Should the Bureau focus on particular product markets? Should the Bureau focus on the impact to arbitral proceedings of particular terms in pre-dispute arbitration agreements?
Independent of their role in particular arbitral proceedings, pre-dispute arbitration agreements may impact consumers and/or covered persons in other ways. Thus, academics and other parties have claimed that the existence of pre-dispute arbitration agreements may impact:
• The incidence and nature of consumer claims against covered persons;
• The price and availability of financial services products to consumers;
• Compliance with consumer financial protection laws;
• Consumer awareness of potential legal claims against covered persons;
• Consumer awareness and understanding of how potential legal claims against covered persons may be resolved; and
• The development, interpretation, and application of the rule of law.
i. Should the Bureau seek to evaluate how the use of pre-dispute arbitration agreements impacts consumers and/or covered persons in one or more of these ways?
ii. Should the Bureau seek to evaluate how the use of pre-dispute arbitration agreements impacts consumers and/or covered persons in any other ways that are independent of their role in particular arbitral proceedings?
iii. If so, and in either case, what methods of study should the Bureau use? What new data, if any, should the Bureau seek and from which entities? What existing studies or empirical data, if any, should the Bureau use? Should the Bureau focus on particular product markets? Should the Bureau focus on the impact of particular terms in pre-dispute arbitration agreements?
National Defense University, DoD.
Notice of open meeting; correction.
On March 30, 2012 (77 FR 19265–19266), the National Defense University Board of Visitors gave notice of a meeting to be held on May 2 and 3, 2012, from 11:30 a.m. to 5 p.m. on May 2 and continuing on May 3 from8 a.m. to 1 p.m. The Department of Defense announces that the meeting date and time have been changed. All other information in the notice remains the same.
The new meeting date and time is May 2, 2012 from 10 a.m. to 5 p.m. The meeting originally scheduled for May 3, 2012 has been cancelled.
The Board of Visitors meeting will be held at Marshall Hall, Building 62, Room 155, the National Defense University, 300 5th Avenue SW., Fort McNair, Washington, DC 20319–5066.
The point of contact for this notice is Ms. Dolores Hodge at (202) 685–0082, Fax (202) 685–3748 or
The United States Air Force, DoD.
Amending GPS Simulator Working group Meeting Notice.
We are requesting to amend the date of the GPS Simulator Working group meeting notice published on April 20, 2012 under 77 FR 23668. The date of the meeting will now be 15 May 2012 from 0730–1600 (Pacific Standard Time). This meeting notice is to inform the public that the Global Positioning Systems (GPS) Directorate will be hosting an open GPS Satellite Simulator Working Group (SSWG) meeting for manufacturers of GPS constellation simulators utilized by the federal government on 15 May 2012 from 0730–1600 (Pacific Standard Time). The purpose of this meeting is to disseminate information about GPS simulators, discuss current and on-going efforts related to simulators and form a functioning GPS Satellite Simulator
The GPS Satellite Simulator Working Group is open to any current manufacturer of GPS constellation satellite simulators who supply products to the Department of Defense. Please note that participants must possess a SECRET clearance to attend.
We request that you register for this event no later than 8 May 2012. Please send the registration to
Department of the Army, DoD.
Notice of intent.
In compliance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i), the Department of the Army hereby gives notice of its intent to grant to TroCept Micro Ltd. L.L.C., a corporation having its principle place of business at 2711 Centerville Rd, Suite 400, Wilmington, DE 19808, exclusive licenses relative to the following U.S. Patents:
• 6,501,099; “Modified-anode gate turn-off thyristor;” December 31, 2002.
• 6,703,642; “Silicon carbide (SiC) gate turn-off (GTO) thyristor structure for higher turn-off gain and larger voltage blocking when in the off-state;” March 9, 2004.
• 6,734,462; “Silicon carbide (SiC) gate turn-off (GTO) thyristor structure for higher turn-off gain and larger voltage blocking when in the off-state,” February 8, 2000.
• 6,759,683; “Formulation and fabrication of an improved Ni based composite Ohmic contact to n-SiC for high temperature and high power device applications;” July 6, 2004.
• 6,900,477; “Processing technique to improve the turn-off gain of a silicon carbide gate turn-off thyristor and an article of manufacture;” May 31, 2005.
• 7,297,626; “Process for nickel silicide Ohmic contacts to n-SiC;” November 20, 2007.
• 7,304,363; “Interacting current spreader and junction extender to increase the voltage blocked in the off state of a high power semiconductor device;” December 4, 2007.
• 7,851,274; “Processing technique to improve the turn-off gain of a silicon carbide gate turn-off thyristor;” December 14, 2010.
The prospective exclusive licenses may be granted unless within fifteen (15) days from the date of this published notice, the U.S. Army Research Laboratory receives written objections including evidence and argument that establish that the grant of the licenses would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Competing applications completed and received by the U.S. Army Research Laboratory within fifteen (15) days from the date of this published notice will also be treated as objections to the grant of the contemplated exclusive licenses.
Objections submitted in response to this notice will not be made available to the public for inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Send written objections to Michael D. Rausa, U.S. Army Research Laboratory, Office of Research and Technology Applications, Attn: RDRL–DB/Bldg. 434, Aberdeen Proving Ground, MD 21005–5425.
Michael D. Rausa, telephone (410) 278–5028.
None.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
The Albuquerque District, U.S. Army Corps of Engineers (Corps) has prepared a draft Supplemental Environmental Impact Statement (SEIS) on the findings of a flood risk management study along the Rio Grande from San Acacia downstream to San Marcial in Socorro County, New Mexico. The recommended plan is to replace the existing embankment between the Low Flow Conveyance Channel and the Rio Grande with a structurally competent levee capable of containing high-volume, long-duration flows. This engineered levee would substantially reduce the risk of damage from floods emanating from the Rio Grande. The local cost-sharing sponsors of the proposed project are the Middle Rio Grande Conservancy District and the New Mexico Interstate Stream Commission.
All comments must be submitted or postmarked no later June 11, 2012.
Comments, questions, requests for copies of the draft SEIS, and requests for notification of the public meeting can be addressed to: William DeRagon, email:
Mr. William DeRagon, telephone: (505) 342–3358; or Mark Doles, telephone: (505) 342–3364.
Previously, an environmental impact statement (1992) and a supplement (1977) were published regarding this project. Currently, a new draft SEIS has been prepared to evaluate effects of revised levee design and additional alternatives. The draft SEIS is integrated with a draft General Reevaluation Report, and the integrated document is entitled:
Alternatives developed and evaluated during the current and previous studies consist of levee reconstruction; flood and sediment control dams; local levees; intermittent levee replacement; watershed land treatment; floodproofing of buildings; levee-alignment setbacks; and no action. Issues analyzed in the development of the draft GRR/SEIS–II included the effect of alternatives on flood risk, developed lands and structures, water quality, ecological resources, endangered species, social welfare, cultural resources, and aesthetic qualities.
A public meeting will be held during the review period in Socorro, New Mexico. An announcement of the exact date and location of the public meeting will be published in the Socorro, Albuquerque, and Santa Fe newspapers.
In notice document 2012–7362 appearing on pages 18216–18229 in the issue of Tuesday, March 27, 2012 make the following corrections:
1. On page 18225, in the second column, in the second bulleted paragraph, in the sixth line “4:30 p.m.” should read “4:30:00 p.m.”.
2. On the same page, in the same column, in the same paragraph, in the twelfth line “4:30 p.m.” should read “4:30:00 p.m.”.
3. On the same page, in the same column, in the same paragraph, in the twenty-first line “4:30 p.m.” should read “4:30:00 p.m.”.
4. On the same page, in the third column, in the third line from the bottom “4:30 p.m.” should read “4:30:00 p.m.”.
5. On page 18226, in the first column, in the first full paragraph, in the first line “4:30 p.m.” should read “4:30:00 p.m.”.
6. On the same page, in the same column, in the same paragraph, in the fifteenth line “4:30 p.m.” should read “4:30:00 p.m.”.
7. On the same page, in the second column, in the first and second lines from the bottom “8 a.m. and 4:30 p.m.” should read “8:00 a.m. and 4:30:00 p.m.”.
In notice document 2012–4357 appearing on pages 11087–11101 in the issue of Friday, February 24, make the following correction:
1. On page 11097, in the first column, in the first bulleted paragraph, in the sixth, twelfth, and twenty-first lines, “4:30” should appear as “4:30:00”.
2. On page 11097, in the second column, in the eighth, twenty-second, and thirtieth lines from the bottom of the page, “4:30” should appear as “4:30:00”.
3. On page 11098, in the first column, in the twenty-seventh line from the bottom, “4:30” should appear as “4:30:00”.
In notice document 2012–7365 appearing on pages 18229–18242 in the issue of Tuesday, March 27, 2012 make the following corrections:
1. On page 18238 in the second column, in the second bulleted paragraph, in the sixth line “4:30 p.m.” should read “4:30:00 p.m.”
2. On page 18238 in the second column, in the second bulleted paragraph, in the twelfth line “4:30 p.m.” should read “4:30:00 p.m.”
3. On page 18238 in the second column, in the second bulleted paragraph, in the twenty-first line “4:30 p.m.” should read “4:30:00 p.m.”
4. On page 18238 in the third column, in the sixth paragraph, in the sixth line “4:30 p.m.” should read “4:30:00 p.m.”
5. On page 18238 in the third column, in the seventh paragraph, in the first line “4:30 p.m.” should read “4:30:00 p.m.”
6. On page 18239, in the second column, in the fourth paragraph from the bottom of the page, in the third line “4:30 p.m.” should read “4:30:00 p.m.”
Institute of Education Sciences, Department of Education.
Notice of a new system of records.
In accordance with the Privacy Act of 1974, as amended (Privacy Act), the Department of Education (Department) publishes this notice of a new system of records entitled “National Longitudinal Transitions Study—2012” (18–13–27). The National Center for Education Evaluation and Regional Assistance at the Department's Institute of Education Sciences (IES) commissioned this study as part of the congressionally mandated national assessment of Individuals with Disability Education Act (IDEA). It will be conducted under a contract that IES awarded in September 2010.
The central research questions that the study will address are: How do the characteristics, courses of study, receipt of services and accommodations, school experiences, and key outcomes for transition-age students with an Individualized Education Plan (IEP) differ from transition-age students with a plan that provides accommodations under Section 504 of the Rehabilitation Act of 1973 (Section 504 Plan) and from transition-age students without a Section 504 Plan or an IEP? How have these facets changed over time for students with IEPs?
The system will contain records from 500 school districts on approximately 15,000 students and their parents, 15,000 teachers, and 2,000 principals.
The Department seeks comment on the new system of records described in this notice, in accordance with the requirements of the Privacy Act. We must receive your comments on the proposed routine uses for the system of records referenced in this notice on or before May 29, 2012.
The Department filed a report describing the new system of records covered by this notice with the Chair of the Senate Committee on Homeland Security and Governmental Affairs, the Chair of the House Committee on Oversight and Government Reform, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on April 24, 2012. This system of records will become effective at the later date of—(1) The expiration of the 40-day period for OMB review on June 4, 2012, unless OMB waives 10 days of
Address all comments about this new system of records to Dr. Audrey Pendleton, Associate Commissioner, Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education, 555 New Jersey Avenue NW., room 502D, Washington, DC 20208–0001. Telephone: (202) 208–7078. If you prefer to send comments through the Internet, use the following address:
You must include the term “National Longitudinal Transitions Study—2012” in the subject line of the electronic message.
During and after the comment period, you may inspect all comments about this notice at the U.S. Department of Education in room 502D, 555 New Jersey Avenue NW., Washington, DC, between the hours of 8:00 a.m. and 4:30 p.m., Eastern time, Monday through Friday of each week except Federal holidays.
On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under
Dr. Audrey Pendleton. Telephone: (202) 208–7078. If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed in this section.
The Privacy Act (5 U.S.C. 552a) requires the Department to publish in the
The Privacy Act applies to any record about an individual that is maintained in a system of records from which individually identifying information is retrieved by a unique identifier associated with each individual, such as a name or Social Security number. The information about each individual is called a “record,” and the system, whether manual or computer-based, is called a “system of records.”
The Privacy Act requires each agency to publish a notice of a system of records in the
You may also access documents of the Department published in the
For the reasons discussed in the preamble, the Director of the Institute of Education Sciences, U.S. Department of Education, publishes a notice of a new system of records to read as follows:
18–13–27.
National Longitudinal Transitions Study—2012.
None.
(1) Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences (IES), U.S. Department of Education, 555 New Jersey Avenue NW., room 502D, Washington, DC 20208–0001.
(2) Mathematica Policy Research, Inc., 600 Alexander Park, Princeton, NJ 08540–6346 (contractor).
(3) Decision Information Resources, Inc., 2600 Southwest Freeway, Suite 900, Houston, TX 77098–4610 (subcontractor).
The system will contain records from 500 districts on approximately 15,000 students and their parents, 15,000 teachers, and 2,000 principals.
The system of records includes individually identifying information about the students who agree to participate. This information includes name, birth date, and contact information; demographic information such as race, ethnicity, gender, age, and educational background; information on accommodations and services received; information on attendance and disciplinary incidences; information on employment history and postsecondary institution attended; and scores on reading and mathematics achievement tests. The system of records also includes students' school transcripts. It is also our intention to include in this system of records students' Social Security numbers (SSNs). In order to ensure that the information on the students' employment and earnings can be obtained, the students' SSNs are needed because other methods (i.e., self-reporting) have proven to be infeasible. This method will place a low burden on students and be of low cost to the Federal government. The system of records will also include individually identifying information about the parents and teachers of participating students, including name and contact information; demographic information such as race and ethnicity; and teaching experience. The system of records will also include the name and contact information of principals of participating students and information that they provide about the school's programs, policies, and environment.
The study is authorized under Part D, Subpart 2, Section 664 of the
The information contained in the records maintained in this system will be used to describe the characteristics of, receipt of services by, and outcomes of transition-age students. The study will address the following research questions:
What are the personal, family, and school characteristics of this group?
What are their courses of study, services and accommodations received to support learning, and preparation for transition? What barriers and challenges do they encounter?
What are the key academic, social, and economic outcomes in school and after leaving school for youth with disabilities?
How do services received, courses of study, barriers, and outcomes vary for subgroups defined by the nature of the student's disability, age, sex, race/ethnicity, or characteristics of the student's school or community?
How do academic, social, and economic outcomes for students with disabilities vary by their course of study and receipt of services and accommodations, accounting for preexisting youth characteristics?
How do the receipt of services and accommodations and the outcomes of the current cohort of special education students differ from those of previous cohorts of special education students?
What are the characteristics, school and transition experiences, and postsecondary outcomes of students with a plan that provides accommodations under Section 504 of the Rehabilitation Act of 1973 (Section 504 Plan)?
How do characteristics, courses of study, receipt of services and accommodations, and key outcomes for transition-age students with an IEP differ from transition-age students with a Section 504 Plan and from transition-age students with no Section 504 Plan and no IEP?
The Department of Education (Department) may disclose information contained in a record in this system of records under the routine uses listed in this system of records without the consent of the individual if the disclosure is compatible with the purposes for which the record was collected. These disclosures may be made on a case-by-case basis or, if the Department has complied with the computer matching requirements of the Privacy Act of 1974, as amended (Privacy Act), under a computer matching agreement. Any disclosure of individually identifiable information from a record in this system must also comply with the requirements of section 183 of the Education Sciences Reform Act of 2002 (ESRA) (20 U.S.C. 9573) providing for confidentiality standards that apply to all collections, reporting, and publication of data by IES.
(1)
(2)
Not applicable to this system notice.
The Department maintains records on CD–ROM, and the contractor (Mathematica Policy Research, Inc.) and sub-contractor (Decision Information Resources, Inc.) maintain data for this system on computers and in hard copy.
Records in this system are indexed and retrieved by a number assigned to each individual that is cross-referenced by the individual's name on a separate list.
All physical access to the Department's site and to the site of the Department's contractor and subcontractor, where this system of records is maintained, is controlled and monitored by security personnel. The computer system employed by the Department offers a high degree of resistance to tampering and circumvention. This security system limits data access to Department and contract staff on a need-to-know basis, and controls individual users' ability to access and alter records within the system. The contractor and subcontractor will establish a similar set of procedures at its site to ensure confidentiality of data. The contractor's and subcontractor's systems are required to ensure that information identifying individuals is in files physically separated from other research data. The contractor and subcontractor will maintain security of the complete set of all master data files and documentation. Access to individually identifying data will be strictly controlled. All data will be kept in locked file cabinets during nonworking hours, and work on hardcopy data will take place in a single room, except for data entry. Physical security of electronic data will also be maintained. Security features that protect project data include: password-protected accounts that authorize users to use the contractor's system but to access only specific network directories and network software; user rights and directory and file attributes that limit those who can use particular directories and files and determine how they can use them; and additional security features that the network administrators will establish for projects as needed. The contractor's and subcontractor's employees who “maintain” (collect, maintain, use, or disseminate) data in this system shall comply with the requirements of the confidentiality
Records are maintained and disposed of in accordance with the Department's Records Disposition Schedules (ED/RDS, Part 3, Item 2b and Part 3, Item 5a).
Associate Commissioner, Evaluation Division, National Center for Education Evaluation and Regional Assistance, Institute of Education Sciences, U.S. Department of Education, 555 New Jersey Avenue NW., Room 502D, Washington, DC 20208–0001.
If you wish to determine whether a record exists regarding you in the system of records, contact the systems manager. Your request must meet the requirements of regulations at 34 CFR 5b.5, including proof of identity.
If you wish to gain access to your record in the system of records, contact the system manager. Your request must meet the requirements of regulations at 34 CFR 5b.5, including proof of identity.
If you wish to contest the content of a record regarding you in the system of records, contact the system manager. Your request must meet the requirements of the regulations at 34 CFR 5b.7, including proof of identity.
This system contains records on students, their parents, teachers, and principals participating in the National Longitudinal Transitions Study 2012. Data will be obtained through student records maintained by the school districts, assessments administered to students, and surveys of students, their parents, teachers, and principals. Information on principals will be obtained from publicly available information and information that they submit in response to surveys about their schools' programs, policies, and environment
None.
Office of Fossil Energy, Department of Energy (DOE).
Notice of orders.
The Office of Fossil Energy (FE) of the Department of Energy gives notice that during March 2012, it issued Orders granting authority to import and export natural gas and liquefied natural gas. These Orders are summarized in the attached appendix and may be found on the FE Web site at
Energy Efficiency and Renewable Energy, Department of Energy.
Notice of open teleconference.
This notice announces a teleconference call of the State Energy Advisory Board (STEAB). The Federal Advisory Committee Act (Pub. L. 92–463; 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, May 17, 2012, from 3:30 p.m.–4 p.m. (EST). To receive the call-in number and passcode, please contact the Board's Designated Federal Officer (DFO) at the address or phone number listed below.
Gil Sperling, STEAB Designated Federal Officer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Ave., SW., Washington, DC 20585. Phone number is (202) 287–1644.
Federal Energy Regulatory Commission.
Comment request.
In compliance with the requirements of the Paperwork Reduction Act of 1995, 44 USC 3507(a)(1)(D), the Federal Energy Regulatory Commission (Commission or FERC) is submitting the information collections Notification of Holding Company Status (FERC–65), Exemption Notification of Holding Company Status (FERC–65A), and Waiver Notification of Holding Company Status (FERC–65B) to the Office of Management and Budget (OMB) for review of the information collection requirements. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission issued a Notice in the
Comments on the collection of information are due by May 29, 2012.
Comments filed with OMB (identified by FERC–65, FERC–65A, and/or FERC–65B) should be sent via email to the Office of Information and Regulatory Affairs:
A copy of the comments should also be sent to the Federal Energy Regulatory Commission, identified by the Docket No. IC12–5–000, by either of the following methods:
•
•
Ellen Brown may be reached by email at
Abstract:
The FERC–65 is a one-time informational filing outlined in the Commission's regulations at 18 Code of Federal Regulations (CFR) 366.4. The FERC–65 must be submitted within 30 days of becoming a holding company. The Commission does not require the information to be reported in a specific format. The filing consists of the name of the holding company, the name of public utilities, the name of natural gas companies in the holding company system, and the names of service companies. The Commission requires the filing to include the names of special-purpose subsidiaries (which provide non-power goods and services) and the names of all affiliates and subsidiaries (and their corporate interrelationship) to each other. Filings may be submitted in hardcopy or electronically through the Commission's eFiling system.
While noting the previously outlined requirements of the FERC–65, the Commission has allowed for an exemption from the requirement of providing the Commission with a FERC–65 if the books, accounts, memoranda, and other records of any person are not relevant to the jurisdictional rates of a public utility or natural gas company; or if any class of transactions is not relevant to the
Entities may file a FERC–65B pursuant to the notification procedures contained in 18 CFR 366.4 to obtain a waiver from the requirement of providing the Commission with a FERC–65 if they meet the requirements in 18 CFR 366.3(c). Specifically, the Commission waives the requirement of providing it with a FERC 65 for any holding company with respect to one or more of the following: (1) Single-state holding company systems; (2) holding companies that own generating facilities that total 100 MW or less in size and are used fundamentally for their own load or for sales to affiliated end-users; or (3) investors in independent transmission-only companies. Filings may be made in hardcopy or electronically through the Commission's Web site.
The total estimated annual
The estimated annual cost of filing the FERC–65, FERC–65A, and FERC–65B per response is $191.71. [$1,725.35 ÷ 9 responses = $191.71/response]
Take notice that the following hydrokinetic pilot project license application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
Motions to intervene, protests, comments, recommendations, terms and conditions, and fishway prescriptions may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis (EA).
l.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST,” “MOTION TO INTERVENE,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b) except to the extent that this notice establishes deadlines different from those in the regulation. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
o. Procedural Schedule:
The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
p. Waiver of deadline to file competing applications filed pursuant to a notice of intent (NOI):
Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified intervention deadline date, a competing development application or an NOI to file such an application. Section 4.36(b)(2) of the Commission's regulations, which allows 120 days from the specified intervention deadline date for interested parties to file competing development applications in which timely NOIs have been submitted, is hereby waived. Due to the expedited nature of the pilot project licensing procedures, the submission of a timely NOI will instead allow an interested person to file the competing development application no later than 30 days after the specified intervention deadline date. Applications for preliminary permits will not be accepted in response to this notice.
An NOI must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit a development application. An NOI must be served on the applicant named in this public notice.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. This application is not ready for environmental analysis at this time.
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The Monroe Powerhouse operates in a run-of-river mode (i.e., canal inflow to the powerhouse closely approximates outflow from the powerhouse with no storage of canal flow). The maximum hydraulic capacity of the canal at the Monroe Powerhouse is 3,500 cubic feet per second (cfs). The Monroe Powerhouse spans the canal and functions as an energy-producing canal drop structure.
The Columbus Powerhouse operates as a daily peaking facility. The water levels in Lake Babcock and Lake North are generally drawn down about 2 to 3 feet to produce power during times of peak electrical demand. In off-peak hours, when there is less demand for electricity, the turbines are turned down or shut off, which allows Lake Babcock and Lake North to refill, thereby allowing peaking operations to occur the following day. The hydraulic capacity of the canal at the Columbus Powerhouse is 4,800 cfs.
The minimum leakage rate at the Loup River diversion dam and sluice gate structure is about 50 cfs. During hot weather conditions, Loup Power District operates the diversion in a manner that allows flows of between 50 to 75 cfs (including the leakage flow) to pass into the Loup River downstream of the diversion to prevent high water temperatures that could cause fish mortality.
Loup Power District proposes new and improved recreational amenities at the project; however, there are no proposed changes to the existing project facilities or operations.
Loup Power District proposes to remove three areas of land from the project boundary that it finds are not necessary for project operations or purposes. In addition, Loup Power District proposes to add three parcels of land to the project boundary that it finds are needed for project purposes.
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m. You may also register online at
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The application will be processed according to the following preliminary Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
o. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
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 open access transmission tariff 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 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
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 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by 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 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 April 20, 2012, pursuant to sections 201, 206, and 306 of the Federal Power Act, 16 U.S.C. 824, 824e and 825e, and Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206, Golden Spread Electric Cooperative, Inc. (Complainant or Golden Spread) filed a formal complaint against Southwestern Public Service Company (Respondent or SPS) alleges that the formula rate of Replacement Power Sales Agreement (RPSA) by and between Golden Spread and SPS and that the formula rate of the Xcel Joint Energy Open Access Tariff applicable to pricing of transmission service over the facilities of SPS contain an unjust and unreasonable return on equity (ROE), contrary section 205 of the Federal Power Act. Golden Spread requests a determination that the appropriate base ROE for both the RPSA and the transmission formula rate should set at 9.15%.
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 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on April 20, 2012, pursuant to sections 206, and 306 of the Federal Power Act, 16 U.S.C. 824e and 825e, and Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206, Astoria Generating Company, L.P. (Complainant) filed a formal complaint against New York Independent System Operator, Inc. (Respondent or NYISO) alleging that the NYISO violated Attachment H of the NYISO Market Administration and Control Area Services Tariff by refusing to issue Going-Forward Cost determinations.
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 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on April 19, 2012, Randy Mahannah filed a supplemental application for authorization to hold interlocking positions pursuant to section 305(b) of the Federal Power Act of the regulations of the Federal Energy Regulatory Commission, 18 CFR part 45 (2008).
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding.
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
On December 7, 2011, the Stoughton Water Power Company filed an application for a preliminary permit under section 4(f) of the Federal Power Act proposing to study the feasibility of the proposed Stoughton Dam Water Power Project No. 14335, to be located at the existing Stoughton Dam on the Yahara River, near the City of Stoughton, in Dane County, Wisconsin. The Stoughton Dam is owned by the City of Stoughton.
The proposed project would consist of: (1) The existing Stoughton Dam; (2) an existing 70-foot-long by 38-foot-wide concrete powerhouse; (3) two new or refurbished hydropower turbines and generators having a total combined generating capacity of 192 kilowatts; (4) an existing 200-foot-long by 40-foot-wide headrace; (5) a 25-foot-long, 12-kilovolt transmission line; and (6) appurtenant facilities. The project would have an estimated annual generation of 450,000 kilowatt-hours.
Deadline for filing comments, motions to intervene, and competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
On February 8, 2012, KC Hydro LLC of New Hampshire, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of the Milton Mills Hydropower Project (project) to be located on the Salmon Falls River, near the Town of Milton, Strafford County, New Hampshire. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed project would consist of: (1) The existing 120-foot-long, 17-foot-high, concrete gravity Waumbek Dam; (2) an existing 6-acre impoundment with a normal maximum water surface elevation of 455 feet above mean sea level; (3) an existing 6-foot-diameter discharge conduit that would be modified to include a liner and extended downstream by 1,000 feet; (4) a new powerhouse containing a single turbine generator unit with an installed capacity of 100 kilowatts; (5) a new tailrace; (6) a new 400-foot-long, 34.5-kilovolt transmission line; and (7) appurtenant facilities. The project would have an estimated average annual energy generation of 500 megawatt-hours, which would be sold to Public Service of New Hampshire. The dam and impoundment are owned and operated by the New Hampshire Department of Environmental Services. There are no federal lands associated with the project.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36. Comments, motions to intervene, notices of intent, and competing applications may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of Commission's Web site at
The Commission is posting and inviting comment upon a report prepared by the Pacific Northwest National Laboratory (PNNL) on “Applicability of the `Gallet Equation' to the Vegetation Clearances of NERC Reliability Standard FAC–003–2” (PNNL Report).
The Report was commissioned by the Commission's Office of Electric Reliability, for the purpose of obtaining an independent analysis of certain technical questions raised by the Minimum Vegetation Clearance Distances as proposed in the North American Electric Reliability Corporation's Reliability Standard FAC–003–2 (Transmission Vegetation Management). Specifically, PNNL was commissioned to prepare a report addressing the following:
The overall scope of this project shall include analysis of the mathematics and documentation of the technical justification behind the application of the Gallet equation and the assumptions used in the technical reference paper [Exh. A of NERC's filing]. To put the analysis into perspective, are the assumptions made in the development of the Gallet Equation and their application in NERC-approved Reliability Standard FAC–003–2 reasonable to address the minimum distance requirements needed to avoid sustained vegetation-related outages? What variations in Gallet distance may occur when comparing the original testing (use of switching impulses and corona free electrodes) against the variety of impulses a line may be subject to and the concentrations of coronal effects when using vegetation instead of corona-free electrodes? Do the equations adequately address the limiting conditions (i.e., the expected extremes in prevailing ambient conditions including temperatures, humidity, conductor position, amplification of any coronal effects and wind speed) that are important to the insulation performance of a line to prevent flashover to nearby vegetation during real-time operating conditions? The limiting conditions will be identified, outlined, and applied in the analysis.
This analysis shall also include a discussion of the appropriateness of using one clearance for all lines with the same operating voltage as opposed to linking the clearance to “as built” and design conditions. Finally, the analysis shall identify if the proposed clearance will provide the minimum clearance needed to avoid a flashover with regard to vegetation. (Footnotes omitted.)
The PNNL Report will be posted on the Commission's Web site at
Comments on the PNNL Report should be filed with the Commission within 30 days of the issuance of this Notice. The Commission encourages electronic submission of comments in lieu of paper using the “eFiling” link at
All filings in this docket are accessible on-line at
Questions regarding this Notice should be directed to: David O'Connor, Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, 202–502–6695,
Environmental Protection Agency (EPA).
Notice of adequacy determination.
In this action, EPA is notifying the public of its finding that the Eagle River, Alaska, Particulate Matter (PM
This finding is effective May 14, 2012.
The finding will be available at EPA's conformity Web site:
This action provides notice of EPA's adequacy finding regarding the PM
On September 20, 2011, Alaska Department of Environmental Conservation submitted a PM
Because limited maintenance plans do not contain budgets, as provided in 40 CFR 93.109(l), the adequacy review period for these maintenance plans serves to allow the public to comment on whether limited maintenance is appropriate for these areas. As a result of this adequacy finding, the Municipality of Anchorage, Alaska Department of Transportation & Public Facilities, and the U.S. Department of Transportation are no longer required to conduct a regional emissions analysis for conformity. However, other conformity requirements still remain such as consultation (40 CFR 93.112), transportation control measures (40 CFR 93.113), and project level analysis (40 CFR 93.116).
Transportation conformity is required by section 176(c) of the Clean Air Act. EPA's conformity rule requires transportation plans, programs, and projects to conform to SIPs and establishes the criteria and procedures for determining whether or not they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The minimum criteria by which we determine whether a SIP is adequate for conformity purposes are specified at 40 CFR 93.118(e)(4). EPA's analysis of how the state's submission satisfies these criteria is found in the Technical Support Document. EPA's adequacy review is separate from EPA's SIP completeness review and it also should not be used to prejudge EPA's ultimate approval of the SIP. Even if we find the SIP adequate for conformity purposes, the SIP could later be disapproved.
42 U.S.C. 7401–7671q.
EPA is seeking agencies to participate in its e-NEPA electronic EIS submission pilot. Participating agencies can fulfill all requirements for EIS filing, eliminating the need to submit paper copies to EPA headquarters, by filing documents online and providing feedback on the process. To participate in the pilot, register at:
Environmental Protection Agency (EPA).
Notice—Receipt of petition.
Notice is hereby given that a petition has been received from the Commonwealth of Massachusetts requesting a determination by the Regional Administrator, U. S. Environmental Protection Agency, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the waters of Nantucket and Vineyard Sounds and the Islands, collectively termed the Southern Cape Cod for the purpose of this notice.
Comments must be submitted by May 29, 2012.
Submit your comments, identified by Docket ID No. EPA–R01–OW–2012–0201, by one of the following methods:
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Ann Rodney, U.S. Environmental Protection Agency—New England Region, Five Post Office Square, Suite 100, OEP06–01, Boston, MA 02109–3912. Telephone: (617) 918–1538, Fax number: (617) 918–0538; email address:
Notice is hereby given that a petition has been received from the Commonwealth of Massachusetts requesting a determination by the Regional Administrator, U.S. Environmental Protection Agency, pursuant to Section 312(f)(3) of Public Law 92–500 as amended by Public Law 95–217 and Public Law 100–4, that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for the Southern Cape Cod area.
The Southern Cape Cod No Discharge Area will encompass the coastal waters for the towns of Chilmark, West Tisbury, Tisbury, Oak Bluffs, Edgartown, Gosnold, Falmouth, Mashpee, Barnstable, Yarmouth, Dennis, Harwich, Chatham and Nantucket.
The proposed boundaries of the No Discharge Area for the Southern Cape Cod waters are as follows:
The western-most contiguous area of the NDA is bound by the Buzzards Bay NDA and the Federal/State boundary line:
The upper-eastern area of the NDA is bound by the Outer Cape NDA:
The small triangle of Commonwealth waters at the mouth of Buzzards Bay will be bound by the following coordinates along the Federal/State boundary line:
The two temporarily undesignated areas will be bound by the following coordinates:
The boundaries were chosen to maximize the area designated, give larger vessels a window in which to comply with this proposed regulation, and generally represent all navigational waters.
There are marinas, yacht clubs and public landings/piers in the proposed area with a combination of mooring fields and dock space for the recreational and commercial vessels. Massachusetts has certified that there are 29 pumpout facilities within the proposed area available to the boating public. A list of the facilities, locations, contact information, hours of operation, and water depth is provided at the end of this petition.
Massachusetts has provided documentation indicating that the total vessel population is estimated to be 15,283 in the proposed area. It is estimated that 5,075 of the total vessel population may have a Marine Sanitation Device (MSD) of some type.
The various beaches, marshes, and harbors and their recreational opportunities attract thousands of visitors to Cape Cod and the Islands every year. Within the proposed NDA area, there are 143 bathing beaches covering over 26 miles of coastline.
The area is known for the strong prevailing southwest winds which support sailing, windsurfing, and kite boarding. Numerous wildlife tours, recreational fishing charters operate within the waters of this proposed NDA, and it is an important and popular destination for boaters due to its natural environmental diversity.
Six species of shellfish are harvested in the area, including soft-shell clams, surf clams, blue mussels, oysters, ocean quahogs, and the state's only commercial bay scallop fishery.
Southern South Cape Cod and Islands NDA encompasses approximately 12,500 acres of shellfish habitat, and supports an estimated 600 commercial shellfishermen. Recreational shellfishing alone was estimated to be worth over $7 million in 2002 dollars to Cape Cod.
Equal Employment Opportunity Commission.
77 FR 24201, Monday, April 23, 2012.
Wednesday, April 25, 2012, 9:30 a.m. Eastern Time.
Bernadette B. Wilson, Acting Executive Officer on (202) 663–4077.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of amendment to the ASC Rules of Operation by vote of the ASC at its April 11, 2012 meeting.
The ASC of the Federal Financial Institutions Examination Council (FFIEC) amended the following sections of the ASC Rules of Operation:
1. Section 3.04.a to provide for selection of a Vice Chairperson by ASC members with the Vice Chairperson's term of office running concurrently with the Chairperson's term;
2. Section 1.02(8) to define “Vice Chairperson” consistent with section 3.04.a; and
3. As a technical correction, Section 1.02(3) to remove the reference to the Office of Thrift Supervision (which became part of the Office of the Comptroller of the Currency July 21, 2011).
4. The definition of “member agency” footnotes the amendment to section 1011 of the Federal Financial Institutions Examination Council Act by the Dodd-Frank Act to include designees of the heads of the Bureau of Consumer Financial Protection and the Federal Housing Finance Agency.
The ASC Rules of Operation serve as corporate bylaws outlining the ASC's purpose, functions, authority, organization and operation.
The ASC was established by Section 1102 (12 U.S.C. 3310) of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (Title XI). The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 amended numerous provisions in Title XI. The ASC Rules of Operation serve as corporate bylaws outlining the ASC's purpose, functions, authority, organization and operation.
James R. Park, Executive Director, at (202) 595–7575, or Alice M. Ritter, General Counsel, at (202) 595–7577, via Internet email at
By the Appraisal Subcommittee.
Notice is given that a complaint has been filed with the Federal Maritime Commission (Commission) by Shipco Transport Inc. (Shipco), hereinafter “Complainant,” against Jem Logistics, Inc., and Andi Georgescu, an individual and doing business as Jem Logistics, Inc., hereinafter “Respondents.” Complainant asserts that it is a non-vessel-operating common carrier (NVOCC) licensed by the FMC and incorporated in the State of New Jersey. Complainant alleges that Respondent Jem Logistics, Inc. is a corporation incorporated in the State of California and that Respondent Andi Georgescu is a resident of California and principal owner and president of Jem Logistics.
Complainant alleges that Respondent “Jem Logistics misrepresented to Shipco * * * that it was, in fact, an FMC-licensed NVOCC,” but that “Jem Logistics was not the NVOCC it purported to be, and is not now nor was it at any time herein mentioned licensed by the Federal Maritime Commission (FMC).” Complainant alleges that Respondents “falsely used the name of a licensed and bonded NVOCC, Aromark Shipping LLC (Aromark).” Complainant also alleges that Respondents failed to pay Complainant for shipment of a vehicle after the cargo was abandoned.
Therefore Complainant alleges that Respondent has violated 46 U.S.C. 40901 and 40902 by its failure to be licensed and bonded and 46 U.S.C. 41102, “by attempting to obtain Shipco shipping services relating to freight charges without paying for demurrage and removal of cargo upon abandonment in the absence of a bond to secure Respondent's payment.”
Complainant requests that the Commission order Respondents to ”make reparations to Complainant Shipco in the amount of $15,872.90 for failure to pay demurrage and disposal of the abandoned cargo” as well as attorney's fees and expenses and “six per cent interest on amounts consisting of demurrage and disposal of cargo together with additional interest provided by law.” The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding has been assigned to the Office of Administrative Law Judges. Hearing in this matter, if any is held, shall commence within the time limitations prescribed in 46 CFR 502.61, and only after consideration has been given by the parties and the presiding officer to the use of alternative forms of dispute resolution. The hearing shall include oral testimony and cross-examination in the discretion of the presiding officer only upon proper showing that there are genuine issues of material fact that cannot be resolved on the basis of sworn statements, affidavits, depositions, or other documents or that the nature of the matter in issue is such that an oral hearing and cross-examination are necessary for the development of an adequate record. Pursuant to the further terms of 46 CFR 502.61, the initial decision of the presiding officer in this proceeding shall be issued by April 23, 2013 and the final decision of the Commission shall be issued by August 21, 2013.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 24, 2012.
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Federal Trade Commission (“FTC” or “Commission”).
Notice.
The FTC intends to ask the Office of Management and Budget (“OMB”) to extend through April 30, 2015, the current Paperwork Reduction Act (“PRA”) clearance for the information collection requirements in four consumer financial regulations enforced by the Commission. Those clearances expire on April 30, 2012.
Comments must be filed by May 29, 2012.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Requests for additional information or copies of the proposed information requirements should be addressed to Carole Reynolds or Soyong Cho, Attorneys, Division of Financial Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave. NW., Washington, DC 20580, (202) 326–3224.
The four regulations covered by this notice are:
(1) Regulations promulgated under The Equal Credit Opportunity Act, 15 U.S.C. 1691
(2) Regulations promulgated under The Electronic Fund Transfer Act, 15 U.S.C. 1693
(3) Regulations promulgated under The Consumer Leasing Act, 15 U.S.C. 1667
(4) Regulations promulgated under The Truth-In-Lending Act, 15 U.S.C. 1601
The FTC enforces these statutes as to all businesses engaged in conduct these laws cover unless these businesses (such as federally chartered or insured depository institutions) are subject to the regulatory authority of another federal agency.
Under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), Public Law 111–203,124 Stat. 1376 (2010), almost all rulemaking authority for the ECOA, EFTA, CLA, and TILA transferred from the Board of Governors of the Federal Reserve System (Board) to the Consumer Financial Protection Bureau (CFPB) on July 21, 2011 (“transfer date”). To implement this transferred authority, the CFPB has published for public comment interim final rules for new regulations in 12 CFR part 1002 (Regulation B), 12 CFR part 1005 (Regulation E), 12 CFR part 1013 (Regulation M), and 12 CFR part 1026 (Regulation Z) for those entities under its rulemaking jurisdiction.
As a result of the Dodd-Frank Act, the FTC and the CFPB now share the authority to enforce Regulations B, E, M, and Z for entities for which the FTC had enforcement authority before the Act, except for certain motor vehicle dealers. Because of this shared enforcement jurisdiction, the two agencies have divided the FTC's previously-cleared PRA burden between them,
As a result of the Dodd-Frank Act, the FTC generally has sole authority to enforce Regulations B, E, M, and Z regarding motor vehicle dealers predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both.
Under the PRA, 44 U.S.C. 3501–3521, Federal agencies must get OMB approval for each collection of
On February 7, 2012, the Commission sought comment on the information collection requirements associated with these four regulations. 77 FR 6114.
NADA stated, as a general matter, that the FTC staff estimates greatly underestimate the recordkeeping, disclosure, and other related compliance requirements for NADA members
Although all four of the regulations require covered entities to keep certain records, FTC staff believes these records are kept in the normal course of business even absent the particular recordkeeping requirements.
The regulations also require covered entities to make disclosures to third-parties. Related compliance involves set-up/monitoring and transaction-specific costs. “Set-up” burden, incurred only by covered new entrants, includes their identifying the applicable required disclosures, determining how best to comply, and designing and developing compliance systems and procedures. “Monitoring” burden, incurred by all covered entities, includes their time and costs to review changes to regulatory requirements, make necessary revisions to compliance systems and procedures, and to monitor the ongoing operation of systems and procedures to ensure continued compliance. “Transaction-related” burden refers to the time and cost associated with providing the various required disclosures in individual transactions. While this burden varies with the number of transactions, the figures shown for transaction-related burden in the tables that follow are estimated averages.
The required disclosures do not impose PRA burden on some covered entities because they make those disclosures in their normal course of activities. For other covered entities that do not, their compliance burden will vary widely depending on the extent to which they have developed effective computer-based or electronic systems and procedures to communicate and document required disclosures.
Calculating the burden associated with the four regulations' disclosure requirements is very difficult because of the highly diverse group of affected entities. The “respondents” included in the following burden calculations consist of, among others, credit and lease advertisers, creditors, owners (such as purchasers and assignees) of credit obligations, financial institutions, service providers, certain government agencies and others involved in delivering electronic fund transfers (“EFTs”) of government benefits, and lessors.
The cost estimates that follow relate solely to labor costs, and they include the time necessary to train employees how to comply with the regulations. Staff calculated labor costs by multiplying appropriate hourly wage rates by the burden hours described above. The hourly rates used were $49 for managerial oversight, $30 for skilled technical services, and $16 for clerical work. These figures are averages drawn from Bureau of Labor Statistics data.
The applicable PRA requirements impose minimal capital or other non-labor costs. Affected entities generally already have the necessary equipment for other business purposes. Similarly, FTC staff estimates that compliance with these rules entails minimal printing and copying costs beyond that associated with documenting financial transactions in the ordinary course of business.
The ECOA prohibits discrimination in the extension of credit. Regulation B implements the ECOA, establishing disclosure requirements to assist customers in understanding their rights under the ECOA and recordkeeping requirements to assist agencies in enforcement. Regulation B applies to retailers, mortgage lenders, mortgage brokers, finance companies, and others.
FTC staff estimates that Regulation B's general recordkeeping requirements affect 530,479 credit firms subject to the Commission's jurisdiction, at an average annual burden of 1.25 hours per
Regulation B requires that creditors (i.e., entities that regularly participate in the decision whether to extend credit under Regulation B) provide notices whenever they take adverse action, such as denial of a credit application. It requires entities that extend various types of mortgage credit to provide a copy of the appraisal report to applicants or to notify them of their right to a copy of the report (and thereafter provide a copy of the report, upon the applicant's request). Finally, Regulation B also requires that for accounts which spouses may use or for which they are contractually liable, creditors who report credit history must do so in a manner reflecting both spouses' participation. Further, it requires creditors that collect applicant characteristics for purposes of conducting a self-test to disclose to those applicants that: (1) Providing the information is optional; (2) the creditor will not take the information into account in any aspect of the credit transactions; and (3) if applicable, the information will be noted by visual observation or surname if the applicant chooses not to provide it.
The EFTA requires that covered entities provide consumers with accurate disclosure of the costs, terms, and rights relating to EFT and certain other services. Regulation E implements the EFTA, establishing disclosure and other requirements to aid consumers and recordkeeping requirements to assist agencies with enforcement. It applies to financial institutions, retailers, gift card issuers and others that provide gift cards, service providers, various federal and state agencies offering EFTs, remittance transfer providers, etc. Staff estimates that Regulation E's recordkeeping requirements affect 391,120 firms offering EFT services to consumers and that are subject to the Commission's jurisdiction, at an average annual burden of one hour per firm, for a total of 391,120 hours. This is further detailed below.
The CLA requires that covered entities provide consumers with accurate disclosure of the costs and terms of leases. Regulation M implements the CLA, establishing disclosure requirements to help consumers comparison shop and understand the terms of leases and recordkeeping requirements. It applies to vehicle lessors (such as auto dealers, independent leasing companies, and manufacturers' captive finance companies), computer lessors (such as computer dealers and other retailers), furniture lessors, various electronic commerce lessors, diverse types of lease advertisers, and others.
Staff estimates that Regulation M's recordkeeping requirements affect approximately 54,442 firms within the FTC's jurisdiction leasing products to consumers at an average annual burden of one hour per firm, for a total of 54,442 hours.
In its comment NADA observed that preliminary reports from dealers suggest that the FTC estimate for Regulation M advertising compliance, as applied to lease advertisements for motor vehicle dealers, is understated. NADA, however, focused on the FTC estimate of 15 seconds for required disclosures in individual transactions, here, for advertisements. It is “set-up/monitoring” burden, defined above, though, that addresses the time (and associated labor cost) applicable to systems review and monitoring for continued compliance. For lease advertising, estimated setup/monitoring burden is a half-hour.
As noted above, the Commission's jurisdiction covers a highly diverse universe of entities. The population of affected motor vehicle dealers is one component of a much larger universe of such entities. Thus, the FTC's estimates may understate some entities' actual experience and perhaps overstate others'. On balance, though, FTC staff believes these estimates are a fair reflection for the overall universe affected, and the estimates factor into consideration that PRA “burden” does not include effort expended in the ordinary course of business, independent of regulatory requirements.
Congress enacted the TILA to foster comparison credit shopping and informed credit decision making by requiring creditors and others to provide accurate disclosures regarding the costs and terms of credit to consumers. Regulation Z implements the TILA, establishing disclosure requirements to assist consumers and recordkeeping requirements to assist agencies with enforcement. These requirements pertain to open-end and closed-end credit and apply to various types of entities, including mortgage companies; finance companies; auto dealerships; private education loan companies; merchants who extend credit for goods or services; credit advertisers; acquirers of mortgages; and others.
In its comment, NADA stated that Regulation Z closed-end credit advertising requires much more than one minute of review for individual dealers to gauge compliance with disclosure requirements. As with its point about the FTC's estimate for lease advertising under Regulation M, NADA focused here on the FTC estimate of the time per disclosure in an individual transaction, here, for advertisements, rather than on the time for “set-up/monitoring.” Under the latter category of PRA burden, the FTC estimate is a half-hour.
NADA also stated that the estimated burden total appears to assume an average of two transactions per respondent for advertising, with an average burden per transaction of one minute. NADA stated that automobile dealers advertise hundreds, if not thousands of vehicles per year in print, on television, radio, and on sometimes numerous Web sites and other electronic media, and that many are subject to Regulation Z. Again, we note that PRA “burden” does not include effort expended in the ordinary course of business, independent of regulatory requirements.
Commission staff estimates that Regulation Z's recordkeeping requirements affect approximately 530,479 entities subject to the FTC's jurisdiction, at an average annual burden of 1.25 hours per entity,
Because you comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential” as provided in Section 6(f) of the FTC Act 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns devices, manufacturing processes, or customer names.
If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c)).
Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at
If you file your comment on paper, write “Regs BEMZ, PRA Comments, P084812” on your comment and on the envelope, and mail or deliver it to the following address: Federal Trade Commission, Office of the Secretary, Room H–113 (Annex J) 600 Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your paper comment to the Commission by courier or overnight service.
Comments on the information collection requirements subject to review under the PRA should additionally be submitted to OMB. If sent by U.S. mail, they should be addressed to Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission, New Executive Office Building, Docket Library, Room 10102, 725 17th Street NW., Washington, DC 20503. Comments sent to OMB by U.S. postal mail, however, are subject to delays due to heightened security precautions. Thus, comments instead should be sent by facsimile to (202) 395–5167.
Visit the Commission Web site at to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before May 29, 2012. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy, at
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of delisting.
AHRQ has accepted a notification of expiration from the Medkinetics, LLC of its status as a Patient Safety Organization (PSO). The Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) authorizes the listing of PSOs, which are entities or component organizations whose mission and primary activity is to conduct activities to improve patient safety and the quality of health care delivery. HHS issued the Patient Safety and Quality Improvement Final Rule (Patient Safety Rule) to implement the Patient Safety Act. AHRQ administers the provisions of the Patient Safety Act and Patient Safety Rule relating to the listing and operation of PSOs.
The directories for both listed and delisted PSOs are ongoing and reviewed weekly by AHRQ. The delisting was effective at 12 Midnight ET (2400) on January 6, 2012.
Both directories can be accessed electronically at the following HHS Web site:
Eileen Hogan, Center for Quality Improvement and Patient Safety, AHRQ, 540 Gaither Road, Rockville, MD 20850; Telephone (toll free): (866) 403–3697; Telephone (local): (301) 427–1111; TTY (toll free): (866) 438–7231; TTY (local): (301) 427–1130; Email:
The Patient Safety Act, Public Law 109–41, 42 U.S.C. 299b–21—b–26, provides for the formation of PSOs, which collect, aggregate, and analyze confidential information regarding the quality and safety of health care delivery. The Patient Safety Rule, 42 CFR part 3, authorizes AHRQ, on behalf of the Secretary of HHS, to list as a PSO an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” by the Secretary if it is found to no longer meet the requirements of the Patient Safety Act and Patient Safety Rule. Section 3.108(d) of the Patient Safety Rule requires AHRQ to provide public notice when it removes an organization from the list of federally approved PSOs. Accordingly, Medkinetics, LLC, PSO number P0036, was delisted effective at 12 Midnight ET (2400) on January 6, 2012.
More information on PSOs can be obtained through AHRQ's PSO Web site at
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of delisting.
AHRQ has accepted a notification of voluntary relinquishment from the Surgical Safety Institute of its status as a Patient Safety Organization (PSO). The Patient Safety and Quality Improvement Act of 2005 (Patient Safety Act) authorizes the listing of PSOs, which are entities or component organizations whose mission and primary activity is to conduct activities to improve patient safety and the quality of health care delivery. HHS issued the Patient Safety and Quality Improvement Final Rule (Patient Safety Rule) to implement the Patient Safety Act. AHRQ administers the provisions of the Patient Safety Act and Patient Safety Rule relating to the listing and operation of PS0s.
The directories for both listed and delisted PSOs are ongoing and reviewed weekly by AHRQ. The delisting was effective at 12 Midnight ET (2400) on February 21, 2012.
Both directories can be accessed electronically at the following HHS Web site:
Eileen Hogan, Center for Quality Improvement and Patient Safety, AHRQ, 540 Gaither Road, Rockville, MD 20850; Telephone (toll free): (866) 403–3697; Telephone (local): (301) 427–1111; TTY (toll free): (866) 438–7231; TTY (local): (301) 427–1130;
The Patient Safety Act, Public Law 109–41, 42 U.S.C. 299b–21—b–26, provides for the formation of PSOs, which collect, aggregate, and analyze confidential information regarding the quality and safety of health care delivery. The Patient Safety Rule, 42 CFR part 3, authorizes AHRQ, on behalf of the Secretary of HHS, to list as a PSO an entity that attests that it meets the statutory and regulatory requirements for listing. A PSO can be “delisted” by the Secretary if it is found to no longer meet the requirements of the Patient Safety Act and Patient Safety Rule. Section 3.108(d) of the Patient Safety Rule requires AHRQ to provide public notice when it removes an organization from the list of federally approved PS0s, including when a PSO chooses to voluntarily relinquish its status as a PSO for any reason. Accordingly, Surgical Safety Institute, PSO number P0056, was delisted effective at 12:00 Midnight ET (2400) on February 21, 2012.
More information on PSOs can be obtained through AHRQ's PSO Web site at
This gives notice under the Federal Advisory Committee Act (Pub. L. 92–463) of October 6, 1972, that the Advisory Committee on Immunization Practices, Centers for Disease Control and Prevention, Department of Health and Human Services, has been renewed for a 2-year period through April 1, 2014.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Conducting Research on Moderate Acute Malnutrition in Humanitarian Emergencies, Funding Opportunity Announcement (FOA) GH12–006, initial review.
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 aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Evaluation of Dengue Epidemiology, Outcomes, and Prevention in Sentinel Surveillance and Research Sites in Puerto Rico, Funding Opportunity Announcement (FOA), CK12–001, initial review.
Correction: The notice was published in the
Contact Person for More Information: Gregory Anderson, M.P.H., M.S., Scientific Review Officer, CDC, 1600 Clifton Road NE., Mailstop E60, Atlanta, Georgia 30333, Telephone: (404) 718–8833. The Director, Management Analysis and Services Office, has been delegated the authority to sign
The meeting announced below concerns Research Technical Assistance To The Ministry Of Public Health Of Haiti To Support Post Earthquake Reconstruction, Cholera And HIV/AIDS Response, GH12–003, initial review.
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 aforementioned meeting:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Medicare & Medicaid Services.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS) is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
The HOS measure was developed under the guidance of a technical expert panel comprised of individuals with specific expertise in the health care industry and outcomes measurement. The measure includes the most recent advances in summarizing physical and mental health outcomes results and appropriate risk adjustment techniques. In addition to health outcomes measures, the HOS is used to collect the Management of Urinary Incontinence in Older Adults, Physical Activity in Older Adults, Fall Risk Management, and Osteoporosis Testing in Older Women HEDIS® measures. The collection of Medicare HOS is necessary to hold Medicare managed care contractors accountable for the quality of care they are delivering. This reporting requirement allows CMS to obtain the information necessary for proper oversight of the Medicare Advantage program.
Since the last collection, the survey instrument has been revised and the burden has changed. There have been some questions added and others deleted.
2.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS' Web Site address at
In commenting on the proposed information collections please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in one of the following ways by
1.
2.
Centers for Medicare & Medicaid Services, HHS.
In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services, is publishing the following summary of proposed collections for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the Agency's function; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
1.
Three broad goals have shaped HCAHPS. First, the survey is designed to produce data about patients' perspectives of care that allow objective and meaningful comparisons of hospitals on topics that are important to consumers. Second, public reporting of the survey results creates new incentives for hospitals to improve quality of care. Third, public reporting serves to enhance accountability in health care by increasing transparency of the quality of hospital care provided in return for the public investment. With these goals in mind, the Centers for Medicare & Medicaid Services (CMS) has taken substantial steps to assure that the survey is credible, useful, and practical. Hospitals implement HCAHPS under the auspices of the Hospital Quality Alliance (HQA), a private/public partnership that includes major hospital and medical associations, consumer groups, measurement and accrediting bodies, government, and other groups that share an interest in improving hospital quality. Both the HQA and the National Quality Forum have endorsed HCAHPS.
The enactment of the Deficit Reduction Act of 2005 created an additional incentive for acute care hospitals to participate in HCAHPS. Since July 2007, hospitals subject to the Inpatient Prospective Payment System (IPPS) annual payment update provisions (“subsection (d) hospitals”) must collect and submit HCAHPS data in order to receive their full IPPS annual payment update. IPPS hospitals that fail to publicly report the required quality measures, which include the HCAHPS survey, may receive an annual payment update that is reduced by 2.0 percentage points. Non-IPPS hospitals, such as Critical Access Hospitals, may voluntarily participate in HCAHPS.
The Patient Protection and Affordable Care Act of 2010 (Pub. L. 111–148) includes HCAHPS among the measures to be used to calculate value-based incentive payments in the Hospital Value-Based Purchasing program, beginning with discharges in October 2012.
Currently the HCAHPS survey asks discharged patients 27 questions about their recent hospital stay. The survey contains 18 core questions about critical aspects of patients' hospital experiences (communication with nurses and doctors, the responsiveness of hospital staff, the cleanliness and quietness of the hospital environment, pain management, communication about medicines, discharge information, overall rating of hospital, and would they recommend the hospital). The survey also includes four items to direct patients to relevant questions, three items to adjust for the mix of patients across hospitals, and two items that support Congressionally-mandated reports.
This revision is being submitted in order to add five new items to the survey: three items that comprise a Care Transitions composite; one item that asks whether the patient was admitted through the emergency room; and one item that asks about the patient's overall mental health. This marks the first addition of items to the HCAHPS Survey since its national implementation in 2006.
2.
This site investigation form collects the same information as its predecessor, with the exception of one new yes/no question under the “Records and Telephone” section (question 11(a)) used to verify if the DMEPOS supplier maintains physician ordering/referring records for the supplies and/or services it renders to Medicare beneficiaries (if applicable). This information is required by section 1833(q) of the Social Security Act (the Act) which states that all physicians and non-physician practitioners that meet the definitions at section 1861(r) and 1842(b)(18)(C) of the Act, be uniquely identified for all claims for services that are ordered or referred. Other information collected on this site investigation remains unchanged, but has been reformatted for greater functionality.
3.
Where appropriate, CMS has changed all references to enrollment or enrolling to registration and registering and Medicare billing number to National Provider Identifier. CMS also added a check box to allow physicians and non-physician practitioners to withdraw from the ordering and referring registry. A section to collect information on professional certifications was added for those practitioners who are not professionally licensed. Editorial and formatting corrections were made in response to prior comments received during the approval of the current version of this application. Other minor editorial and formatting corrections were made to better clarify the purpose of this application.
To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, access CMS Web Site address at
To be assured consideration, comments and recommendations for the proposed information collections must be received by the OMB desk officer at the address below, no later than 5 p.m. on
OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–6974, Email:
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
The Edwards SAPIEN Transcatheter Heart Valve, model 9000TFX, sizes 23mm and 26mm and accessories implant system consists of the following:
• A heterologous (bovine) pericardium leaflet valve sutured within a stainless steel mesh frame, with a polyester skirt. It is offered in two sizes, a 23 mm and a 26 mm.
• The RetroFlex 3 Delivery System is used to advance the bioprosthesis through the RetroFlex sheath over a guidewire and to track the bioprosthesis over the aortic arch and for crossing and positioning in the native valve. The delivery system also comes with a sheath, introducer, loader, dilator, balloon (used to pre-dilate the native annulus) and a crimper.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact James Clark, Conference Management Staff, at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
During the afternoon session, the committee will discuss NDA 202714, with the proposed trade name Kyprolis (carfilzomib) for injection, application submitted by Onyx Pharmaceuticals, Inc. The proposed indication (use) for this product is for the treatment of patients with relapsed and refractory (recurring and/or not responsive to other treatments) multiple myeloma who have received at least 2 prior lines of therapy that included a proteasome inhibitor and an immunomodulatory agent.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Caleb Briggs at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Council for Complementary and Alternative Medicine.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the 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.
Closed: 8:30 a.m. to 10 a.m.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Science and Technology Directorate, DHS.
60-day Notice and request for comment.
The Department of Homeland Security (DHS) invites the general public to comment on the data collection form for the DHS Science & Technology (S&T) First Responders Community of Practice (FRCoP): User Registration Page (DHS Form 10059 (9/09)). The FRCoP web based tool collects profile information from first responders and select authorized non-first responder users to facilitate networking and formation of online communities. All users are required to authenticate prior to entering the site. In addition, the tool provides members the capability to create wikis, discussion threads, blogs, documents, etc., allowing them to enter and upload content in accordance with the site's Rules of Behavior. Members are able to participate in threaded discussions and comment on other member's content. The DHS S&T FRCoP Program is responsible for providing a collaborative environment for the first responder community to share information, best practices, and lessons learned. Section 313 of the Homeland Security Act of 2002 (Pub. L. 107–296) established this requirement. This notice and request for comments is required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chapter 35). This notice and request for comments is required by the Paperwork Reduction Act of 1995 (Pub. Law 104–13, 44 U.S.C. chapter 35).
Comments are encouraged and will be accepted until June 26, 2012.
Interested persons are invited to submit comments, identified by docket number DHS–2012–0013, by one of the following methods:
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DHS FRCoP Contact Kathy Higgins (202) 254–2293 (Not a toll free number).
DHS S&T currently has approval to collect information utilizing the User Registration Form until September 30, 2012 with OMB approval number 1640–0016. The User Registration Form will be available on the First Responders Community of Practice Web site found at [
The Department is committed to improving its information collection and urges all interested parties to suggest how these materials can further reduce burden while seeking necessary information under the Act.
DHS is particularly interested in comments that:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Suggest ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Suggest ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
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Science and Technology Directorate, DHS.
30-day Notice and request for comment.
The Department of Homeland Security (DHS) invites the general public to comment on the renewal of existing data collection forms for the DHS Science and Technology Directorate's Project 25 (P25) Compliance Assessment Program (CAP): Supplier's Declaration of Compliance (SDoC) (DHS Form 10044 (6/08)) and Summary Test Report (DHS Form 10056 (9/08)). The attacks of September 11, 2001, and the destruction of Hurricane Katrina made apparent the need for emergency response radio systems that can interoperate, regardless of which organization manufactured the equipment. In response, and per congressional direction, DHS and the National Institute of Standards and Technology (NIST) developed the P25 CAP to improve the emergency response community's confidence in purchasing land mobile radio (LMR) equipment built to P25 LMR standards. The P25 CAP establishes a process for ensuring that equipment complies with P25 standards and is capable of interoperating across manufacturers. The Department of Homeland Security needs to be able to collect essential information from manufacturers on their products that have met P25 standards as demonstrated through the P25 CAP. Equipment suppliers will provide information to publicly attest to their products' compliance with a specific set of P25 standards. Accompanied by a Summary Test Report that substantiates this declaration, the SDoC constitutes a company's formal, public attestation of compliance with the standards for the equipment. In providing this information, companies will consent to making this information public. In turn, the emergency response community will use this information to identify P25-compliant communications systems. The P25 CAP Program Manager will perform a simple administrative review to ensure the documentation is complete and accurate in accordance with the current P25 CAP processes. This notice and request for comments is required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35).
Comments are encouraged and will be accepted until May 29, 2012
Interested persons are invited to submit comments, identified by docket number DHS–2012–0015, by
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DHS P25 CAP Contact Thomas Chirhart (202) 254–6063 (Not a toll free number).
The SDoC and Summary Test Report forms will be posted on the Responder Knowledge Base (RKB) Web site at
The Department is committed to improving its information collection and urges all interested parties to suggest how these materials can further reduce burden while seeking necessary information under the Act.
DHS is particularly interested in comments that:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Suggest ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Suggest ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
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Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), Office of Management and Budget (OMB) control number 1652–0053, abstracted below to OMB for renewal in compliance with the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by May 29, 2012. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Comments may be mailed or delivered to Susan Perkins, PRA Officer, Office of Information Technology, TSA–11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598–6011. 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 Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Susan Perkins, Office of Information Technology, TSA–11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598–6011; telephone (571) 227–3398 or email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
TSA must proceed with the ICR for this program in order to meet the Congressional mandates, and current and new regulations (49 CFR 1542.209, 1544.205, 1546.205, parts 1548 and 1549) that enable entities involved in air cargo to accept, screen, and transport air cargo. The uninterrupted collection of this information will allow TSA to continue to ensure implementation of these vital security measures for the protection of the traveling public.
TSA will certify qualified facilities as CCSFs. Companies seeking to become CCSFs are required to submit an application to TSA at least 90 days before the intended date of operation. Prior to certification, the CCSF must also submit to an assessment of their facility by TSA. TSA will allow the regulated entity to operate as a CCSF in accordance with a TSA-approved security program. The regulated entities must also collect personal information and submit such information to TSA so that TSA may conduct security threat assessments for individuals with unescorted access to cargo, and who have responsibility for screening cargo under 49 CFR parts 1544, 1546, 1548, and 1549. CCSFs must provide information on the amount of cargo screened and other cargo screening metrics at an approved facility. CCSFs must also maintain screening, training, and other security-related records of compliance.
Transportation Security Administration, DHS.
30-day Notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), OMB control number 1652–0035, abstracted below to the Office of Management and Budget (OMB) for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by May 29, 2012. A comment to OMB is most effective if OMB receives it within 30 days of publication.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, OMB. Comments should be addressed to Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Susan L. Perkins, TSA PRA Officer, Office of Information Technology (OIT), TSA–11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598–6011; telephone (571) 227–3398; email
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Transportation Security Administration, DHS.
30-day notice.
This notice announces that the Transportation Security Administration (TSA) has forwarded the Information Collection Request (ICR), OMB control number 1652–0011, abstracted below to the Office of Management and Budget (OMB) for review and approval of an extension of the currently approved collection under the Paperwork Reduction Act. The ICR describes the nature of the information collection and its expected burden. TSA published a
Send your comments by May 29, 2012. A comment to OMB is most effective if OMB receives it within 30 days of publication.
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 Desk Officer, Department of Homeland Security/TSA, and sent via electronic mail to
Joanna Johnson, Office of Information Technology (OIT), TSA–11, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598–6011; telephone (571) 227–3651.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 708–1234; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Division of Property Management, Program Support Center, HHS, room 5B–17, 5600 Fishers Lane, Rockville, MD 20857; (301) 443–2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Mark Johnston at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses:
Fish and Wildlife Service, Interior.
Notice of teleconference.
We, the U.S. Fish and Wildlife Service, announce a public teleconference of the Wildlife and Hunting Heritage Conservation Council (Council).
Joshua Winchell, Council Coordinator, 4401 North Fairfax Drive, Mailstop 3103–AEA, Arlington, VA 22203; telephone (703) 358–2639; fax (703) 358–2548; or email
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that Wildlife and Hunting Heritage Conservation Council will hold a teleconference.
Formed in February 2010, the Council provides advice about wildlife and habitat conservation endeavors that:
1. Benefit recreational hunting;
2. Benefit wildlife resources; and
3. Encourage partnership among the public, the sporting conservation community, the shooting and hunting sports industry, wildlife conservation organizations, the States, Native American tribes, and the Federal Government.
The Council advises the Secretary of the Interior and the Secretary of Agriculture, reporting through the Director, U.S. Fish and Wildlife Service (Service), in consultation with the Director, Bureau of Land Management (BLM); Director, National Park Service (NPS); Chief, Forest Service (USFS); Chief, Natural Resources Service (NRCS); and Administrator, Farm Services Agency (FSA). The Council's duties are strictly advisory and consist of, but are not limited to, providing recommendations for:
1. Implementing the Recreational Hunting and Wildlife Resource Conservation Plan—A Ten-Year Plan for Implementation;
2. Increasing public awareness of and support for the Sport Wildlife Trust Fund;
3. Fostering wildlife and habitat conservation and ethics in hunting and shooting sports recreation;
4. Stimulating sportsmen and women's participation in conservation and management of wildlife and habitat resources through outreach and education;
5. Fostering communication and coordination among State, Tribal, and Federal Government; industry; hunting and shooting sportsmen and women; wildlife and habitat conservation and management organizations; and the public;
6. Providing appropriate access to Federal lands for recreational shooting and hunting;
7. Providing recommendation to improve implementation of Federal
8. When requested by the agencies' designated ex officio members or the Designated Federal Officer in consultation with the Council Chairman, performing a variety of assessments or reviews of policies, programs, and efforts through the Council's designated subcommittees or workgroups.
Background information on the Council is available at
The Council will hold a teleconference to consider:
• BLM's draft Resource Management Plan for the Sonoran Desert National Monument; and
The final agenda will be posted on the Internet at
Interested members of the public may submit relevant information or questions for the Council to consider during the teleconference. Written statements must be received by the date listed in “Public Input” under
Individuals or groups requesting to make an oral presentation during the teleconference will be limited to 2 minutes per speaker, with no more than a total of 30 minutes for all speakers. Interested parties should contact the Council Coordinator, in writing (preferably via email; see
Summary minutes of the teleconference will be maintained by the Council Coordinator (see
Fish and Wildlife Service, Interior.
Notice of receipt of application for approval; request for comment.
The public is invited to comment on the following application for approval to conduct certain activities with birds that are protected in accordance with the Wild Bird Conservation Act of 1992 (WBCA).
Written data, comments, or requests for a copy of this application must be received by May 29, 2012.
Documents and other information submitted with this application are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents within 30 days of the date of publication of this notice to: Chief, U.S. Fish and Wildlife Service, Division of Management Authority, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax: 703–358–2298.
Craig Hoover, Chief, Branch of Operations, Division of Management Authority, at 703–358–2104.
The purpose of the WBCA (16 U.S.C. 4901 et seq.) is to ensure that the market in the United States for exotic bird species does not cause harm to the wild populations of those species. With a few exceptions, the WBCA prohibits the import of bird species included in the Appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Under the WBCA, we, the U.S. Fish and Wildlife Service, issue permits for import of listed birds for scientific research, zoological breeding or display programs, or personal pet purposes, when the applicant meets certain criteria. We also may approve cooperative breeding programs of listed birds, and subsequent import permits under such breeding programs.
The public is invited to comment on the following application for approval to establish a cooperative breeding program under the WBCA. This notice is provided pursuant to the WBCA and its implementing regulations in the Code of Federal Regulations (CFR) at 50 CFR 15.26. Written data, comments, or requests for copies of this complete application should be submitted to the Chief (address above).
The applicant wishes to establish a cooperative breeding program for Black Sparrowhawk (
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.
U.S. Geological Survey (USGS), Interior.
Notice of an extension of an information Collection (1028–0089), Mineral Resources Program's (MRP) Mineral Resource External Research Program (MRERP).
We (the U.S. Geological Survey) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. To comply with the Paperwork Reduction Act of 1995 (PRA) and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This IC is scheduled to expire on August 31, 2012.
To submit a proposal for the MRERP a project narrative must be completed and submitted via Grants.gov. Furthermore, for multi-year projects, an annual progress report must be completed, and for all projects, a final technical report is required at the end of the project period. The narrative and report guidance is available at
Submit written comments by June 26, 2012.
You may submit comments on this information collection to the Information Collection Clearance Officer, U.S. Geological Survey, 12201 Sunrise Valley Drive MS 807, Reston, VA 20192 (mail); (703) 648–7199 (fax); or
Jeff L. Doebrich at 703–648–6103.
We will protect information from respondents considered proprietary under the Freedom of Information Act (5 U.S.C. 552) and implementing regulations (43 CFR part 2), and under regulations at 30 CFR 250.197, “Data and information to be made available to the public or for limited inspection.” Responses are voluntary. No questions of a “sensitive” nature are asked. We intend to release the project abstracts and primary investigators for awarded/funded projects only.
Bureau of Land Management, Interior.
Notice of Availability.
In accordance with the National Environmental Policy Act of 1969 (NEPA), as amended, the Bureau of Land Management (BLM) has prepared a Draft Environmental Impact Statement (EIS) for the Lost Creek Uranium In Situ Recovery (ISR) Project and by this notice is announcing the opening of the comment period.
To ensure that comments will be considered, the BLM must receive written comments on the Lost Creek ISR Project Draft EIS within 45 days following the date the Environmental Protection Agency publishes its Notice of Availability in the
Comments related to the Lost Creek ISR Project may be submitted by any of the following methods:
•
•
•
Copies of the Lost Creek ISR Project Draft EIS are available in the BLM Rawlins Field Office, at the address indicated above, the BLM Lander Field Office, 1335 Main Street, Lander, Wyoming 82520; the BLM High Desert District Office, 280 Highway 191 North, Rock Springs, Wyoming 82901; and the BLM Wyoming State Office, 5353 Yellowstone Road, Cheyenne, Wyoming 82009; and at the following Web site:
Dennis Carpenter, Field Manager, at the BLM Rawlins Field Office, telephone: 307–328–4200; address: 1300 N. Third Street, P.O. Box 2407, Rawlins, Wyoming 82301, email:
The applicant, Lost Creek ISR, LLC (Lost Creek), has filed a plan of operations pursuant to the 43 CFR subpart 3809 regulations to construct a uranium ore recovery plant, an access road to the site, and a pipeline system for the flow of oxidizing leach solution to injection wells and return of fluids from recovery wells to the recovery plant site; to drill injection, recovery and monitoring wells; and to construct associated facilities such as parking lots, power lines, etc. Development and recovery of the uranium consists of dissolving underground uranium-bearing minerals into solution and then bringing the solution to the surface facility for concentration. The Lost Creek ISR Project is located about 40 miles northwest of Rawlins, Wyoming, in Sweetwater County. The project is located in the following area.
The project area boundary includes approximately 4,250 acres, but only about 345 acres would be subjected to actual surface disturbance that would be approved by the BLM. Most of the surface disturbance would be related to construction of pads for wells used to extract uranium in solution from the site.
The plant site would comprise approximately 10 acres, including parking space for about 50–60 employees. Multiple subsurface ore bodies ranging in depth from about 300–700 feet below the surface are found at the site. Each of the three separate production areas containing uranium would be established and mined, one at a time. It is expected that mining operations would last about 8 years. An estimated additional 3 years would be required for startup and closure of the site for a total project length of 11 years. A proposed final reclamation plan for the project area has been submitted. All surface facilities would be removed when the project is completed and the land re-contoured to near predisturbance condition and re-vegetated.
The draft EIS addresses the direct, indirect, and cumulative impacts of the proposed action and three alternatives including the No Action Alternative, the “Not Fencing the Pattern Areas” Alternative, and the “Drying Yellowcake On-Site” Alternative.
The No Action Alternative, as required by NEPA, describes conditions expected to occur if no ISR operations would be conducted within the permit area, although activities currently on-going would continue and other activities at the site during the proposed licensing/permitting period would still occur. Under the “Not Fencing the Pattern Areas” Alternative, temporary fencing would be installed only around the drill pits, including those drilled within the mine units, and around the plant and storage ponds, as opposed to the entire well field of the pattern area. Under the “Drying Yellowcake On-Site” Alternative, a yellowcake drying and packing facility would be constructed and operated at the permit area. As with the Proposed Action, yellowcake slurry (30 to 50 percent solids) would be produced; however, the slurry would be filter-pressed to remove additional water, dried, and packaged on-site.
The Notice of Intent to prepare an EIS was published in the
Please note that public comments and information submitted including names, street addresses, and email addresses of persons who submit comments will be available for public review and disclosure at the above address during regular business hours (8 a.m. to 4 p.m.), Monday through Friday, except holidays.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time.
While you may ask the BLM 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.
Bureau of Land Management, Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Coeur d'Alene District Resource Advisory Council (RAC) will meet as indicated below.
May 31, 2012. The meeting will begin at 10 a.m. and end no later than 3:30 p.m. The public comment period will be held from 1 p.m. to 1:30 p.m. The meeting will be held at the Idaho Department of Health and Welfare Office, 1350 Troy Road, Moscow, Idaho 83843.
Suzanne Endsley, RAC Coordinator, BLM Coeur d'Alene District, 3815 Schreiber Way, Coeur d'Alene, Idaho 83815 or telephone at (208) 769–5004.
The 15-member RAC advises the Secretary of the Interior, through the Bureau of Land Management, on a variety of planning and management issues associated with public land management in Idaho. The agenda will include the following topics: The Clearwater and Nez Perce National Forests will present proposals to modify recreation fees at national forest recreation sites for the Recreation RAC Subcommittee to consider. The agenda will also include updates from the Cottonwood Field Office and a presentation on the proposed Bally Mountain Hazardous Fuels Reduction project. Additional agenda topics or changes to the agenda will be announced in local press releases. More information is available at
All meetings are open to the public. The public may present written comments to the RAC in advance of or at the meeting. Each formal RAC meeting will also have time allocated for receiving public comments. Depending upon the number of persons wishing to comment and time available, the time for individual oral comments may be limited. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should contact the BLM as provided above.
Nominations for the following properties being considered for listing or related actions in the National Register were received by the National Park Service before April 7, 2012. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation. Comments may be forwarded by United States Postal Service, to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service,1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447. Written or faxed comments should be submitted by May 14, 2012. 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.
30-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) 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 is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until May 29, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20530. Additionally, comments also may be submitted to OMB via facsimile to (202) 395–7285.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 2E–508, Washington, DC 20530.
30-Day notice of information collection under review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) 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 is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until May 29, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20530. Additionally, comments also may be submitted to OMB via facsimile to (202) 395–7285.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 2E–808, Washington, DC 20530.
30-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) 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 is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until May 29, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20530. Additionally, comments also may be submitted to OMB via facsimile to (202) 395–7285. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution
30-Day Notice of Information Collection Under Review.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) 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 is published to obtain comments from the public and affected agencies. This proposed information collection was previously published in the
The purpose of this notice is to allow for an additional 30 days for public comment until May 29, 2012. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the items contained in this notice, especially the estimated public burden and associated response time, should be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Department of Justice Desk Officer, Washington, DC 20530. Additionally, comments may also be submitted to OMB via facsimile to (202) 395–7285.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required, contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 2E–508, Washington, DC 20530.
Notice.
The Department of Labor (DOL) is submitting the Mine Safety and Health Administration (MSHA) sponsored information collection request (ICR) revision titled, “Refuge Alternatives for Underground Coal Mines,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501
Submit comments on or before May 29, 2012.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained from the RegInfo.gov Web site,
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–MSHA, Office of Management and Budget, Room 10235, Washington, DC 20503, Telephone: 202–395–6929/Fax: 202–395–6881 (these are not toll-free numbers), email:
Michel Smyth by telephone at 202–693–4129 (this is not a toll-free number) or by email at
MSHA regulations mandate each underground coal mine to have an emergency response plan and refuge alternative(s) to protect miners by providing secure spaces with isolated atmospheres that create life-sustaining environments when escape from a mine during a mine
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers by (TA–W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) Imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) Imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) Imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) Imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) The increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) There has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) The shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) The acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) An affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) An affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) An affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) The petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) Notice of an affirmative determination described in subparagraph (1) is published in the
(3) The workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) Notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production or services) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criteria under paragraphs (a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued in cases where these petitions were not filed in accordance with the requirements of 29 CFR 90.11. Every petition filed by workers must be signed by at least three individuals of the petitioning worker group. Petitioners separated more than one year prior to the date of the petition cannot be covered under a certification of a petition under Section 223(b), and therefore, may not be part of a petitioning worker group. For one or more of these reasons, these petitions were deemed invalid.
The following determinations terminating investigations were issued because the petitions are the subject of ongoing investigations under petitions filed earlier covering the same petitioners.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions,
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than May 7, 2012.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than May 7, 2012.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N–5428, 200 Constitution Avenue NW., Washington, DC 20210.
Employment and Training Administration (ETA), Labor.
Notice.
Public Law 105–220, the Workforce Investment Act of 1998, requires the Secretary of Labor (Secretary) to conduct reallotment of dislocated worker formula allotted funds based on State financial reports submitted as of the end of the prior program year. This notice publishes the dislocated worker PY 2011 funds for recapture by State and the amount to be reallotted to eligible States.
This notice is effective April 27, 2012.
Ms. Amanda Ahlstrand, Acting Administrator, Office of Workforce Investment, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room C–4526, Washington, DC 20210. Telephone (202) 693–3980 (this is not a toll-free number) or fax (202) 693–3981.
WIA Section 132(c) requires the Secretary to conduct reallotment of dislocated worker funds based on financial reports submitted by States as of the end of the prior program year.
The procedures the Secretary uses for recapture and reallotment of funds are described in the WIA regulation at 20 CFR 667.150. Training and Employment Guidance Letter No. 26–10 advised States that reallotment of funds under WIA will occur during PY 2011 based on State obligations made in PY 2010. We will not recapture any PY 2011 funds for Adult and Youth programs because in no case do PY 2010 unobligated funds exceed the statutory requirement of 20 percent of State allotted funds. There was recapture and reallotment of WIA Dislocated Worker funds in PY 2010.
Excess unobligated State funds in the amount of $251,529 will be captured from PY 2011 formula allotted funds for the dislocated worker program for one State and distributed by formula to PY 2011 dislocated worker funds for eligible States. The description of the methodology used for the calculation of the recapture/reallotment amounts and the distribution of the changes to PY 2011 formula allotments for dislocated worker activities are included in this notice (see Section III below).
WIA Section 132 (c) requires the governor to prescribe equitable procedures for making funds available from the State and local areas in the event that the State is required to make funds available for reallotment.
• Source Data: State WIA 9130 financial status reports.
• Programs:
• Period: June 30, 2011.
• Years covered: PY 2010 and Fiscal Year (FY) 2011.
(1) Each State's total amount of State obligations of PY 2010 (including FY 2011) funds for the Dislocated Worker program is calculated. State obligations are considered to be the total of the Dislocated Worker statewide activities obligations, Rapid Response obligations, and 100 percent of local Dislocated Worker program authorized (which includes local admin authorized). The Dislocated Worker total unobligated balance is calculated to be the Dislocated Worker 2010 allotment amount (adjusted for recapture/reallotment and statutory formula-based rescissions) less the calculated total Dislocated Worker obligations. (For re-allotment purposes, Dislocated Worker allotted funds transferred to the Navajo Nation are added back to Arizona, New
(2) Section 667.150 of the regulations provides that the recapture calculations exclude the reserve for State administration. Data on State administrative authorized and obligated amounts are not normally available on WIA 9130 financial reports. Therefore, additional data on State administrative amounts included in the PY 2010 and FY 2011 statewide activities amounts authorized and obligated as of June 30, 2011 are requested from those States calculated to be potentially liable for recapture.
(3) In the preliminary calculation to determine States potentially liable for recapture, the Dislocated Worker portion of the state administrative amounts authorized and obligated (100 percent of authorized is treated as obligated) is estimated by calculating the five percent maximum amount for State Dislocated Worker administrative costs using the Dislocated Worker state allotment amounts (adjusted for recapture/reallotment and statutory formula-based rescissions). If a State provides actual State Dislocated Worker administrative costs authorized and obligated in the comments section of revised 9130 reports, this data replaces the estimates. Based on the requested additional actual data submitted by potentially liable States on revised reports, the Dislocated Worker total allotment for these States is reduced by the Dislocated Worker portion of the State administrative amount authorized and the Dislocated Worker total obligations for these States are reduced by the Dislocated Worker portion of the State administrative amounts obligated. These calculations are done separately for PY 2010 and FY 2011, with final calculations being added together for the total year amounts.
(4) States (including those adjusted by State administrative data) with unobligated balances for combined PY 2010/FY 2011 exceeding 20 percent of the combined PY 2010/FY 2011 Dislocated Worker allotment (adjusted for recapture/reallotment and statutory formula-based rescissions) will have their PY 2011 Dislocated Worker funding (FY 2012 portion) reduced (recaptured) by the amount of the excess.
(5) As calculated above, states with unobligated balances not exceeding 20 percent will receive in their PY 2011 Dislocated Worker funding (FY 2012 portion) a share of the total recaptured amount based on their share of the total PY 2010/FY 2011 Dislocated Worker allotments amount (adjusted for recapture/reallotment, financial sanctions, and statutory formula based rescissions) for all such States.
Mine Safety and Health Administration, Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to assure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration is soliciting comments concerning the extension of the information collection for 30 CFR 75.215, 75.220(a)(1), 75.221(a), 75.222(a), and 75.223(a), (b), and (d). OMB last approved this information collection request on September 28, 2009. The package expires on September 30, 2012.
All comments must be postmarked or received by midnight Eastern Time on June 26, 2012.
Comments concerning the information collection requirements of this notice must be clearly identified with “OMB 1219–0004” and sent to both the Office of Management and Budget (OMB) and the Mine Safety and Health Administration (MSHA). Comments to MSHA may be sent by any of the methods listed below.
•
•
•
Comments to OMB may be sent by mail addressed to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street NW., Washington, DC 20503, Attn: Desk Officer for MSHA.
Greg Moxness, Chief, Economic Analysis Division, Office of Standards, Regulations, and Variances, MSHA, at
Section 302(a) of the Federal Mine Safety and Health Act of 1977 (Mine Act) 30 U.S.C. 846, requires that a roof control plan and revisions thereof suitable to the roof conditions and mining system of each coal mine be first approved by the Secretary of Labor (Secretary) before implementation by the operator. The plan must show the type of support and spacing approved by the Secretary, and the plan must be reviewed at least every six months by the Secretary.
This information collection addresses the recordkeeping associated with:
The Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed extension of the information collection related to this safety standard on roof control plans for underground coal mines. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
• Evaluate the accuracy of the MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Address the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submissions of responses) to minimize the burden of the collection of information on those who are to respond.
The public may examine publicly available documents, including the public comment version of the supporting statement, at MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, VA 22209–3939. OMB clearance requests are available on MSHA's Web site at
The information obtained from mine operators is used by MSHA during inspections to determine compliance with safety and health standards. MSHA has updated the data in respect to the number of respondents and responses, as well as the total burden hours and burden costs supporting this information collection extension request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
44 U.S.C. 3506(c)(2)(A).
Mine Safety and Health Administration, Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration is soliciting comments concerning the extension of the information collection for 30 CFR 57.22401(b). The Office of Management and Budget last approved this information collection request on October 13, 2009.
All comments must be postmarked or received by midnight Eastern Time on June 26, 2012.
Comments concerning the information collection requirements of this notice must be clearly identified with “OMB 1219–0096” and sent to both the Office of Management and Budget (OMB) and Mine Safety and Health Administration (MSHA). Comments to MSHA may be sent by any of the methods listed below.
•
•
•
Comments to OMB may be sent by mail addressed to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street NW., Washington, DC 20503, Attn: Desk Officer for MSHA.
Greg Moxness, Chief, Economic Analysis Division, Office of Standards, Regulations, and Variances, MSHA, at
Section 103(h) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 813, authorizes MSHA to collect information necessary to carry out its duty in protecting the safety and health of miners. Title 30 CFR 57.22401 sets forth the safety requirements for using a retort in underground metal and nonmetal I–A and I–B mines (those that operate within a combustible ore and either liberate methane or have the potential to liberate methane based on the history of the mine or the geological area in which the mine is located). At present, this applies only to underground oil shale mines. The standard requires that prior to ignition of underground retort; mine operators must submit a written ignition and operation plan to the appropriate MSHA District Manager which contains site-specific safeguards and safety procedures for the underground areas of the mine which are affected by the retorts.
This information collection addresses the recordkeeping associated with: 30 CFR 57.22401(b) Underground Retorts (I–A and I–B mines).
MSHA is soliciting comments concerning the proposed extension of the information collection related to underground retorts in Metal and Nonmetal I–A and I–B mines. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
• Evaluate the accuracy of the Agency's estimate of the burden of the
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Address the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, (
The public may examine publicly available documents, including the public comment version of the supporting statement, at MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, VA 22209–3939. OMB clearance requests are available on MSHA's Web site at
The request for information contains provisions whereby mine operators can maintain compliance with the regulations and assure the safety of miners where underground retorts are used. MSHA has updated the data in respect to the number of respondents and responses, as well as the total burden hours and burden costs supporting this information collection extension request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
44 U.S.C. 3506(c)(2)(A).
In accordance with Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
Updates and discussions on continuing activities:
The National Science Board, pursuant to NSF regulations (45 CFR Part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n–5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of meetings for the transaction of National Science Board business and other matters specified, as follows:
National Science Board.
Wednesday, May 2, 2012 from 9:00 a.m. to 6:00 p.m., Thursday, May 3, 2012 from 8:00 a.m. to 3:30 p.m., and Friday, May 4, 2012 from 8:00 a.m. to 3:00 p.m.
These meetings will be held at the National Science Foundation, 4201Wilson Blvd., Room 1235, Arlington, VA 22230. All visitors must contact the Board Office (call 703–292–7000 or send an email message to
Please refer to the National Science Board Web site
Jennie L. Moehlmann,
Dana Topousis,
Portions open; portions closed.
Nuclear Regulatory Commission.
Notice of availability.
Cassandra F. Frazier, Senior Licensing Reviewer, Materials Licensing Branch, Division of Nuclear Materials Safety, Region III Office, U.S. Nuclear Regulatory Commission, Lisle, Illinois 60532. Telephone: 630–829–9830; fax number: 630–515–1078; email:
The U.S. Nuclear Regulatory Commission (NRC or the Commission) is considering the renewal of Material License No. 13–15933–01 issued to Franciscan St. Anthony Health—Crown Point, Crown Point, Indiana. The license renewal would include an exemption to Title 10 of the
The NRC has determined that the license renewal qualifies for a categorical exclusion under 10 CFR 51.22(c)(14) and therefore does not require an Environmental Assessment (EA). Issuance of an exemption to 10 CFR 35.400 is not covered by a categorical exclusion. Therefore, an EA of the proposed exemption is required under 10 CFR Part 51. Based on the EA, the NRC has concluded that a Finding of No Significant Impact (FONSI) is appropriate. The license renewal with the authorization for an exemption to 10 CFR 35.400 and related rules will be issued following the publication of this Notice.
The proposed action is the issuance of an exemption to NRC rules at 10 CFR 30.32(g), 35.49 and 35.400 pursuant to 10 CFR 30.11 and 35.19. The purpose of the proposed exemption is to authorize the licensee, Franciscan St. Anthony Healt—-Crown Point, to continue the use of brachytherapy sealed sources previously authorized by the NRC, but that have not been approved in the Sealed Source and Device (SSD) Registry.
The licensee was authorized by the NRC on April 8, 1974, to possess and use byproduct materials for medical use at its facility in Crown Point, Indiana. While reviewing the licensee's license renewal application dated October 26, 2010, the NRC staff determined that fourteen sealed brachytherapy sources have been in its possession and use since September 18, 1986 (25 years), including cesium-137 sealed sources, model numbers 1862, 1864 and 1866, manufactured by Radiation Therapy Resources, Inc. The cesium-137 sealed sources are not approved in the SSD Registry as required by the NRC regulations at 10 CFR 35.400(a).
Provisions in 10 CFR 35.400(a) require that sealed sources for manual brachytherapy medical use must be approved in the SSD Registry. The SSD Registry was established in 1989, as a formalized database to be used both by the NRC and the Agreement States in order to serve as a “clearing house” for sources and devices that meet the regulatory requirements. Under NRC rules at 10 CFR 30.32(g), normally an applicant for a specific license to use byproduct material in the form of a sealed source or in a device that contains a sealed source must either identify the source or device by manufacturer and model number as registered in the SSD Registry, or provide the information described in 10 CFR 32.210(c) (
After telephone discussions with the NRC staff, the licensee, in letters dated May 3, 2011, and June 16, 2011, submitted a request for an exemption to 10 CFR 35.400(a) to possess the cesium-137 sealed sources for therapeutic medical use. The licensee stated that continued use of the cesium-137 sealed sources would be medically beneficial. Specifically, the sealed sources would be used to provide brachytherapy procedures to patients with early state of gynecological cancer or to give boost dose post external beam therapy without radiating the dose to extra normal tissue. The licensee also stated that the cesium-137 sealed sources have been used for 25 years with no occurrence of a medical event. Quarterly inventory checks have been conducted and the sources have been accounted for and stored safely and securely between the uses. The licensee conducted six-month leak tests on the sealed sources as required by the license, with no incidence of a leaking source.
The NRC staff reviewed the licensee's exemption request, information pertaining to the structural integrity of the cesium-137 sources, and historical records on the use of the cesium-137 sealed sources. Historical use of the sealed sources, which predates the existence of the SSD Registry, has been conducted safely, without environmental releases, and there are no indications that the structural integrity of the sources would be adversely affected if the current type of use continues.
The NRC staff's review also found that (1) the licensee is qualified by sufficient training and experience and has sufficient facilities and equipment, with appropriate procedures, to safely use and handle the requested quantity of radioactive material in unshielded form, and has the necessary financial assurance; and (2) there is historical evidence extending to over two decades that the licensee has handled this and similar types of sources without incident. Based on its findings, the NRC staff concludes that granting the exemption is authorized by law, will not endanger life, property, or the common defense and security, and is otherwise in the public interest. The NRC plans to renew the license with the exemption provided in a special license condition that states, “Notwithstanding the requirements of 10 CFR 30.32(g), 35.49, and 35.400, the licensee may use Radiation Therapy Resources, Inc., Model Nos. 1862, 1864, and 1866 manual brachytherapy sources for medical uses authorized under the provisions of 10 CFR 35.400.”
The staff consulted with the State of Indiana, and the State had no comments on the proposed action.
On the basis of the EA, the NRC has concluded that there are no significant environmental impacts from the issuance of the exemption to the NRC rules at 10 CFR 30.32(g), 35.49 and 35.400, and has determined not to prepare an environmental impact statement.
Documents related to this action, including the proposed exemption request and supporting documentation, are available online in the NRC Library at
(1.) Franciscan St. Anthony Health-Crown Point, Licensee exemption request, May 3, 2011, (ML111230830);
(2.) Franciscan St. Anthony Health-Crown Point, Licensee exemption request, June 16, 2011, (ML111801256);
(3.) Franciscan St. Anthony Health-Crown Point, Licensee Background information, (ML111470614); and
(4.) Franciscan St. Anthony Health-Crown Point, License Number 13–15933–01, (ML120800176).
If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1–800–397–4209, 301–415–4737 or by email to
These documents may also be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
For the Nuclear Regulatory Commission.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f–2 under the Act, as well as from certain disclosure requirements.
Applicants request an order that would permit them to enter into and materially amend subadvisory agreements without shareholder approval and would grant relief from certain disclosure requirements.
Advisors Series Trust (the “Trust”) and Orinda Asset Management, LLC (the “Advisor”).
The application was filed on April 7, 2011, and amended on August 10, 2011, February 29, 2012, and April 20, 2012.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 18, 2012 and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants, Advisors Series Trust, 615 East Michigan Street, Milwaukee, WI 53202 and Orinda Asset Management, LLC, 4 Orinda Way, Suite 100B, Orinda, CA 94563.
Laura L. Solomon, Senior Counsel, at (202) 551–6915, or Jennifer L. Sawin, Branch Chief, at (202) 551–6821 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Trust, a Delaware statutory trust organized as a series investment company, is registered under the Act as an open-end management investment company and currently offers forty series, one of which is advised by the Advisor.
2. Under the terms of the Advisory Agreement, the Advisor, subject to oversight of the Board, and in consultation with the lead subadvisor “(Lead Subadvisor”), if any, furnishes a continuous investment program for each Fund. The Advisor will provide the Funds with overall management services and, in consultation with the Lead Subadvisor, if any, as it deems appropriate, continuously review, supervise and administer each Fund's investment program, subject to the supervision of, and policies established by the Board.
3. Applicants request an order to permit the Advisor, subject to Board approval, to select certain Subadvisors to manage all or a portion of the assets of a Fund or Funds pursuant to a Subadvisory Agreement and materially amend Subadvisory Agreements without obtaining shareholder approval. The requested relief will not extend to any Subadvisor that is an affiliated person, as defined in section 2(a)(3) of the Act, of the Trust or of the Advisor, other than by reason of serving as a subadviser to one or more of the Funds (“Affiliated Subadvisor”). In addition, the requested relief will not extend to any Lead Subadvisor.
4. Applicants also request an order exempting the Funds from certain disclosure provisions described below that may require a Fund to disclose fees paid by the Advisor to each Subadvisor. Applicants seek an order to permit the Trust to disclose for a Fund (as both a dollar amount and as a percentage of the Fund's net assets): (a) the aggregate fees paid to the Advisor and any Affiliated Subadvisor; and (b) the aggregate fees paid to Subadvisors other than Affiliated Subadvisors (collectively, “Aggregate Fee Disclosure”). Any Fund that employs an Affiliated Subadvisor will provide separate disclosure of any fees paid to the Affiliated Subadvisor. Each Fund will also provide separate disclosure of fees paid to the Lead Subadvisor, if any.
1. Section 15(a) of the Act provides, in relevant part, that is unlawful for any person to act as an investment adviser to a registered investment company except pursuant to a written contract that has been approved by a vote of a majority of the company's outstanding voting securities. Rule 18f-2 under the Act provides that each series or class of stock in a series investment company affected by a matter must approve that matter if the Act requires shareholder approval.
2. Form N–1A is the registration statement used by open-end investment companies. Item 19(a)(3) of Form N–1A requires disclosure of the method and amount of the investment adviser's compensation.
3. Rule 20a–1 under the Act requires proxies solicited with respect to an investment company to comply with Schedule 14A under the Securities Exchange Act of 1934 (“1934 Act”). Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A, taken together, require a proxy statement for a shareholder meeting at which the advisory contract will be voted upon to include the “rate of compensation of the investment adviser,” the “aggregate amount of the investment adviser's fees,” a description of the “terms of the contract to be acted upon,” and, if a change in the advisory fee is proposed, the existing and proposed fees and the difference between the two fees.
4. Regulation S–X sets forth the requirements for financial statements required to be included as part of a registered investment company's registration statement and shareholder reports filed with the Commission. Sections 6–07(2)(a), (b), and (c) of Regulation S–X require a registered investment company to include in its financial statement information about investment advisory fees.
5. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that the requested relief meets this standard for the reasons discussed below.
6. Applicants assert that the shareholders expect the Advisor subject to the review and approval of the Board, to select the Subadvisors who are best suited to achieve the Fund's investment objectives. Applicants assert that, from the perspective of the shareholder, the role of the Subadvisors is substantially equivalent to that of the individual portfolio managers employed by traditional investment company advisory firms. Applicants state that requiring shareholder approval of each Subadvisory Agreement would impose unnecessary delays and expenses on the Funds and may preclude the Funds from acting promptly when the Advisor and Board consider it appropriate to hire Subadvisors or amend Subadvisory Agreements. Applicants note that the Advisory Agreements, any Lead Subadvisory Agreement, and Subadvisory Agreements with Affiliated Subadvisors will remain subject to the shareholder approval requirements of section 15(a) of the Act and rule 18f–2 under the Act.
7. If a new Subadvisor is retained in reliance on the requested order, the Funds will inform shareholders of the hiring of a new Subadvisor pursuant to the following procedures (“Modified Notice and Access Procedures”): (a) within 90 days after a new Subadvisor is hired for any Fund, that Fund will send its shareholders either a Multi-manager Notice or a Multi-manager Notice and Multi-manager Information Statement;
A “Multi-manager Information Statement” will meet the requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 14A under the Exchange Act for an information statement, except as modified by the requested order to permit Aggregate Fee Disclosure. Multi-manager Information Statements will be filed electronically with the Commission via the EDGAR system.
8. Applicants assert that the requested disclosure relief would benefit shareholders of the Funds because it would improve the Advisor's ability to negotiate the fees paid to Subadvisors. Applicants state that the Advisor may be able to negotiate rates that are below a Subadvisor's “posted” amounts if the Advisor is not required to disclose the Subadvisors' fees to the public. Applicants submit that the requested relief will also encourage Subadvisors to negotiate lower advisory fees with the Advisor if the lower fees are not required to be made public.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Fund may rely on the order requested in the application, the operation of the Fund in the manner described in the application will be approved by a majority of the Fund's outstanding voting securities, as defined in the Act, or, in the case of a Fund whose public shareholders purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by the sole initial shareholder before offering the Fund's shares to the public.
2. The prospectus for each Fund will disclose the existence, substance, and effect of any order granted pursuant to the application. Each Fund will hold itself out to the public as employing the manager of managers structure described in the application. The prospectus will prominently disclose that the Advisor has ultimate responsibility (subject to oversight by the Board) to oversee the Subadvisors and recommend their hiring, termination, and replacement.
3. Funds will inform shareholders of the hiring of a new Subadvisor within 90 days after the hiring of the new Subadvisor pursuant to the Modified Notice and Access Procedures.
4. The Advisor will not enter into a Subadvisory Agreement with any Affiliated Subadvisor without that agreement, including the compensation to be paid thereunder, being approved by the shareholders of the applicable Fund.
5. At all times, at least a majority of the Board will be Independent Trustees, and the nomination and selection of new or additional Independent Trustees will be placed within the discretion of the then-existing Independent Trustees.
6. When a Subadvisor change is proposed for a Fund with an Affiliated Subadvisor, the Board, including a majority of the Independent Trustees, will make a separate finding, reflected in the applicable Board minutes, that such change is in the best interests of the Fund and its shareholders and does not involve a conflict of interest from which the Advisor or the Affiliated Subadvisor derives an inappropriate advantage.
7. Independent legal counsel, as defined in rule 0–1(a)(6) under the Act, will be engaged to represent the Independent Trustees. The selection of such counsel will be within the discretion of the then existing Independent Trustees.
8. The Advisor will provide the Board, no less frequently than quarterly, with information about the profitability of the Advisor on a per-Fund basis. The information will reflect the impact on profitability of the hiring or termination of any Subadvisor during the applicable quarter.
9. Whenever a Subadvisor is hired or terminated, the Advisor will provide the Board with information showing the expected impact on the profitability of the Advisor.
10. The Advisor will provide general management services to each Fund, including overall supervisory responsibility for the general management and investment of the Fund's assets and, subject to review and approval of the Board, will (i) Set each Fund's overall investment strategies; (ii) evaluate, select and recommend Subadvisors to manage all or part of a Fund's assets; (iii) when appropriate, allocate and reallocate a Fund's assets among multiple Subadvisors; (iv) monitor and evaluate the performance of Subadvisors; and (v) implement procedures reasonably designed to ensure that the Subadvisors comply with each Fund's investment objective, policies and restrictions.
11. No director or officer of the Trust, or of a Fund, or director or officer of the Advisor, will own directly or indirectly (other than through a pooled investment vehicle that is not controlled by such person) any interest in a Subadvisor, except for (a) ownership of interests in the Advisor or any entity that controls, is controlled by, or is under common control with the Advisor; or (b) ownership of less than 1% of the outstanding securities of any class of equity or debt of a publicly traded company that is either a Subadvisor or an entity that controls, is controlled by, or is under common control with a Subadvisor.
12. Each Fund will disclose in its registration statement the Aggregate Fee Disclosure.
13. In the event the Commission adopts a rule under the Act providing substantially similar relief to that in the order requested in the application, the requested order will expire on the effective date of that rule.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (the “Commission”).
Notice of an application to amend a prior order pursuant to: (i) Sections 6(c) and 17(b) of the Investment Company Act of 1940 (“Act”) granting an exemption from section 17(a) of the Act and (ii) section 17(d) of the Act and rule 17d–1 under the Act to permit certain transactions.
Praxis Mutual Funds (“Trust”) and Everence Community Investments, Inc. (“ECI”).
Applicants request an order (“Requested Order”) to amend a prior order permitting the Trust and its series to invest in certain securities issued by ECI (“Prior Order”).
The application was filed on January 27, 2009 and amended on June 29, 2009, September 14, 2010, August 5, 2011, March 19, 2012, and April 20, 2012.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 18, 2012, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants, Praxis Mutual Funds, 3435 Stelzer Road, Columbus, Ohio 43219 and Everence Community Investments, Inc., 1110 North Main Street, Goshen, Indiana 46528.
Jill Ehrlich, Senior Counsel, at (202) 551–6819, or Mary Kay Frech, Branch Chief, at (202) 551–6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Trust is registered under the Act as an open-end management investment company. The Trust currently consists of several separate investment portfolios and may organize additional investment portfolios in the future (“Praxis Funds”). Everence Capital Management, Inc. (“Everence Capital”), an investment adviser registered under the Investment Advisers Act of 1940, serves as the investment adviser to the Trust.
2. In carrying out its investment program, each of the Praxis Funds seeks to promote human well-being, peace and justice by using the tools of socially responsible investing. As part of this commitment, and consistent with more specific investment criteria set forth in the prospectus relating to each of the Praxis Funds, the Trust's board of trustees (the “Praxis Board”) has authorized each of the Praxis Funds to invest a limited portion of its assets in securities that offer a rate of return below the then prevailing market rate but present attractive opportunities for furthering social and economic well-being of disadvantaged individuals and their communities.
3. The Prior Order permits the Praxis Funds to invest a limited portion of their assets in variable rate notes issued in connection with ECI's community development investment program (the “Program”), which is designed to seek out and channel resources to experienced domestic and international community development organizations (each, a “Participating Borrower”).
4. In accordance with the Prior Order, each of the Praxis Funds has acquired Program Notes (“Original Notes”) issued by two investment pools (“Existing Pools”) organized and currently maintained by ECI.
5. Until 2004, payments received from Participating Borrowers were fully adequate to meet ECI's obligations to the holders of Original Notes (including the Trust) and to continue to fund further loans to the community of high social impact organizations ECI seeks to serve. In 2004, however, prevailing interest rates increased. This resulted in an increase in the interest payments required to be made to Noteholders and a “mismatch” between the payments ECI was receiving from Participating Borrowers and the payments to which Noteholders were entitled. During the “mismatch” period, ECI continued to honor outstanding notes in accordance with their terms. To avoid jeopardizing the overall Program, however, the Existing Pools effectively ceased issuing notes. Applicants state that ECI determined that certain changes in the Program would be appropriate, including making available to the Praxis Funds notes that include terms that differ from those of the Original Notes (“New Notes”). The increased flexibility of the New Notes is intended to reduce the potential for any such “mismatch” in the future.
6. Applicants propose the following changes in the Program:
(a) Applicants state that New Notes will be subject to a change in the manner in which applicable interest
(b) Applicants acknowledge that each Praxis Fund might be deemed to be participating in a joint transaction with Everence-related Organizations (as defined below) other than ECI (“Co-investors”) through its investment in Program Notes. Therefore, applicants seek to clarify that the Co-investors may make loans to Participating Borrowers or purchase Program Notes, provided that any loans made to Participating Borrowers by Co-investors do not disadvantage the Praxis Funds and the terms of the Program Notes acquired by the Praxis Funds are not less advantageous than the terms of the Program Notes acquired by any Co-investor.
(c) Applicants seek to clarify that ECI may participate in certain resource sharing arrangements (“Resource Sharing Arrangements”) established by ECI and several other organizations operated under the auspices of MMA Stewardship Agency (“Everence-related Organizations”),
7. Applicants seek to amend the Prior Order to permit the Praxis Funds to continue to invest in Program Notes following the implementation of these changes in the Program.
Applicants state that, because both Everence Capital and ECI are operated under the auspices of MMA Stewardship Agency, they may be considered to be affiliated persons within the meaning of the Act, and ECI could be deemed an affiliated person of an affiliated person of the Trust, for purposes of section 17 of the Act. Applicants submit that amending the Prior Order as requested would be consistent with the standards of sections 6(c), 17(b), and 17(d) of the Act and rule 17d–1 under the Act.
Applicants agree that the Requested Order will be subject to the following conditions:
1. The Praxis Board will be responsible for reviewing the Program not less frequently than annually. The Praxis Funds may continue to participate in the Program through investment in Program Notes only if, at the time of such review, the Praxis Board concludes that (i) continued participation in the Program by the Praxis Funds remains consistent with the investment objectives and policies of each Praxis Fund; (ii) such participation is not on a basis that is less advantageous than that of other Noteholders of the same class including Co-investors; (iii) loans, if any, made to Participating Borrowers by Co-investors do not disadvantage the Praxis Funds; and (iv) the terms of Program Notes acquired by the Praxis Funds are not less advantageous than the terms of Program Notes acquired by any Co-investor.
2. Each of the Praxis Funds may commit no more than 3% of its total assets to community development investments (including the acquisition of Program Notes), provided that the Praxis Funds will not be permitted to acquire Program Notes to an extent greater than that which is permitted under the terms of their prospectus and limits approved by those members of the Praxis Board who are not “interested persons” as defined by section 2(a)(19) of the Act.
3. Neither Everence Capital or any other Everence-related Organization will receive any compensation for Praxis Funds' investment in Program Notes or for services provided to ECI in connection with the Praxis Funds' investment in Program Notes, provided that: (i) The market value of Program Notes in which the Praxis Funds may, from time to time, invest will be included in the calculation of any investment advisory fee payable by any Praxis Fund to any Everence-related Organization pursuant to the terms of an investment advisory contract that satisfies the requirements of section 15(a) of the Act and subject to section 36 of the Act, where such fee is calculated based on a percentage of the average daily net assets of any such Praxis Fund; and (ii) ECI may participate in the Resource Sharing Arrangements, provided that ECI's participation in the Resource Sharing Arrangements does not affect the value of, or interest paid under the terms of, any variable rate note issued in reliance on the Requested Order.
4. All Noteholders will participate in the income (losses) generated by the assets underlying Program Notes in proportion to their respective investments provided that a Sustaining Investor may agree to absorb more than its proportionate share of any losses and further provided that the Praxis Funds will not be permitted to become Sustaining Investors.
5. With respect to New Notes issued by either the near market pool or below market pool, ECI may adjust: (i) The percentage of the Average Treasury Rate with reference to which the applicable interest rate is computed and/or (ii) the applicable interest rate floor and cap no more than once each year as described in the application, provided that: (a) ECI notifies the holders of any New Notes affected by such change at least 30 days in advance of such change; and (b) each such holder is subsequently entitled to tender the New Notes to which the change is to be applied to ECI at face value (including accrued interest) without penalty or discount.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The text of the proposed rule change is below. Italicized text indicates additions; bracketed text indicates deletions.
Each clearing member shall develop and implement a written [anti-money laundering]
1. Establish and implement policies, procedures and internal controls reasonably designed to assure compliance with [the]
2. Provide for independent testing for compliance to be conducted by clearing member personnel or by a qualified outside party;
3. Designate an individual or individuals responsible for implementing and monitoring the day-to-day operations and internal controls of the program; and
4. Provide ongoing training for appropriate personnel.
Clearing members must also supervise and ensure that their guaranteed introducing brokers are in compliance with the [anti-money laundering] provisions contained in this Rule.
In its filing with the Commission, CME included statements concerning the purpose 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. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
CME proposes to adopt certain rule changes to CME Rule 981, which deals with CME clearing member anti-money laundering (“AML”) compliance programs. At present, CME Rule 981 requires clearing members to develop and implement a written AML program reasonably designed to achieve compliance with applicable requirements of the Bank Secrecy Act (31 U.S.C. 5311,
These amendments would therefore expand Rule 981 to encompass all applicable Office of Foreign Asset Control (OFAC) sanctions programs. OFAC administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals against targeted foreign countries and regimes, terrorists, international narcotics traffickers, those engaged in activities related to the proliferation of weapons of mass destruction, and other threats to the national security, foreign policy, or economy of the United States. OFAC acts under Presidential national emergency powers, as well as authority granted by specific legislation, to impose controls on transactions and freeze assets under U.S. jurisdiction. OFAC sanctions are broad and extraterritorial in scope and all investments and transactions in the U.S., or involving U.S. persons or corporations, must comply.
The proposed rule change that is the subject of this filing will become immediately effective upon filing. CME notes that it has also certified the proposed rule change that is the subject of this filing to its primary regulator, the Commodity Futures Trading Commission. The text of the CME proposed rule amendment is listed above with additions italicized and deletions in brackets.
The proposed CME rule amendment is designed to ensure that CME has in place appropriate eligibility standards by ensuring that clearing members have AML compliance programs that address all applicable requirements. The amendment simply expands existing CME Rule 981 to encompass all applicable OFAC sanctions programs. As such, the proposed amendments constitute a stated policy, practice, or interpretation with respect to the meaning, administration, or enforcement of an existing CME rule. Therefore, the proposed rule change is therefore properly filed under Section 19(b)(3)(A) and Rule 19b–4(f)(1) thereunder of the Act.
CME does not believe that the proposed rule change will have any impact or impose any burden on competition.
CME has not solicited and does not intend to solicit comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
The foregoing rule change was filed pursuant to Section 19(b)(3)(A) of the Act and paragraph (f)(1) of Rule 19b–4 thereunder and therefore became effective on filing. At any time within sixty days of the filing of such rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Electronic comments may be submitted by using the Commission's Internet comment form (
• Paper comments should be sent in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–CME–2012–12. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
All submissions should refer to File Number SR–CME–2012–12 and should be submitted on or before May 18, 2012.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to modify Chapter XV, Options Pricing, Section 3, as well as to add an account fee (“Account Fee”) via Section 9, of the Options Rules portion of the NASDAQ Rulebook governing pricing for NASDAQ members using The NASDAQ Options Market (“NOM”), NASDAQ's facility for executing and routing standardized equity and index options.
While fee changes pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on May 1, 2012.
The text of the proposed rule change is available on the Exchange's Web site 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 purpose of this filing is to recoup some of the costs associated with SQF and BONO ports, as well as to assess a new fee to recoup some of the monthly billing and processing costs associated with participant accounts.
With respect to the proposed SQF port fee (“SQF Port Fee”), initially for which there was no charge,
With respect to the BONO
The Exchange also proposes to assess a monthly $50 Account Fee for each member account, which would allow the Exchange to recoup costs associated with monthly billing and processing. The Account Fee would cover any month, or any part of a month, during which an account is maintained by a member. The proposed rule change would also encourage members to discontinue holding trading accounts, which the Exchange believes should, in turn, eliminate the need to expend resources to create additional account fields. As a result, the staff time allocated to maintaining account records would be reduced, which would allow for a more efficient use of staff resources. The proposed Account Fee is substantially similar to the monthly account fee that the PHLX currently charges.
Members currently have the option to request an unlimited number of trading accounts through the Exchange's Membership Department. In many instances, multiple accounts are assigned at the member's request to allow them to track their own activity using the Exchange's account numbers.
While fee changes pursuant to this proposal are effective upon filing, the Exchange has designated these changes to be operative on May 1, 2012.
NASDAQ believes that its proposal to amend its schedule of fees is consistent with Section 6(b) of the Act
The Exchange believes that the new SQF and BONO Port Fees (collectively, the “Port Fees”) are reasonable because each will assist in recouping costs incurred by the Exchange for connectivity to NOM. Additionally, the proposed SQF Port Fee is reasonable because the fee is lower than the range of port fees that are assessed today by NOM, as well as within the range of port fees currently charged by PHLX.
The Exchange also believes that the Account Fee is reasonable because it seeks to recoup costs incurred by the Exchange. Further, the Exchange is seeking to incentivize members to discontinue such inactive trading accounts. The Exchange also believes that the proposed Account Fee is equitable and not unfairly discriminatory because it would be uniformly applied to all members.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will
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 (“Exchange Act” or “Act”)
The Exchange proposes to list and trade the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): Huntington US Equity Rotation Strategy ETF and Huntington EcoLogical Strategy ETF. The text of the proposed rule change is available at the Exchange, www.nyse.com, and the Commission's Public Reference Room.
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 list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares:
Huntington Asset Advisors, Inc. (“Adviser”) is the investment adviser of each Fund and manages the investment portfolios of the Funds. SEI Investments Distribution Co. (“Distributor”) is the principal underwriter and distributor of the Funds' Shares. Citibank, N.A. is the custodian (“Custodian”) for the Funds.
Commentary .06 to Rule 8.600 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 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. In addition, Commentary .06 further requires that personnel who make decisions on the open-end fund's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material non-public information regarding the open-end fund's portfolio.
According to the Registration Statement, the Fund's investment objective is to seek capital appreciation. Under normal conditions,
• For the S&P Composite 1500, the adjusted average market capitalization of companies in the index was approximately $9.55 billion, and the adjusted median market capitalization was approximately $2.24 billion. The adjusted market capitalization range for the companies included in the S&P Composite 1500 was approximately $10 million to $582.09 billion.
• For the S&P 500, the adjusted average market capitalization of companies in the index was approximately $25.28 billion, and the adjusted median market capitalization was approximately $11.65 billion. The adjusted market capitalization range for the companies included in the S&P 500 was approximately $1.08 billion to $582.09 billion.
• For the S&P MidCap 400, the adjusted average market capitalization of companies in the index was approximately $2.94 billion, and the adjusted median market capitalization was approximately $2.60 billion. The adjusted market capitalization range for the companies included in the S&P MidCap 400 was approximately $520 million to $9.47 billion.
• For the S&P SmallCap 600, the adjusted average market capitalization of companies in the index was approximately $830 million, and the adjusted median market capitalization was approximately $700 million. The adjusted market capitalization range for the companies included in the S&P SmallCap 600 was approximately $10 million to $3.17 billion.
The Fund will invest in Companies within each of the large-cap, mid-cap, and small-cap U.S. equity market segments (each a “Market Segment”). The large-cap segment is represented by companies comprising the S&P 500, the mid-cap segment is represented by companies comprising the S&P MidCap 400, and the small-cap segment is represented by the companies comprising the S&P SmallCap 600.
The Fund will also invest in Companies operating in each of the ten (10) sectors represented in the S&P Composite 1500. A sector is a large grouping of companies operating within the market that share similar characteristics. The ten (10) sectors comprising the S&P Composite 1500 are: Utilities, consumer staples, information technology, healthcare, financials, energy, consumer discretionary, materials, industrials, and telecommunication services (“Sectors”).
As market conditions change, the Fund intends to rotate the investment focus of the Fund so as to overweight its portfolio in Companies comprising those Market Segments and Sectors that the Adviser believes offer the greatest potential for capital appreciation in the given market environment and underweight its portfolio in those Market Segments and Sectors that the Adviser believes offer the least potential for capital appreciation in that same market environment (as described in more detail below). If the Fund's portfolio allocation to a particular Market Segment or Sector exceeds that Market Segment's or Sector's current weighting in the S&P Composite 1500, the Fund will be “overweighting” that Market Segment or Sector. Similarly, if the Fund's portfolio allocation to a specific Market Segment or Sector is less than that Market Segment's or Sector's current weighting in the S&P Composite 1500, then the Fund will be “underweighting” that Market Segment or Sector. The Adviser believes that these adjustments, collectively, will position the Fund for continued capital appreciation in the new market environment.
The Adviser retains a broad mandate and discretion to invest in Companies consistent with its evaluation of the capital appreciation potential of the Market Segments and Sectors. The strategy of overweighting and underweighting Sectors to maximize opportunities for capital appreciation may result in the Fund investing greater than 25% of its total assets in the equity securities of Companies operating in one or more Sectors. Sectors are comprised of multiple individual industries, and the Fund will not invest more than 25% of its total assets in an individual industry.
According to the Registration Statement, the Adviser will invest in Companies consistent with its assessment of the capital appreciation opportunities of each Market Segment and Sector. To determine the percentage of the Fund's portfolio to invest in each Market Segment and Sector, the Adviser will use “top-down” analysis (analyzing the impact of economic trends before considering the performance of individual stocks) to evaluate broad economic trends. These trends are used to anticipate shifts in the business cycle. The Adviser also will analyze each Market Segment and Sector to determine which Market Segment(s) and Sector(s) may benefit the most from these trends and business shifts over the next 12 months. Factors considered in assessing each Market Segment and Sector include: (1) The relationship between each Market Segment or Sector and the current business cycle; (2) valuation levels; (3) earnings growth potential; and (4) analyses of the Companies included in the respective Market Segments and Sectors.
The Adviser will monitor the market environment, Market Segments, and Sectors and may rotate the Fund's investment focus by adjusting the Fund's Market Segments and/or Sector weightings consistent with its ongoing assessment of the capital appreciation potential of each Market Segment and Sector. The Adviser may also rely, in part, on technical analysis (such as analyzing and examining past price movements to anticipate or forecast future price movements) to determine the timing of any changes to the Market Segment and/or Sector weightings.
The Fund will invest in those Companies within the Market Segments and Sectors that offer the best potential for capital appreciation based on the Adviser's evaluation of company fundamentals (including historic earnings, revenue, cash flow, and valuation (such as price-earnings ratio and book value)).
According to the Registration Statement, the Fund's investment objective is to seek capital appreciation.
The Adviser will apply the following ecologically-focused criteria to identify the equity securities of U.S. and Foreign Companies. “Ecologically-focused companies” are companies that have positioned their business to respond to increased environmental legislation, cultural shifts towards environmentally conscious consumption, and capital investments in environmentally oriented projects. These companies include, but are not limited to, all U.S. and Foreign Companies that are components of one or more well-recognized environmentally focused indices (such as the Dow Jones Sustainability Indexes and the DB NASDAQ OMX Clean Tech Index).
The Fund will also invest in ecologically-focused companies which are not included in a well-recognized environmentally-focused index, but generate at least
• Alternative renewable power such as solar, wind, geothermal, hydro, or biomass;
• Alternative renewable fuel such as biofuel, biomass, or hydrogen;
• Alternative engines such as electric, flywheel, or micro turbines;
• Energy efficiency such as energy efficient building materials, power, lighting, heating, or fuel;
• Resource conservation/healthier use of resources such as recycling or renewable materials; and
• Healthy lifestyle, such as pollution control or organic foods.
A company that is not included in an environmentally-focused index or does not generate
• Improving energy and resource efficiency;
• Reducing emissions from business operations;
• Financial and operational support of renewable materials and less pollutive energy sources; or
• Using or promoting the use of efficient buildings (measured by such labels as LEED or Energy Star).
The Fund's investment in the securities of Environmentally Conscious Companies and Other Environmental Companies will be limited to 10% of the Fund's total assets.
The strategy of investing in ecologically-focused companies may result in the Fund investing greater than 25% of its total assets in one or more market sectors. A sector is a large grouping of companies operating within the market that share similar characteristics. The ten most commonly recognized market sectors are: Utilities, consumer staples, information technology, healthcare, financials, energy, consumer discretionary, materials, industrials, and telecommunication services. Sectors are comprised of multiple individual industries, and the Fund will not invest more than 25% of its total assets in an individual industry.
According to the Registration Statement, the Adviser will review company fundamentals and the composition of recognized environmentally-focused indices to identify a universe of ecologically-focused companies. Company fundamentals include factors reflective of a company's financial condition, including balance sheets and income statements, asset history, product or service development, and management productivity. The Adviser also will examine annual sustainability reports from companies, as well as supplemental disclosures regarding environmental practices within corporate investor relations materials.
The Adviser will focus on ecologically-focused companies that it believes have better than average potential for growth in sales and profits. Historical financial statements (income, balance sheet, cash flow) will serve as quantitative guides in the selection process. Qualitative reviews of a company's competitive position and target market potential also will influence portfolio decisions. The Fund will, under most market conditions, include a blend of growth or cyclical stocks held for price appreciation potential and dividend growth stocks held for their potential to deliver a growing stream of income.
Each Fund, to a lesser extent, may attempt to pursue its investment objective by employing other investment strategies and by investing in additional types of securities that are not otherwise part of its principal investment strategies as described above. To the extent a Fund's principal investment policies are satisfied, including but not limited to its 80% investment policy, such Fund may also invest up to 20% of its total assets in the securities described below. However, each Fund will also be subject to certain additional investment limitations including those set forth below.
A Fund may only purchase securities of any issuer only when consistent with the maintenance of such Fund's status as a diversified company under the 1940 Act, the rules or regulations thereunder, as such statute, rules, or regulations may be amended from time to time, or any applicable exemptive relief.
A Fund may not concentrate investments in a particular industry or group of industries as concentration is defined under the 1940 Act, the rules or regulations thereunder, as such statute, rules, or regulations may be amended from time to time, or any applicable exemptive relief.
A Fund may not hold in the aggregate more than 15% of its net assets in illiquid investments, including Rule 144A securities and loan participations.
According to the Registration Statement, each Fund will elect to be treated, and intends to qualify each year, as a regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code.
Finally, each Fund may also invest up to 20% of total assets in fixed income securities issued by companies organized in the U.S., including convertible securities that may be exchanged for or converted into common stock, corporate debt securities, U.S. Government securities, money market instruments, and zero coupon bonds. Each Fund may invest in other investment company securities, including mutual funds, consistent with the 1940 Act, the rules thereunder or relief from the Commission, as well as repurchase and reverse repurchase agreements. The Funds may also participate in foreign currency transactions and purchase securities on a when-issued or delayed delivery basis.
The Fund may invest up to 20% of total assets in equity securities, other than common stock of Companies, including preferred stocks, exchange-traded funds, interests in other business organizations, real estate investment trusts, and other domestic equity securities which the Adviser believes have equity characteristics (“Other Domestic Equities”).
The Fund may invest up to 20% of its total assets in the following foreign securities which are issued by companies located outside of the U.S. and principally traded in foreign markets: (i) Equity securities and fixed income securities of foreign entities; (ii) obligations of foreign branches of U.S. banks and foreign or domestic branches of foreign banks including European Certificates of Deposit, European Time Deposits, Canadian Time Deposits, Canadian Yankee Bonds, Canadian Certificates of Deposit, and investments in Canadian commercial paper and europaper; (iii) depositary receipts including ADRs, European Depositary Receipts (“EDRs”), which are also known as Continental Depositary Receipts (“CDRs”), and Global Depositary Receipts (“GDRs”);
The Fund may invest up to 20% of its total assets in Other Domestic Equities and Foreign Securities other than those issued by Foreign Companies permitted as part of the Fund's principal investment strategies.
Creations and redemptions of Shares will occur in large specified blocks of Shares, referred to as “Creation Units.” A Creation Unit of a Fund is currently comprised of 25,000 Shares of that Fund. The number of Shares comprising a Creation Unit may change over time. According to the Registration Statement, to purchase or redeem Creation Units directly from a Fund, an investor must
Generally, a Creation Unit will be purchased or redeemed from a Fund for a designated portfolio of securities along with a cash payment (“Deposit Securities,” in the case of purchases, and “Redemption Securities,” in the case of redemptions). Generally, the Deposit Securities and the Redemption Securities will correspond
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, each Fund will be in compliance with Rule 10A–3 under the Exchange Act,
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings, disclosure policies, distributions, and taxes is included in the Registration Statement. All terms relating to the Funds that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement.
According to the Registration Statement, the NAV per Share of a Fund will be computed by dividing the value of the net assets of the Fund (
The Funds' Web site (
On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Funds will disclose on their Web site the Disclosed Portfolio that will form the basis for the Funds' calculation of NAV at the end of the business day.
In addition, a basket composition file, which includes the security names and share quantities required to be delivered in exchange for Fund Shares, together with estimated cash components, will be publicly disseminated daily prior to the opening of the Core Trading Session of the Exchange via the NSCC. The basket represents one Creation Unit of a Fund. Investors can also obtain the Trust's Statement of Additional Information (“SAI”), each Fund's Shareholder Reports, and its Form N–CSR and Form N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
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 Funds.
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 4:00 a.m. to 8:00 p.m. Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, 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 Equities Rule 7.6, Commentary .03, 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.
The Exchange intends to utilize its existing surveillance procedures applicable to derivative products (which include Managed Fund Shares) to monitor trading in the Shares. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
The Exchange's current trading surveillance focuses on detecting securities trading outside their normal patterns. 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 may obtain information via the ISG from other exchanges 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.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) 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 Equities Rule 9.2(a), which imposes a duty of due diligence on its ETP 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 Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that ETP 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 Funds 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 Exchange 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 Exchange 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 in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. Under normal conditions, the Huntington US Equity Rotation Strategy ETF will invest at least 80% of its net assets in the exchange-listed common stocks of select companies organized in the U.S. and included in the S&P Composite 1500, and the Huntington EcoLogical Strategy ETF will invest at least 80% of its net assets in the exchange-listed equity securities of ecologically-focused companies. While each Fund may hold non-U.S. equity securities, the foreign equity securities, including any depositary receipts, in which the Funds may invest will be limited to securities that trade in markets that are members of the ISG or are parties to a comprehensive surveillance sharing agreement with the Exchange. The Funds will not hold more than 15% of net assets in illiquid investments, including Rule 144A securities and loan participations. Each Fund's investments will be consistent with its Fund's investment objective and will not be used to enhance leverage. The Funds will not invest in options contracts, futures contracts, or swap agreements. The Adviser is affiliated with two broker-dealers and has implemented a fire wall with respect to each affiliated broker-dealer regarding access to information concerning the composition and/or changes to a Fund portfolio.
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 the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Funds and the Shares, thereby promoting market transparency.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of additional types of actively managed exchange-traded products that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Funds' holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last-sale information for the Shares.
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.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for the State of West Virginia (FEMA–4059–DR), dated 03/16/2012.
Submit completed loan applications to: U.S. Small Business
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of WEST VIRGINIA, dated 03/16/2012 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of West Virginia (FEMA—4061—DR), dated 03/22/2012.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the Presidential disaster declaration for the State of West Virginia, dated 03/22/2012 is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
Notice of request for public comments.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. The purpose of this notice is to allow 60 days for public comment in the
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The Department will accept comments from the public up to 60 days from April 27, 2012.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and OMB control number in any correspondence.
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed information collection and supporting documents, to Charles Hawley, who may be reached on 202–453–9249 or at
We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper performance of our functions.
• Evaluate the accuracy of our estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.
The National Defense Authorization Act (NDAA) of 2008 became Public Law 110–181 on 28 January 2008. Section 1248(c)—“Report on Iraqi Citizens and Nationals Employed by the United States Government or Federal Contractors in Iraq”—of this Act requires the Secretary of State to request from each prime contractor or grantee that has performed work in Iraq for the Department of State since March 20, 2003, under a contract, grant, or cooperative agreement with their
The Department of State will collect the information via electronic submission.
This information collection will be used to fulfill the requirements under Section 1248 of the National Defense Authorization Act of 2008 (Pub. L. 108–181).
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a description of the exhibit object, contact Paul W. Manning, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6469). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Ona M. Hahs, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6473). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Withdrawal of Notice.
FMCSA is withdrawing its proposed regulatory guidance for obstructive sleep apnea (OSA) and request for comment as published on April 20, 2012. The Agency is still in the process of carefully reviewing the recommendations submitted by the Motor Carrier Safety Advisory Committee and Medical Review Board. The initial publication was a clerical error. We anticipate requesting public comment on the recommendations later this year.
This withdrawal is effective April 27, 2012.
Angela Ward, Nurse Consultant Medical Programs, (202) 366–4001,
A notice was published in the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt seventeen individuals from its rule prohibiting persons with insulin-treated diabetes mellitus (ITDM) from operating commercial motor vehicles (CMVs) in interstate commerce. The exemptions will enable these individuals to operate CMVs in interstate commerce.
The exemptions are effective April 27, 2012. The exemptions expire on April 28, 2014.
Elaine M. Papp, Chief, Medical Programs Division, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On March 7, 2012, FMCSA published a notice of receipt of Federal diabetes exemption applications from seventeen individuals and requested comments from the public (77 FR 13686). The public comment period closed on April 6, 2012, and no comments were received.
FMCSA has evaluated the eligibility of the seventeen applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(3).
The Agency established the current requirement for diabetes in 1970 because several risk studies indicated that drivers with diabetes had a higher rate of crash involvement than the general population. The diabetes rule provides that “A person is physically qualified to drive a commercial motor vehicle if that person has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control” (49 CFR 391.41(b)(3)).
FMCSA established its diabetes exemption program, based on the Agency's July 2000 study entitled “A Report to Congress on the Feasibility of a Program to Qualify Individuals with Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Directed by the Transportation Act for the 21st Century.” The report concluded that a safe and practicable protocol to allow some drivers with ITDM to operate CMVs is feasible. The September 3, 2003 (68 FR 52441),
These seventeen applicants have had ITDM over a range of 1 to 16 years. These applicants report no severe hypoglycemic reactions resulting in loss of consciousness or seizure, requiring the assistance of another person, or resulting in impaired cognitive function that occurred without warning symptoms, in the past 12 months and no recurrent (2 or more) severe hypoglycemic episodes in the past 5 years. In each case, an endocrinologist verified that the driver has demonstrated a willingness to properly monitor and manage his/her diabetes mellitus, received education related to diabetes management, and is on a stable insulin regimen. These drivers report no other disqualifying conditions, including diabetes-related complications. Each meets the vision requirement at 49 CFR 391.41(b)(10).
The qualifications and medical condition of each applicant were stated and discussed in detail in the March 7, 2012,
FMCSA received one comment in this proceeding. The Pennsylvania Department of Transportation stated that it has reviewed the driving history for William F. Watkins, Jr. and is in favor of granting him a Federal Diabetes exemption.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. The exemption allows the applicants to operate CMVs in interstate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered medical reports about the applicants' ITDM and vision, and reviewed the treating endocrinologists' medical opinion related to the ability of the driver to safely operate a CMV while using insulin.
Consequently, FMCSA finds that in each case exempting these applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption will be provided to the applicants in the exemption document and they include the following: (1) That each individual submit a quarterly monitoring checklist completed by the treating endocrinologist as well as an annual checklist with a comprehensive medical evaluation; (2) that each individual reports within 2 business days of occurrence, all episodes of severe hypoglycemia, significant complications, or inability to manage
Based upon its evaluation of the seventeen exemption applications, FMCSA exempts, Alvin Acevedo (NJ), Jerry D. Baughn (KS), Bobby D. Bennett (GA), Mark S. Clemence (KS), Larry G. Foley (WV), Elwood F. Gorom (WA), Larry A. Grizzel (IN), Mike W. Holland (IL), Steven M. Lewis, Sr. (NC), Dan M. McAllister (WI), Meredith M. McCabe (GA), Paul F. Rivers (MN), Marcus V. Romo (ID), Gary L. Siverson (ND), Wayne L. Snyder (OH), William F. Watkins, Jr. (PA) and Justin K. Zimmerschied (KS) from the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions listed under “Conditions and Requirements” above.
In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will be valid for two years unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated March 14, 2012, the City of Sacramento, CA (City), has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR Part 222. FRA assigned the petition Docket Number FRA–2012–0031.
The City is seeking a waiver from the provisions of 49 CFR 222.9, the definition of a non-traversable curb, so that an existing public crossing, Power Inn Road (DOT #752887F), can be deemed an acceptable supplementary safety measure (SSM). The Power Inn Road crossing is equipped with flashing lights, gates, and medians that comply with all of the requirements necessary to be an SSM with non-traversable curbs; except for the fact that the posted highway speed limit is 45 mph instead of 40 mph, as required in the definition.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by June 11, 2012 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated March 1, 2012, the City of Sacramento, CA (City), has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 222. FRA assigned the petition Docket Number FRA–2012–0030.
The City is seeking a waiver from the provisions of 49 CFR 222.9, the definition of a non-traversable curb, so that an existing public crossing, Elkhorn Boulevard (DOT #833694G), can be deemed an acceptable supplementary safety measure (SSM). The Elkhorn Boulevard crossing is equipped with flashing lights, gates, and medians that comply with all of the requirements necessary to be an SSM with non-traversable curbs; except for the fact that the posted highway speed limit is 45 mph instead of 40 mph, as required in the definition.
The City is also seeking approval of an engineering alternative safety
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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Communications received by June 11, 2012 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Dallas, Garland & Northeastern Railroad Company (DGNO) has filed a verified notice of exemption under 49 CFR. pt. 1152 subpart F–
DGNO has certified that: (1) No local traffic has moved over the Line for at least 2 years; (2) any overhead traffic on the Line can be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of complainant within the 2-year period; and (4) the requirements at 49 CFR 1105.12 (newspaper publication) and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the discontinuance of service shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will be effective on May 29, 2012, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues and formal expressions of intent to file an OFA to subsidize continued rail service under 49 CFR 1152.27(c)(2)
A copy of any petition filed with the Board should be sent to DGNO's representative: Melanie B. Yasbin, Law Offices of Louis E. Gitomer, 600 Baltimore Avenue, Suite 301, Towson, MD 21204.
If the verified notice contains false or misleading information, the exemption is void
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Adams—Warnock Railway, Inc. (AWRY), a noncarrier, has filed a verified notice of exemption under
According to AWRY, there are no official mileposts on the line. AWRY notes that all turnouts on the line east of the NSR milepost FL 5.5 junction and all side and storage tracks that are connected to the line will be included in the lease agreement that is expected to be completed prior to the effective date of the exemption. AWRY points out that it will interchange traffic with NSR at Garden City. AWRY states that the agreement or agreements that will be executed by the parties will not contain any interchange commitments.
The parties intend to consummate the proposed transaction on or after May 11, 2012, the effective date of the exemption (30 days after the exemption was filed).
AWRY certifies that its projected annual revenues as a result of this transaction will not result in its becoming a Class I or Class II rail carrier. AWRY further certifies that its projected annual revenues as a result of this transaction will not exceed $5 million.
If the verified notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35614, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on Robert A. Wimbish, Baker & Miller PLLC, 2401 Pennsylvania Ave. NW., Suite 300, Washington, DC 20037.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104–13, on or after the date of publication of this notice.
Comments should be received on or before May 29, 2012 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestion for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by calling (202) 927–5331, email at
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, 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 a continuing information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid OMB control number. The OCC is soliciting comment concerning its information collection titled, “Bank Activities and Operations.” The OCC is also giving notice that it has sent this collection to OMB for review.
You should submit written comments by May 29, 2012.
Communications Division, Office of the Comptroller of the Currency, Mailstop 2–3, Attention: 1557–0204, 250 E Street SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874–5274, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer,
You can request additional information or a copy of the collection from Mary H. Gottlieb, OCC Clearance Officer, (202) 874–5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street SW., Washington, DC 20219.
The OCC is proposing to extend OMB approval, without change, of the following information collection:
The information collection requirements ensure that national banks conduct their operations in a safe and sound manner and in accordance with applicable Federal banking statutes and regulations. The information is necessary for regulatory and examination purposes.
The information collection requirements in part 7 are as follows:
• 12 CFR 7.1000(d)(1) (National bank ownership of property—Lease financing of public facilities): National bank lease agreements must provide that the lessee will become the owner of the building or facility upon the expiration of the lease.
• 12 CFR 7.1014 (Sale of money orders at nonbanking outlets): A national bank may designate bonded agents to sell the bank's money orders at nonbanking outlets. The responsibility of both the bank and its agent should be defined in a written agreement setting forth the duties of both parties and providing for remuneration of the agent.
• 12 CFR 7.2000(b) (Corporate governance procedures—Other sources of guidance): A national bank shall designate in its bylaws the body of law selected for its corporate governance procedures.
• 12 CFR 7.2004 (Honorary directors or advisory boards): Any listing of a national bank's honorary or advisory directors must distinguish between them and the bank's board of directors or indicate their advisory status.
• 12 CFR 7.2014(b) (Indemnification of institution-affiliated parties—Administrative proceeding or civil actions not initiated by a Federal agency): A national bank shall designate in its bylaws the body of law selected for making indemnification payments.
• 12 CFR 7.2024(a) Staggered terms for national bank directors—Any national bank may adopt bylaws that provide for the staggering the terms of its directors. National banks shall provide the OCC with copies of any bylaws so amended.
• 12 CFR 7.2024(c) Size of bank board—A national bank seeking to increase the number of its directors must notify the OCC any time the proposed size would exceed 25 directors.
The OCC issued a 60-day
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, 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 a continuing information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid OMB control number. The OCC is soliciting comment concerning its information collection titled, “Investment Securities.” The OCC is also giving notice that the collection has been submitted to OMB for review.
You should submit written comments by May 29, 2012.
Communications Division, Office of the Comptroller of the Currency, Mailstop 2–3, Attention: 1557–0205, 250 E Street SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874–5274, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer, 1557–0205, by mail to U.S. Office of Management and Budget, 725, 17th Street NW., #10235, Washington, DC 20503, or by fax to (202) 395–6974.
You can request additional information or a copy of the collection from Mary H. Gottlieb, OCC Clearance Officer, (202) 874–6055 or (202) 874–5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street SW., Washington, DC 20219.
The OCC is proposing to extend OMB approval, without change, of the following information collection:
The information collection requirements in 12 CFR part 1 are as follows:
Under 12 CFR 1.3(h)(2), a national bank may request an OCC determination that it may invest in an entity that is exempt from registration under section 3(c)(1) of the Investment Company Act of 1940
Under 12 CFR 1.7(b), a national bank may request OCC approval to extend the five-year holding period of securities held in satisfaction of debts previously contracted (DPC) for up to an additional five years. The bank must provide a clearly convincing demonstration of why any additional holding period is needed. The OCC uses the information in the request to ensure, on a case-by-case basis, that the bank's purpose in retaining the securities is not speculative and that the bank's reasons for requesting the extension are adequate, and to evaluate the risks to the bank of extending the holding period, including potential effects on bank safety and soundness.
The OCC issued a 60-Day
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing supplemental information for one entity whose property and interests in property are blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
The publishing of updated identification information by the Director of OFAC of the one entity in this notice, pursuant to Executive Order 13224, is effective on April 19, 2012.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622–2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On September 23, 2001, the President issued Executive Order 13224 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701–1706, and the United Nations Participation Act of 1945, 22 U.S.C. 287c. In the Order, the President declared a national emergency to address grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the September 11, 2001 terrorist attacks in New York, Pennsylvania, and at the Pentagon. The Order imposes economic sanctions on persons who have committed, pose a significant risk of committing, or support acts of terrorism. The President identified in the Annex to the Order, as amended by Executive Order 13268 of July 2, 2002, 13 individuals and 16 entities as subject to the economic sanctions. The Order was further amended by Executive Order 13284 of January 23, 2003, to reflect the creation of the Department of Homeland Security.
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in or hereafter come within the United States or the possession or control of United States persons, of: (1) Foreign persons listed in the Annex to the Order; (2) foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, to have committed, or to pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States; (3) persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to be owned or controlled by, or to act for or on behalf of those persons listed in the Annex to the Order or those persons determined to be subject to subsection 1(b), 1(c), or 1(d)(i) of the Order; and (4) except as provided in section 5 of the Order and after such consultation, if any, with foreign authorities as the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of the Department of Homeland Security and the Attorney General, deems appropriate in the exercise of his discretion, persons determined by the Director of OFAC, in consultation with the Departments of State, Homeland Security and Justice, to assist in, sponsor, or provide financial, material, or technological support for, or financial or other services to or in support of,
On April 19, 2012 the Director of OFAC, in consultation with the Departments of State, Homeland Security, Justice and other relevant agencies, supplemented the identification information for the one entity whose property and interests in property are blocked pursuant to Executive Order 13224.
The supplementation identification information for the entity is as follows:
1. TAJCO (a.k.a. GRAND STORES (THE GAMBIA LOCATION ONLY); a.k.a. TAJCO COMPANY; a.k.a. TAJCO COMPANY LLC; a.k.a. TAJCO LTD; a.k.a. TAJCO SARL; a.k.a. TRADEX CO), 62 Buckle Street Banjul, The Gambia; 1 Picton Street Banjul, The Gambia; Dohat Building 1st Floor, Liberation Avenue Banjul, The Gambia; Tajco Building, Main Street Hannawiyah, Tyre, Lebanon; Tajco Building, Hanouay, Sour (Tyre), Lebanon; 30 Sani Abacha Street Freetown, Sierra Leone; Web site
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is removing the name of one individual, whose property and interests in property have been blocked pursuant to Executive Order 13224 of September 23, 2001, Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism, from the list of Specially Designated Nationals and Blocked Persons (“SDN List”).
The removal of this individual from the SDN List is effective as of April 19, 2012.
Assistant Director, Compliance Outreach & Implementation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, tel.: 202/622–2490.
The SDN List and additional information concerning OFAC are available from OFAC's Web site (
On September 23, 2001, the President issued Executive Order 13224 (the “Order”) pursuant to the International Emergency Economic Powers Act, 50 U.S.C. 1701–1706, and the United Nations Participation Act of 1945, 22 U.S.C. 287c, imposing economic sanctions on persons who commit, threaten to commit, or support acts of terrorism. The President identified in the Annex to the Order various individuals and entities as subject to the economic sanctions. The Order authorizes the Secretary of the Treasury, in consultation with the Secretary of State, the Attorney General, and (pursuant to Executive Order 13284) the Secretary of the Department of Homeland Security, to designate additional persons or entities determined to meet certain criteria set forth in Executive Order 13224.
The Department of the Treasury's Office of Foreign Assets Control has determined that this individual should be removed from the SDN List.
The following designation is removed from the SDN List:
1. CHARAABI, Tarek (a.k.a. AL–CHARAABI, Tarek Ben Al-Bechir Ben Amara; a.k.a. SHARAABI, Tarek), Viale Bligny n.42, Milano, Italy; DOB 31 Mar 1970; POB Tunisia; nationality Tunisia; Italian Fiscal Code CHRTRK70C31Z352U; Passport L 579603 issued 19 Nov 1997 expires 18 Nov 2002 (individual) [SDGT]
The removal of this individual name from the SDN List is effective as of April 19, 2012. All property and interests in property of the individual that are in or hereafter come within the United States or the possession or control of United States persons are now unblocked.
The Department of Veterans Affairs (VA) gives notice under Public Law 92–463 (Federal Advisory Committee Act) that a meeting of the Veterans' Advisory Committee on Rehabilitation will be held on May 8–9, 2012, in Room 1046 at the Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC. The sessions will be begin at 8 a.m. each day and adjourn at 5 p.m. on May 8 and at noon on May 9. The meeting is open to the public.
The purpose of the Committee is to provide advice to the Secretary on the rehabilitation needs of Veterans with disabilities and on the administration of VA's rehabilitation programs.
During the meeting, the Committee will receive briefing updates on various VA programs designed to enhance the rehabilitative potential of recently-discharged Veterans. Members will also begin consideration of potential recommendations to be included in the Committee's next annual report.
No time will be allocated at this meeting for oral presentations from the public. Interested parties should provide written comments for review by the Committee to Mrs. Teri Nguyen, Designated Federal Officer, VA, Veterans Benefits Administration (28), 810 Vermont Avenue NW., Washington, DC 20420, or via email at
By Direction of the Secretary.
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 119 chemical substances which were the subject of premanufacture notices (PMNs). Four of these chemical substances are subject to TSCA consent orders issued by EPA. This action requires persons who intend to manufacture, import, or process any of these 119 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.
This rule is effective on June 26, 2012. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on May 11, 2012.
Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before May 29, 2012 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2011–0577, by one of the following methods:
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You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this rule. Potentially affected entities may include, but are not limited to:
• Manufacturers, importers, or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in § 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127; see also 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
EPA is promulgating these SNURs using direct final procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture, import, or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. Additional rationale and background to these rules are more fully set out in the preamble to EPA's first direct final SNUR published in the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. Persons who must report are described in § 721.5.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same notice requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA section 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the 119 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, taking into consideration the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 119 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) number (if assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) consent order or, for non-section 5(e) SNURs, the basis for the SNUR (i.e., SNURs without TSCA section 5(e) consent orders).
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).
• CFR citation assigned in the regulatory text section of this rule.
The regulatory text section of this rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (i.e., limits on manufacture and importation volume) and other uses designated in this rule, may be claimed as CBI. Unit IX. discusses a procedure companies may use to ascertain whether a proposed use constitutes a significant new use.
This rule includes four PMN substances (P–10–470, P–10–471, P–10–472, and P–11–217) for which EPA determined, pursuant to TSCA section 5(e), that uncontrolled manufacture, import, processing, distribution in commerce, use, and disposal may present an unreasonable risk of injury to human health and the environment. Accordingly, these substances are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I). Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “5(e) SNURs” on these PMN substances are promulgated pursuant to § 721.160, and are based on and consistent with the provisions in the underlying consent orders. The 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.
This rule also includes SNURs on 115 PMN substances that are not subject to consent orders under TSCA section 5(e). In these cases, for a variety of reasons, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “non-5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all non-5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2), i.e., these significant new use activities, “(i) are different from those described in the premanufacture notice for the substance, including any amendments, deletions, and additions of activities to the premanufacture notice, and (ii) may be accompanied by changes in exposure or release levels that are significant in relation to the health or environmental concerns identified” for the PMN substance.
Where EPA determined that the PMN substance may present an unreasonable risk of injury to human health via inhalation exposure, the SNUR usually requires, among other things, that potentially exposed employees wear specified respirators unless actual measurements of the workplace air show that air-borne concentrations of the PMN substance are below a New Chemical Exposure Limit (NCEL) that is established by EPA to provide adequate protection to human health. In addition to the actual NCEL concentration, the comprehensive NCELs provisions, which are modeled after Occupational Safety and Health Administration (OSHA) Permissible Exposure Limits (PELs) provisions, include requirements addressing performance criteria for sampling and analytical methods, periodic monitoring, respiratory protection, and recordkeeping. However, no comparable NCEL provisions currently exist in 40 CFR part 721, subpart B, for SNURs. Therefore, for these cases, the individual SNURs in 40 CFR part 721, subpart E, will state that persons subject to the SNUR who wish to pursue NCELs as an alternative to the § 721.63 respirator requirements may request to do so under § 721.30.
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for four of the 119 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) consent orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters. The SNUR provisions for these chemical substances are consistent with the provisions of the TSCA section 5(e) consent orders. These SNURs are promulgated pursuant to § 721.160.
In the other 117 cases, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at § 721.170 were met, as discussed in Unit IV.
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture, import, or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing, importing, or processing a listed chemical substance for the described significant new use.
• EPA will be able to regulate prospective manufacturers, importers, or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA sections 5(e), 5(f), 6, or 7.
• EPA will ensure that all manufacturers, importers, and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the Internet at
EPA is issuing these SNURs as a direct final rule, as described in § 721.160(c)(3) and § 721.170(d)(4). In accordance with § 721.160(c)(3)(ii) and § 721.170(d)(4)(i)(B), the effective date of this rule is June 26, 2012 without further notice, unless EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments before May 29, 2012.
If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before May 29, 2012, EPA will withdraw the relevant sections of this direct final rule before its effective date. EPA will then issue a proposed SNUR for the chemical substance(s) on which adverse or critical comments were received, providing a 30-day period for public comment.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse or critical comments, or notice of intent to submit adverse or critical comments, must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
Significant new use designations for a chemical substance are legally established as of the date of publication of this direct final rule April 27, 2012.
To establish a significant “new” use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. TSCA section 5(e) consent orders have been issued for four chemical substances and the PMN submitters are prohibited by the TSCA section 5(e) consent orders from undertaking activities which EPA is designating as significant new uses. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no other person may commence such activities without first submitting a PMN. For chemical substances for which an NOC has not been submitted at this time, EPA concludes that the uses are not ongoing. However, EPA recognizes that prior to the effective date of the rule, when chemical substances identified in this SNUR are added to the TSCA Inventory, other persons may engage in a significant new use as defined in this rule before the effective date of the rule. However, 83 of the 119 chemical substances contained in this rule have CBI chemical identities, and since EPA has received a limited number of post-PMN
As discussed in the April 24, 1990 SNUR, EPA has decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of this direct final rule rather than as of the effective date of the rule. If uses begun after publication were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements because a person could defeat the SNUR by initiating the significant new use before the rule became effective, and then argue that the use was ongoing before the effective date of the rule. Persons who begin commercial manufacture, import, or processing of the chemical substances regulated through this SNUR will have to cease any such activity before the effective date of this rule. To resume their activities, these persons would have to comply with all applicable SNUR notice requirements and wait until the notice review period, including any extensions expires.
EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person meets the conditions of advance compliance under § 721.45(h), the person is considered exempt from the requirements of the SNUR.
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. describes those tests. Unit IV. also lists recommended testing for non-5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection and test reporting. To access the harmonized test guidelines referenced in this document electronically, please go to
In the TSCA section 5(e) consent orders for four of the chemical substances regulated under this rule, EPA has established restrictions in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These restrictions will not be removed until EPA determines that the unrestricted use will not present an unreasonable risk of injury, or result in significant or substantial exposure or environmental release. This determination is usually made based on the results of the required or recommended toxicity tests.
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1).
Under these procedures a manufacturer, importer, or processor may request that EPA determine whether a proposed use would be a significant new use under the rule. The manufacturer, importer, or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be submitted on EPA Form No. 7710–25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. e-PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substances subject to this rule. EPA's complete Economic Analysis is available in the docket under docket ID number EPA–HQ–OPPT–2011–0577.
This rule establishes SNURs for several new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070–0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This rule is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true: (1) A significant number of SNUNs would not be submitted by small entities in response to the SNUR and (2) submission of the SNUN would not cost any small entity significantly more than $8,300. Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this rule. As such, EPA has determined that this rule does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4).
This action will not have a substantial direct effect on 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, as specified in Executive Order 13132, entitled
This rule does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This rule does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled
This action is not subject to Executive Order 13045, entitled
This action is not subject to Executive Order 13211, entitled
In addition, since this action does not involve any technical standards, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104–113, section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
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(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified air-purifying, tight-fitting half-face respirator equipped with N100 (if oil aerosols absent), R100, or P100 filters;
(B) NIOSH-certified air-purifying, tight-fitting full-face respirator equipped with N100 (if oil aerosols absent), R100, or P100 filters;
(C) NIOSH-certified powered air-purifying respirator equipped with a loose- fitting hood or helmet and high efficiency particulate air (HEPA) filters;
(D) NIOSH-certified powered air-purifying respirator equipped with a tight-fitting facepiece (either half-face or full-face) and HEPA filters; or
(E) NIOSH-certified supplied-air respirator operated in pressure demand or continuous flow mode and equipped with a hood or helmet, or tight-fitting facepiece (either half-face or full-face).
(
(
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule finalizes several provisions of the Affordable Care Act implemented in the May 5, 2010 interim final rule with comment period. It requires all providers of medical or other items or services and suppliers that qualify for a National Provider Identifier (NPI) to include their NPI on all applications to enroll in the Medicare and Medicaid programs and on all claims for payment submitted under the Medicare and Medicaid programs. In addition, it requires physicians and other professionals who are permitted to order and certify covered items and services for Medicare beneficiaries to be enrolled in Medicare. Finally, it mandates document retention and provision requirements on providers and supplier that order and certify items and services for Medicare beneficiaries.
Effective June 26, 2012 the interim final rule amending 42 CFR parts 424 and 431 that published on May 5, 2010 (75 FR 24437) is confirmed as final with changes.
The Medicare program, title XVIII of the Social Security Act (the Act), is the primary payer of health care for approximately 50 million beneficiaries. Under section 1802 of the Act, a beneficiary may obtain health services from an individual or organization qualified to participate in the Medicare program.
Providers and suppliers furnishing services must comply with the Medicare requirements stipulated in the Act and in implementing regulations. These requirements are meant to promote the furnishing of quality care, while protecting the integrity of the program. As Medicare program expenditures have grown, the Centers for Medicare & Medicaid Services (CMS) has increased its efforts to ensure that only qualified individuals or organizations are allowed to enroll in Medicare and maintain Medicare billing privileges.
The Medicaid program, established under title XIX of the Act pays for medical benefits to tens of millions of people. Medicaid is a joint Federal and State health care program for eligible low-income individuals. The Medicaid program works within a broad Federal framework and States have considerable flexibility in how the program is administered.
The Patient Protection and Affordable Care Act (Pub. L. 111–148) as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111–152) (collectively known as the Affordable Care Act) makes many changes to the Medicare and Medicaid programs, some of which involve strengthening tools for quality and integrity. To maintain program integrity and ensure quality, we must make certain that only qualified providers and suppliers participate in the programs and that they bill accurately for their services. With respect to Medicaid, our regulations provide States with considerable flexibility. However, the Federal framework includes some key requirements to ensure program integrity while providing quality care. For example, Medicaid providers must generally meet all State licensing and scope-of-practice requirements, and may be subject to additional Federal and State quality standards. Additionally, the Medicare and Medicaid regulations require timely filing of claims by providers.
In the May 5, 2010
In this section of the final rule, we provide the following for each of the provisions of the May 5, 2010 IFC:
• Background.
• Statutory changes based on the Affordable Care Act.
• The provisions of the IFC.
• Summary of the comments and responses to the public comments received on the IFC. We received approximately 224 timely comments on the May 5, 2010 IFC.
With regard to the Medicare provisions, we also note that the term “provider,” as used throughout the IFC and in this final rule, has the meaning specified in § 400.202.
For Medicaid, the term “provider,” as used throughout the IFC and in this final rule, has the meaning specified in § 400.203. That is, for purposes of this rule provider means any individual or entity furnishing Medicaid services under an agreement with the Medicaid agency.
We also note that the use of the term “supplier,” in the IFC and in this final rule, as defined at § 400.202, with regard to the Medicare provisions, is “a physician or other practitioner, or an entity other than a provider that furnishes health care services under Medicare.” In portions of this final rule, the commenters and CMS may only use the term “provider(s)” or “supplier(s).” However, the reader should consider these terms as relating to both providers and suppliers, unless explicitly stated otherwise. The regulatory text, however, uses precise language.
Finally, throughout this final rule, we have attempted to remain consistent with our terminology regarding the term “resident.” We draw the reader's attention to § 413.75(b) where a resident is defined as “* * * an intern, resident, or fellow who participates in an approved medical residency program, including programs in osteopathy, dentistry, and podiatry, as required in order to become certified by the appropriate specialty board.” We want to be explicit in stating that the term “resident” incorporates interns, residents, and fellows and we will use this term to refer to all three professionals throughout this final rule.
Historically, we have identified vulnerabilities in Medicare enrollment procedures that have permitted the enrollment of providers and suppliers whose qualifications for meeting all of our enrollment standards were sometimes questionable. This raised concerns that certain providers and suppliers in our program may be under- qualified or even fraudulent and has led us to increase our efforts to establish more stringent controls on provider and
• A final rule with comment titled, “Additional Supplier Standards” (October 11, 2000, 65 FR 60366).
• A final rule titled, “Requirements for Providers and Suppliers to Establish and Maintain Medicare Enrollment” (April 21, 2006, 71 FR 20754).
• A final rule titled, “Medicare Program; Revisions to Payment Policies, Five-Year Review of Work Relative Value Units, Changes to the Practice Expense Methodology Under the Physician Fee Schedule, and Other Changes to Payment Under Part B; Revisions to the Payment Policies of Ambulance Services Under the Fee Schedule for Ambulance Services; and Ambulance Inflation Factor Update for CY 2007” (December 1, 2006, 71 FR 69624).
• A final rule titled, “Competitive Acquisition for Certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS)” (April 10, 2007, 72 FR 17992).
• A final rule titled, “Medicare Program; Revisions to Payment Policies Under the Physician Fee Schedule, and Other Part B Payment Policies for CY 2008; Revisions to the Payment Policies of Ambulance Services Under the Ambulance Fee Schedule for CY 2008; and the Amendment of the E-Prescribing Exemption for Computer Generated Facsimile Transmissions; Final Rule” (72 FR 66222).
• A final rule titled, “Appeals of CMS or CMS Contractor Determinations When a Provider or Supplier Fails to Meet the Requirements for Medicare Billing Privileges” (June 27, 2008, 73 FR 36448).
• A final rule with comment titled, “Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2009; E-Prescribing Exemption for Computer Generated Facsimile Transmissions; and Payment for Certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS)” (November 19, 2008, 73 FR 69726).
• A final rule titled, “Medicare Program; Surety Bond Requirement for Suppliers of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS); Final Rule” (January 2, 2009, 74 FR 166).
• A final rule titled, “The National Provider Identifier Rule” (January 23, 2004, 69 FR 3434).
• A final rule titled “Medicare, Medicaid, and Children's Health Insurance Programs; Additional Screening Requirements, Application Fees, Temporary Enrollment Moratoria, Payment Suspensions and Compliance Plans for Providers and Suppliers” (February 2, 2011, 76 FR 5862).
The NPI provisions of this final rule are an extension of the aforementioned program integrity initiatives, consistent with the direction of the Affordable Care Act as described later in this section, designed to ensure that only legitimate providers and suppliers that meet and maintain our standards can be enrolled and/or paid by the Medicare program.
Similarly, consistent with the NPI final rule and subsequent guidance from the Secretary, beginning May 23, 2008, Medicaid providers have also been required to report their NPIs on their Medicaid claims.
Section 6402(a) of the Affordable Care Act added a new section 1128J of the Act, titled “Medicare and Medicaid Program Integrity Provisions.” Section 1128J(e) of the Act requires the Secretary to promulgate a regulation that requires, not later than January 1, 2011, all providers of medical or other items or services and suppliers under the programs under titles XVIII and XIX that qualify for an NPI to include their NPI on all applications to enroll in such programs and on all claims for payment submitted under such programs. In Medicaid, there is no Federally required “enrollment application,” although all Medicaid providers are required to enter into a provider agreement with the State as a condition of participating in the program under section 1902(a)(27) of the Act. Therefore, in the Medicaid context we are including the submission of an NPI to the State agency as a requirement under the provider agreement. The NPI requirements in this final rule are thus applicable to the reporting of NPIs—(1) pursuant to Medicaid provider agreements; (2) for inclusion in Medicare enrollment records; and (3) on Medicare and Medicaid claims.
For the Medicare program, we established the following:
• At § 424.506(a), the definition of “eligible professional” refers to any of the professionals specified in section 1848(k)(3)(b) of the Act.
• At § 424.506(b), requirements that a provider or supplier who is eligible for an NPI must report the NPI on the Medicare enrollment application; and, if the provider or supplier enrolled in Medicare prior to obtaining an NPI and the NPI is not in the provider's or supplier's enrollment record, the provider or supplier must report the NPI to Medicare in an enrollment application so that the NPI will be added to the provider's or supplier's enrollment record in PECOS.
• At § 424.506(c)(1), a requirement that a provider or supplier who is enrolled in fee-for-service (FFS) Medicare report its NPI, as well as the NPI of any other provider or supplier who is required to be identified in those claims, on any electronic or paper claims that the provider or supplier submits to Medicare.
• At § 424.506(c)(2) that a claim submitted by a Medicare beneficiary contain the legal name and, if the beneficiary knows the NPI, the NPI of any provider or supplier who is required to be identified in that claim. If a Medicare beneficiary does not know the NPI of a provider or supplier who is required to be identified in the claim that he or she is submitting, the beneficiary may submit the claim without the NPI(s) as long as the claim contains the legal name(s) of the health care provider(s). If a beneficiary so desires, he or she can obtain a provider's or a supplier's NPI by requesting it directly from the provider or supplier or from a member of his or her office staff, or by looking it up in the NPI Registry at
• At § 424.506(c)(3), a Medicare claim from a provider or a supplier will be rejected if it does not contain the required NPI(s).
After review of the public comments received, we are retaining the provisions regarding the NPI for the Medicare program with the modification specified in this section and in section III. of this final rule.
To clarify, it is not necessary for the providers and suppliers to fill out an entire enrollment application simply to provide an NPI, we have revised the language in existing § 424.506(b)(2), which has been redesignated as § 424.506(b)(1)(ii), to specify that providers and suppliers that are eligible for an NPI must update their enrollment records with this information. NPIs must be provided to the Medicare contractors by using a CMS–855 paper form or through Internet-based PECOS.
After consideration of the comments, we are finalizing our policy as it relates to the NPI and the Medicare definitions, enrollment, and claims reporting with a few modifications. We made some technical changes to the language by redesignating and revising language, specifically in § 424.506(b). Section 424.506(b)(3) was redesignated as § 424.506(b)(2) and revised to clarify that opt-out physicians and nonphysician practitioners will not be required to submit an enrollment application for any reason, including to order and certify. We also revised § 424.506(c)(1) to specifically address and clarify the NPIs that were required on the claims.
Consistent with the requirements of section 6402(a) of the Affordable Care Act, we added a new (b)(5)(i) and (ii) to § 431.107 to require that the provider agreement between a State agency and each provider delivering services under the State plan include a requirement that the provider furnish to the State agency its NPI (if eligible for an NPI); and include its NPI on all claims submitted under the Medicaid program. In Medicaid, under section 1902(a)(77) of the Act, States are required to comply with the provider screening, oversight, and reporting requirements outlined in section 1902(kk) of the Act including the process for screening providers established under section 1866(j) of the Act. In addition, there are new Federal regulatory requirements for provider enrollment and screening, published in the February 2, 2011
Other commenters acknowledged that the NPI registry permits anyone with a computer and internet access to look up a provider's NPI by name. The commenters inquired how CMS is able to determine whether the NPI that is on a claim was put there by a physician who meant to order the test, or by someone who simply downloaded the NPI from the open file, thereby identifying attempts at theft and fraud?
After consideration of the comments, we are finalizing our policy as it relates to the NPI and Medicaid claims; that is, the effective date for the inclusion of the NPI on all Medicaid claims for payment remains July 6, 2010. The effective date for submission of NPIs pursuant to provider agreements for new providers also remains July 6, 2010. However, we are revising our policy as it relates to the NPI pursuant to provider agreements for existing providers; that is, the effective date for inclusion of the submission of NPIs pursuant to provider agreements for existing providers will be upon the next date that a change must be made to the provider agreement or upon the date of revalidation. This policy revision does not impact the regulatory text (§ 431.107(b)(5)) as specified in the IFC (75 FR 24437). Therefore, we are not amending the regulatory text in this final rule.
Section 1833(q) of the Act requires that claims for items or services for which payment may be made under Part B and for which there was a referral by a referring physician shall include the name and the unique identification number of the referring physician. Physicians are doctors of medicine and osteopathy, optometry, podiatry, dental medicine, dental surgery, and chiropractic.
In the past, prior to the Medicare implementation of the NPI on May 23, 2008, physicians and eligible professionals were identified in claims as ordering or referring suppliers by their Unique Physician Identification Numbers (UPINs). Further discussion on Medicare's use of UPINs can be found in the IFC (75 FR 24441 and 24442). Physicians and eligible professionals applied for and were assigned UPINs as part of the process of enrolling in the Medicare program; therefore, physicians and eligible professionals were expected to be identified in claims as ordering or referring suppliers by their UPINs.
Analysis of Medicare claims data prior to 2008 (UPINs were not permitted to be used in Medicare claims after May 23, 2008) revealed that unauthorized and incorrect use of UPINs was widespread and, as a result, we had reason to believe that many physicians and eligible professionals were unaware of the requirement that their assigned UPINs were intended to uniquely identify them as ordering or referring suppliers and, more importantly, that they needed to apply for UPINs. As a result, Medicare may have paid claims for covered ordered and referred items and services that may have been ordered or referred by professionals who were not of a profession eligible to order and refer; by physicians or eligible professionals who were not enrolled in the Medicare program; or by physicians or eligible professionals who were not in an approved Medicare enrollment status (for example, they were sanctioned, their licenses were suspended or revoked, their billing privileges were terminated, or they were deceased).
With the Medicare implementation of the NPI in May 2008, Medicare discontinued the assignment of UPINs and no longer allowed UPINs to be used in Medicare claims. Because physicians
Section 6405(a) of the Affordable Care Act amended section 1834(a)(11)(B) of the Act to specify, with respect to suppliers of durable medical equipment, that payment may be made under that subsection only if the written order for the item has been communicated to the DMEPOS supplier by a physician who is enrolled under section 1866(j) of the Act or an eligible professional under section 1848(k)(3)(B) who is enrolled under section 1866(j) before delivery of the item. Section 1128J(e) of the Act requires that he or she be identified by his or her NPI in claims for those services. Medicare requires the ordering supplier (the physician or the eligible professional) to be identified by legal name and NPI in the claim submitted by the supplier of DMEPOS.
Section 6405(b) of the Affordable Care Act, as amended by section 10604 of the Affordable Care Act, amended the Act, and establishes new requirements for home health services. These provisions amended: (1) Section 1814(a)(2) of the Act and specifies, with respect to home health services under Part A, that payment may be made to providers of services if they are eligible and only if a physician enrolled under section 1866(j) of the Act certifies (and recertifies, as required) that the services are or were required in accordance with section 1814(a)(1)(C) of the Act; and (2) section 1835(a)(2) of the Act specifies, with respect to home health services under Part B, that payments may be made to providers of services if they are eligible and only if a physician enrolled under section 1866(j) of the Act certifies (and recertifies, as required) that the services are or were medically required in accordance with section 1835(a)(1)(B) of the Act. Section 1128J(e) of the Act requires that the physician be identified by his or her NPI in claims for those services. Medicare requires the ordering supplier (the physician) to be identified by legal name and NPI in the claim submitted by the provider of home health services.
In addition, section 6405(c) of the Affordable Care Act gives the Secretary the authority to extend the requirements made by subsections (a) and (b) to all other categories of items or services under title XVIII of the Social Security Act, including covered Part D drugs as defined in section 1860D–2(e) of the Act, that are ordered, prescribed, or referred by a physician enrolled under section 1866(j) of the Act or an eligible professional under section 1848(k)(3)(B) of the Act. Section 1128J(e) of the Act requires that he or she be identified by his or her NPI in claims for those services. Medicare requires the ordering or referring supplier (the physician or the eligible professional) to be identified by legal name and NPI in the claims submitted by the suppliers of laboratory, imaging, and specialist services. These amendments are effective on or after July 1, 2010.
The IFC required that claims from Part B providers and suppliers for covered ordered or referred items or services (excluding home health services and Part B drugs) meet the following requirements:
• The Part B items and services must have been ordered or referred by a physician or, when permitted by regulation or law, by an eligible professional.
• The claim from the Part B provider or supplier must contain the legal name and the NPI of the physician or the eligible professional who ordered or referred the item or service.
• The physician or the eligible professional who ordered the Part B item or service must have an approved enrollment record or a valid opt-out record in PECOS.
The IFC also required that if the Part B items or services were ordered or referred by a resident or an intern, the claim must identify the teaching physician as the ordering or referring supplier, and the teaching physician must be identified in the claim by his or her legal name and NPI, and he or she must have an approved enrollment record or a valid opt-out record in PECOS.
The IFC stated that claims from Medicare beneficiaries for ordered or referred covered Part B items and services (excluding home health services and Part B drugs) must meet the following requirements:
• The Part B items and services must have been ordered or referred by a physician or, when permitted by regulation or law, an eligible professional.
• The claim must contain the legal name of the physician or the eligible professional who ordered or referred the item or service.
• The physician or the eligible professional who ordered or referred the item or service must have an approved enrollment record or a valid opt-out record in PECOS.
The IFC stated that if the Part B items or services were ordered or referred by a resident or an intern, the claim must identify the teaching physician as the ordering or referring supplier, and the teaching physician must be identified in the claim by his or her legal name, and he or she must have an approved enrollment record or a valid opt-out record in PECOS.
The IFC stated that claims from home health agencies for covered Part A or Part B home health services must meet these requirements:
• The Part A or Part B home health services must have been ordered by a physician.
• The claim must contain the legal name and the NPI of the physician who ordered the service.
• The physician who ordered the service must have an approved enrollment record or a valid opt-out record in PECOS.
The IFC stated that if the Part A or Part B home health services are ordered by a resident or an intern, the claim must identify the teaching physician as the ordering or referring supplier. The teaching physician must be identified in the claim by his or her legal name and
The IFC required that claims from Medicare beneficiaries for ordered covered Part A or Part B home health services must meet the following requirements:
• The Part A or Part B home health services must have been ordered by a physician.
• The claim must contain the legal name of the physician who ordered the services.
• The physician who ordered the services must have an approved enrollment record or a valid opt-out record in PECOS.
The IFC stated that if the Part A or Part B home health services are ordered by a resident or an intern, the claim must identify the teaching physician as the ordering or referring supplier, and the teaching physician must be identified in the claim by his or her legal name, and he or she must have an approved enrollment record or a valid opt-out record in PECOS.
The IFC provided that a Medicare contractor will reject a claim from a provider or a supplier for covered ordered or referred items and services described in § 424.507(a) and (b) if the claim does not meet the requirements of § 424.507(a)(1) (for Part B items and services except Part B home health services and Part B drugs) and § 424.507(b)(1) (for Part A and Part B home health services).
The IFC stated that a Medicare contractor may deny a claim from a Medicare beneficiary for covered ordered or referred items and services described in § 424.507(a) and (b) if the claim does not meet the requirements of § 424.507(a)(2) (for Part B items and services except Part B home health services and Part B drugs) and § 424.507(b)(2) (for Part A and Part B home health services).
As a point of clarification, we use the term “ordering/referring provider” in this preamble because that is the terminology used in the implementation specifications for the standard Part B claim format and in the Part B paper claim to denote the individual (the person) who ordered, referred, or certified an item or service reported in that claim. The term “ordering/referring provider” is used in several contexts in this final rule. The term “order” for instance, refers to a provider who orders non physician items or services for the beneficiary, such as DMEPOS, clinical laboratory services, or imaging services. A “certifying” provider generally means a person who orders/certifies home health services for a beneficiary.
The terms “ordered,” “referred,” “certified,” and “ordering or referring” and “ordered or referred” are often used interchangeably within the health care industry and were used interchangeably by parties that commented on the IFC. Generally, we have used the terms applicable to this final rule, which are “ordered” when referring to items of DMEPOS, imaging and clinical laboratory services, and “certified” when referring to home health services. However, to be technically correct in every instance of the use of these terms in this preamble would require that we qualify every use in each instance. We believe that would be cumbersome and unnecessary and, therefore, did not do so. However, the regulatory text uses the technically correct terms.
Section 6406 of the Affordable Care Act requires physicians to retain necessary documentation and provide access to records for orders, referrals, and certifications for home health services, DMEPOS, and other items and services as designated by the Secretary, upon request. Section 6406(d) of the Affordable Care Act states “the amendments made by this section shall apply to orders, certifications, and referrals made on or after January 1, 2010.”
These two provisions fall within the exception to section 1871 of the Act that generally requires us to issue a notice of proposed rulemaking prior to issuing a final rule under the Medicare program.
Section 1871(b)(1)(b) of the Act provides that the Secretary is not required to issue a notice of proposed rulemaking before issuing a final rule if “a statute establishes a specific deadline and the deadline is less than 150 days after the date of enactment of the statute in which the deadline is contained.” Section 6405 of the Affordable Care Act establishes an effective date of July 1, 2010, 100 days after March 23, 2010, and section 6406 of the Affordable Care Act established an effective date of January 1, 2010 that passed before the Affordable Care Act was enacted. Additionally, implementing section 6402(a) of the Affordable Care Act, which adds section 1128J(e) to the Act and requires the use of the NPI on all enrollment applications and claims, does not add significant new burdens because the Medicare and Medicaid programs had already required the NPI on claims, applications, and agreements. The Affordable Care Act instructed the Secretary to promulgate a rule that adds this requirement no later than January 1, 2011, and the IFC executed that authority. Finally, a delay in implementing these provisions would be contrary to the public interest and to our efforts to reduce and eliminate fraud and abuse in the Medicare and Medicaid programs. For these reasons, we found good cause to waive the notice of proposed rulemaking and to issue these provisions on an interim final basis.
Additionally, the IFC carried a 60-day public comment period, to be followed by the publication of a final rule, as would a proposed rule. As a result, the public was afforded an opportunity to comment.
Additional efforts to ensure accuracy of claims has also led us to impose NPI requirements on Part D sponsors through the final rule with comment period titled, “Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Program for Contract Year 2013” published in the April 12, 2012
To provide the physician and eligible professional communities with the opportunity to comply with this regulation, we have made some modifications to the final rule which we believe will assist in that effort. The Affordable Care Act mandated that physicians and eligible professionals who order and refer must be enrolled in Medicare, the program. This final rule mandates the same, mirroring the statutory language. The IFC required an enrollment in PECOS, our data repository system for storing enrollment records. The Medicare legacy systems predate the PECOS system. However, those systems are being phased out and in the near future will no longer be used. At this time, the only way to enroll in Medicare is to establish an enrollment record in PECOS. We have been working towards fully populating PECOS and transferring those providers and suppliers in the legacy systems over to PECOS. This is being done by requiring that providers and suppliers revalidate their enrollment records, which we have separate and established authority to do. By revalidating, providers and suppliers will then have an enrollment record in PECOS. Those physicians and eligible professionals who only have an enrollment record in a local legacy system have been asked to revalidate first, so that they may be included on the Ordering Referring Report (explained in subsequent responses). We have made it clear to the physician and eligible professional communities that we would not turn on the automated edits that would cause a claim not to be paid until all physicians and eligible professionals have been asked to revalidate and have been given the opportunity to complete that process through their respective Medicare Administrative Contractors (MACs). In this final rule, although we have expanded our requirement from requiring enrollment in PECOS to one requiring enrollment in Medicare, which includes enrollment in PECOS or the local legacy systems, our requirements have not practically changed.
We believe that the aforementioned modification of the IFC will not create an additional burden because information will be gathered through the normal revalidation process. To address the commenters' concerns regarding the lengthy enrollment forms, we have modified the enrollment process for those enrolling only to order and certify. The CMS–855O form is available now for use and is significantly shorter than the original enrollment forms. Additionally, although those physicians and eligible professionals who wish to enroll in Medicare to order and certify, but do not wish to bill the Medicare program, will need to provide information to us via the CMS–855O form, they will not be required to submit financial information, including filling out a CMS–588 Electronic Funds Transfer (EFT) form. We believe that these modifications have addressed the concerns raised by these commenters.
• Providers and suppliers may start by referring to the NPI Registry online to search for their NPI. Those eligible for an NPI, who are enrolled in Medicare, must establish an NPI and update their enrollment records with Medicare.
• Providers and suppliers may also refer to the Ordering Referring Report to verify their enrollment records. The Ordering Referring Report is a report published by CMS that reflects the approval status of all physician and non physician practitioners who have applied to order and refer. The report will show all practitioners who have an approved record in PECOS to order and refer and practitioners who have an application that has been received and is pending approval. The report is available via the following link:
• Providers and suppliers may also use Internet-based PECOS to view their enrollment records. This will also enable the user to determine whether their NPI is included in their enrollment record in PECOS.
As stated previously, we will provide ample notice of our plans to activate the automated edits that will cause a claim not to be paid due to the lack of an approved enrollment record in Medicare to order and certify. Therefore, there is no reason for us to hold providers harmless for failing to be compliant with this requirement.
The CMS End User Services (EUS) Help Desk operates under our direction and is equipped to respond to operational systems issues related to Internet-based PECOS that are reported by providers and suppliers. Examples of issues that should be reported to the CMS EUS Help Desk include access problems (for example, user ID and password do not work, forgotten User ID or password, help in setting set up User ID or password), difficulty in understanding how to follow the screens in the application process, error messages, and system performance issues. The telephone number of the CMS EUS Help Desk is 1–866–484–8049 (TTY/TDD 1–866–523–4759); the email address is
Providers and suppliers with questions regarding the use of PECOS for the enrollment process should contact their jurisdiction's MAC. Although each MAC's hours of operation may vary, their normal business hours are generally established at 8 hours daily. Each MAC is required to comply with certain training exercises; therefore, there may be times when the hours of operation are shortened to 4 hours. The MACs may also be closed on Federal holidays. We do not believe that these limited interruptions significantly impact the MAC's ability to provide assistance related to PECOS due to these limited periods of interruption.
We offer additional information on internet-based PECOS on our Web site. This information includes several Medicare Learning Network (MLN) articles that provide providers and suppliers with in-depth information to assist them in navigating the enrollment process.
By “voluntary revalidation applications,” we believe the commenter is referring to enrollment applications submitted by enrolled physicians and other eligible professionals absent the receipt of a revalidation letter from a Medicare contractor. Revalidation requests are generated by Medicare contractors, and providers and suppliers are given a specific period of time in which to submit their enrollment applications. Medicare contractors give priority to processing all initial enrollment applications and to those who are enrolling just to order and certify. We do not accept voluntary revalidation applications and we do not intend to in the future.
The provider or supplier can avoid a situation like the one described by the commenters by ensuring—prior to furnishing the service or item in question—that the physician is enrolled. The relationship that the commenters describe is between the physician and the provider or supplier whose claims were denied. We cannot serve as an intermediary in whatever dispute may arise between these parties concerning the physician's failure to be enrolled. The matter must be resolved between the parties themselves.
• Part A and Part B home health services, submitted in claims from home health agencies to the Part A claims system at fiscal intermediaries and A/B MACs in ANSI X12N 837I or UB–94 formats.
• Part B clinical laboratory services, submitted in claims from independent clinical laboratories to the Part B claims system at carriers and A/B MACs in ANSI X12N 837P or CMS–1500 formats.
• Part B imaging services, submitted in claims from independent diagnostic testing facilities, portable X-ray suppliers, mammography centers, and radiation therapy centers to the Part B claims system at carriers and A/B MACs in ANSI X12N 837P or CMS–1500 formats.
• Part B items of DMEPOS, submitted by DMEPOS suppliers to DME MACs in ANSI X12N 837P, or CMS–1500 formats.
The requirements of this final rule are applicable to the following ordered items billed to Medicare by Medicare beneficiaries:
• Part B clinical laboratory services.
• Part B imaging services.
• Part B items of DMEPOS.
With the exception of claims for home health services that are submitted by home health agencies, this final rule does not affect the following:
• Claims submitted to the Part A claims system at fiscal intermediaries and A/B MACs.
• Claims for drugs.
• Part B claims from physician specialists.
• Claims from beneficiaries for home health services (beneficiaries are not permitted to submit claims for those services).
Regardless of the applicability of the comment, claims from beneficiaries will be denied, not rejected, to afford them appeals rights. Under Medicare, a claim is rejected when the claim filing has a defect or impropriety such that it cannot be processed. A claim that was ordered by a non-enrolled physician or eligible professional is a claim where a required element of the furnishing of the item to the beneficiary does not meet Medicare requirements, and it must be denied, not rejected.
Additionally, we have modified the definition of “enrolled in Medicare” to include PECOS and existing legacy Medicare claims payment systems. We have also delayed the automated edits that will cause a claim not to be paid for the lack of an approved enrollment record in Medicare or a valid opt-out status. Of course, such claims are subject to all other Medicare requirements, such as, coverage and medical necessity. These changes will reduce the risk to home health suppliers of having claims denied on the basis of enrollment of the ordering or certifying physician. We have made the Ordering Referring Report, containing the NPIs and legal names of physicians and other eligible professionals who have approved enrollment or valid opt-out records in PECOS, available and are encouraging suppliers to view this report. However, documentation that a home health agency has done so does
• Physicians who are approved to order and refer.
• Other eligible professionals who are approved to order and refer.
• Physicians who have pending Medicare enrollment applications.
• Other eligible professionals who have pending Medicare enrollment applications.
These reports, collectively referred to as the Ordering Referring Report, are available on the Medicare provider/supplier enrollment Web page at (
In a scenario such as this, if the inpatient physician certifies the patient's home health eligibility and initiates the orders for services, that physician would need to be a Medicare enrolled physician, and that physician's NPI would be in the medical record and on the first home health claim. To be compliant with all Medicare home health coverage and payment rules, the community physician who assumes responsibility for the patient during the home health episode (updating orders, signing the plan of care, etc.) would also need to be a Medicare enrolled provider, and this NPI would also be documented in the medical record and on the appropriate home health claim.
• There is no required OMB approved form for ordering home health services.
• The plan of care content requirements are based on the Home Health Content of Plan of Care.
• We have removed from our online manual the detailed guidance on the required Content of the Plan of Care.
• Inclusion of the physician's NPI on a Home Health Plan of Care and interim orders has never been a requirement.
Regulation text at § 424.516 currently requires that the NPI of the physician who orders/certifies the home health services be part of the documentation of the service in the medical record. It does not stipulate that the NPI be included on the Plan of Care or certification. Content requirements for the Home Health Plan of Care are detailed in § 484.18(a). So long as the NPI is part of the medical record, and can be provided to CMS or a Medicare contractor upon request, the home health agency will have met this requirement.
Existing regulations and policies require the reporting of the legal name if the NPI is required to be reported. Requiring the name that corresponds to the NPI further ensures the validity of the ordering or certifying provider and eliminates the indiscriminate and repeated use of any valid NPI simply to enable a claim to pass an edit. The health care claim standard and the Medicare paper claims forms capture three fields for a name: last name, first name, and middle initial. The Medicare provider/supplier enrollment application also captures those same three name fields. For the purposes of this rule only, these three name fields (last name, first name, and middle initial) constitute an individual's legal name.
We have developed the CMS–855O enrollment form for eligible providers and suppliers who wish to enroll only to order and certify. The ordering and certifying suppliers who use the CMS–855O form may not bill Medicare and submit claims. Those suppliers who wish to bill Medicare for services and submit claims must fill out the CMS–855I form. Internet-based PECOS has the capability to handle enrollment applications from these physicians and other eligible professionals who wish to enroll in Medicare just to order and certify. The CMS–855O form has been approved by Office of Management and Budget (OMB) and has been available for use since July 1, 2011. Additionally, information about enrolling only to order and certify is available on the Medicare provider/supplier enrollment Web site (
Examples of physicians and other eligible professionals who may wish to enroll in Medicare only to order and certify, and not to submit claims to Medicare for payment, include those who are one of the following:
• Employed by the PHS, DOD, DVA.
• Employed by Medicare-enrolled Federally qualified health centers (FQHCs), rural health clinics (RHCs), and critical access hospitals (CAHs).
• Pediatricians who traditionally have very few Medicare patients and, therefore, only order or certify items for Medicare beneficiaries.
• Doctors of dental medicine or dental surgery whose services are generally not covered by Medicare.
• Residents, as defined in § 413.75 (to include interns and fellows), who are appointed by teaching hospitals and academic medical centers who generally do not enroll in Medicare because their services are not directly billed to Medicare. (Please see the information under the “residents” section of this final rule.)
Another commenter believed that the requirements will make it virtually impossible for resident physicians and fellows to order diagnostic procedures, testing, and consults for Medicare beneficiaries. Residents and fellows who are reasonably well supervised will deliver less costly care than poorly trained residents. The commenter contended that those who have never had to think independently will become very costly suppliers because they will try to compensate for their lack of clinical judgment with over-testing.
Beneficiaries and other providers and suppliers may visit the Physician Compare Web site at
After reviewing the public comments summarized in this section (section II.B.4. a. through q. of this final rule), we are finalizing the provisions regarding ordering and certifying of covered items and services for Medicare beneficiaries with several modifications. We want to start by clarifying two major modifications to this final rule from the IFC. First, we stated in the IFC that we would reject, not deny, claims from providers and suppliers that do not comply with these ordering and certifying requirements. After reviewing the comments, we have determined that we will deny such claims to provide the suppliers, providers, and beneficiaries with appeal rights. However, until further notice, we will not activate the automated edits that would cause a claim not to be paid for lack of an approved enrollment record in Medicare
Second, we modified this final rule to permit residents, as defined in § 413.75, who are enrolled in an accredited graduate medical education program in a State that licenses or otherwise enables such individuals to practice or order these items or services to enroll in Medicare to order and certify. In situations where States do not license or otherwise permit such individuals to practice or order and certify services, the teaching physician's full legal name and NPI must be included on the claim as the person who ordered or certified the service. In this latter circumstance, the claims will not be paid unless the ordering and certifying physician, in this case, the teaching physician, is listed on the claim as the ordering or certifying physician. We made this change to assist teaching hospitals, as well as the providers and suppliers who render the items and services in complying with this rule.
Among the other changes to this section and in response to numerous comments received, we have changed the enrollment requirement language from one requiring enrollment in PECOS to one requiring enrollment in Medicare—including PECOS or other Medicare enrollment systems. We believe that this will reduce the number of claims that are denied or rejected and enable more currently enrolled physicians and practitioners to order or certify services.
We clarified our language in this provision to refer to the specific items and services the rule covers. After review of the public comments we received, we removed the language referring to “ordered or referred covered Part B items and services (excluding home health services described in § 424.507(b) and Part B drugs).” In this final rule, we specifically designate the covered items and services as follows: DMEPOS items, clinical laboratory, imaging, and home health services. Note that we have removed specialist services from the requirements of this rule.
We have also clarified our language with respect to the home health provision of this final rule. The IFC stated that physicians who order home health services must be listed on the claim for payment. However, to be technically correct, we have clarified our language in this final rule to state that those who order/certify must be listed on the claim for payment. A commenter noted that these physicians may be one single physician or separate physicians. To that end, we have clarified our regulatory language to accommodate this public comment. Further, the statutory language at section 6405 of the Affordable Care Act specifically mentions application to the ordering
Finally, as more of a technical correction, we have removed all references to beneficiary-submitted home health claims. After considering comments received on this topic, we now agree that home health claims cannot be submitted by beneficiaries and thus, should not be included in this final rule.
We believe it is imperative to establish accountability measures to ensure compliance with the ordering and referring provisions. To this end, the IFC implemented an Affordable Care Act provision by adding a new provision at § 424.516(f) that required providers and suppliers to maintain ordering and referring documentation, including the NPI, received from a physician or eligible non physician practitioner for 7 years from the date of service. The IFC also established in § 424.535(a)(10) that failure to comply with the documentation requirements specified in § 424.516(f) is a reason for revocation.
Section 6406 of the Affordable Care Act amended section 1842(h) of the Act by adding a new paragraph which states, “The Secretary may revoke enrollment, for a period of not more than one year for each act, for a physician or supplier under section 1866(j) if such physician or supplier fails to maintain and, upon request of the Secretary, provide access to documentation relating to written orders or requests for payment for durable medical equipment, certifications for home health services, or referrals for other items or services written or ordered by such physician or supplier under this title, as specified by the Secretary.”
Section 6406(b)(3) of the Affordable Care Act amends section 1866(a)(1) of the Act to require that providers and suppliers maintain and, upon request, provide to the Secretary, access to written or electronic documentation relating to written orders or requests for payment for durable medical equipment, certifications for home health services, or referrals for other items or services written or ordered by the provider as specified by the Secretary. Section 6406(b)(3) does not limit the authority of the Office of Inspector General to fulfill the Inspector General's responsibilities in accordance with applicable Federal law.
The IFC amended paragraph (f) of § 424.516 to require the following:
• A provider or supplier that furnishes covered ordered items of DMEPOS or home health, laboratory, imaging, or specialist services, to maintain written and electronic documentation (to include the NPI of the ordering or referring physician or eligible professional) relating to written orders and requests for payments for those items or services for 7 years from the date of service, and provide CMS or a Medicare contractor access to that documentation.
• A physician who ordered home health services and a physician or an eligible professional who ordered or referred DMEPOS, laboratory, imaging, and specialist services to maintain documentation relating to the written orders and requests for payments for those items or services for 7 years from the date of the order, certification, or referral and, upon request of CMS or a Medicare contractor, provide access to that documentation.
The IFC added paragraph (10) to § 424.535(a) to state that the Secretary may revoke Medicare enrollment and billing privileges for a period of not more than 1 year for each act of noncompliance for failure of a provider or supplier, including physicians and other eligible professionals, to comply with the document retention and access to documentation requirements at § 424.516(f).
The Secretary may revoke enrollment, for a period of not more than one year for each act, for a physician or supplier under section
After review of the all of public comments presented this section (section II.C.4. a. through c. of this final rule), we are finalizing the document retention requirements with several modifications. We are revising the provisions to follow the ordering and certifying provisions' covered items and services to include DMEPOS, laboratory, and imaging services, and home health services. We have also clarified that document maintenance and affording access to documentation, with regard to the home health provision, applies to orders
We have clarified that documents must be retained from the date of service, rather than the date of the order or certification- as specified in the IFC. Specialist services are no longer included in either the ordering and referring provision of § 424.507 or the document retention provision in § 424.516.
Section 424.535 remains unchanged in the fact that a provider or supplier that does not meet the requirements of § 424.516 is subject to revocation for not more than 1 year for each act of noncompliance. Finally, as a technical correction, we removed a provision in § 424.535 that references section 1866(j) of the Act.
In this section of the final rule, we discuss the changes made from the IFC. We are finalizing the provisions of the IFC with the modifications based on our response to comments and other statutory and technical changes stated in this section of the final rule.
In section II.A. of this final rule, we discuss the inclusion of the NPI on all Medicare enrollment applications, pursuant to Medicaid provider agreements, and on Medicare and Medicaid claims. We note that the main objectives of that section remain constant from the IFC to this final rule in that providers and suppliers must provide their NPIs as a part of their enrollment record. Furthermore, this NPI must be reported on any claims for payment, along with the NPI of any other provider or supplier listed on the claim form. We made a few modifications to the NPI provisions included in the IFC. In § 424.506, we made the following changes:
• Revised paragraph (b)(1) to include the text of paragraph (b)(2).
• Removed the existing paragraph (b)(2) and redesignated paragraph (b)(3) and paragraph (b)(2).
• Paragraph (c)(1) was revised to insert the word “must” between the words “Medicare” and “include” because the word was inadvertently omitted in this requirement in the IFC.
In section II.B. of this final rule, we discuss our provisions regarding ordering and certifying covered items and services for Medicare beneficiaries. In that section of this final rule, set forth are specific provider and supplier mandates for enrolling in Medicare to order and certify certain, specified items or services including DMEPOS, laboratory and imaging services, and home health services. We stress that this rule finalizes conditions of payment for ordered items and services, and it does not address broader payment policy questions. It neither changes eligibility requirements that permit certain provider types to order or certify, nor does it detail which items or services they are permitted to order or certify. This rule, in its applicable sections, only addresses the enrollment requirements for those eligible professionals who are permitted to order and certify under existing rules. We are making the following modifications regarding ordering and certifying covered items and services for Medicare beneficiaries:
• In § 424.507, we made the following changes:
++ Revised the introductory text for paragraph (a) to clarify the items and services to which this paragraph applies (covered Part B DMEPOS items and clinical laboratory and imaging services). We also deleted the reference to specialist services.
++ Revised paragraph (a)(1) by inserting the word “claim” between the words “supplier's” and “must.”
++ Revised paragraph (a)(1)(iii) to state that the physician or other eligible professional, when permitted, must be enrolled in Medicare in an approved status or have validly opted- out of the Medicare program.
++ Revised paragraph (a)(1)(iv) to require that claims identify the teaching physician as the ordering or certifying provider when an unlicensed resident or a non-enrolled licensed resident orders or certifications. We are also providing the option of enrollment if residents possess a provisional license or are otherwise permitted by their State to practice or order and certify.
++ Revised paragraph (a)(2)(iii) to be consistent with paragraph (a)(1)(iii).
++ Revised paragraph (a)(2)(iv) to be consistent with paragraph (a)(1)(iv) by requiring that claims identify the teaching physician as the ordering or certifying provider when an unlicensed resident or a non-enrolled licensed resident orders or certifications. We are also providing the option of enrollment if residents possess a provisional license or are otherwise permitted by their State to practice or order and certify.
++ Revised paragraph (b)(3) (formerly paragraph (b)(1)(iii)) to be consistent with paragraph (a)(1)(iii) by requiring that home health claims identify the teaching physician as the ordering/certifying provider when an unlicensed resident or a non-enrolled licensed resident certifies. We are also providing the option of enrollment if residents possess a provisional license or are otherwise permitted by their State to order/certify or practice.
++ Removed the requirements for home health claims submitted by Medicare beneficiaries in paragraph (b)(2). This change resulted in the rewording of the title of paragraph (b) to read: “Conditions for payment of claims from home health providers for covered home health services” and the renumbering of the requirements in paragraph (b).
++ Revised paragraph (b) by removing the word “ordered” from the provision. This change will result in the wording as follows: “To receive payment for covered Part A or Part B home health services, a provider's home health services claim must meet all of the following requirements:”
++ Revised paragraph (b)(1) and (b)(2) (formerly paragraph (b)(1)) to include certifications, not simply orders for home health.
++ Revised paragraph (c) to state that we will deny a claim from a provider or supplier for covered services described in § 424.507(a) and § 424.507(b) if the claim does not meet the requirements of § 424.507(a)(1) and § 424.507(b), respectively. We also changed the reference from § 424.507(b)(1) to § 424.507(b).
++ Revised paragraph (d) to remove the references to sections that relate to home health services and home health claims, as Medicare beneficiaries do not submit claims for home health services.
In section II.C. of this final rule, we discuss the IFC provisions regarding document retention requirements. We are finalizing these requirements with the following modifications:
• In § 424.516, we made the following changes:
++ Removed the words “specialist services” in paragraph (f)(1) and we more specifically described the items and services to which the final rule applies.
++ Revised paragraph (f)(2) to more specifically describe the items and services to which this final rule applies.
++ Revised paragraphs (f)(1) and (f)(2) to more explicitly describe the home health events to which this final rule applies by specifically referring to orders and certifications.
• In § 424.535(a)(10)(i), we removed the reference to section 1866(j) of the Act.
Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in the
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
Section 424.506(b)(1) states that providers and suppliers who are eligible for NPIs be required to report their NPIs on their enrollment applications for Medicare. Similarly, § 424.506 (b)(2) states that if providers or suppliers enrolled in Medicare prior to obtaining NPIs and their NPIs are not in their enrollment records, they must submit enrollment applications containing their NPIs.
The burden associated with the requirements in § 424.506(b) is the time and effort necessary for a provider or a supplier to apply for an NPI and the time and effort necessary to report the NPIs on their enrollment applications for Medicare.
Sections § 424.510 and § 424.515 state that providers and suppliers must submit enrollment information on the applicable enrollment application and update, resubmit, and recertify the accuracy of their enrollment information every 5 years. In addition, § 424.516 lists reporting requirements for providers and suppliers. To submit enrollment information for an initial application (even if enrolling just to order and certify), a change of information, or to respond to a revalidation request, a provider or supplier must complete and submit the applicable CMS–855 form or complete and submit the form over the Internet using Internet-based PECOS. Although we are unable to quantify the number, we do not believe that a significant number of physicians and eligible professionals will enroll in Medicare just to order and certify. The burden associated with the enrollment requirements found in § 424.510, § 424.515, and § 424.516 is the time and effort necessary to complete and submit applicable Medicare form. While this burden is subject to the PRA, it is currently approved under existing OMB control numbers (OCN). Specifically, the burden associated with obtaining an NPI is currently approved under OCN 0938–0931. The burden associated with submitting initial Medicare enrollment applications and updating Medicare enrollment information to include NPI is approved under OCN 0938–0685 (Applications CMS–855 A, B, I, and R) 0938–1056 (Application CMS–855 S).
Section 424.506(b)(1) states that providers and suppliers who are enrolled in Medicare must report their NPIs and the NPIs of any other providers or suppliers who are required to be identified in their claims on all paper and electronic claims that they send to Medicare. The burden associated with this requirement is the time and effort necessary to complete and submit a claim form. The burden associated with this collection is accounted for under OCN 0938–0999. We are currently seeking reinstatement of the control number.
Section 424.507 states that to receive payment for covered Part A or Part B home health services, the claim must contain the legal name and the NPI of the ordering physician; and to receive payment for covered items of DMEPOS, and certain other covered Part B items or services (excluding Part B drugs), the claim must contain the legal name and the NPI of the ordering or certifying physician or eligible professional. The burden associated with these requirements is the time and effort necessary to submit a claim with the required information. The burden associated with this collection is accounted for under OCN 0938–0999. We are currently seeking reinstatement of the control number.
Section 424.516(f)(1) discusses the documentation requirements for providers and suppliers. A provider or supplier is required for 7 years from the date of service to maintain and upon request of CMS or a Medicare contractor, provide access to documentation, including the NPI of the physician or the eligible professional who ordered or certified the item or service, relating to written orders or requests for payments for items of DMEPOS, home health, laboratory, and imaging services. Similarly, § 424.516(f) discusses the documentation requirements for providers and suppliers. At § 424.516(f)(1), providers and suppliers are required for 7 years from the date of service to maintain and, upon request of CMS or a Medicare contractor, provide access to documentation, including the NPI of the physician or the eligible professional who ordered or certified the item or service, relating to written orders or requests for payments for items of DMEPOS, home health, laboratory, and imaging services. At § 424.516(f)(2), physicians and eligible professionals are required for 7 years from the date of service to maintain and, upon request of CMS or a Medicare contractor, provide access to written and electronic documentation relating to written orders or certifications for items of DMEPOS, home health, laboratory, and imaging services.
The burden associated with the requirements in § 424.516(f) is the time and effort necessary to both maintain documentation on file and to furnish the information upon request to CMS or a Medicare contractor. While the requirement is subject to the PRA, we believe the associated burden is exempt. As discussed in the November 19, 2008 final rule (73 FR 69726), we believe the burden associated with maintaining documentation and furnishing it upon request is a usual and customary business practice and thereby exempt from the PRA under 5 CFR 1320.3(b)(2).
Section 431.107(b)(5) states that a Medicaid provider has to furnish its NPI (if eligible for an NPI) to its State agency and include its NPI on all claims submitted under the Medicaid program. The burden associated with the Medicaid requirements in
We have considered the burden associated with enrollment applications for Medicaid by estimating the number of providers. Specifically—
• There will be 56,250 Medicaid and CHIP providers in a given 12-month period that seek to enroll in Medicaid; and
• According to State Program Integrity Assessment data for FFYs 2007 and 2008, there has been an average of 1,855,070 existing Medicaid and CHIP providers nationally over the 2-year period of FFYs 2007 and 2008. Of these 1,855,070 providers, approximately one-fifth of them, or 371,014 (1,855,070 × .20), would be required to revalidate their enrollment each year under § 431.107(b).
For purposes of this paperwork burden assessment only, we assumed that 427,264 providers (56,250 + 371,014) will either initially enroll in or be required to revalidate their enrollment in Medicaid and, as part of this, be required to report their NPI.
We recognize that not all of these providers will have NPIs to report; a very small percentage of them may be exempt from having to obtain an NPI. We further understand that: (1) Some States may choose to allow (or even require) providers to submit their NPIs via mechanisms that are potentially less burdensome than submitting an initial enrollment or revalidation application; and (2) the previous figures include CHIP providers, who are not subject to the requirements of § 431.107(b). However, we chose to utilize the 427,264 figure and the application reporting mechanism for this paperwork burden assessment, so as not to underestimate the potential burden of this particular requirement. We estimated that it will take an average of less than 1 minute (or 0.01666 hours) for a medical technician to report a Medicaid provider's NPI to the State agency on an enrollment or reenrollment application. However, we assumed 1 minute for purposes of this burden. This results in an annual hour burden of 7,118 hours (or 427,264 × 0.01666). At a per hour cost of $14.51, according to the Bureau of Labor Statistics (BLS) for May 2011 for the mean hourly wage of a medical assistant, we projected a total annual cost of $103,282.
In FY 2008, approximately 2.5 billion Medicaid claims were submitted. This number has remained relatively constant since then.
As of May 23, 2008, and consistent with 45 CFR 162.410, the NPI has been required for all HIPAA-standard transactions. This means that Medicaid providers have been required since that date to disclose their NPI on all HIPAA-standard transactions, which we estimate to represent about 95 percent of all Medicaid claim submissions. We arrived at this percentage because we polled 10 States and using their individual percentage of electronic claims submission compiled an average of 95 percent. We then applied that percentage to the nation since 10 States we polled represent a sample of small and large States as well as States with a low and high Medicaid population and therefore we believe can be considered an adequate sample.
We will not be furnishing an estimated burden for the requirement that a provider furnish its NPI on claims because this requirement already applies to the vast majority of Medicaid claims under § 431.107(b)(5), and 45 CFR 162.410. The burden we estimate here will be for those claims—in general, paper claims—that are not HIPAA-standard transactions but that now must contain the NPI per § 431.107(b)(5). It is true that some States have been requiring the submission of the NPI on all Medicaid claims, even those that are not subject to § 431.107(b)(5). However, no burden has been prepared for this. We do so in this final rule.
We projected that 5 percent of the 2.5 billion claims previously referenced—or 125 million—will not qualify as HIPAA-standard transactions. These claims will need to contain the provider's NPI. We estimate that it will take the provider/medical assistant less than 1 minute to add the NPI to the claim but for purposes of the burden we estimated 1 minute—or 0.01666 hours—to furnish its NPI on the claim. This results in an annual burden of 2,082,500 hours. At a per hour cost of $14.51, we project the annual cost of this requirement to add the NPI to paper or non-HIPAA standard transactions to be $30,317,075. We wish to point out that as a result of this final rule, all claims will be required to have an NPI so as States implement these requirements, the burden will continue to decrease. Of note, while we received no comments on the burden for appending the NPI to the Medicaid provider agreement and/or the Medicaid claims for payment, we have updated these estimates to account for a medical assistant rather than a medical technician, since we believe a medical assistant is more likely to provide administrative support to the provider and to account for the May 2011 BLS mean hourly wage of a medical assistant rather than the 2008 mean hourly wage of the medical technician.
Table 1 indicates the paperwork burden associated with the requirements of this final rule. The only two requirements listed are those involving the Medicaid NPI provisions described in § 431.107(b)(5). The remaining requirements, as explained above, are either exempt from the PRA requirement or the burden for them has been addressed in other PRA packages/assessments.
If you comment on these information collection and recordkeeping requirements, please submit your comments to the Office of Information and Regulatory Affairs, Office of Management and Budget,
In response to our solicitation of comments on these issues, we received the following comments:
This final rule is necessary to finalize provisions of the May 5, 2010 IFC. As discussed earlier, the IFC implemented several provisions of the Affordable Care Act:
• Section 6402(a), which requires all Medicare and Medicaid providers of medical or other items or services and suppliers that qualify for a National Provider Identifier (NPI) to include the NPI on all Medicaid provider agreements, Medicare enrollment records, and Medicare and Medicaid claims for payment.
• Section 6405, which requires physicians or eligible professionals who order and/or certify Medicare services to be enrolled in Medicare.
• Section 6406, which requires physicians and suppliers to maintain and provide access to documentation relating to written orders or requests for payment for DMEPOS, HHA, and other services as specified by the Secretary.
We also believe that this final rule is needed to help ensure that (1) accurate claims are submitted; (2) the Medicare items and services being ordered and/or certified are valid and necessary; and (3) appropriate records of orders and certifications for Medicare items and services are maintained.
We have examined the impact of this rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulations and Regulatory review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96–354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 directs 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). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any single year). As discussed in more detail later in this section, we believe that the savings resulting from this final rule will exceed $100 million in each of the next 10 fiscal years, beginning in fiscal year (FY) 2013. Therefore, this is an economically significant rule based upon section 3(f)(1) of Executive Order 12866.
The Regulatory Flexibility Act (RFA) requires agencies to analyze options for regulatory relief for small entities, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, we estimate that small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the SBA definition of a small business (having revenues of less than $7.0 million to $34.5 million in any one year.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2011, that threshold is approximately $136 million. This final rule does not mandate expenditures by either the governments mentioned or the private sector; therefore, no analysis is required.
Executive Order (EO) 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose significant costs on State or local governments, the requirements of E.O. 13132 are not applicable.
As previously stated, we project, based on internal CMS data, that the total savings to the Federal government resulting from this final rule will exceed $100 million in each of the next 10 fiscal years. The total savings at the end of this 10-year period is estimated to be $1.59 billion. This figure accounts for our estimates that: (1) Approximately 5 percent of physicians will not be enrolled; (2) such physicians have only 50 percent as many Medicare enrollees as other physicians; and (3) 10 percent of patients of those physicians will not seek out enrolled physicians. The product of these is inflated by 25 percent to account for other providers who could potentially order services. The net result is roughly a 0.3 percent—or $1.59 billion—reduction in DMEPOS, imaging and clinical laboratory services, and Part A and Part B home health costs over the next 10 years attributable to patients who will choose not to seek out an enrolled physician to obtain such services. In addition, some claims without proper documentation will be denied, including some fraudulent claims, but we do not have a basis for quantifying the value of such claims.
Table 2 outlines the year-by-year projected savings to the Federal government over the next decade.
We believe that the rule's other effects will be minimal. With respect to § 424.506, practically all providers and suppliers that wish to enroll in Medicare and Medicaid programs have already obtained NPIs and are currently meeting requirements regarding the need to report their NPIs on, as applicable, enrollment applications and claims. Regarding § 424.516(f), we believe that most providers and suppliers already retain such documentation as a usual and customary business practice.
Since this final rule is a codification of statutory provisions found in the Affordable Care Act, we did not consider alternatives to the overall processes described in the IFC. We did consider the possibility of including additional items and services on the list of those affected by this final rule. However, while we have the authority under section 6405(c) of the Affordable Care Act to expand the requirements of section 6405(a) and (b) of the Affordable Care Act to all other categories of items or services under Title XVIII of the Act, we chose to expand these requirements only to clinical laboratory and imaging services, rather than to many other types of services. (Specialist services, moreover, are no longer covered by the requirements of this final rule.) We believe that the application of these requirements to limited categories of items and services will ease the overall burden on the provider and supplier communities. Moreover, in response to comments on the IFC, we considered and adopted the following alternatives that we believe will further the impact of these provisions.
First, we state in § 424.507 that in order for a claim to be paid, the ordering physician/practitioner must be enrolled in Medicare in an approved status or must have validly opted-out of the Medicare program. The IFC required that the ordering physician/practitioner have an approved enrollment record in PECOS. However, we have changed the enrollment requirement language from one requiring enrollment in PECOS to one requiring enrollment in Medicare—including PECOS or other Medicare enrollment systems. We believe that this will reduce the number of claims that are denied or rejected and enable more currently enrolled physicians and practitioners to order or certify for services.
Second, we will provide ample advanced notice of our intention to activate the automated edits that would cause a claim to not be paid for the lack of a valid: (1) Enrollment record to order and certify; or (2) a valid opt-out record in Medicare.
For Medicaid, again, we codified the statutory provisions found in the Affordable Care Act. However, we considered alternatives to the statute, since the provision requires all providers of medical or other items or services and supplies to include their NPI on all applications. Medicaid, until recently, had no Federally required process for provider enrollment outside of the requirement to enter into a provider agreement with the State. Further, Medicaid has no Federal process for applications to enroll in the Medicaid program. Thus, in order to comply with the statutory requirement outlined in 6402 of the Affordable Care Act to append the NPI to the application for enrollment, Medicaid considered codifying additional regulatory requirements outlining a Federal process for the application to enroll in Medicaid. Because of the Administration's goal to provide for greater administration simplification, we determined that Medicaid would not
Again, the main purpose of this final rule is to implement the previously referenced provisions of the Affordable Care Act. However, we also believe that these requirements will help to ensure that Medicare and Medicaid payments are correctly and properly made.
As required by OMB Circular A–4 (available at link
In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.
Emergency medical services, Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
Grant programs—health, Health facilities, Medicaid, Privacy, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services is confirming as final the interim final rule amending 42 CFR parts 424 and 431 that published on May 5, 2010 (75 FR 24437) with the following changes:
Sec. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh).
(b)
(i) Report its NPI on its Medicare enrollment application.
(ii) If the provider or supplier was in the Medicare program before obtaining an NPI and the provider's or the supplier's NPI is not in the provider's or supplier's Medicare enrollment record, the provider or supplier must update its Medicare enrollment record by submitting its NPI using either of the following:
(A) The applicable paper CMS–855 form.
(B) Internet-based PECOS.
(2) A physician or eligible professional who has validly opted-out of the Medicare program is not required to submit a Medicare enrollment application for any reason, including to order or certify.
(c) * * *
(1) A provider or supplier that is enrolled in Medicare and submits a paper or an electronic claim must include its NPI and the NPI(s) of any other provider(s) or supplier(s) identified on the claim.
(a)
(1)
(i) The ordered covered imaging, clinical laboratory services, and DMEPOS items (excluding home health services described in paragraph (b) of this section, and Part B drugs) must have been ordered by a physician or, when permitted, an eligible professional (as defined in § 424.506(a) of this part).
(ii) The claim from the provider or supplier must contain the legal name and the National Provider Identifier (NPI) of the physician or the eligible professional (as defined in § 424.506(a) of this part) who ordered the item or service.
(iii) The physician or, when permitted, other eligible professional, as defined in § 424.506(a), who ordered the item or service must—
(A) Be identified by his or her legal name;
(B) Be identified by his or her NPI; and
(C)(
(
(iv) If the item or service is ordered by—
(A) An unlicensed resident (as defined in § 413.75), or by a non-enrolled licensed resident (as defined in § 413.75), the claim must identify a teaching physician, who must be enrolled in Medicare in an approved status, as follows:
(
(
(
(B) A licensed resident (as defined in § 413.75), he or she must have a provisional license or be otherwise permitted by State law, where the resident is enrolled in an approved graduate medical education program, to practice or order such items and services, the claim must identify by legal name and NPI the—
(
(
(2)
(i) The physician or, when permitted, other eligible professional (as defined § 424.506(a)) who ordered the item or service must—
(A) Be identified by his or her legal name; and
(B)(
(
(ii) If the item or service is ordered by—
(A) An unlicensed resident (as defined in § 413.75) or a non-enrolled licensed resident, (as defined in § 413.75) the claim must identify a teaching physician, who must be enrolled in Medicare in an approved status as follows:
(
(
(B) A licensed resident (as defined in § 413.75), he or she must have a provisional license or are otherwise permitted by State law, where the resident is enrolled in an approved graduate medical education program, to practice or to order such items and services, the claim must identify by legal name the—
(
(
(b)
(1) The ordering/certifying physician must meet all of the following requirements:
(i) Be identified by his or her legal name.
(ii) Be identified by his or her NPI.
(iii)(A) Be enrolled in Medicare in an approved status; or
(B) Have validly opted-out of the Medicare program.
(2) If the services were ordered/certified by—
(i) An unlicensed resident, as defined in § 413.75, or by a non-enrolled licensed resident, as defined in § 413.75, the claim must identify a teaching physician who must be enrolled in Medicare in an approved status—
(A) As the ordering/certifying supplier;
(B) By his or her legal name; and
(C) By his or her NPI.
(ii) A licensed resident (as defined in § 413.75), he or she must have a provisional license or are otherwise permitted by State law, where the resident is enrolled in an approved graduate medical education program, to practice or to order/certify such items and services, the claim must identify by legal name and NPI the—
(A) Resident, who is enrolled in Medicare in an approved status to order; or
(B) Teaching physician, who is enrolled in Medicare in an approved status.
(c)
(d)
(f) * * *
(1)(i) A provider or a supplier that furnishes covered ordered items of DMEPOS, clinical laboratory, imaging services, or covered ordered/certified home health services is required to—
(A) Maintain documentation (as described in paragraph (f)(1)(ii) of this section) for 7 years from the date of service; and
(B) Upon the request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(1)(ii) of this section).
(ii) The documentation includes written and electronic documents (including the NPI of the physician who ordered/certified the home health services and the NPI of the physician or, when permitted, other eligible professional who ordered items of DMEPOS or clinical laboratory or imaging services) relating to written orders and certifications and requests for payments for items of DMEPOS and clinical laboratory, imaging, and home health services.
(2)(i) A physician who orders/certifies home health services and the physician or, when permitted, other eligible professional who orders items of DMEPOS or clinical laboratory or imaging services is required to—
(A) Maintain documentation (as described in paragraph (f)(2)(ii) of this section) for 7 years from the date of the service; and
(B) Upon request of CMS or a Medicare contractor, to provide access to that documentation (as described in paragraph (f)(2)(ii) of this section).
(ii) The documentation includes written and electronic documents (including the NPI of the physician who ordered/certified the home health services and the NPI of the physician or, when permitted, other eligible professional who ordered the items of DMEPOS or the clinical laboratory or imaging services) relating to written orders or certifications or requests for payments for items of DMEPOS and clinical laboratory, imaging, and home health services.
(Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; Program No. 93.774, Medicare—Supplementary Medical Insurance Program; and Program No. 93.778, Medical Assistance Program)
Commodity Futures Trading Commission.
Final rule and interim final rule.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is issuing a final rule to repeal and replace the Commission's current regulations concerning commodity options. The Commission is also issuing an interim final rule (with a request for additional comment) that incorporates a trade option exemption into the final rules for commodity options (added § 32.3). For a transaction to be within the trade option exemption, the option, the offeror (seller), and the offeree (buyer), as applicable, must satisfy certain eligibility requirements, including that the option, if exercised, be physically settled, that the option seller meet certain eligibility requirements, and that the option buyer be a commercial user of the commodity underlying the option, and certain other regulatory conditions. Only comments pertaining to the interim final rule will be considered in any further action related to these rules.
You may submit comments, identified by RIN number 3038–AD62, by any of the following methods:
•
•
•
•
Please submit your comments using only one method.
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
The CFTC reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
Donald Heitman, Senior Special Counsel, (202) 418–5041,
On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act
Section 721 of the Dodd-Frank Act added new section 1a(47) to the CEA, defining “swap” to include not only “any agreement, contract, or transaction commonly known as,” among other things, “a commodity swap,”
As noted above, because the Dodd-Frank Act definition of swap includes commodity options, the NPRM proposed provisions that would substantially amend the Commission's regulations regarding such commodity option transactions. The proposed rules for commodity options, including proposed amendments to parts 3, 32, and 33, generally included provisions that would have subjected all commodity options that are swaps to the same rules applicable to any other swap. After thoroughly reviewing the comments submitted in response to the NPRM, the Commission has determined to issue the commodity options rules proposed in the NPRM as final rules, with certain non-substantive amendments, including the deletion of a “prompt execution” requirement and other requirements that are no longer relevant, as well as minor formatting updates (
The CEA provides:
No person shall offer to enter into, enter into or confirm the execution of, any transaction involving any commodity regulated under this chapter which is of the character of, or is commonly known to the trade as, an “option”, “privilege”, “indemnity”, “bid”, “offer”, “put”, “call”, “advance guaranty”, or “decline guaranty”, contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe. Any such order, rule, or regulation may be made only after notice and opportunity for hearing, and the Commission may set different terms and conditions for different markets.
As explained in the introduction, the Dodd-Frank Act includes a definition of swap that encompasses commodity options.
Under the NPRM, proposed new part 32 would have governed all commodity options that fall under the Dodd-Frank swap definition
In the NPRM, the Commission requested specific input on the following questions related to the commodity options proposal:
• Generally, will the rule changes and amendments proposed herein provide an appropriate regulatory framework for the transacting of trade options on all commodities?
• Regarding the proposed revisions to part 32, and specifically the revised § 32.4 trade option exemption, will such revisions significantly affect hedging opportunities available to currently active users of the trade options market? In other words, is there any reason not to revise § 32.4 as proposed? In particular, are there persons who offer or purchase trade options on non-enumerated agricultural commodities (
• Regarding the proposed withdrawal of § 32.12 (the dealer option provision) in its entirety, would such action (in conjunction with the adoption of the new rules proposed herein) prejudice or otherwise harm any person, group of persons, or class of transactions? In other words, is there any reason not to withdraw § 32.12 as proposed?
• Similarly, and regarding the proposed withdrawal of § 32.13 (the agricultural trade option provision) in its entirety, would such action (in conjunction with the adoption of the new rules proposed herein) prejudice or otherwise harm any person, group of persons, or class of transactions? In other words, is there any reason not to withdraw § 32.13 as proposed?
• Do the proposals as they relate to part 33 appropriately limit the scope of part 33 to DCM-traded options on futures, leaving DCM-traded options on physical commodities subject to part 32?
• Do the proposals outlined herein omit or fail to appropriately consider any other areas of concern regarding options in any commodity?
Approximately 39 comment letters were submitted that substantively addressed the NPRM,
The commodity options comments generally focused on the following substantive areas as they related to the commodity options proposal in the NPRM.
Multiple commenters expressed the opinion that treating options as swaps, as set forth in the NPRM, was premature and should await the Commission's joint rulemaking with the SEC on the further definition of a swap.
As a threshold matter, the Proposed Rule is premature insofar as it would treat options on physical commodities as swaps before the Commission has even proposed the definition of what constitutes a swap pursuant to Section 712(d) of the Dodd-Frank Act . * * * To avoid inconsistent outcomes and ensure consideration of an integrated and complete record on transactions to be regulated as swaps, the Commission should stay this proceeding insofar as it would define commodity options as swaps.
[T]he Working Group respectfully requests that the Commission stay the instant proceeding until such time that the mandatory final rule further defining the term `swap' set forth in new Section 1a(47) of the [CEA] is jointly issued by the Commission and the [SEC]. Until the full scope and application of the definition of `swap' is known and understood, the Working Group is unable to fully evaluate the potential implications of the Proposed Rule, or comment meaningfully on how the proposed regulation of Physical Options could ultimately affect its members.
Beyond the requests to delay the commodity options final rulemaking, some commenters disagreed with the interpretation that the Dodd-Frank swap definition was intended to include all commodity options. The following comments illustrate this view:
Simply put, a commodity option is not a swap * * * COPE requests that the Commission find that, unlike swaptions, commodity options are not swaps.
The text and structure of the Dodd-Frank Act indicates that Congress only intended to include options that require financial settlement and other financial products in the definition of `swap.'
Physical Options meet the criteria of the so-called `forward contract exclusion' under section 1a(47)(B)(ii) of the CEA and therefore must be excluded from the definition of a `swap' under section 1a(47).
The Energy Working Group acknowledged that the swap definition likely included options, but argued that the Commission should take action to avoid that result:
Although Congress included Physical Options in the definition of `swap,' it also vested the Commission with the statutory authority [referencing CEA section 4c(b)] to regulate options, including Physical Options, in a manner different than swaps. The Working Group's members consider Physical Options as distinct from other `swaps,' and more akin to physically-settled forward contracts, and believe that there are substantive policy reasons to treat these types of transactions in a similar manner. Regulating Physical Options as swaps under Title VII of the Act would have a substantial negative effect on not only the market for such options, but also more broadly on physical energy markets and participants in such markets that rely on physical energy commodities during their normal course of business.
The Energy Working Group letter went on to provide several examples of “transactions that energy market participants do not historically consider options, but nonetheless contain an element of optionality * * * and should not be regulated as swaps.” Their letter described contracts called daily natural gas calls, wholesale full requirements contracts for power, tolling agreements in organized wholesale electricity markets, physical daily heat rate call options, and capacity contracts.
Regarding those comments describing specific transactions, and in particular CMC's comments, the Commission notes that the proposed further definition of swap included a discussion of the applicability of the swap definition to both forwards with embedded options and book-out transactions.
While the commodity options rules proposed in the NPRM would have removed the trade option exemption that is currently at 17 CFR 32.4,
Treating all options, financial and physical, as swaps will result in significant unintended consequences for Hess and other commercial entities that rely on physical options to manage their business risk. Hess does not believe Congress intended such a result. On the contrary, Hess believes that the Dodd-Frank Act defines `swap' in a manner that plainly distinguishes between financial and physical transactions. Accordingly, Hess urges the Commission to regulate options in a similar manner by excluding options that are intended to be physically settled once exercised from the definition of `swap.'
If the Commission proposes rules to discard the `trade option exemption,' it should concurrently replace it with a `trade option exemption for nonfinancial commodities' to the defined term `swap.'
Gavilon urges the Commission to issue an order pursuant to CEA Section 4c(b) that allows commercial entities to enter into Physical Options subject only to conditions that are comparable to the requirements in current Part 32.4.
[R]egulation of Physical Options as `swaps' would cause serious harm to the natural gas and other physical commodity markets, without providing significant benefits * * *. For these reasons, the Commission must recognize, in its final rule, either in the definition of a `swap' or by preserving the trade option exemption, that Physical Options are excluded, or are eligible for exemption, from regulation as swaps.
[I]f the Commission determines to move forward with the [Options NPRM], it must make clear that no physically settled agreements are covered [or] included in any rule pertaining to swaps.
The energy industry commenters expressed concerns regarding the fact that treating commodity options as swaps would require all trade options counterparties to be ECPs—because trade options are typically bilateral, off-exchange transactions, and CEA section 2(e) permits only ECPs to transact swaps other than on or subject to the rules of a DCM. The commenters noted that there are many non-ECP market participants who currently rely on the trade option exemption for option transactions in a wide range of commodities. For example:
If the Commission eliminates the ability of the NFP Electric End Users to engage in energy and energy-related commodity options, or conditions the use of such trade options on the NFP Electric End Users qualifying as eligible contract participants, it will have a significant and detrimental effect on the NFP Electric End Users' ability to hedge their commercial risk in a cost effective way.
The Commodity Options NOPR states that, `based on its review [of the history of the Commission's development of commodity options regulation], the Commission has determined that there would be little practical effect and no detrimental consequences in adopting the proposed revisions to the existing commodity options regime in part 32.' [citing NPRM at 76 FR 6101]. The Coalition disagrees strongly with the Commission's determination * * *. We consider the Commission's Proposed Rule to be highly detrimental to the NFP Electric End Users' ability to provide affordable electric energy to American businesses and consumers.
Since, in general, market participants must meet certain net worth thresholds to qualify as an `eligible contract participant' [footnote omitted] and many Physical Options used by small end users are customized or illiquid and thus not traded on exchanges, the ability of small end users to transact in Physical Options would be limited to on-exchange contracts that do not exist or do not match their needs.
Similarly, the FSR pointed out, in a comment primarily addressing the proposed definition of ECP,
FERC Staff noted that “depending on how broadly the term `swap' is construed, CFTC regulation of swaps could lead to inconsistent regulation of participants and transactions subject to FERC jurisdiction, and in particular the organized electricity markets.” FERC Staff at 1. The energy and electricity commenters also expressed concerns about the jurisdictional overlap. One commenter specifically noted that, “[Physical Options] in the natural gas market are already subject to certain regulatory oversight by [FERC] and state public utility commissions with respect to price, prudence, and manipulation.” NGSA & NCGA at 5.
FIA–ISDA supported the proposed withdrawal of regulation 32.12 (pertaining to the grandfathering of certain dealer options). In particular, FIA–ISDA concurred with the Commission's assertion that “the dealer option business has not existed since the early 1990s” and thus there is no longer a need for this grandfathering provision.
There was only one comment related to eliminating the Agricultural Trade Option (ATO) Merchant provisions in part 32. Specifically, NGFA supported eliminating the provisions, observing:
[NGFA] long has believed that an effective ATO regulatory structure could benefit agricultural producers and the agribusinesses with which they work to develop marketing strategies and market their crops. However, the rules in place have been unwieldy and, consequently, the ATO merchant registration regime has been largely unused * * *. The NGFA believes the redefinition of ATOs as swaps, subject to conditions under Dodd-Frank (notably the Eligible Contract Participant rules), will result in enhanced development and use of products that formerly would have been categorized as agricultural trade options and a broader range of risk management tools.
The proposed rules for commodity options in the NPRM would have retained the existing enforcement provisions in part 32,
As noted above, in the final rule issued herein, the Commission is retaining § 32.9 (“Fraud in connection with commodity option transactions”), which has been renumbered as § 32.4, but not otherwise changed. The Commission is not including the requisite intent standard requested by EEI–EPSA, because it would narrow the scienter standard for fraud established by Commission precedent, which is “intentionally or with reckless disregard.”
After considering the complete record in this matter, including all comments to the NPRM, the Commission is now adopting and issuing this final rule and interim final rule for commodity options. Broadly speaking, the final rule would implement the commodity option rules as proposed in the NPRM, whereby commodity options are permitted subject to the same rules as all other swaps, with additional minor revisions to part 32. In addition, the interim final rule includes a new trade option exemption from certain swaps regulations.
The final rule as it relates to revisions to part 3 and to part 33 of the Commission's regulations is the same as in the NPRM.
The Commission is publishing this final rule in order to provide increased regulatory certainty to market participants transacting commodity options, along with an interim final rule to permit additional public comment on a new trade option exemption. The final rule issued herein generally adopts the commodity options proposal as set forth in the NPRM. That is, under this final rule, commodity options will be permitted to transact subject to the same rules applicable to any other swap. This general authorization is necessary because the Commission's plenary rulemaking authority over commodity options provides that: “[n]o person shall offer to enter into, enter into or confirm the execution of, any transaction involving any commodity regulated under this chapter which is [a commodity option transaction], contrary to any rule, regulation, or order of the Commission prohibiting any such transaction or allowing any such transaction under such terms and conditions as the Commission shall prescribe.”
The remainder of the final rule (
The interim final rule incorporates a new § 32.3 into part 32, providing an exemption from certain swaps regulations for trade options on exempt and agricultural commodities as between certain commercial and sophisticated counterparties. This trade option exemption will operate as an alternative to the general commodity options authorization in § 32.2. Pursuant to the trade option exemption issued as an interim final rule herein, if the offeror,
Under the terms of the interim final rule, the offeror must fall into one of two categories. The offeror may be an ECP, which assures that option grantors will have some minimal level of financial resources and sophistication in order to minimize the risk that a seller would not be able to perform its obligations under a commodity option.
The offeree must meet the same basic requirements as under the existing trade option exemption. That is, the option buyer must be a producer, processor, or commercial user of, or a merchant handling the commodity which is the subject of the commodity option transaction, or the products or by-products thereof, and be entering into the transaction solely for purposes related to its business as such. Note that there is no ECP requirement or other financial eligibility standard for the offeree. The purpose of requiring the trade option buyer to be a commercial, and of not imposing an ECP or other financial eligibility standard, is to ensure that hedging opportunities for commercial entities, for physically delivered transactions used for purposes related to their business as such, remain available regardless of the size or sophistication of the commercial entity.
The third element of the trade option exemption is that both parties must intend that the commodity option be physically settled, so that, if exercised, the option would result in the sale of an exempt or agricultural (
While the trade option exemption issued herein would operate as a general exemption from the rules otherwise applicable to other swaps (
These conditions include a recordkeeping requirement for any trade options activity,
In addition to part 45 recordkeeping (which applies in some form to all trade options and trade option participants), the interim final rule requires certain trade options to be reported pursuant to part 45's reporting provisions. Under the interim final rule, the determination as to whether a trade option is required to be reported pursuant to part 45 is based on the parties to the trade option and whether or not they have previously reported swaps pursuant to part 45. Specifically,
By applying the part 45 reporting requirements to trade options in this manner, the Commission will obtain greater transparency and improved oversight of the swaps markets, both of which are primary statutory objectives of Title VII of the Dodd-Frank Act. The Commission believes, however, that greater transparency regarding the trade options market must be balanced against the burdens of frequent and near-instantaneous reporting required under part 45 of the Commission's regulations on counterparties who are not otherwise obligated to report because they do not have other reportable swap activity. Accordingly, if neither counterparty to a trade option already is complying with the reporting requirements of part 45 as a reporting party in connection with its non-trade option swap trading activities as described above,
To the extent that neither counterparty to a trade option has previously submitted reports to an SDR as a result of its swap trading activities as described above, the Commission recognizes that requiring these entities to report trade options to an SDR under part 45 of the Commission's regulations solely with respect to their trade options activity would be costly and time consuming. As an alternative, the interim final rule requires any counterparty to an otherwise unreported trade option to submit an annual filing to the Commission for the purpose of providing notice that it has entered into one or more unreported trade options in the prior calendar year. Unlike with trade options subject to the part 45 reporting requirement, wherein only one counterparty to the trade option reports the transaction to an SDR, the notice filing requirement applies to both counterparties to an unreported trade option. Because the purpose of the notice filing requirement is to identify to the Commission those market participants engaging in unreported trade options, the notice filing requirement applies whether or not such counterparty has also been a non-reporting counterparty to a reported trade option in the twelve months preceding the date on which the unreported trade option was entered into. Market participants will satisfy the annual notice filing requirement by completing and submitting a new Commission form, Form TO, by March 1 following the end of any calendar year during which the market participant entered into one or more unreported trade options.
Form TO requires an unreported trade option counterparty to: (1) Provide name and contact information, (2) identify the categories of commodities (agricultural metals, energy, or other) underlying one or more unreported trade options which it entered into during the prior calendar year, and (3) for each commodity category, identify the approximate aggregate value of the underlying physical commodities that it either delivered or received in connection with the exercise of unreported trade options during the prior calendar year. For the purposes of item (3), a reporting counterparty should not include the value of commodities that were the subject of trade options that remained open at the end of the calendar year or any trade options that expired unexercised during the prior calendar year.
Pursuant to the interim final rule, Form TO is an annual filing requirement. The form must be submitted to the Commission no later than March 1 for the prior calendar year. For example, if a market participant enters into one or more unreported trade options between January 1, 2013 and December 31, 2013 (as will be discussed in the effective date and compliance date discussion, below, the first calendar year for which a Form TO will be due to the Commission is 2013), the
The Commission is specifically requesting comment on including these part 45 recordkeeping and reporting compliance conditions, and the Form TO filing requirement for counterparties to unreported trade options, in connection with the interim final rule's trade option exemption. For example, what are the trade-offs between (1) reducing or removing the reporting requirement and/or notice filing requirement (and attendant costs) for smaller end-user and commercial entities and (2) the Commission's goals of maintaining market visibility and eliminating incentives or opportunities to avoid regulation? In their comments, market participants should identify alternatives, if any, to the part 45 recordkeeping and reporting requirements and/or the Form TO filing requirement as applicable to trade options participants. Commenters should explain how such alternatives may be able to provide the Commission with the equivalent market information and visibility it would receive pursuant to the part 45 requirements and/or the Form TO filing requirement, as applicable under the interim final rule, while lowering the compliance burden on market participants.
The interim final rule's trade option exemption also includes certain conditions referencing various other swaps rules, which rules shall remain applicable to trade options under this interim final rule. Specifically, the following conditions, as set forth in interim final rule § 32.3(c), would apply to trade options (and trade option participants) to the same extent that such conditions would apply to any other swap (and swap counterparty): (1) Large trader reporting under part 20 (
In addition, § 32.3(c) provides that certain provisions of subpart F and subpart J of part 23, relating to recordkeeping, reporting, and risk management duties of SDs and MSPs would apply to trade options.
Finally, at § 32.3(d), the interim final rule also retains for trade options the antifraud and anti-manipulation rules under part 180,
The trade option exemption also contains general exemptive language that would permit the Commission, upon written request or upon its own motion, to exempt any other person, either unconditionally or on a temporary or other conditional basis, from any provisions of part 32 (other than the antifraud, anti-manipulation, and enforcement rules), or from the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap, if the Commission finds, in its discretion, that it would not be contrary to the public interest to grant such exemption. This supplemental language tracks the general exemptive provision in the existing trade option exemption, and it will provide the Commission with the flexibility to receive and consider any concerns from market participants regarding the scope or implementation of the interim final rule trade option exemption.
The commodity options final rule and interim final rule issued herein shall become effective 60 days after the publication of this document in the
The compliance date for the final rule and the interim final rule shall be 60 days after the term “swap” is further defined pursuant to section 721 of the Dodd-Frank Act (
This document implements regulations addressing the inclusion of commodity options in the Dodd-Frank Act definition of “swap.” Section 721 of the Dodd-Frank Act defines the term “swap” to include an option of any kind that is for the purchase or sale, or based on the value, of one or more commodities. The existing trade option exemption exempts certain trade options from the CEA almost entirely and was enacted pursuant to section 4c(b) of the CEA, which provides the CFTC with plenary authority to issue regulations related to commodity options. Such authority was not amended by the Dodd-Frank Act, and therefore, Congress continues to vest the Commission with plenary authority over commodity options. Prior to the Dodd-Frank Act, CFTC regulations provided for a trade option exemption, permitting the trading of qualifying transactions subject only to antifraud, anti-manipulation, and enforcement rules.
The CFTC nevertheless invites comments on this interim final rule and, when assessing whether to amend the interim final trade option exemption, will consider all timely comments submitted during the public comment period as described in the following section.
In connection with the interim final rule's trade option exemption in § 32.3 adopted herein, the Commission requests comment on the following questions:
1. Generally, does the interim final rule issued herein provide an appropriate regulatory framework for trade options?
2. Regarding the trade option exemption, will such provision preserve appropriate hedging opportunities for current users of the trade options market? Is there any reason not to retain the trade option exemption as issued herein?
a. What types of entities offer trade options pursuant to the existing trade option exemption? Is the scope of the trade option exemption offeror requirement in the interim final rule (
b. Is the scope of the trade option exemption offeree requirement in the interim final rule (
c. Is the list of commercials described in the interim final rule (
d. Is the range of commodity option transactions that would qualify for the trade option exemption appropriate?
i. By requiring that a trade option, when exercised, must result in the immediate (spot) or deferred (forward) shipment or delivery of an exempt or agricultural commodity, would the interim final rule improperly exclude other commodity option transactions, including other transactions with optionality, that should be eligible for a trade option exemption?
ii. In the alternative, is this physical delivery requirement of the trade option exemption too broad?
e. Should the interim final rule retain the general exemptive authority at § 32.3(e)?
f. In connection with § 32.3:
i. Is the requirement to comply with the part 45 recordkeeping rules for all trade option participants appropriate?
ii. Is the requirement that certain trade options be reported pursuant to the reporting provisions of part 45 appropriate?
1. Alternatively, should there be a
2. If the response to the foregoing question is yes, should the
iii. In § 32.3(b)(1)(i), the Commission provides that trade options reporting for commodity options is required for counterparties that have become obligated to comply with the reporting requirements of part 45. The Commission understands that in some circumstances a counterparty that transacts trade options may not, itself, be obligated to report under part 45, but may be affiliated, at the enterprise or group level, with another entity that complies with part 45. There may be circumstances, therefore, where the obligation to report trade options would be more appropriately based on trade options activity and part 45 reporting at the enterprise or group level.
1. How often do cases occur in which a person that is subject to part 45 receives, in the ordinary course of business, transaction-level trade options information from a trade option counterparty affiliate that is not subject to part 45?
2. Should § 32.3(b)(1) be revised to account for such situations and, if so, how?
iv. Is the requirement that counterparties to unreported trade options submit an annual notice filing, via Form TO, for the purpose of notifying the Commission that such counterparty entered into one or more unreported trade in the prior calendar year appropriate?
1. Alternatively, should these trade options be reported pursuant to part 45, notwithstanding that these counterparties do not otherwise comply with those requirements in connection with their swap trading activities? What would be the costs and benefits of this alternative condition? Please provide data and estimates to support your comments.
2. Should Form TO be required to be submitted more often (
v. Is the swaps large trader reporting condition (part 20) appropriate for the trade option exemption?
vi. Is the position limit condition (part 151) appropriate for the trade option exemption?
vii. Are the SD and MSP recordkeeping, reporting, and risk management conditions, as applied via part 23, appropriate for SDs and MSPs transacting under the trade option exemption?
viii. Is the condition retaining the applicability of CEA section 4s(e) (Capital and Margin Requirements for SDs and MSPs) appropriate?
ix. Are the antifraud, anti-manipulation, and enforcement related conditions appropriate for the trade option exemption?
x. Since trade options have to be physically delivered and may only be offered to commercials for use in their business as such, does it makes sense to exclude trade options from the calculation of whether or not a market participant is required to register as an SD or MSP? Alternatively, is there any reason to include trade options in the calculation of whether or not a market participant is required to register as an SD or MSP?
3. Does the interim final rule issued herein omit or fail to appropriately consider any other areas of concern regarding commodity options?
4. The Commission also invites comments on the costs and benefits considerations of the interim final rule under CEA section 15a, below. The Commission specifically requests that commenters quantify the costs and benefits, where practical.
Comments on these questions and the interim final rule must be submitted to the Commission, pursuant to the instructions provided above, on or before June 26, 2012.
Prior to the passage of the Dodd-Frank Act, the Commission's regulations permitted certain commodity option transactions, including “trade options.” As described above and in the NPRM, trade options are used by commercial entities entering into the commodity option transactions solely for purposes related to their business involving the commodity.
Under the pre-Dodd-Frank regulatory construct, neither the buyer nor the seller of a commodity trade option were required to register with the Commission, maintain books and records, or report their transactions to the Commission in connection with their trade options activity. As a result, the current trade option market is opaque, affording virtually no regulatory visibility into its composition and scope.
Congress altered the foundation for this regulatory construct in passing the Dodd-Frank Act, by, among other things, determining that the definition of “swap” would include, among other products, commodity options. Section 721 of the Dodd-Frank Act added section 1a(47) to the CEA, defining “swap” to include not only “any agreement, contract, or transaction commonly known as,” among other things, “a commodity swap,” but also “[an] option of any kind that is for the purchase or sale, or based on the value, of 1 or more * * * commodities * * *.”
This legislative act implicitly required the Commission to revisit its historical treatment of commodity options, including trade options. In so doing, the Commission is mindful that one of the purposes of the Dodd-Frank Act is to increase transparency of the financial markets, including the commodity options markets.
In response to the Dodd-Frank Act's definition of “swap” to include options, on February 3, 2011, the Commission published in the
Comments to the NPRM from the Energy Working Group typified commenters' concern that treating options on physical commodities like
Treating Physical Options transacted in such markets as “swaps” would create uncertainty and impose costly and duplicative regulatory requirements.
[T]he Working Group sees no reason the Commission should not continue to treat Physical Options entered into by a commercial entity as commercial transactions exempt from the majority of the provisions of the CEA.
And in specific response to the NPRM's removal of the trade option exemption provided for in pre-Dodd-Frank § 32.4 of the Commission's regulations, commenters urged the Commission to reconsider, as exemplified by the following comments from APGA and EEI–EPSA, respectively:
Although the Commission concludes that removal of the trade option exemption will have limited impact on market participants because of the swap end-user exemption, the regulatory requirements which would apply if these cash contracts are treated as though they are options would be enormous. First, characterizing these contracts as options would require compliance with all of the swap rules, including possibly requiring a natural gas producer whose only business is selling the physical product to register as a swap dealer.
Regulations that make effective risk management tools and physical supply more costly for end-users of swaps and commodity options will result in higher and more volatile energy prices for retail, commercial, and industrial customers.
The Commission also received specific comments requesting a trade option exemption for options that, if exercised, result in physical delivery.
In this final rulemaking, the Commission is repealing and replacing the Commission's regulations concerning commodity options. Upon consideration of the comments to the NPRM, the Commission also is adopting an interim final rule that incorporates an exemption for “trade options.”
In the discussion that follows, the Commission considers the costs and benefits of, and alternatives to, amending the regulations applicable to commodity options, including the trade option exemption that makes up the interim final rule, § 32.3; this interim final rule, the § 32.3 trade option exemption, will operate as an alternative to the general commodity options authorization in § 32.2. The Commission considers these costs and benefits of its actions in the discussion that follows.
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of the following five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its own discretionary determinations with respect to the section 15(a) factors.
The costs and benefits associated with the inclusion of commodity options in the definition of swap in the Dodd-Frank Act are attributable to Congress, and therefore beyond the scope of the consideration of costs and benefits required by CEA section 15(a). The Commission considers the costs and benefits attributable to its actions in this rulemaking against the basic framework provided by the statute—in which options are swaps subject to all of the requirements attendant to that definition under the Dodd-Frank Act and the CEA (as amended by Dodd-Frank Act).
In proposing the rules, the Commission requested comment on all aspects of its cost benefit analysis, including the identification and assessment of any costs and benefits not discussed in our analysis, and data relevant to these costs and benefits. Several commenters provided comments on the costs and benefits of the proposal in qualitative terms, but none provided data from which to quantify costs and benefits.
The opacity with which trade options historically have been transacted affords the Commission no meaningful visibility with respect to the composition and scope of trade option activities necessary to quantify costs and benefits of this rulemaking. The lack of quantification in comments reinforces this conclusion and further demonstrates that there is no reasoned basis for determining how many commercials engage in commodity options or, more specifically, trade options. In other words, there is no reliable information from which to assess the number of commercials that transact in commodity options today, or will do so in the future. There is also no way determine the number or type of entities that would choose to avail themselves of the trade option exemption that is the subject of this interim final rule. Notwithstanding these limitations, based on the comments received, it is apparent that commercials place great importance on the continued availability of a trade option exemption.
The purpose and primary benefit of the final rule is to align the Commission's general commodity options provisions in part 32 with the Dodd-Frank swaps regime by providing, in general, that commodity options that are swaps (
The Commission does not believe there are significant, if any, costs associated with the final rule relative to the requirements imposed by statute.
Under the CEA, as amended by the Dodd-Frank Act, the Commission is under no statutory obligation to issue an exemption for trade options. In fact, a plain reading of section 721 of the Dodd-Frank Act makes clear that all commodity options are swaps, without any special treatment of trade options. However, in light of the comments received, the Commission believes that retaining a trade option exemption is in the public interest.
The purpose and primary benefit of the interim final rule is that it preserves a means for hedging by commercial market participants through physically delivered options, albeit with important conditions and modifications from the existing trade option exemption. More specifically, the interim final rule provides a benefit (relative to the statutory requirements) in the form of a cost-saving exemption from certain swaps regulations for trade options on exempt and agricultural commodities as between certain commercial and financially-sophisticated counterparties. Additionally, the interim final rule benefits market participants that meet the conditions of the trade option exemption by eliminating the costs and inefficiencies that could result if the Commission were to pursue the alternative of requiring entity- or product-specific requests for exemptive orders.
Although we consider certain costs that may result from the interim final rule, and make comparisons to various alternatives, the Commission does not believe that the interim final rule will impose mandatory costs on any entity because the rule is exemptive, rather than prescriptive, and entities are not required to rely on it. Therefore, the Commission assumes that an entity will rely on the exemption only if the anticipated benefits warrant the costs attendant to the conditions the Commission is attaching to the exemption. Notwithstanding this assumption, the conditions on the trade option exemption may impose some costs on entities that choose to rely on it.
The interim final rule conditions the ability to transact trade options under the exemption on the following: offerors must be ECPs or commercials; offerees must be commercials; and the trade option, if exercised, must result in physical delivery.
Under the interim final rule, those relying on the trade option exemption must comply with certain regulatory requirements, including: Recordkeeping and reporting; position limits; and large trader reporting. While the conditions applicable to entities availing themselves of the trade option exemption—for example, compliance with position limits and large trader reporting, and subjection to the various enforcement provisions
The costs attributable to the Commission's exercise of discretion in this rulemaking—and that have not been considered in other rulemakings—are those generated by the reporting and recordkeeping requirements imposed upon commercials transacting in trade options but not otherwise reporting their transactions. This action should reduce costs relative to the basic statutory requirements (with no further action by the Commission) which would have subjected all trade options to the full array of regulatory requirements for swaps, including but not limited to part 45. However, the Commission requests information and estimates about the costs and benefits to market participants and the public that would result from requiring market participants to report on their trade options at two levels: (1) the enterprise or group level (as described in section VI, question 2(f)(iii), above), and (2) the person level as is provided for in the interim final rule at § 32.3(b)(1)(i).
The range of alternative conditions available to the Commission with respect to who may transact trade options is wide—that is, the Commission could have decided that anyone or no one could be an offeror or offeree. Either of these extremes, however, would render almost meaningless either the exemption (if no one could be an offeror or an offeree) or the option element of the swap definition (if anyone could be an offeror or an offeree). Therefore, in striving to achieve the optimal balance of allowing those with a commercial need to hedge the price risk of a physical commodity while ensuring that there are enough market participants to provide the necessary liquidity to hedge that risk, the Commission determined to allow ECPs and non-ECP commercials to be offerors. On the offeror side, excluding commercial non-ECPs would have limited hedging opportunities available to non-ECPs who are active users of trade options as both buyers and sellers,
Similarly, the Commission could have elected to make the exemption available for trade options that, if exercised, result in either physical or financial settlement of the option. The Commission limited the condition to physical settlement out of a concern that if it allowed financial settlement, parties could evade the requirements otherwise applicable to swaps by merely labeling their transaction a trade option even though it was unrelated to their business as a commercial. The Commission notes, as did commenters, that the trade option exemption is rooted in a need by commercials to hedge the price risk of physical commodities, including but not limited to agricultural and energy commodities. Permitting financially-settled trade options would make this market, which is used for making or taking delivery of physical commodities needed for a commercial function, indistinguishable from the financial world of swaps and futures. In addition, and as noted above, commenters focused on the need for a trade option exemption specifically for physically delivered options. The Commission did not receive similar comments regarding financially settled transactions.
The Commission also had a range of alternatives with respect to regulatory requirements applicable to trade option transactions. For commercials, the Commission considered alternatives, ranging from requiring full compliance with part 45 to no requirements in light of its special call authority to request and obtain information. Given that one of the purposes of the Dodd-Frank Act is to increase market transparency and regulatory visibility into OTC markets, however, the Commission does not believe an exemption with no attendant recordkeeping or reporting requirements for commercials is a reasonable alternative.
The Commission believes that the recordkeeping requirement in the interim final rule may result in additional costs for commercials that currently do not maintain the now-required records. However, the Commission believes that most, if not all, commercials already retain the basic business records required by the new rule as a matter of good business practice. With respect to reporting, the Commission believes the form prescribed by the Commission for annual reports will entail some administrative and legal costs for such commercials.
Additionally, because the Commission believes that a distinction between agricultural commodities and other physical commodities is unwarranted, it is permitting agricultural trade options to rely on the revised general trade option exemption. The Commission declined to adopt the alternative that would have maintained this historically distinct treatment of trade options on agricultural commodities because, as commenter NGFA stated, the distinction was unwieldy and, consequently, the agricultural trade option (ATO) regime was largely unused.
As noted above, in this final rule and interim final rule, the Commission considers the costs and benefits that result from the regulations issued herein.
The interim final rule trade option exemption will further the protection of market participants and the public by ensuring that trade options continue to be authorized, subject to recordkeeping and reporting requirements, large trader reporting and position limit requirements, certain SD/MSP rules, and explicit antifraud, anti-manipulation, and enforcement protections. These requirements will provide the Commission and the public with increased visibility into this marketplace and will protect market participants from fraudulent conduct by others. In the same way, the final rule permits commodity options, generally, subject to the rules and protections applicable to every other swap pursuant to the Dodd-Frank Act (and its related rulemakings).
The trade option exemption provides an important hedging and risk management tool for commercial market participants, while also providing the Commission with vital visibility tools (
The trade options marketplace will continue to augment the exchange-traded financial markets in serving their price discovery function for a subject commodity. The Commission notes that there will be less price discovery for those trade options that are not otherwise required to meet the part 45 reporting requirements. Nevertheless, the Commission believes that the conditions discussed above should allow the trade options market to continue functioning in a manner that provides enough visibility to regulators. In addition, the Commission would have the authority to request and obtain additional information from trade option counterparties under its special call authority.
The comments received on the NPRM (discussed above) highlighted trade options as a fundamental risk management tool for commercial users of many physical commodities. By issuing the interim final rule trade option exemption, the Commission is facilitating the use of trade options by these commercial market participants in conjunction with the general Dodd-Frank swaps regime. Specifically, when exchange-traded products do not provide the appropriate coverage or scope in connection with a hedging need for a commercial market operation, the trade option exemption will allow for agreements to be tailored by the parties on a transaction-by-transaction basis in order to meet the physical delivery needs of a commodity for a given commercial purpose. As noted above, the final rule provides an equally important component of the derivatives market (and a tool for risk management) by retaining a general authority for commodity options that are not trade options.
The Commission believes that providing the revised trade option exemption, in conjunction with the general authorization for all commodity options, is consistent with the public interest (particularly as demonstrated by the commenters) in providing effective and efficient risk management tools to commercial market participants, as well as in providing a strong legal framework for the trade options and general options market. The Commission acknowledges that the revised trade option exemption will remove those swaps that fall within it from certain aspects of the Dodd-Frank regime to which they otherwise would be subject. Nevertheless, based on its historical experience regulating commodity options, and the proven past utility of a trade option exemption for physical delivery options used by commercial parties, the Commission believes that exercise of its CEA section 4c(b) plenary authority to exempt trade options in the interim final rule is appropriate and benefits the public interest. In addition, the recordkeeping and reporting requirements, as well as the other conditions discussed above, should allow the trade options market to continue functioning in a manner that provides sufficient visibility to regulators.
After considering the section 15(a) factors, the Commission has determined to issue part 32 and the amendments to part 33 as described herein. The Commission invites public comment on its cost-benefit considerations in connection with the interim final rule trade option exemption. Commenters are encouraged to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the interim final rule trade option exemption with their comment letters. In addition, the Commission seeks comment on whether the offeror requirement imposes any additional costs, particularly when compared with the general Dodd-Frank swaps regime, which does not otherwise provide for the trade option classification, and whether limiting the trade option exemption to physically delivered contracts (and requiring all other commodity options to transact under the general swaps rules) imposes any significant or unreasonable cost on market participants.
The Regulatory Flexibility Act (“RFA”) requires that agencies consider whether the rules they issue will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.
The Commission has previously determined that DCMs, DCOs, FCMs, CPOs, large traders, ECPs, and eligible swap participants (“ESPs”) are not small entities for purposes of the Regulatory Flexibility Act.
The Commission received one comment from the Power Coalition asserting that certain of its member entities may both be ECPs under the CEA and small businesses under the RFA. These members, as the Commission understands, have been determined to be small entities by the Small Business Administration (“SBA”) because they are “primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and [their] total electric output for the preceding fiscal year did not exceed 4 million megawatt hours.”
SDs, MSPs, SEFs, and SDRs are new categories of registrant under the Dodd-Frank Act. Pursuant to various Dodd-Frank rulemakings, the Commission has determined that SDs, MSPs, SEFs, and SDRs are not “small entities” for purposes of the RFA.
Under the current part 33, there is no regulatory financial threshold that must be met in order to engage in options on underlying commodities on a DCM, so small entities would be eligible to engage in such transactions. In fact, there is no regulatory financial threshold that must be met in order to engage in any type of transaction on a DCM. As noted above, new CEA section 1a(47) provides that options, other than options on futures, are swaps. New CEA section 2(e) provides that non-ECPs may enter into swaps, if the swaps are entered into on a DCM. Therefore, even though an option on an underlying commodity is defined to be a swap under the Dodd-Frank Act, small entities will continue to be eligible to enter into such options on a DCM under the rules issued herein, just as they are eligible to enter into such options on a DCM under the current part 33. Thus, the final and interim final rules will have no effect on the eligibility of small entities to enter into an option on an underlying commodity on a DCM. Accordingly, the Chairman, on behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that the final and interim final rules will not have a significant economic impact on a substantial number of small entities with respect to entities eligible to engage in options on underlying commodities on DCMs under part 33.
The Commission addressed the question of whether entities engaged in agricultural trade options under § 32.13(g) are, in fact, “small entities” for purposes of the RFA in the NPRM. In the NPRM, the Commission determined that entities engaged in options under § 32.13(g) were not small entities.
For purposes of the RFA in this rulemaking, the Commission is hereby determining that entities engaged in options under § 32.13(g) are not considered to be “small entities” for essentially the same reasons that ECPs have previously been determined not to be small entities. Accordingly, the Chairman, on behalf of the Commission, hereby certifies pursuant to 5 U.S.C. 605(b) that the final and interim final rules, with respect to entities engaged in options under § 32.13(g), will not have a significant impact on a substantial number of small entities.
In the NPRM, the Commission initially addressed the question of whether entities engaged in trade options under the existing trade options rule are, in fact, “small entities” for purposes of the RFA.
Because there is no net worth requirement in the existing trade option rule, thus allowing commercial entities of any economic status to enter into trade option transactions, the Commission is not in a position to determine whether entities engaged in options under the existing trade option rule include a substantial number of small entities on which the rule would have a significant economic impact. Therefore, the Commission provided an initial regulatory flexibility analysis in the NPRM addressing the proposed withdrawal of the existing trade option exemption on small entities. In the NPRM, the Commission identified the small entities that would be affected by the proposed withdrawal as any commercial small entity that would be smaller than an ECP and additionally would have annual receipts of less than $750,000.
As referenced above, the Commission received a comment from the Power Coalition that may indicate that certain of their members, in particular entities that are “primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and [their] total electric output for the preceding fiscal year did not exceed 4 million megawatt hours,” have been determined by the SBA to be small entities. Such entities may enter into option transactions, though the Commission does not have sufficient information to determine that any such entities would constitute a substantial number of small entities for purposes of the RFA.
Moreover, for those entities that may enter into option transactions that would be ECPs with annual receipts greater than $750,000, but that also may be small entities as determined by SBA, it was not indicated in comments to the initial regulatory flexibility analysis that the effect of the proposed rulemaking would be any greater for these entities than for the smaller entities the Commission identified in the initial analysis. Indeed, on a relative basis, the larger the entity, the less of an effect the rulemaking should have. Critically, unlike a non-ECP, which will be unable to engage in option transactions except
Therefore, the Commission offers, pursuant to 5 U.S.C. 604, the following final regulatory flexibility analysis:
• A description of the reasons why action by the agency is being considered.
The Commission is taking this regulatory action to withdraw the existing trade option exemption because the Dodd-Frank Act has defined the term “swap” to include options. This new definition renders the existing trade option exemption obsolete in its current form. Responding to comments received on its NPRM, a revised trade option exemption is being issued as interim final rule § 32.3.
• A succinct statement of the objectives of, and legal basis for, the rule.
The objective for issuing interim final rule § 32.3, is to make the Commission's regulations comport with the CEA as revised by the Dodd-Frank Act. As stated previously, the legal basis for the rule is the CEA definition of swap, section 1a(47)(A)(i), and the Commission's plenary options authority, CEA section 4c(b).
• A description of and, where feasible, an estimate of the number of small entities to which the rule will apply.
The small entities to which the withdrawal of the trade option exemption and issuance of the final rule may apply are those commercial small entities that would be smaller than an ECP and additionally would have annual receipts of less than $750,000, or those commercial entities that would be an ECP with annual receipts of greater than $750,000 but that have been determined by SBA to be a small entity by virtue of the level of total electric output for the preceding fiscal year or equivalent metrics that would result in the entity being a small entity under the RFA.
• A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.
The withdrawal of the existing trade option exemption does not impose any reporting, recordkeeping, or other compliance requirements. However, because the Dodd-Frank Act provides that options are swaps, the swaps rules being promulgated under the Dodd-Frank Act in other rulemakings will contain reporting, recordkeeping, and other compliance requirements. In addition, the interim final rule trade option exemption at § 32.3, issued herein, includes certain compliance obligations. However, those conditions do not impose any significant burden or requirement on a small entity that has not been or will not be imposed through another rulemaking, for which the Commission has, in its discretion, addressed RFA compliance separately,
For example, the large trader reporting condition references part 20, and would only fall on part 20 reporting entities, SDs and clearing members, and not on any small entity. The position limits condition would only apply part 151 position limits to the same extent they would apply to any other swap transaction entered into by the small entity. The SD/MSP rules from part 23 only apply to SDs and MSPs and not to any small entity. The antifraud and anti-manipulation condition has and will always apply to every entity transacting under the Commission's jurisdiction. In addition, the part 45 recordkeeping and reporting requirements in the trade option exemption generally only require recordkeeping and reporting to the same extent that such rules apply to any other swap, which the Commission has determined does not constitute a significant new burden as applied in the context of this rulemaking.
The new Form TO annual notice filing requirement further mitigates the burden of the reporting requirement for counterparties who only engage in unreported trade options. The form is necessary to give the Commission at least a general overview, for market surveillance purposes, of the counterparties engaging in otherwise unreported trade options, and the types and approximate value of the commodities involved in such options. The form also provides contact information in case Commission surveillance staff needs to contact trade option counterparties to seek more detailed information regarding market events. While Form TO is a new form, and thus a new requirement for those required to file, it is a single annual filing, seeking very general and easily accessible information. The alternative to using form TO would be to apply the full part 45 reporting regulations.
• An identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the rule.
Small entities that do not qualify as ECPs will be unable to engage in options transactions except on a DCM under an existing regulatory scheme, or if commercials, pursuant to the new trade option exemption in interim final rule § 32.3. The trade option exemption at interim final rule § 32.3 may be relied upon by a non-ECP that is a producer, processor, or commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof, and that is offering or entering into the commodity option transaction solely for purposes related to its business as such. This provision will continue to permit many transactions that currently transact pursuant to the existing trade option exemption. The primary significant new requirement for trade options participants is the application of the recordkeeping and reporting requirement of part 45 (as well as the other trade option conditions, discussed above), and/or the Form TO notice filing requirement. Accordingly, there will be no rules applicable to the small entities, under the interim final rule trade option exemption, that duplicate, overlap, or conflict with any other Federal rules.
• Description of any significant alternatives to the rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the rule on small entities.
These may include, for example: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and
A potential alternative to limiting trade options under the existing trade option exemption to the requirements under interim final rule § 32.3 (
The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
As noted above, the interim final rule imposes a new Form TO annual notice filing requirement on counterparties to unreported trade options, which requirement is considered to be a collection of information within the meaning of the PRA. The Commission therefore is required to submit to OMB an information collection request for review and approval in accordance with 44 U.S.C. 3506(c)(2)(A) and 5 CFR 1320.8(d). The Commission will, by separate action, publish in the
The Commission specifically invites public comment on the accuracy of its estimate that no additional information collection requirements or changes to existing collection requirements, other than Form TO, would result from the interim final rule trade option exemption issued herein.
Administrative practice and procedure, Brokers, Commodity futures, Reporting and recordkeeping requirements.
Commodity futures, Consumer protection, Fraud, Reporting and recordkeeping requirements.
Commodity futures, Consumer protection, Fraud, Reporting and recordkeeping requirements.
In consideration of the foregoing and pursuant to the authority contained in the Act, as indicated herein, the Commission hereby amends chapter I of title 17 of the Code of Federal Regulations as follows:
5 U.S.C. 522, 522b; 7 U.S.C. 1a, 2, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, and 23, as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376 (July 21, 2010).
7 U.S.C. 1a, 2, 6c, and 12a, unless otherwise noted.
The provisions of this part shall apply to all commodity option transactions, except for commodity option transactions on a contract of sale of a commodity for future delivery conducted or executed on or subject to the rules of either a designated contract market or a foreign board of trade.
Subject to §§ 32.1, 32.4, and 32.5, which shall in any event apply to all commodity option transactions, it shall be unlawful for any person or group of persons to offer to enter into, enter into, confirm the execution of, maintain a position in, or otherwise conduct activity related to any transaction in interstate commerce that is a commodity option transaction, unless:
(a) Such transaction is conducted in compliance with and subject to the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap, or
(b) Such transaction is conducted pursuant to § 32.3.
(a) Subject to paragraphs (b), (c), and (d) of this section, the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap shall not apply to, and any person or group of persons may offer to enter into, enter into, confirm the execution of, maintain a position in, or otherwise conduct activity related to, any transaction in interstate commerce that is a commodity option transaction,
(1) Such commodity option transaction must be offered by a person that has a reasonable basis to believe that the transaction is offered to an offeree as described in paragraph (a)(2) of this section. In addition, the offeror must be either:
(i) An eligible contract participant, as defined in section 1a(18) of the Act, as further jointly defined or interpreted by the Commission and the Securities and Exchange Commission or expanded by the Commission pursuant to section 1a(18)(C) of the Act; or
(ii) A producer, processor, or commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof, and such offeror is offering or entering into the commodity option transaction solely for purposes related to its business as such;
(2) The offeree must be a producer, processor, or commercial user of, or a merchant handling the commodity that is the subject of the commodity option transaction, or the products or by-products thereof, and such offeree is offered or entering into the commodity option transaction solely for purposes related to its business as such; and
(3) The commodity option must be intended to be physically settled, so that, if exercised, the option would result in the sale of an exempt or agricultural commodity for immediate or deferred shipment or delivery.
(b) In connection with any commodity option transaction entered into pursuant to paragraph (a) of this section, every counterparty shall comply with the swap data recordkeeping requirements of part 45 of this chapter, as otherwise applicable to any swap transaction, and shall:
(1) Comply with the swap data reporting requirements of part 45 of this chapter to the extent that the commodity option involves at least one counterparty (whether as offeror or offeree) that has—
(i) Become obligated to comply with the reporting requirements of part 45,
(ii) As a reporting party,
(iii) During the twelve month period preceding the date on which the trade option is entered into,
(iv) In connection with any non-trade option swap trading activity; or
(2) For any counterparty that enters into one or more commodity options pursuant to § 32.3(a) in a calendar year that do not involve a counterparty described in paragraph (b)(1) of this section, file with the Commission by March 1 of the following year an “Annual Notice Filing for Counterparties to Unreported Trade Options” on Form TO, as set forth in Appendix A to this part, to be completed and submitted in accordance with the instructions thereto and as further directed by the Commission.
(c) In connection with any commodity option transaction entered into pursuant to paragraph (a) of this section, the following provisions shall apply to every trade option counterparty to the same extent that such provisions would apply to such person in connection with any other swap:
(1) Part 20 (Swaps Large Trader Reporting) of this chapter;
(2) Part 151 (Position Limits) of this chapter;
(3) Subpart J of part 23 (Duties of Swap Dealers and Major Swap Participants) of this chapter;
(4) Sections 23.200, 23.201, 23.203, and 23.204 of subpart F of part 23 (Reporting and Recordkeeping Requirements for Swap Dealers and Major Swap Participants) of this chapter; and
(5) Section 4s(e) of the Act (Capital and Margin Requirements for Swap Dealers and Major Swap Participants).
(d) In addition, any person or group of persons offering to enter into, entering into, confirming the execution of, maintaining a position in, or otherwise conducting activity related to a commodity option transaction in interstate commerce pursuant to paragraph (a) of this section shall remain subject to part 180 (Prohibition
(e) The Commission may, by order, upon written request or upon its own motion, exempt any person, either unconditionally or on a temporary or other conditional basis, from any provisions of this part, and the provisions of the Act, including any Commission rule, regulation, or order thereunder, otherwise applicable to any other swap, other than § 32.4, part 180 (Prohibition Against Manipulation), and § 23.410 (Prohibition on Fraud, Manipulation, and other Abusive Practices) of this chapter, and the antifraud, anti-manipulation, and enforcement provisions of CEA sections 2, 4b, 4c, 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6, 6c, 6d, 9, 13, if it finds, in its discretion, that it would not be contrary to the public interest to grant such exemption.
In or in connection with an offer to enter into, the entry into, or the confirmation of the execution of, any commodity option transaction, it shall be unlawful for any person directly or indirectly:
(a) To cheat or defraud or attempt to cheat or defraud any other person;
(b) To make or cause to be made to any other person any false report or statement thereof or cause to be entered for any person any false record thereof; or
(c) To deceive or attempt to deceive any other person by any means whatsoever.
Nothing contained in this part shall be construed to affect any lawful activities that occurred prior to the effective date of this part.
7 U.S.C. 1a, 2, 4, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o, 7, 7a, 7b, 8, 9, 11, 12a, 12c, 13a, 13a–1, 13b, 19, and 21, otherwise noted.
(b) The provisions of this part apply to commodity option transactions that are options on contracts of sale of a commodity for future delivery except for commodity option transactions that are options on contracts of sale of a commodity for future delivery conducted or executed on or subject to the rules of a foreign board of trade.
The revisions read as follows:
(b) * * *
(1) * * *
The grantor of a put option on a futures contract who has a short position in the underlying futures contract is subject to the full risk of a rise in the price in the underlying position reduced by the premium received for granting the put. In exchange for the premium received for granting a put option on a futures contract, the option grantor gives up all of the potential gain resulting from a decrease in the price of the underlying futures contract below the option strike price upon exercise or expiration of the option.
(5) * * *
Also, an option customer should be aware of the risk that the futures price prevailing at the opening of the next trading day may be substantially different from the futures price which prevailed when the option was exercised.
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Gensler and Commissioners Sommers, Chilton, O'Malia, and Wetjen voted in the affirmative; no commissioner voted in the negative.
I support the final rules on Commodity Options. The Dodd-Frank Wall Street Reform and Consumer Protection Act includes commodity options within the statutory definition of “swap.” The final rule confirms that the same rules apply to commodity options as are applicable to other swaps, just as the law directs. In addition, the Commodity Futures Trading Commission will consider and seek comment on an interim final rule to provide a trade option exemption for certain commodity options that are physically delivered.
We received a lot of feedback from commercial market participants that commodity options used by commercial entities to deliver or receive physical commodities in connection with their business don't need the same level of oversight as swaps. However, trade options will still be subject to position limits, appropriate reporting and recordkeeping requirements, and anti-fraud and anti-manipulation rules. The Commission is seeking additional comments on the trade option exemption, but the interim final rule makes the relief immediate.