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U.S. Office of Personnel Management.
Final rule.
On behalf of the President's Pay Agent, the Office of Personnel Management is issuing final regulations tying the metropolitan area portion of locality pay area boundaries to the geographic scope of Metropolitan Statistical Area and Combined Statistical Area definitions that are contained in the attachments to Office of Management and Budget Bulletin 10-02 of December 1, 2009.
Allan Hearne, (202) 606-2838; FAX: (202) 606-0824; email:
On November 26, 2012, the Office of Personnel Management (OPM) published proposed regulations (77 FR 70381) on General Schedule locality pay areas. Section 5304 of title 5, United States Code, authorizes locality pay for General Schedule (GS) employees with duty stations in the United States and its territories and possessions.
Section 5304(f) of title 5, United States Code, authorizes the President's Pay Agent (the Secretary of Labor, the Director of the Office of Management and Budget (OMB), and the Director of OPM) to determine locality pay areas. The boundaries of locality pay areas must be based on appropriate factors, which may include local labor market patterns, commuting patterns, and the practices of other employers. The Pay Agent must give thorough consideration to the views and recommendations of the Federal Salary Council, a body composed of experts in the fields of labor relations and pay policy and representatives of Federal employee organizations. The President appoints the members of the Council, which submits annual recommendations to the Pay Agent about the locality pay program. The establishment or modification of pay area boundaries must conform with the notice and comment provisions of the Administrative Procedure Act (5 U.S.C. 553). Based on recommendations of the Council, we use Metropolitan Statistical Areas (MSAs) and Combined Statistical Areas (CSAs) as the basis for locality pay areas.
OMB periodically updates metropolitan area definitions and may make significant changes in 2013. Under the current regulations, locality pay areas change automatically to follow minor revisions in MSAs and CSAs. Since OMB plans a significant update of MSA and CSA definitions in 2013, we are revising the regulations so that locality pay areas will not change automatically when OMB revises metropolitan area definitions. This action provides time for the Pay Agent and the Federal Salary Council to review the new metropolitan area definitions for suitability for use in the locality pay program. After appropriate review, the Pay Agent will publish for comment any proposed changes in locality pay areas based on the new definitions, if they are adopted.
The 45-day comment period for the proposed regulations ended on January 10, 2013. We received one comment on the proposed regulations that was not related to the subject of tying locality pay areas to the 2009 definitions of metropolitan areas. Therefore, we are adopting the proposed rule as final without any changes.
The rule has no effect on existing locality pay area definitions but prevents any changes that would otherwise occur when OMB updates MSA and CSA definitions in 2013.
The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and E.O. 12866.
I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees.
Government employees, Law enforcement officers, Wages.
Accordingly, OPM is amending 5 CFR part 531 as follows:
5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, 3 CFR, 1991 Comp., p. 316; Subpart B also issued under 5 U.S.C. 5303(g), 5305, 5333, 5334(a) and (b), and 7701(b)(2); Subpart D also issued under 5 U.S.C. 5335 and 7701(b)(2); Subpart E also issued under 5 U.S.C. 5336; Subpart F also issued under 5 U.S.C. 5304, 5305, and 5941(a), E.O. 12883, 58 FR 63281, 3 CFR, 1993 Comp., p. 682 and E.O. 13106, 63 FR 68151, 3 CFR, 1998 Comp., p. 224.
(d) In the event of a change in the geographic coverage of a locality pay area, the effective date of any change in an employee's entitlement to a locality rate of pay under this subpart is the first
National Aeronautics and Space Administration.
Direct final rule.
This direct final rule makes nonsubstantive changes to align with and implement the provisions of Executive Order (E.O.) 13526, Classified National Security Information, and appropriately to correspond with NASA's internal requirements, NPR 1600.2, Classified National Security Information, that establishes the Agency's requirements for the proper implementation and management of a uniform system for classifying, accounting, safeguarding, and declassifying national security information generated by or in the possession of NASA. The revisions to these rules are part of NASA's retrospective plan under E.O. 13563 completed in August 2011. NASA's full plan can be accessed on the Agency's open Government Web site at
This direct final rule is effective on March 25, 2013. Comments due on or before February 25, 2013. If adverse comments are received, NASA will publish a timely withdrawal of the rule in the
Comments must be identified with RINs 2700-AD61 and may be sent to NASA via the
Steve Peyton, 202-358-0191,
In accordance with E.O. 13526, Classified National Security Information, 32 CFR part 2001, Information Security Oversight Office (ISOO) Classified National Security Information Final Rule Implementing Directive, E.O. 12968, Access to Classified Information, E.O. 13549, Classified National Security Information Programs for State, Local, Tribal and Private Sector Entities, E.O. 12829, National Industrial Security Program, and 51 U. S. C., 20132 and 20133, National and Commercial Space Program, the President and the NASA Administrator establish security requirements, restrictions, and safeguards for NASA information in the interest of national security.
Part 1203 is the foundation for establishing NASA's information security program implementation requirements. It prescribes security and protective services requirements for NASA Headquarters, NASA Centers, and component facilities in order to protect the Agency's employees, contractors, property, and information. Therefore, it is being amended to comply with the Order and the Implementing Directive and to clarify the requirements for establishing an Information Security Program and handling National Security Information.
Additional provisions of part 1203 are implemented in NASA Procedural Requirements (NPR) 1600.2, NASA Classified National Security Information, to further ensure compliance. NPR 1600.2 can be accessed at
NASA has determined this rulemaking meets the criteria for a direct final rule because it involves clarifications, updating, and nonsubstantive changes to existing regulations. NASA does not anticipate this direct final rule will result in major changes to its security procedures. However, if NASA receives significant adverse comments, NASA will withdraw this final rule by publishing a note in the
Section 1203 is established under E.O. 13526, 32 CFR parts 2001 and 2003, the Implementing Directive, E.O. 12968 as amended, Access to Classified Information, E.O. 13549, Classified National Security Information Programs for State, Local, Tribal and Private Sector Entities, E.O. 12829, National Industrial Security Program, and The Space Act, in accordance with 51 U.S.C., National and Commercial Space Program. Sections 20132 and 20133 authorize the NASA Administrator to establish security rules and procedures to handle and safeguard Classified National Security Information. The rules serve to achieve compliance with the Administator's objectives for the protection of NASA's personnel, property, and information.
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 designated as “administrative” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act (5 U.S.C. 601
This direct final rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
E.O. 13132, “Federalism,” 64 FR 43255 (August 4, 1999) requires regulations be reviewed for Federalism effects on the institutional interest of states and local governments, and, if the
National security information, security information.
Accordingly, under the authority of the National Aeronautics and Space Act, as amended, [51 U.S.C. 20113], NASA amends 14 CFR part 1203 as follows:
E.O. 13526, E.O. 12968, E.O. 13549, E.O. 12829, 32 CFR part 2001, and 51 U.S.C., 20132, 20133.
The revision reads as follows:
(c) * * *
(1) The National Aeronautics and Space Act (51 U.S.C. 20113) (Hereafter referred to as, “The Space Act”), states:
(c) NASA Procedural Requirements (NPR) 1600.2, NASA Classified National Security Information (CNSI).
The revision reads as follows:
(b) The Order was promulgated in recognition of the essential requirement for an informed public concerning the activities of its Government, as well as the need to protect certain national security information from unauthorized disclosure. It delegates to NASA certain responsibility for matters pertaining to national security and confers on the Administrator of NASA, or such responsible officers or employees as the Administrator may designate, the authority for original classification of official information or material which requires protection in the interest of national security. It also provides for:
The revisions read as follows:
(a) The Chairperson, NASA Information Security Program Committee (NISPC) (Subpart I of this part), who is the Assistant Administrator for Protective Services, or designee, is responsible for:
(4) Coordinating NASA security classification matters with NASA Centers and component facilities and other Government agencies.
(e) * * *
(4) Coordinating all security classification actions with the Center's Protective Services Office.
(b)(1)
(2)
A compilation of items that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that meets the standards of classification under the Order; and is not otherwise revealed in the individual items of information. As used in the Order, compilations mean an aggregate of pre-existing unclassified items of information.
NASA shall establish controls over the distribution of classified information to ensure that it is dispersed only to organizations or individuals eligible for access to such information and with a need-to-know the information.
Technological and operational information and material, and in some exceptional cases scientific information falling within any one or more of the following categories, must be classified if its unauthorized disclosure could reasonably be expected to cause some degree of damage to the national security. In cases where it is believed that a contrary course of action would better serve the national interests, the matter should be referred to the Chairperson, NISPC, for a determination. It is not intended that this list be exclusive; original classifiers are responsible for initially classifying any other type of information which, in their judgment, requires protection under § 1.4 of “the Order.”
(a) Military plans, weapons systems, or operations;
(b) Foreign government information;
(c) Intelligence activities (including covert activities), intelligence sources or methods, or cryptology;
(d) Foreign relations or foreign activities of the United States, including confidential sources;
(e) Scientific, technological, or economic matters relating to the national security;
(f) United States Government programs for safeguarding nuclear materials or facilities;
(g) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or
(h) The development, production, or plans relating to the use of weapons of mass destruction.
(b) * * * The Office of Protective Services will coordinate with the Information Security Oversight Office (ISOO) Committee and the National Declassification Center to determine what classification guides are current. * * *
(a) At the time of original classification, the original classification authority shall establish a specific date or event for declassification based on the duration of the national security sensitivity of the information. Upon reaching the date or event, the information shall be automatically declassified. Except for information that should clearly and demonstrably be expected to reveal the identity of a confidential human source or a human intelligence source or key design concepts of weapons of mass destruction, the date or event shall not exceed the timeframe established in paragraph (b) of this section.
(b) If the original classification authority cannot determine an earlier specific date or event for declassification, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority otherwise determines that the sensitivity of the information requires that it be marked for declassification for up to 25 years from the date of the original decision.
(c) An original classification authority may extend the duration of classification up to 25 years from the date of origin of the document, change the level of classification, or reclassify specific information only when the standards and procedures for classifying information under this Order are followed.
(d) No information may remain classified indefinitely. Information that is marked for an indefinite duration of classification under predecessor orders, for example, information marked as “Originating Agency's Determination Required,” or classified information that contains either incomplete or no declassification instructions, shall have appropriate declassification information applied in accordance with part 3 of this order.
The revision and addition read as follows:
(e) Forwarding all security classification guides to the Office of Protective Services, NASA Headquarters, for final approval.
The revision reads as follows:
(a) In those cases where a person not authorized to classify information
The revisions read as follows:
(a) In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to:
(1) Conceal violations of law, inefficiency, or administrative error;
(2) Prevent embarrassment to a person, organization, or agency;
(3) Restrain competition; or
(4) Prevent or delay the release of information that does not require protection in the interest of the national security.
(c) Information may not be reclassified after declassification after being released to the public under proper authority unless: The reclassification is based on a document-by-document review by NASA and a determination that reclassification is required to prevent at least significant damage to the national security and personally approved in writing by the Administrator, the Deputy Administrator, or the Assistant Administrator for Protective Services. All reclassification actions will be coordinated with the Information Security Oversight Office before final approval; the information may be reasonably recovered without bringing undue public attention to the information; the reclassification action is reported promptly to the Assistant to the President for National Security Affairs (the National Security Advisor) and the Director of the Information Security Oversight Office; and for documents in the physical and legal custody of the National Archives and Records Administration (National Archives) that have been available for public use, the Administrator, the Deputy Administrator, or the Assistant Administrator for Protective Services, after making the determinations required by this paragraph, shall notify the Archivist of the United States (hereafter, Archivist), who shall suspend public access pending approval of the reclassification action by the Director of the Information Security Oversight Office. Any such decision by the Director may be appealed by the agency head to the President through the National Security Advisor. Public access shall remain suspended pending a prompt decision on the appeal.
(d) Information that has not previously been disclosed to the public under proper authority may be classified or reclassified after an agency has received a request for it under the Freedom of Information Act (5 U.S.C. 552), the Presidential Records Act, 44 U.S.C. 2204(c)(1), the Privacy Act of 1974 (5 U.S.C. 552a), or the mandatory review provisions of section 3.5 of this Order only if such classification meets the requirements of this Order and is accomplished by document-by-document review with the personal participation or under the direction of the Administrator, the Deputy Administrator, or the Assistant Administrator for Protective Services. The requirements in this paragraph also apply to those situations in which information has been declassified in accordance with a specific date or event determined by an original classification authority in accordance with section 1.5 of this Order.
(e) Compilations of items of information that are individually unclassified may be classified if the compiled information reveals an additional association or relationship that:
(1) Meets the standards for classification under this Order; and
(2) Is not otherwise revealed in the individual items of information.
The revisions read as follows:
(a) * * *
(3) State the duration of each specified classification in terms of a period of time or future event. If the original classification authority cannot determine an earlier specific date or event for declassification, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority otherwise determines that the sensitivity of the information requires it be marked for declassification for up to 25 years from the date of the original decision.
(5) All security classification guides should be forwarded to the Office of Protective Services for review and final approval. The Office of Protective Services will maintain a list of all classification guides in current use.
(a) Persons who reproduce, extract, or summarize classified information, or who apply classification markings derived from source material or as directed by a classification guide, need not possess original classification authority.
(b) Persons who apply derivative classification markings shall:
(1) Be identified by name and position or by personal identifier, in a manner that is immediately apparent for each derivative classification action;
(2) Observe and respect original classification decisions; and
(3) Carry forward to any newly created documents the pertinent classification markings. For information derivatively classified based on multiple sources, the derivative classifier shall carry forward:
(i) The date or event for declassification that corresponds to the longest period of classification among the sources or the marking established pursuant to section 1.6(a)(4)(D) of the Order; and
(ii) A listing of the source materials.
(c) Derivative classifiers shall, whenever practicable, use a classified addendum when classified information constitutes a small portion of an otherwise unclassified document or prepare a product to allow for dissemination at the lowest level of classification possible or in unclassified form.
(d) Persons who apply derivative classification markings shall receive training in the proper application of the derivative classification principles of the Order, with an emphasis on avoiding over-classification, at least once every two years. Derivative classifiers who do not receive such training at least once every two years shall have their authority to apply derivative classification markings suspended until they have received such training. A waiver may be granted by the Administrator, the Deputy Administrator, or the Assistant
Information shall be declassified or downgraded by an authorized DCA official. If that official is still serving in the same position, the originator's successor, a supervisory official of either, or officials delegated such authority in writing by the Administrator or the Chairperson, NISPC, may also make a decision to declassify or downgrade information.
(a)
(2) The Archivist shall conduct a systematic declassification review program for classified records:
(i) Accessioned into the National Archives;
(ii) Transferred to the Archivist pursuant to 44 U.S.C. 2203; and
(iii) For which the National Archives serves as the custodian for an agency or organization that has gone out of existence.
(3) The Chairperson, NISPC, shall designate experienced personnel to assist the Archivist in the systematic review of U.S. originated information and foreign information exempted from automated declassification. Such personnel shall:
(i) Provide guidance and assistance to the National Archives and Records Service in identifying and separating documents and specific categories of information within documents which are deemed to require continued classification; and
(ii) Develop reports of information or document categories so separated, with recommendations concerning continued classification.
(iii) Develop, in coordination with NASA organizational elements, guidelines for the systematic review for declassification of classified information under NASA's jurisdiction. The guidelines shall state specific limited categories of information which, because of their national security sensitivity, should not be declassified automatically, but should be reviewed to determine whether continued protection beyond 25 years is needed. These guidelines are authorized for use by the Archivist and the Director of the Information Security Oversight Office, with the approval of the Senior Agency Official, which is the Assistant Administrator, Office of Protective Services, for categories listed in section 3.3 of the Order. These guidelines shall be reviewed at least every five years and revised as necessary, unless an earlier review for revision is requested by the Archivist. Copies of the declassification guidelines promulgated by NASA will be provided to the Information Security Oversight Office, National Archives and Records Administration (NARA).All security classified records exempt from automatic declassification, whether held in storage areas under installation control or in Federal Records Centers, will be surveyed to identify those requiring scheduling for future disposition.
(A) Classified information or material over which NASA exercises exclusive or final original classification authority and which is to be declassified in accordance with the systematic review guidelines shall be so marked.
(B) Classified information or material over which NASA exercises exclusive or final original classification authority and which, in accordance with the systematic review guidelines is to be kept protected, shall be listed by category by the responsible custodian and referred to the Chairperson, NASA Information Security Program Committee. This listing shall:
(
(
(
(
(b) [Reserved]
The revisions read as follows:.
(a)
(1) The request for a review describes the document or material containing the information with sufficient specificity to enable the agency to locate it in a reasonably timely manner;
(2) The document or material containing the information responsive to the request is not contained within an operational file exempted from search and review, publication, and disclosure under 5 U.S.C. 552 in accordance with law; and
(3) The information is not the subject of pending litigation.
(b)
(c) * * *
(2) For the most expeditious action, requests from other Governmental agencies or from members of the public should be submitted directly to the NASA Office of Protective Services only. The requestor may submit the request to: National Aeronautics and Space Administration (NASA), Central Registry, 300 E Street SW., Washington DC 20546, Attention: Office of Protective Services/Information Security Program Manager. The phrase, “Mandatory Declassification Review,” must be stated in the request.
(d) * * *
(2) The request describes the document or material containing the information with sufficient specificity, such as accession numbers, box titles or numbers, date and title of document, in any combination, to enable NASA to locate it with a reasonable amount of effort, not to exceed 30 days. If more time is required, NASA will notify the requester. After review, the information or any portion thereof that no longer requires protection shall be declassified and released unless withholding is otherwise warranted under applicable law.
(3) The requester shall be asked to correct a request that does not comply with paragraph (d)(2) of this section, to provide additional information, or to narrow the scope of the request; and shall be notified that no action will be taken until the requester complies.
(4) If the request requires the rendering of services for which fees may be charged under 31 U.S.C. 483a (1976), the rates prescribed in § 1206.700 shall be used, as appropriate.
(e) * * *
(1) The NASA Office of Protective Services review upon receiving the initial request shall be completed within 365 days.
(3) All appeals of denials of requests for declassification shall be acted upon and determined finally within 120 working days after receipt, and the requester shall be advised that the appeal determination is final. If the requester is dissatisfied with NASA's appeal decision, the requester may initiate an appeal to the Interagency Security Classification Appeals Panel (ISCAP), within the Information Security Oversight Office. If continued classification is required under the provisions of this part 1203, the requester shall be notified of the reasons thereof.
(5) When the NASA Office of Protective Services receives any request for declassification of information in documents in its custody that was classified by another Government agency, it shall refer copies of the request and the requested documents to the originating agency for processing and may, after consultation with the originating agency, inform the requester of the referral.
(g) * * *
(2)
Pursuant to Executive Order 13526, “Classified National Security Information,” and The Space Act, in accordance with U.S.C. Title 51, National and Commercial Space Program Sections 20132 and 20133, there is established a NASA Information Security Program Committee (as part of the permanent administrative structure of NASA). The NASA Assistant Administrator for Protective Services, or designee, shall be the Chairperson of the Committee. The Information Security Program Manager, NASA Office of Protective Services, is designated to act as the Committee Executive Secretary.
(a) The Chairperson reports to the Administrator concerning the management and direction of the NASA Information Security Program as provided for in subpart B of this part. In this connection, the Chairperson is supported and advised by the Committee.
(b) The Committee shall act on all appeals from denials of declassification requests and on all suggestions and complaints with respect to administration of the NASA Information Security Program as provided for in subpart B of this part.
(c) The Executive Secretary of the Committee shall maintain all records produced by the Committee, its subcommittees, and its ad hoc panels.
(d) The Office of Protective Services will provide staff assistance and investigative and support services for the Committee.
The Committee membership will consist of the Chairperson, the Executive Secretary, and one person nominated by each of the following NASA officials:
(a) The Associate Administrators for:
(1) Aeronautics.
(2) Science Missions Directorate.
(3) Human Explorations and Operations.
(4) International and Interagency Relations.
(b) The Associate Administrator.
(c) The General Counsel.
(d) The Chief Information Officer.
(e) Other members may be designated upon specific request of the Chairperson.
The Chairperson is authorized to establish such ad hoc panels or subcommittees as may be necessary in the conduct of the Committee's work.
(a) Meetings will be held at the call of the Chairperson.
(b) Records produced by the Committee and the minutes of each meeting will be maintained by the Executive Secretary.
Pursuant to Executive Order 13526, “Classified National Security Information,” and The Space Act, in accordance with U.S.C. Title 51, National and Commercial Space Program Sections 20132 and 20133, there is established a NASA Information Security Program Committee (as part of the permanent administrative structure of NASA. The NASA Assistant Administrator for Protective Services, or designee, shall be the Chairperson of the Committee. The Information Security Program Manager, NASA Office of Protective Services, is designated to act as the Committee Executive Secretary.
A SAP or SCI program shall be created within NASA only upon specific written approval of the Administrator and must be coordinated with the Assistant Administrator for Protective Services, or designee, to ensure required security protocols are implemented and maintained.
The Committee membership will consist of the Chairperson, the Executive Secretary, and one person nominated by each of the following NASA officials:
(a) The Associate Administrators for:
(1) Aeronautics.
(2) Science Missions Directorate.
(3) Human Explorations and Operations.
(4) International and Interagency Relations.
(b) The Associate Administrator.
(c) The General Counsel.
(d) The Chief Information Officer.
(e) Other members may be designated upon specific request of the Chairperson.
The Chairperson is authorized to establish such ad hoc panels or subcommittees as may be necessary in the conduct of the Committee's work.
(a) Meetings will be held at the call of the Chairperson.
(b) Records produced by the Committee and the minutes of each meeting will be maintained by the Executive Secretary.
National Aeronautics and Space Administration.
Direct final rule.
This direct final rule makes nonsubstantive changes to NASA regulations to clarify the procedures for establishing controlled/secure areas and to revise the definitions for these areas and the process for granting access to these areas, as well as denying or revoking access to such areas. Arrest powers and authority of NASA security force personnel are also updated and clarified to include the carrying of weapons and the use of such weapons should a circumstance require it. The revisions to these rules are part of NASA's retrospective plan under E.O. 13563 completed in August 2011. NASA's full plan can be accessed on the Agency's open Government Web site at
This direct final rule is effective on March 25, 2013. Comments due on or before February 25, 2013. If adverse comments are received, NASA will publish a timely withdrawal of the rule in the
Comments must be identified with RIN 2700-AD89 and may be sent to NASA via the
Charles Lombard, 202-358-0891,
NASA has determined this rulemaking meets the criteria for a direct final rule because it involves clarifications, updating, and minor substantive changes to existing regulations. NASA does not anticipate this direct final rule will result in major changes to its security procedures. However, if NASA receives significant adverse comments, NASA will withdraw this final rule by publishing a note in the
• Part 1203a, NASA Security Areas, that describes the legal basis and other applicable NASA regulations related to NASA's security and law enforcement services implementation requirements, was promulgated March 28, 1972, [38 FR 8056]. Changes are being made to align this part with Homeland Security Presidential Directive (HSPD) 12, Policies for a Common Identification Standard for Federal Employees and Contractors, dated August 27, 2004. HSPD 12 establishes a mandatory, Government-wide standard for secure and reliable forms of identification issued by the Federal Government to its employees and contractors to increase Government efficiency, reduce identity fraud, and protect personal privacy.
• Part 1203b, Security Programs; Arrest Authority and Use of Force by NASA Security Force Personnel, that describes guidelines for the exercise of arrest authority, was promulgated February 11, 1992, [57 FR 4926]. Changes are being made to align this part with the guidelines described in Executive Order 12977, Interagency Security Committee (ISC) [60 FR 5441]. The ISC is responsible for establishing policies for the security in and protection of Federal facilities, ISC Standards, Physical Security Criteria for
• Subpart 10 of part 1204, Inspection of Persons and Personal Effects at NASA Installations or on NASA Property; Trespass or Unauthorized Introduction of Weapons or Dangerous Materials, that describes NASA's policy and minimum procedures concerning the inspection of persons and property in their possession while entering, on, or exiting NASA real property or installations, as well as proscribes unauthorized entry or the unauthorized introduction of weapons or other dangerous instruments or materials at any NASA facility, was promulgated August 3, 2000, [65 FR 47663]. Changes are being made to align this subpart with the guidelines outlined in HSPD 7, Critical Infrastructure Identification, dated December 17, 2003. HSPD 7 establishes a national policy for Federal departments and agencies to identify and prioritize critical infrastructure and to protect it from terrorist attacks.
While NASA has the following internal requirements pertaining to these rules, they are not duplicative, but are necessary to ensure that implementation of parts 1203a and 1203b and subpart 10 of part 1204 is consistent, uniform, and standardized:
Sections 1203 and 1204 are established under the National Aeronautics and Space Act (Space Act), in accordance with the National and Commercial Space Programs (Title 51 U.S.C.). Sections 20132 and 20133 authorize the NASA Administrator to establish security rules and procedures to safeguard NASA's employees, facilities, and proprietary information and technologies. These rules serve to achieve compliance with the Agency's objectives in the protection of its people, property, and information.
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, reducing costs, harmonizing rules, and promoting flexibility. This rule has been designated as “not significant” under section 3(f) of Executive Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
This direct final rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) requires regulations be reviewed for Federalism effects on the institutional interest of states and local governments, and if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. The amendments will not have any substantial direct effects on state and local governments within the meaning of the Executive Order. Therefore, no Federalism assessment is required.
Government property, NASA Security Areas, Use of Force, Arrest Authority, Use of Firearms.
Accordingly, under the authority of the National Aeronautics and Space Act, as amended, (51 U.S.C. 20113), NASA amends 14 CFR parts 1203a, 1203b and 1204 as follows:
The National Aeronautics and Space Act of 1958, as amended, 51 U.S.C. 20101 et seq.
The revisions read as follows:
(a) * * *
(1)
(2)
(3)
(a) * * *
(1) Directors of NASA Centers, including Component Facilities and Technical and Service Support Centers, and the Executive Director for Headquarters Operations at NASA Headquarters may establish, maintain, and protect such areas designated as Controlled, Limited, or Exclusion, depending upon their assessment of the potential for unauthorized persons either to:
In paragraph (a)(2), remove the words “involved or be the recipient of a satisfactorily completed national agency check if classified material or information is not involved” and add in their place the words “held, discussed, or disseminated on site or is the holder of a positive national agency check if classified material or information is not involved.”
In paragraph (a)(3), remove the word “
In paragraph (b), remove the words “directors of NASA field and component installations, and the Director of Headquarters Administration for NASA Headquarters (including component installations)” and add in their place the words “Center Directors, including Component Facilities and Technical and Service Support Centers, and the Executive Director for Headquarters Operations, NASA Headquarters,” remove the words “continued presence” and add in their place the word “access” and remove the word “therein” wherever it appears.
In paragraph (a), remove the words “directors of NASA field and component installations (or their designees) and the Director of Headquarters Administration for NASA Headquarters (including component installations) or his designee” and add in their place the words “Center Directors, including Component Facilities and Technical and Service Support Centers, and the Executive Director for Headquarters, NASA Headquarters.”
The National and Commercial Space Program (51 U.S.C.). Sections 20132 and 20133 et seq.
The revision reads as follows:
(a) In making an arrest, the security force personnel should announce their authority and that the person is under arrest prior to taking the person into custody. If the circumstances are such that making such an announcement would be useless or dangerous to the security force personnel or others, the security force personnel may dispense with these announcements, but must subsequently identify themselves and their arrest authority to the arrested person(s) as soon as reasonably possible.
NASA security force personnel may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.
(a) Deadly force may not be used solely to prevent the escape of a fleeing suspect.
(b) Firearms may not be fired solely to disable moving vehicles.
(c) If feasible and if to do so would not increase the danger to the officer or others, a verbal warning to submit to the authority of the officer shall be given prior to the use of deadly force.
(d) Warning shots are not permitted outside of the prison context.
(e) Officers will be trained in alternative methods and tactics for handling resisting subjects which must be used when the use of deadly force is not authorized by this policy.
The National and Commercial Space Program (51 U.S.C.). Sections 20132 and 20133 et seq.
The revision reads as follows:
(a) Refer to the notice in § 1204.1003, paragraph (a)(2), for a description of the consequences for unauthorized introduction of firearms or weapons, explosives, or other dangerous materials.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for all Rolls-Royce plc (RR) RB211-Trent 970-84, 970B-84, 972-84, 972B-84, 977-84, 977B-84, and 980-84 turbofan engines. This AD requires replacement of the fuel oil heat exchanger (FOHE). This AD was prompted by a report of an in-flight increase of N2 intermediate pressure rotor vibrations resulting in an engine surge and pilot shut down of the engine. We are issuing this AD to prevent rotor bearing oil starvation, uncontained engine failure, and damage to the airplane.
This AD becomes effective January 24, 2013.
We must receive comments on this AD by March 11, 2013.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, DE248BJ, United Kingdom; phone: 44 (0) 1332 242424; fax: 44 (0) 1332 249936, or email:
You may examine the AD docket on the Internet at
Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7754; fax: 781-238-7199; email:
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued mandatory continuing airworthiness information (MCAI) EASA AD 2012-0260, dated
During a revenue service flight, a Trent 900 engine experienced increased N2 intermediate pressure (IP) vibrations, followed by an engine surge. The pilot shut down the engine, the aeroplane carried out an air turn-back, and a 3-engine landing was successfully performed. Subsequent investigation results revealed the presence of oil by-pass seal material from the Fuel-to-Oil Heat Exchanger (FOHE) in the restrictor hole of the Tail Bearing Housing (TBH) cover plate. The blocked restrictor hole caused oil starvation to the low pressure (LP) and IP location bearings.
This condition, if not detected and corrected, could lead to LP location bearing damage, possibly resulting in uncontained engine failure and consequent damage to the aeroplane.
RR has issued Alert Non-Modification Service Bulletin RB.211-79-AH031, dated October 25, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the United Kingdom and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.
No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days. Accordingly, this AD is effective upon publication.
This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) becomes effective January 24, 2013.
None.
This AD applies to Rolls-Royce plc RB211-Trent 970-84, 970B-84, 972-84, 972B-84, 977-84, 977B-84, and 980-84 turbofan engines with a fuel oil heat exchanger (FOHE), part number 47111-1241, installed.
This AD was prompted by a report of an in-flight increase of N2 intermediate pressure rotor vibrations resulting in an engine surge and pilot shut down of the engine. We are issuing this AD to prevent rotor bearing oil starvation, uncontained engine failure, and damage to the airplane.
Unless already done, do the following actions.
(1) For engines installed on the effective date of this AD, replace the FOHE within 500 engine hours (EHs) from the effective date of this AD, or before exceeding 5,000 EHs time since new (TSN) or time since overhaul (TSO), whichever occurs later.
(2) For engines in the shop on the effective date of this AD, do not approve the engine for return to service if the FOHE has 5,000 or more EHs TSN or TSO.
(3) After the effective date of this AD, do not install a FOHE on any engine, or any engine on any airplane, unless the FOHE has fewer than 5,000 EHs TSN or TSO.
The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.
(1) For more information about this AD, contact Robert Green, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238 7754; fax: 781-238-7199; email:
(2) Refer to European Aviation Safety Agency Airworthiness Directive 2012-0260, dated December 11, 2012, and Rolls-Royce plc Alert Non-Modification Service Bulletin RB.211-79-AH031, dated October 25, 2012, for related information.
(3) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, DE248BJ, United Kingdom; phone: 44 (0) 1332 242424; fax: 44 (0) 1332 249936; or email:
(4) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies Class E airspace at Savoonga, AK, to accommodate aircraft using Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at Savoonga Airport. This action enhances the safety and management of aircraft operations at the airport. An editorial change is made by removing reference to Class E surface airspace entered in error.
Effective date, 0901 UTC, March 7, 2013. The Director of the Federal Register approves this incorporation by reference action under 1 CFR Part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
Richard Roberts, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4517.
On October 9, 2012, the FAA published in the
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in that Order.
This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface, at Savoonga Airport, Savoonga, AK, to accommodate aircraft using the new RNAV (GPS) standard instrument approach procedures at Savoonga Airport, and enhances the safety and management of instrument flight rules operations at the airport. The reference to Class E surface airspace is removed as it was entered in error.
The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies controlled airspace at Savoonga Airport, Savoonga, AK. Except for editorial changes and change noted above, this rule is the same as published in the NPRM.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E. O. 10854, 24 FR 9565,3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Savoonga Airport, and within 4 miles each side of the 059° bearing of the airport extending from the 6.4-mile radius to 11 miles northeast of the airport; that airspace extending upward from 1,200 feet above the surface within a 30-mile radius of lat. 63°38′25″ N., long. 170°57′44″ W., starting at the 303° bearing of the airport counterclockwise to the 171° bearing of the airport then northeast to lat. 63°20′35″ N., long. 169°36′56″ W., and within a 30-mile radius of lat.63°47′53″ N., long.170°03′36″ W., starting at the 121° bearing of Savoonga Airport counterclockwise to the 352° bearing of the airport, thence to the point of origin.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E Airspace at Wilkes-Barre, PA, creating controlled airspace to accommodate new area navigation (RNAV) Standard Instrument Approach Procedures at Wilkes-Barre Wyoming Valley Airport. Airspace reconfiguration is necessary for the continued safety and management of instrument flight rules (IFR) operations in the Wilkes-Barre, PA, area. This action also recognizes the name change of Hanover Township Fire Station #5 Heliport. The BARTY LOM navigation aid is removed, as this navigation aid has been decommissioned.
Effective 0901 UTC, March 7, 2013. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P. O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
On July 18, 2012, the FAA published in the
Class E airspace designations are published in paragraph 6004 and 6005, respectively, of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E airspace in the Wilkes-Barre, PA, area by creating controlled airspace extending upward form 700 feet above the surface at Wilkes-Barre/Wyoming Valley Airport to support the new RNAV standard instrument approach procedures for the airport. Additionally, the BARTY LOM has been decommissioned, and is removed from the Class E airspace designated as an extension to Class D surface area and the Class E airspace extending upward from 700 feet above the surface. These modifications are necessary for the safety and management of IFR operations in the Wilkes-Barre, PA, area. Also, the heliport formerly known as Fire Station Helipad at Mercy Hospital is renamed Hanover Township Fire Station #5 Heliport. Except for editorial changes and the changes listed above, this rule is the same as that proposed in the NPRM.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace in the Wilkes-Barre, PA area.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface within 3.4 miles each side of a 033° bearing from Wilkes-Barre/Scranton International Airport extending from the 4.1-mile radius to 11 miles northeast of the airport, and within 1 mile either side of a 213° bearing from the airport extending from the 4.1-mile radius to 7.3 miles southwest of the airport. This Class E airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from 700 feet above the surface of the Earth within a 11.8-mile radius of Wilkes-Barre/Scranton International Airport, and within an 11.6- mile radius of Wilkes-Barre Wyoming Valley Airport, and including that airspace within a 6-mile radius of each of the Point in Space Waypoints ZIGAL, ZESMA, and ZIDKA serving the Wyoming Medical Center, the Community Medical Center, and the Hanover Township Fire Station #5 Heliport, respectively.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective January 24, 2013. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of January 24, 2013.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in an FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective January 24, 2013. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of January 24, 2013.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which the affected airport is located;
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Richard A. Dunham III, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, and Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
U.S. Customs and Border Protection, Department of Homeland Security.
Final rule.
This document amends the U.S. Customs and Border Protection (CBP) regulations in order to clarify that any applicable Animal and Plant Health Inspection Service (APHIS) user fee, which is called an Agricultural Quarantine and Inspection (AQI) user fee, for commercial trucks will be collected by CBP upon arrival into the United States at the same time that CBP collects its portion of this user fee and to reflect certain administrative changes pertaining to the collection of user fees. The regulation also clarifies that transponders have replaced decals for commercial truck user fee purposes and indicates that the Internet portal through which the public obtains decals and transponders has been renamed the “Decal and Transponder Online Procurement System (DTOPS).” In addition, the user fee decal program, certain administrative aspects of which had previously been managed by a private bank under a contract with CBP, is currently being administered entirely within CBP, and this document updates the addresses to which applicable forms and payments are to be mailed as a result of this change. Finally, this document amends the applicable regulations to provide for certain updated CBP form numbers, and to make nomenclature changes reflecting the transfer of CBP to the Department of Homeland Security. It should be noted that the amendments set forth in this document will not result in any change to the amount of the actual user fees.
This final rule is effective on January 24, 2013.
Sarah Kubon, Chief, Project Development and Oversight Section, Programs Branch, Revenue Division, Office of Administration, (317) 614-4917.
U.S. Customs and Border Protection (CBP) collects user fees to pay for the costs incurred in providing customs services in connection with certain activities under the authority of section 13031 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as amended, codified at section 19 U.S.C. 58c. These user fees offset inspection costs that were previously funded solely by general taxpayer revenue. Sections 24.22(b)-(e) and (g) of the CBP regulations (19 CFR 24.22(b)-(e) and (g)) provide that, under certain circumstances, user fees must be paid upon arrival into the United States of certain commercial vessels, barges, and other bulk carriers from Canada or Mexico; commercial trucks; railroad cars; certain private vessels or private aircraft; and passengers aboard commercial vessels and commercial aircraft. Section 24.22(f) of the CBP regulations (19 CFR 24.22(f)) provides that a processing fee will be assessed for the addressee of each item of dutiable mail for which a CBP officer prepares documentation. The specific user fees
For user fee collection purposes, it should be noted that the term “decals” refers to stickers that are required to be placed on private aircraft or private vessels 30 feet or more in length as proof that applicable user fees for entry into the United States have been paid for the calendar year. The term “transponders”, on the other hand, refers to paper stickers which contain a chip that electronically transmits confirmation that applicable user fees for commercial trucks have been paid for the calendar year.
The purpose of this document is to make technical changes to the regulations regarding the collection of user fees. This document: clarifies that CBP collects the Animal and Plant Health Inspection Service (APHIS) portion of the commercial truck user fee, which is called an Agricultural Quarantine and Inspection (AQI) user fee by the U.S. Department of Agriculture in part 354 of title 7 of the Code of Federal Regulations (7 CFR part 354), upon arrival into the United States; renames the Internet portal through which the public obtains decals and transponders; updates addresses to which applicable forms and payments are to be mailed; replaces decals with transponders for commercial truck user fee purposes; updates CBP form numbers; organizes the structure of § 24.22; and makes nomenclature changes reflecting the transfer of CBP to the Department of Homeland Security.
The Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture is responsible for protecting and promoting U.S. agricultural health, regulating genetically engineered organisms, and monitoring and promoting wildlife management and animal welfare. The regulations in part 354 of title 7 of the Code of Federal Regulations (7 CFR part 354) set forth the user fees for import- and export-related services provided by APHIS. Although not specifically set forth in the CBP regulations, the applicable APHIS/AQI user fee for commercial trucks have customarily been collected by CBP on behalf of APHIS. To facilitate entry and provide transparency to the entry process for commercial trucks, this document sets forth amendments to §§ 24.22(c)(1), (c)(2), (c)(3), and (i)(3)) of the CBP regulations (19 CFR 24.22(c)(1), (c)(2), (c)(3), and (i)(3)) to clarify in the regulatory text that the applicable APHIS/AQI and CBP user fees for commercial trucks are collected by CBP upon arrival into the United States. The CBP user fee and the APHIS/AQI user fee are collected together, either in an annual payment, in which case a transponder is issued, or CBP collects the two fees in one payment on a per-arrival basis. This document also makes corresponding amendments to § 24.22(i)(3), relating to the applicable class codes and payment locations for commercial truck user fee purposes, by inserting the applicable class codes for the payment of APHIS/AQI fees. In this regard, the APHIS/AQI class code for an individual arrival is “482” and the APHIS/AQI class code reflecting the prepayment of fees for the maximum calendar year fee is “483.”
Section 24.22(c) sets forth the regulations pertaining to the user fees for commercial trucks. Section 24.22(c)(2), pertaining to fee limitations, currently provides that no user fee for the arrival of a commercial truck will be collected if the specified prepayment has been made and a decal has been affixed to the vehicle's windshield. In a document published in the
Accordingly, this document amends § 24.22(c)(2) of the CBP regulations (19 CFR 24.22(c)(2)) to clarify that a user fee for the arrival of a commercial truck will not be collected every time the vehicle crosses the border if the specified prepayment of both the CBP fee and the APHIS/AQI fee has been made and a transponder has been affixed to the vehicle's windshield. This document makes corresponding amendments to § 24.22(c)(3), pertaining to the prepayment of user fees for commercial trucks, by replacing certain references to “decal” with reference to “transponder” as set forth below. CBP notes that transponders do not have to be physically replaced upon renewal each year if they continue to function properly.
As discussed earlier, decals are used for private aircraft or private vessels 30 feet or more in length, and transponders are used for commercial trucks. User fee prepayments and quarterly payments submitted to CBP on the Internet or through the mail were previously processed by a private bank pursuant to a contract with CBP under a program generally referred to as the “User Fee Decal Program.” Upon the expiration of the contract with the private bank, CBP decided to process user fee prepayment and quarterly payment requests in-house to enhance CBP's user fee collection efforts and to reduce operating costs associated with administering the program. CBP has decided to rename the Internet portal through which online prepayments for decals and transponders are submitted as the “Decal and Transponder Online Procurement System (DTOPS)” to more accurately reflect that transponders, as well as decals, are available on the system. As with the User Fee Decal Program, decal and transponder prepayment requests made by credit card under DTOPS may still be made via the Internet through the “Travel” link at CBP's Web site at
While CBP's preferred method of receiving user fee prepayment requests and user fee payments is through DTOPS, requests and payments also may also be made by mail. This document amends § 24.22(c)(3) (private vessels or private aircraft) and § 24.22(e)(2) (private vessels or private aircraft) to reflect the correct mailing address for these purposes. The correct mailing address for these purposes is: “U.S. Customs and Border Protection, Attn: DTOPS Program Administrator, 6650 Telecom Drive, Suite 100, Indianapolis, IN 46278.” This document further updates the address to which user fee prepayments are to be mailed and processed for railroad cars in §§ 24.22(d)(3) and (d)(4)(ii) and for quarterly payments relating to the arrival of passengers aboard commercial vessels and commercial aircraft in § 24.22(g)(5) by cross-referencing the address listed in § 24.22(i). The correct address for these purposes is: “U.S. Customs and Border Protection, Revenue Division, Attn: User Fee Team, 6650 Telecom Drive, Suite 100, Indianapolis, IN 46278.”
Section 24.22 of the CBP regulations (19 CFR 24.22) contains specific guidelines concerning the prepayment of user fees. Under the current regulations, the prepayment of user fees may be made on the Internet, through the mail, or at the port of arrival, but it should be noted that the accepted
Sections 24.22(c)(3) and (e)(2) specifically provide that the option to prepay user fees at the port for commercial trucks and private vessels or aircraft is subject to the port director's discretion to maintain user fee decal inventories at the port. However, CBP now keeps no user fee decal and transponder inventories at ports in order to facilitate port operations by minimizing internal control risks associated with maintaining the inventories in the field. Accordingly, this document amends §§ 24.22(c)(3) and (e)(2) by removing from the regulations the references to the option for prepayment at the port. As a result of this change, amended §§ 24.22(c)(3) and (e)(2) clarify that user fees for commercial trucks and private vessels or private aircraft may be prepaid through the mail or on the Internet.
Currently, section 24.22(i), which pertains to information submission and fee remittance procedures, provides that in addition to any information specified in 24.22(d)(4) and (g)(5) when applicable, each payment of user fees made by mail must be accompanied by information identifying the person or organization remitting the fee, the type of fee being remitted, and the time period to which the payment applies. Current section 24.22(i) also provides that all fee payments required under § 24.22 must be in the amounts prescribed and must be in U.S. currency, or by check or money order payable to CBP in accordance with § 24.1. In order to make a payment electronically under § 24.22(i), authorization may be obtained by writing to the National Finance Center.
With respect to payment procedures, CBP notes that the Financial Management Service (FMS) of the U.S. Department of the Treasury provides central payment services to Federal agencies, operates the Federal government's collections and deposit systems, provides government-wide accounting and reporting services, and manages the collection of delinquent debt owed to the Government.
CBP believes that because of technological advancements and the integration of modern payment technology into many CBP locations, it is no longer efficient or necessary for the public to write to the National Finance Center in order to obtain authorization to pay fees electronically. However, CBP is adding language in § 24.22(i) noting that to pay railroad user fees on Pay.gov, an email must be sent to the following email address belonging to the Office of Administration, Revenue Division to establish a Pay.gov account:
Moreover, CBP is making a clarifying amendment to § 24.22(c)(3) noting that
This document further amends § 24.22 in order to reflect that Customs Form 339 (Annual User Fee Decal Request) has been replaced by three entry-specific forms: CBP Form 339A (Annual User Fee Decal Request—Aircraft); CBP Form 339C (Annual User Fee Decal Request—Commercial Vehicle); and CBP Form 339V (Annual User Fee Decal Request—Vessels). In this regard, this document specifically removes the reference in§ 24.22(c)(3) to the “Customs Form 339, Annual User Fee Decal Request” and adds, in itsplace, “CBP Form 339C (Annual User Fee Decal Request—Commercial Vehicle).” This document also amends §§ 24.22(e)(1) and (e)(2) by removing the term “Customs Form 339, Annual User Fee Decal Request” and adding in its place, “CBP Form 339V (Annual User Fee Decal Request—Vessels) or CBP Form 339A (Annual User Fee Decal Request—Aircraft)”.
This document also amends §§ 24.22(d)(4)(ii) and (g)(5) by clarifying that the payments required by §§ 24.22(d) and (g) must be made in accordance with the procedures and payment methods set forth in their respective paragraphs and § 24.22(i).
Finally, this document proposes non-substantive amendments to § 24.22 to reflect nomenclature changes necessitated by the transfer of the agency to the Department of Homeland Security.
Pursuant to 5 U.S.C. 553(a)(2), the Administrative Procedure Act does not apply to this rulemaking because the amendments set forth in this document pertaining to the decisions to administer the user fee decal and transponder programs within CBP are matters relating to agency management and contracts. In addition, the technical corrections relating to updated CBP form numbers, CBP addresses, and nomenclature changes effected by the transfer of CBP to the Department of Homeland Security are matters relating to agency management. The Administrative Procedure Act does not apply to this rulemaking because the amendments regarding the collection of APHIS/AQI and CBP fees, the removal of the option to make prepayments at the ports, and the replacement of decals with transponders for commercial truck user fee purposes concern matters relating to agency procedure and practice pursuant to 5 U.S.C. 553(b)(A). For these same reasons, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), CBP has determined that it would be unnecessary to delay publication of this rule in final form pending an opportunity for public comment and that there is good cause for this final rule to become effective immediately upon publication.
Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
These amendments do not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.
This package does not include any new information collections. The information collections regarding the payment of the user fees discussed in this document have already been approved by OMB under control number 1651-0052.
This document is limited to technical corrections of the CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b)(1).
Accounting, Claims, Customs duties and inspection, Harbors, Reporting and recordkeeping requirements, Taxes.
For the reasons set forth above, part 24 of the CBP regulations (19 CFR part 24) is amended as set forth below.
5 U.S.C. 301; 19 U.S.C. 58a-58c, 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States), 1505, 1520, 1624; 26 U.S.C. 4461, 4462; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
The additions and revisions read as follows:
(c) * * * (1)
(3)
(e) * * *
(2) * * * The decal request and prepayment by credit card or ACH debit may be made via the Internet through the “Travel” link at the CBP Web site located at
(g) * * *
(5)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all waters between mile 40.5 and mile 42.5 on the Monongahela River. The safety zone is needed to protect construction workers and vessels transiting the area from the hazards associated with demolition operation being conducted on a guard wall upstream of Lock and Dam 4 near Charleroi, PA. Entry into, movement within, and departure from this Coast Guard Safety Zone, while it is activated and enforced, is prohibited, unless authorized by the Captain of the Port Pittsburgh or a designated representative.
This rule is effective in the CFR on January 24, 2013 through 5:00 p.m. on March 1, 2013. This rule is effective with actual notice for purposes of enforcement at 7:00 a.m. on January 9, 2013. This rule will remain in effect through 5:00 p.m. on March 1, 2013.
Documents mentioned in this preamble are part of docket USCG-2012-1071. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email MSTC Chris Blank, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone (412) 644-5808 ext. 2108, email
The Coast Guard is issuing this 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 Coast Guard received notice for this event on January 3, 2013 which does not allow for the NPRM process. After full review of the event information and location, the Coast Guard determined that a safety zone is necessary. Publishing a NPRM would be impracticable and would unnecessarily delay the immediate action that is needed to protect the public from the possible hazards associated with demolition operation being conducted on a guard wall upstream of Lock and Dam 4 that will occur in Charleroi, PA. Delaying the demolition operation to provide a notice and comment period before effecting this safety zone is also impracticable, as it would impede the flow of commercial river traffic and interfere with contractual obligations based on the demolition operations.
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 Joseph B. Fay Company has been contracted by the Army Corps of Engineers to conduct demolition operations that include four to seven explosive blasts between January 9, 2013 and March 1, 2013 to remove an 1100 foot section of guard wall upstream of Lock and Dam 4 in Charleroi, PA. This event poses hazardous conditions on the river and additional safety measures to ensure vessel and mariner safety are required in the form of a safety zone.
The legal basis and authorities for this rule are found in 33 U.S.C. 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, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish and define regulatory safety zones.
The Coast Guard is establishing a temporary safety zone for all waters between mile 40.5 and 42.5 on the Monongahela River. Vessels shall not enter into, depart from, or move within this safety zone without permission from the Captain of the Port Pittsburgh or her designated representative. Persons or vessels requiring entry into or passage through a safety zone must request permission from the Captain of the Port Pittsburgh, or a designated representative. They may be contacted on VHF-FM Channel 13 or 16, or through Coast Guard Sector Ohio Valley at (800) 253-7465. This rule will become effective at 7:00 a.m. on January 9, 2013 and remain in effect until 5 p.m. on March 1, 2013, but will only be enforced during intermittent periods that will be announced by broadcast notices to mariners with as much advanced notice as possible. Due to the unpredictability of the Monongahela River, weather and river forecasts will be used to determine the most suitable conditions for demolition operations. Advanced notice will be given to the maximum extent possible, but despite best efforts, the safety zone may be established with minimal notice when ideal work conditions are identified. The Captain of the Port Pittsburgh will inform the public and maritime industry through broadcast notice to mariners of the enforcement periods and changes to the safety zone and its enforcement.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and 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. Although this rule will be effective from January 9, 2013 until March 1, 2013, unless demolition operation are completed sooner, it will only be enforced for a limited time periods during days scheduled for demolition operations. By enforcing this safety zone for limited periods of time throughout the effective period, marine traffic will not be significantly impacted. Entry into or passage through the safety zone will be considered on a case-by-case basis by the Captain of the Port Pittsburgh or designated representative. Notification of, and changes to, the enforcement period will be made via broadcast notice to mariners.
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 will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit that portion of the waterways between mile 40.5 and mile 42.5 on the Monongahela River
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and 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 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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
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. 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, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(d)
(2) Persons or vessels requiring entry into or passage through a safety zone must request permission from the Captain of the Port Pittsburgh or a designated representative. They may be contacted on VHF-FM Channel 13 or 16, or through Coast Guard Sector Ohio Valley at 1-800-253-7465.
(3) All persons and vessels shall comply with the instructions of the Captain of the Port Pittsburgh and designated on-scene U.S. Coast Guard patrol personnel. On-scene U.S. Coast Guard patrol personnel includes Commissioned, Warrant, and Petty Officers of the U.S. Coast Guard.
Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to approve revisions adopted by the State of Colorado on December 15, 2005, to Regulation No. 3 (Air Pollutant Emission Notice and Permitting Requirements). Colorado submitted the request for approval of these rule revisions into the State Implementation Plan (SIP) on August 21, 2006. The revisions remove repealed provisions in Regulation No. 3 that pertain to the issuance of Colorado air quality permits; the revisions also implement other minor administrative changes and renumbering. The intended effect of this action is to take final action to approve the rules that are consistent with the Clean Air Act (CAA.) This action is being taken under section 110 of the CAA.
This final rule is effective February 25, 2013.
EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2011-1025. All documents in the docket are listed in the
Kevin Leone, Air Program, Mailcode 8P-AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6227, or
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The words
(iii) The initials
(iv) The words
On December 31, 2002, EPA published revisions to the federal Prevention of Significant Deterioration (PSD) and non-attainment NSR regulations. These revisions are commonly referred to as “NSR Reform” and became effective nationally in areas not covered by a SIP on March 3, 2003. The NSR Reform revisions included provisions for baseline emissions determinations, actual-to-future actual methodology, plantwide applicability limits (PALs), clean units, and pollution control projects (PCPs). On June 24, 2005, the United States Court of Appeals for the District of Columbia Circuit issued its decision and opinion in the case of
The State of Colorado submitted a formal SIP revision on July 11, 2005, followed by a supplemental submittal on October 25, 2005. These submittals requested approval for regulations to implement the NSR Reform provisions that were not vacated or remanded by the June 24, 2005 court decision; including renumbering, reorganizing, and revised definitions. On April 10, 2012 (77 FR 21453), EPA published a notice of final rulemaking for the July 11, 2005, and October 25, 2005 submittals. In that action, EPA approved renumbering, reorganizing and portions of Colorado's revisions to the Stationary Source Permitting and Air Pollutant Emission Notice Requirements (Regulation No. 3) that incorporate EPA's December 31, 2002 NSR Reform; however, EPA considered as withdrawn the portions of the submittals that implemented the clean unit and pollution control project exemptions. EPA also approved a version of the recordkeeping requirements that removed the “reasonable possibility” standard.
Colorado adopted revisions on December 15, 2005, and submitted these revisions, which we are addressing in this action, on August 21, 2006. These revisions reflect the removal of references to clean units, pollution control projects, and the “reasonable possibility” standard from the State's rules. As a result of the deletion of these references, many provisions were renumbered and references to them
Colorado's August 21, 2006 submittal supersedes the portions of the Colorado's July 11, 2005 and October 25, 2005, submittals which were considered withdrawn in our April 10, 2012 action. EPA is taking final action on these revisions in this rulemaking.
EPA proposed action on these revisions on July 9, 2012 (77 FR 40315.) We accepted comments from the public on this proposal through August 8, 2012. EPA received no comments during the public comment period.
EPA is taking final action to approve all revisions to Regulation No. 3 as submitted on August 21, 2006, with one exception, including renumbering that resulted from removing provisions that were vacated or remanded in the June 24, 2005 court decision, as well as minor administrative changes. We are not approving the removal of provisions that were considered withdrawn in our April 10, 2012 action (77 FR 21453), as these provisions were never approved into the SIP. We are only approving the renumbering that resulted from Colorado's removal of those provisions from Regulation Number 3. In a number of instances, the provisions that were approved in our April 10, 2012 action contain italicized and underlined text. As explained in our April 10, 2012 notice, the italicized text was to be added to the SIP and the underlined text removed from the SIP upon our approval of the NSR reform provisions. As that approval was completed in our April 10, 2012 action, in this action we incorporate only the plain and italicized text of the renumbered provisions.
The exception stems from a final action EPA took on January 9, 2012 (77 FR 1027). In that action, we approved revisions to Regulation Number 3, Part C, that were submitted on August 1, 2007 to meet the requirements of the Phase 2 Implementation Rule for the 1997 ozone NAAQs (70 FR 71612, Nov. 29, 2005). As the August 1, 2007 submittal was subsequent to the August 21, 2006 submittal we are approving today, the provisions we approved in our January 9, 2012 action (listed in Table 2 of 77 FR 1027) already reflect the renumbering of Part C and supersede the provisions in the August 21, 2006 submittal. As explained in our January 9, 2012 notice, the subsequent approval of the remaining renumbering of Part C—which we are carrying out today—resolves any discrepancy in the numbering of Part C.
As part of the NSR Reform rule, EPA allowed sources to calculate their actual and projected actual emissions to determine whether a modification will trigger NSR. If a source concludes that there is no “reasonable possibility” that emissions from a project will trigger NSR, the source is not required to keep records substantiating that calculation. However, the data and records would necessarily be generated by the owner or operator to calculate its emissions.
Colorado did not follow the federal rule in this regard. In Section I.B.5., Colorado imposes a requirement that owners or operators using the actual-to-projected-actual applicability test for a project that requires a minor source permit or modification [pursuant to Part A, Section I.B.26.; Part C, Section I.A.3.; or Part C, Section X.; or any minor source permit under any provisions of Part B], submit an otherwise-required permit application and include documentation adequate to substantiate calculations made for the test.
The June 24, 2005, DC Circuit court opinion also addressed the recordkeeping and reporting requirements of the federal rule. The 2002 rule excused a source from maintaining records of the information and calculations used in the actual-to-projected actual applicability test if the source determined that there was no “reasonable possibility” that the modification would trigger NSR. These are the same records necessary to substantiate calculations made for the applicability test. The court concluded that lack of evidence, in the form of data and records, could inhibit enforceability of the NSR program in this context. The court remanded this part of the rule. On December 21, 2007, EPA published a final rule in response to the DC Circuit Court's remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules (see 72 FR 72607) in which EPA clarified what constitutes “reasonable possibility”. 72 FR 72607 established a “percentage increase trigger” by which there is a reasonable possibility that a change would result in a significant emissions increase if the projected emissions increase of a pollutant—determined by comparing baseline actual emissions to projected actual emissions—equaled or exceeded fifty percent of the applicable NSR significant level for that pollutant.
The State of Colorado requires sources retain records that, among other things, are essential to substantiate sources' calculations using the actual-to-projected-actual applicability test. Colorado also requires that a source submit its data and calculations along with a permit application that would otherwise be required for the physical or operational change. Colorado reviews the data and calculations only to confirm a source's conclusions whether it triggers NSR. The information submitted is then included in a non-enforceable appendix to a source's Title V Permit or as a permit note in the source's construction permit. Accordingly, Colorado elected not to modify Part D, Section I.B.5. and to modify Part D, Sections V.A.7.c. and VI.B.5. in a manner that maintains consistency with Section I.B.5. Part D, Sections V.A.7.c. and VI.B.5 were previously approved in 77 FR 21453 (April 10, 2012). EPA finds that the current Regulation No. 3 recordkeeping requirements are at least as stringent as in 72 FR 72607.
Based on the discussion in this notice, EPA finds that the renumbering resulting from Colorado's removal of vacated and remanded provisions from the June 24, 2005, court decision, and other minor administrative changes meet applicable requirements of the Act; and thus, the revisions are approvable under CAA section 110. Therefore, we are taking final action to approve Colorado's Regulation No. 3 revisions as submitted on August 21, 2006.
Specifically, we are taking final action to approve the renumbering—with the exception of renumbered provisions already approved in our January 9, 2012 action—resulting from the deletion of the following provisions:
We are approving the renumbering of the existing Regulation No. 3 rule because these changes are non-substantive and do not affect the meaning of the rule. The renumbering
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 final 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the 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 March 25, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds, Incorporation by reference.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(125) On August 21, 2006, the State of Colorado submitted revisions to 5 CCR 1001-5, Regulation Number 3,
(i) Incorporation by reference
(A) 5 CCR 1001-5, Regulation Number 3,
(B) 5 CCR 1001-5, Regulation Number 3,
(
(
(ii) Additional material.
(A) Notice of Final Adoption, dated 12/15/2005, signed by Douglas A. Lempke, Administrator, for revisions made to Regulation Number 3,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS is reallocating the projected unused amounts of the Aleut Corporation's and the Community Development Quota pollock directed fishing allowances from the Aleutian Islands subarea to the Bering Sea subarea directed fisheries. These actions are necessary to provide opportunity for harvest of the 2013 total allowable catch of pollock, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area.
Effective 1200 hrs, Alaska local time (A.l.t.), January 24, 2013, until the effective date of the final 2013 and 2014 harvest specifications for Bering Sea and Aleutian Islands (BSAI) groundfish, unless otherwise modified or superseded through publication of a notification in the
Steve Whitney, 907-586-7269.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
In the Aleutian Islands subarea, the portion of the 2013 pollock total allowable catch (TAC) allocated to the Aleut Corporation's directed fishing allowance (DFA) is 15,500 metric tons (mt) and the Community Development Quota (CDQ) DFA is 1,900 mt as established by the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012), and as adjusted by an inseason adjustment (78 FR 270, January 3, 2013).
As of January 17, 2013, the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that 10,500 mt of Aleut Corporation's DFA and 1,900 mt of pollock CDQ DFA in the Aleutian Islands subarea will not be harvested. Therefore, in accordance with § 679.20(a)(5)(iii)(B)(
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of AI pollock. Since the pollock fishery opens January 20, 2013, it is important to immediately inform the industry as to the final Bering Sea subarea pollock allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery; allow the industry to plan for the fishing season and avoid potential disruption to the fishing fleet as well as processors; and provide opportunity to harvest increased seasonal pollock allocations while value is optimum. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 11, 2013.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by pot catcher vessels greater than or equal to 60 feet (18.3 meters (m)) length overall (LOA) in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the A season apportionment of the 2013 Pacific cod total allowable catch (TAC) specified for pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI.
Effective 1200 hours, Alaska local time (A.l.t.), January 22, 2013, through 1200 hours, A.l.t., September 1, 2013.
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season apportionment of the 2013 Pacific cod TAC allocated as a directed fishing allowance to pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI is 9,911 metric tons as established by the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012) and inseason adjustment (78 FR 270, January 3, 2013).
In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the A season apportionment of the 2013 Pacific cod TAC allocated as a directed fishing allowance to pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI has been reached. Consequently, NMFS is prohibiting
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 17, 2013.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2013 total allowable catch of pollock for Statistical Area 630 in the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), January 22, 2013, through 1200 hrs, A.l.t., March 10, 2013.
Josh Keaton, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2013 total allowable catch (TAC) of pollock in Statistical Area 630 of the GOA is 5,998 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012) and inseason adjustment (78 FR 267, January 3, 2013).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2013 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 5,698 mt and is setting aside the remaining 300 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.
After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 17, 2013.
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Embraer S.A. Model EMB-550 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features include a high-speed protection system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before March 11, 2013.
Send comments identified by docket number FAA-2012-1301 using any of the following methods:
•
•
•
•
Todd Martin, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-1178; facsimile 425-227-1149.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.
On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, ailerons and rudder, controlled by the pilot or copilot sidestick.
The Model EMB-550 airplane incorporates a high-speed protection system in the airplane's flight control laws. The airplane's high-speed protection system limits nose-down pilot authority by adding automatic control inputs at threshold speeds above V
Under the provisions of 14 CFR part 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-550 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).
The Model EMB-550 airplane will incorporate the following novel or unusual design features: a high-speed protection system that limits nose-down pilot authority at speeds above V
Section 25.335(b)(1) is a dive speed condition that was originally adopted in part 4b of the Civil Air Regulations in order to provide an acceptable speed margin between design cruise speed and design dive speed. Flutter clearance design speeds and airframe design loads are impacted by the design dive speed. While the initial condition for the upset specified in the rule is 1
These special conditions are proposed in lieu of § 25.335(b)(1). Section 25.335(b)(2), which also addresses the design dive speed, is applied separately. Advisory Circular (AC) 25.335-1A,
Special conditions are necessary to address the high-speed protection system on the Model EMB-550. The proposed special conditions identify various symmetric and non-symmetric maneuvers that will ensure that an appropriate design dive speed, V
These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This special condition is proposed in lieu of 14 CFR 25.335(b)(1). Section 25.335(b)(2), also addresses the design dive speed, but it is applied separately. Advisory Circular (AC) 25.335-1A,
As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Embraer S.A. Model EMB-550 airplanes.
1. Dive Speed Definition with Speed Protection System.
(1) In lieu of the requirements of 14 CFR 25.335(b)(1), if the flight control system includes functions that act automatically to initiate recovery before the end of the 20-second period specified in § 25.335(b)(1), V
(a) From an initial condition of stabilized flight at V
(b) From a speed below V
(2) The applicant must also demonstrate that the speed margin, established as above, will not be exceeded in inadvertent, or gust-induced, upsets resulting in initiation of the dive from non-symmetric attitudes, unless the airplane is protected by the flight control laws from getting into non-symmetric upset conditions. The upset maneuvers described in paragraphs 32.c(3)(a) and 32.c(3)(c) of AC 25-7B,
(3) Any failure of the high-speed protection system that would result in an airspeed exceeding those determined by paragraphs (1) and (2) must be less than 10
(4) Failures of the system must be annunciated to the pilots. Flight manual instructions must be provided that reduce the maximum operating speeds V
(5) Dispatch of the airplane with the high-speed protection system
Federal Aviation Administration (FAA), DOT.
Notice of proposed special conditions.
This action proposes special conditions for the Embraer S.A. Model EMB-550 airplane. This airplane will have a novel or unusual design feature(s), specifically new control architecture and a full digital flight control system which provides flight envelope protections. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Send your comments on or before March 11, 2013.
Send comments identified by docket number FAA-2012-1332 using any of the following methods:
•
•
•
•
Joe Jacobsen, FAA, Airplane and Flight Crew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2011; facsimile 425-227-1149.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.
On May 14, 2009, Embraer S.A. applied for a type certificate for their new Model EMB-550 airplane. The Model EMB-550 airplane is the first of a new family of jet airplanes designed for corporate flight, fractional, charter, and private owner operations. The aircraft has a conventional configuration with low wing and T-tail empennage. The primary structure is metal with composite empennage and control surfaces. The Model EMB-550 airplane is designed for 8 passengers, with a maximum of 12 passengers. It is equipped with two Honeywell HTF7500-E medium bypass ratio turbofan engines mounted on aft fuselage pylons. Each engine produces approximately 6,540 pounds of thrust for normal takeoff. The primary flight controls consist of hydraulically powered fly-by-wire elevators, aileron and rudder, controlled by the pilot or copilot sidestick.
Embraer S.A. has developed comprehensive flight envelope protection features integral to the electronic flight control system design. These flight envelope protection features include limitations on angle-of-attack, normal load factor, bank angle, pitch angle, and speed. To accomplish this flight-envelope-limiting, a significant change (or multiple changes) occurs in the control laws of the electronic flight control system as the limit is approached or exceeded. When failure states occur in the electronic flight control system, flight envelope protection features can likewise either be modified, or in some cases, eliminated. The current regulations were not written with these comprehensive flight-envelope-limiting systems in mind.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Embraer S.A. must show that the Model EMB-550 airplane meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model EMB-550 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to
In addition to the applicable airworthiness regulations and special conditions, the Model EMB-550 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36 and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).
The Model EMB-550 airplane will incorporate the following novel or unusual design features: New control architecture and a full digital flight control system which provides comprehensive flight envelope protections.
The applicable airworthiness regulation in this instance is 14 CFR 25.143. The purpose of § 25.143 is to verify that any operational maneuvers conducted within the operational envelope can be accomplished smoothly with average piloting skill and without exceeding any structural limits. The pilot should be able to predict the airplane response to any control input. During the course of the flight test program, the pilot determines compliance with § 25.143 through primarily qualitative methods. During flight test, the pilot should evaluate all of the following:
• The interface between each protection function,
• Transitions from one mode to another,
• The aircraft response to intentional dynamic maneuvering, whenever applicable, through dedicated maneuvers,
• General controllability assessment,
• High speed characteristics, and
• High angle-of-attack.
Section § 25.143, however, does not adequately ensure that the novel or unusual features of the Model EMB-550 airplane will have a level of safety equivalent to that of existing standards. This special condition is therefore required to accommodate the the flight-envelope- limiting systems in the Model EMB-550 airplane. The additional safety standards in this special condition will ensure a level of safety equivalent to that of existing standards.
As discussed above, these special conditions are applicable to the Model EMB-550 airplane. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Embraer S.A. Model EMB-550 airplanes.
1. General Limiting Requirements:
a. Onset characteristics of each envelope protection feature must be smooth, appropriate to the phase of flight and type of maneuver, and not in conflict with the ability of the pilot to satisfactorily change airplane flight path, speed, or attitude as needed.
b. Limit values of protected flight parameters (and if applicable, associated warning thresholds) must be compatible with the following:
i. Airplane structural limits,
ii. Required safe and controllable maneuvering of the airplane, and
iii. Margins to critical conditions. Unsafe flight characteristics/conditions must not result if dynamic maneuvering, airframe and system tolerances (both manufacturing and in-service), and non-steady atmospheric conditions, in any appropriate combination and phase of flight, can produce a limited flight parameter beyond the nominal design limit value.
c. The airplane must be responsive to intentional dynamic maneuvering to within a suitable range of the parameter limit. Dynamic characteristics such as damping and overshoot must also be appropriate for the flight maneuver and limit parameter in question.
d. When simultaneous envelope limiting is engaged, adverse coupling or adverse priority must not result.
2. Failure States: Electronic flight control system failures (including sensor) must not result in a condition where a parameter is limited to such a reduced value that safe and controllable maneuvering is no longer available. The crew must be alerted by suitable means if any change in envelope limiting or maneuverability is produced by single or multiple failures of the electronic flight control system not shown to be extremely improbable.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class D and Class E Airspace at Caldwell, NJ, as the Paterson Non-Directional Radio Beacon (NDB) has been decommissioned and new Standard Instrument Approach Procedures have been developed at Essex County Airport. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before March 11, 2013.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2012-0609; Airspace Docket No. 12-AEA-10, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636,
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2012-0609; Airspace Docket No. 12-AEA-10) and be submitted in triplicate to the Docket Management System (see “
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2012-0609; Airspace Docket No. 12-AEA-10.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class D airspace and Class E airspace designated as an extension to Class D surface area, to support new Standard Instrument Approach Procedures developed at Essex County Airport, Caldwell, NJ. Airspace reconfiguration is necessary due to the decommissioning of the Paterson NDB and cancellation of the NDB approach, and for continued safety and management of IFR operations at the airport.
Class D and Class E airspace designations are published in Paragraph 5000 and 6004, respectively, of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class D and Class E airspace at Essex County Airport, Caldwell, NJ.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface up to and including 2,700 feet MSL within a 4.1-mile radius of Essex County Airport, excluding the portion that coincides with Morristown, NJ Class D airspace area.. This Class D airspace area is effective during specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
That airspace extending upward from the surface within 2 miles each side of a 030°bearing from the Essex County Airport, extending from the 4.1-mile radius of theairport to 7 miles northeast of the airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Omak Airport, Omak, WA. Decommissioning of the Nondirectional Radio Beacon (NDB) has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport.
Comments must be received on or before March 11, 2013.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2012-1247; Airspace Docket No. 12-ANM-27, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4537.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA 2012-1247 and Airspace Docket No. 12-ANM-27) and be submitted in triplicate to the Docket Management System (see “
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2012-1247 and Airspace Docket No. 12-ANM-27”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the “
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface and 1,200 feet above the surface at Omak Airport, Omak, WA. The Omak NDB navigation aid is being decommissioned and, therefore, removed from the legal description. The size and shape of the airspace will remain the same by using the Airport Reference Point in describing the airspace. This action would enhance the safety and management of aircraft operations at Omak Airport, Omak, WA.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 4.3-mile radius of the Omak Airport, and within 1.8 miles each side of the 177° bearing of the Omak Airport extending from the 4.3-mile radius to 7.5 miles south of the airport; that airspace extending upward from 1,200 feet above the surface within 6.1 miles east and 8.7 miles west of the 177° and 357° bearings of the Omak Airport extending from 6.5 miles north to 17.9 miles south of the airport; that airspace extending upward from 4,500 feet MSL beginning at lat. 48°00′00″ N., long. 118°36′04″ W.; to lat. 47°45′00″ N., long. 118°36′04″ W.; to lat. 47°45′00″ N., long. 120°00′04″ W.; to lat. 48°00′00″ N., long. 120°00′04″ W.; to lat. 48°00′00″ N., long. 119°35′04″ W.; to lat. 48°09′37″ N., long. 119°36′05″ W.; to lat. 48°10′00″ N., long. 119°23′04″ W.; to lat. 48°00′00″ N., long. 119°22′24″ W., thence to the point of origin; that airspace extending upward from 8,500 feet MSL bounded on the north by the U.S./Canadian border, on the east by long. 119°00′04″ W., on the south by lat. 47°59′59″ N., and on the west by a line from lat. 47°59′59″ N., long. 120°30′04″ W.; to lat. 49°00′00″ N., long. 120°00′04″ W.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E Airspace at Easton, PA, as the Allentown VORTAC has been decommissioned and new Standard Instrument Approach Procedures (SIAPs) have been developed at Braden Airpark. This action would enhance the safety and airspace management of Instrument Flight Rules (IFR) operations at the airport. This action also would recognize the airport's name change and update the geographic coordinates of the airport.
Comments must be received on or before March 11, 2013.
Send comments on this rule to: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey SE., Washington, DC 20590-0001; Telephone: 1-800-647-5527; Fax: 202-493-2251. You must identify the Docket Number FAA-2012-0394; Airspace Docket No. 12-AEA-8, at the beginning of your comments. You may also submit and review received comments through the Internet at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2012-0394; Airspace Docket No. 12-AEA-8) and be submitted in triplicate to the Docket Management System (see “
Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2012-0394; Airspace Docket No. 12-AEA-8.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded from and comments submitted through
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.
The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet above the surface to support new Standard Instrument Approach Procedures developed at Braden Airpark, Easton, PA. Airspace reconfiguration is necessary due to the decommissioning of the Allentown VORTAC and cancellation of the VOR/DME approach, and for continued safety and management of IFR operations at the airport. Also, the airport name would be changed from Easton Airport to Braden Airpark, and the geographic coordinates of the airport also would be adjusted to coincide with the FAA's aeronautical database.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Braden Airpark, Easton, PA.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within an 8.2-mile radius of the Braden Airpark. This Class E airspace area is effective from sunrise to sunset, daily.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace at Reno/Tahoe International Airport, Reno, NV. Decommissioning of the Compass Locator at the Instrument Landing System Middle Marker (LMM) and the Middle Marker (MM) has made this action necessary for the safety and management of Instrument Flight Rules (IFR) operations at the airport. This action also would adjust the geographic coordinates of the airport.
Comments must be received on or before March 11, 2013.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2012-1195; Airspace Docket No. 12-AWP-7, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4537.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA 2012-1195 and Airspace Docket No. 12-AWP-7) and be submitted in triplicate
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2012-1195 and Airspace Docket No. 12-AWP-7”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace designated as an extension to Class C airspace area for Reno/Tahoe International Airport, Reno, NV. Airspace reconfiguration is necessary due to the decommissioning of the LMM and the MM navigation aids. The Airport Reference Point (ARP) would be used to describe the airspace instead of the LMM and the MM navigational aids. There would be no change in the current configuration of the controlled airspace area. Also, the geographic coordinates of the airport would be updated to coincide with the FAA's aeronautical database. Controlled airspace is necessary for the safety and management of IFR operations at the airport.
Class E airspace designations are published in paragraph 6003, of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend controlled airspace at Reno/Tahoe International Airport, Reno, NV.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 710 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565,3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from the surface within 1.8 miles each side of the Reno/Tahoe International Airport 360° bearing extending from the 5-mile radius of the airport to 12 miles north of the airport, and within 1.8 miles each side of the Reno/Tahoe International Airport 180° bearing extending from the 5-mile radius of the airport to 10.5 miles south of the airport.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace at Lakeview, OR. Controlled airspace is necessary to accommodate aircraft using Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at Lakeview County Airport. The FAA is proposing this action to enhance the safety and management of aircraft operations at Lakeview County Airport. This would also correct the airport name.
Comments must be received on or before March 11, 2013.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2012-1254; Airspace Docket No. 12-ANM-28, at the beginning of your comments. You may also submit comments through the Internet at
Eldon Taylor, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4537.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA 2012-1254 and Airspace Docket No. 12-ANM-28) and be submitted in triplicate to the Docket Management System (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2012-1254 and Airspace Docket No. 12-ANM-28”. The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Lakeview County Airport, Lakeview, OR. Controlled airspace is necessary to accommodate aircraft using RNAV (GPS) standard instrument approach procedures at Lakeview County Airport. Additional controlled airspace extending upward from 1,200 feet above the surface would be established to the north and to the south of the airport to contain the holding patterns. This action would enhance the safety and management of aircraft operations at the airport. Also, the airport formerly called Lakeview Airport is changed to Lakeview County Airport.
Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.
The FAA has determined this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation; (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify controlled airspace at Lakeview County Airport, Lakeview, OR.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565,3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 4.3-mile radius of the Lakeview County Airport, and within 1.8 miles each side of the 180° bearing of the airport extending from the 4.3-mile radius to 7 miles south of the airport; that airspace extending upward from 1,200 feet above the surface bounded by a line beginning at lat. 42°50′00″ N., long. 120°57′00″ W.; to lat. 42°54′00″ N., long. 120°22′00″ W.; to lat. 41°23′00″ N., long. 119°52′00″ W.; to lat. 41°17′00″ N., long. 120°25′00″ W.; to lat. 41°41′00″ N., long. 120°41′00″ W., thence to the point of beginning; that airspace extending upward from 10,500 feet MSL bounded on the north by lat. 44°00′00″ N., on the east by a line extending from lat. 44°00′00″ N., long. 120°00′04″ W., to the north edge of V-122 at long. 119°00′04″ W., on the south by the north edge of V-122, and on the west by the east edge of V-165.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to modify the operating schedule that governs the Third Street Bridge at mile 2.3, the Walnut Street Bridge at mile 2.8, and the Market Street Bridge at mile 3.0, all located on the Christina River in Wilmington, DE. Since the three drawbridges are located near one another and the few vessels that do transit this waterway usually go through all three bridges, it is proposed that all the bridges open on the same eight hour advance notice. This proposal would change the current regulations by allowing the Third Street and Walnut Street drawbridges to be opened in sequence with the same eight hour advance notice currently given to the Market Street drawbridge. This proposed schedule clarifies the sequencing of the three drawbridge openings, and provides for the reasonable needs of navigation.
Comments and related material must be received by the Coast Guard on or before March 11, 2013.
You may submit comments identified by docket number USCG-2012-1085 using any one of the following methods:
(1)
(2)
(3)
See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or email Terrance A. Knowles, Environmental Protection Specialist, Fifth Coast Guard District, at (757) 398-6587,
We encourage you to participate in this rulemaking by submitting comments and related material. All comments received will be posted, without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2012-1085), 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 (
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
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. You may submit a request for one using one of the four methods specified under
The current Drawbridge Operation Regulation, 33 CFR 117.237(c), for the Christina River, Third Street drawbridge at mile 2.3 and the Walnut Street drawbridge at mile 2.8, in Wilmington, DE requires both of the bridges to open on signal, and that the Market Street drawbridge at mile 3.0, open on signal with eight hours advance notice.
The Delaware Department of Transportation (DELDOT) who owns and operates these bascule-type drawbridges has requested a permanent change to the existing bridge regulations, allowing the Third Street and Walnut Street bridges to also open on signal with eight hours advance notice as does the Market Street Bridge. This proposed schedule allows for all three of the drawbridges to be opened in sequence on the same opening request if required. Vessel traffic on this part of the Christina River consists of a few commercial and pleasure craft.
Three vessels cause 97% of the openings at the three bridges: The Kalmar Nyckel sail ship, the River Taxi, and the River Boat Queen. The Market Street bridge has the most restrictive vertical clearance of the three drawbridges (8 feet above mean high water), and was opened a total 578 times in 2011. In 2011, the Walnut Street Bridge was opened 244 times and the Third Street Bridge was opened 250 times. The River Taxi does not require an opening to pass under the Third and Walnut Street Bridges.
Our proposed change to 33 CFR 117.237(c) would allow for a more ordered process of transiting through the three draw spans while providing for the reasonable needs of navigation. The Market Street Drawbridge presently opens with 8 hours advance notice and it is proposed that both the Third Street and Walnut Street bridges open on the same 8 hour notice when needed.
In addition, a text modification is required to remove the last sentence in paragraph 117.237(c) “The draws of these bridges shall open at all times as soon as possible for passage of a public vessel of the United States”. This sentence is being removed because it is already addressed in paragraph 117.31(b)(1).
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 or 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 Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The proposed changes are expected to have minimal impact on mariners due to the low number of vessels requiring openings on the river. In addition, because an 8-hour advance notice is currently required for the Market Street Bridge opening, it is understood that time for passage through all three bridges, under the proposed rule, will be consistent with the current regulation.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. 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 will not have a significant economic impact on a substantial number of small entities because only a few vessels transit through all three of the bridges and it is rare that in such cases any vessel stops between the three bridges. Most commercial traffic will leave and return during the day. The proposed rule would possibly affect small entities such as owners/operators of vessels needing to transit through the three bridges but requiring more than eight feet of vertical clearance (most restrictive bridge). These vessels can minimize delays and plan their transits in accordance with the proposed opening schedule.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it 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 will not result in such 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 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.
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 guides 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 simply promulgates the operating regulations or procedures for drawbridges. This rule is categorically excluded under figure 2-1, paragraph (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.
(c) The draws of the Third Street Bridge at mile 2.3, the Walnut Street Bridge at mile 2.8, and the Market Street Bridge at mile 3.0, located in Wilmington, DE shall all open on signal if at least eight hours notice is given. From 7 a.m. to 8 a.m. and 4:30 p.m. to 5:30 p.m., Monday through Saturday except holidays, the draws of these three bridges need not be opened for the passage of vessels. Any vessel which has passed through one or more of these bridges immediately prior to a closed period and which requires passage through the other bridge or bridges in order to continue to its destination shall be passed through the draw or draws of the bridge or bridges without delay.
Environmental Protection Agency (EPA).
Supplemental proposed rule.
On March 26, 2012, the Environmental Protection Agency (EPA) proposed to approve a revision to the Connecticut State Implementation Plan (SIP) that addresses regional haze for the first planning period from 2008 through 2018. The SIP was submitted by the Connecticut Department of Environmental Protection (now known
Written comments must be received on or before February 25, 2013.
Submit your comments, identified by Docket ID Number EPA-R01-OAR-2009-0919 by one of the following methods:
1.
2.
3.
4.
5.
In addition, copies of the State submittal are also available for public inspection during normal business hours, by appointment at the Bureau of Air Management, Department of Energy and Environmental Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-1630.
Anne McWilliams, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail Code OEP05-02), Boston, MA 02109-3912, telephone number (617) 918-1697, fax number (617) 918-0697, email
Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA.
In section 169A(a)(1) of the 1977 Amendments to the Clean Air Act (CAA), Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas
On November 18, 2009, the Bureau of Air Management of the CT DEEP
In the February 24, 2012 supplemental submittal, CT DEEP requested the parallel processing of proposed RCSA Section 22a-174-22d, “Post-2011 Connecticut Ozone Season NO
As part of the March 26, 2012 rulemaking, EPA proposed to approve proposed RCSA Section 22a-174-22d and proposed to approve Connecticut's alternative to BART program for NO
When parallel processing, EPA proposes to approve a rule before the State's final adoption of the regulation. In its February 24, 2012 supplemental submittal, Connecticut indicated that they planned to have a final adopted regulation prior to our final action on its Regional Haze SIP. Under the parallel processing procedure, after a State submits its final adopted regulation, EPA will review the regulation to determine whether it differs from the proposed regulation. If the final regulation does differ from the proposed regulation, EPA will determine whether these differences are significant. (Ordinarily, changes that are limited to issues such as allocation methodology would not be deemed significant for SIP approval purposes, assuming the methodology does not lead to allocations in excess of the total state budget.) Based on EPA's determination regarding the significance of any changes in the final regulation, EPA would then decide whether it is appropriate to prepare a final rule and describe the changes in the final rulemaking action, re-propose action based on the State's final adopted regulation, or other such action as may be appropriate.
Today's supplemental notice of proposed rulemaking only deals with issues associated with Connecticut's request to parallel process the proposed RSCA Section 22a-174-22d as a replacement of RSCA Section 22a-174-22c. Other aspects of EPA's March 26, 2012 proposal remain unchanged.
CAIR required certain states to reduce emissions of sulfur dioxide (SO
CAIR was later found to be inconsistent with the requirements of the CAA and the rule was remanded to EPA. See
EPA promulgated the Cross-State Air Pollution Rule (CSAPR), to replace CAIR in 2011. See 76 FR 48208 (August 8, 2011). EPA subsequently determined that the trading programs in CSAPR could also serve as an alternative to source-by-source BART. See 77 FR 33642 (June 7, 2012). Connecticut, which was subject to ozone season NO
On December 30, 2011, the D.C. Circuit Court issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the D.C. Circuit stayed CSAPR pending the court's resolutions of the petitions for review of that rule in
On August 21, 2012, the D.C. Circuit issued a decision to vacate CSAPR. In that decision, it also ordered EPA to continue administering CAIR “pending the promulgation of a valid replacement.”
In light of the vacatur and remand of CSAPR and the continuation of CAIR, CT DEEP has not finalized its adoption of the Connecticut CAIR replacement rule, RCSA Section 22a-174-22d. In a letter dated November 23, 2012, CT DEEP withdrew its February 24, 2012 request for parallel processing of this regulation.
Due to the unique circumstances surrounding Connecticut's development of its regional haze SIP and for the reasons explained below, EPA is proposing to approve Connecticut's Alternative to BART program based on, in part, the use of CAIR ozone season NO
For these reasons, EPA believes it is appropriate to allow Connecticut to rely on CAIR at this time, and the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable for purposes such as visibility improvement for the first Regional Haze planning period and BART. Following promulgation of the replacement rule, EPA will take action to require states to revise their regional haze SIPs to address the BART requirements. At that time, EPA will also determine whether, and to what extent, the replacement rule provides for greater reasonable progress than case by case BART.
EPA is proposing to approve Connecticut's use of the existing federally enforceable RCSA Section 22a-174-22c, “The Clean Air Interstate Rule (CAIR) Nitrogen Oxides (NO
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 approves 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
• 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Announcement of public hearing and extension of comment period.
By notice of proposed rulemaking (NPRM) published on October 18, 2012, FRA proposed a rule that would require railroads to submit information to the U.S. DOT National Highway-Rail Crossing Inventory (Crossing Inventory) about highway-rail and pathway crossings over which they operate. This document announces a public hearing to provide interested parties an opportunity to comment on the NPRM. This document also extends the NPRM comment period to allow interested parties to submit comments in response to issues raised at the public hearing.
A public hearing will be held on February 19, 2013 in Washington, DC, and will commence at 10 a.m. The comment period in this proceeding is extended to March 29, 2013.
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For information on facilities or services for persons with disabilities or to request special assistance at the
Ronald Ries, Staff Director, Grade Crossing Safety and Trespass Prevention, Office of Safety Analysis, FRA, 1200 New Jersey Avenue SE., Mail Stop 25, Washington, DC 20590 (telephone: 202-493-6299),
FRA has received written comments from interested parties, including Applied Research Associates, Inc. and Orion's Angels, related to the use of information submitted by railroads to the Crossing Inventory about the highway-rail and pathway crossings over which they operate. While this issue is not specifically addressed in the NPRM, FRA will hold a public hearing to facilitate the exchange of information and concerns regarding FRA's proposed rule.
The public hearing is meant to provide an opportunity for interested parties to articulate the issues and concerns they have with the NPRM and to respond to the specific comments requested therein related to the draft Inventory Form and draft Inventory Guide, so that these issues can be fully addressed in any final rule that is developed. Interested parties are invited to present oral statements and to proffer information and views related to FRA's proposal at the hearing. The hearing will be informal and will be conducted by a representative designated by FRA in accordance with FRA's Rules of Practice (49 CFR 211.25). The hearing will be a non-adversarial proceeding; therefore, there will be no cross examination of persons presenting statements or proffering evidence. An FRA representative will make an opening statement outlining the scope of the hearing. After all initial statements by those wishing to comment have been completed; those persons wishing to make a brief rebuttal will be afforded an opportunity to do so in the same order in which the initial statements were made. Additional procedures, as necessary for the conduct of the hearing, will be announced at the hearing. A transcript of the discussions will be made a part of the public docket in this proceeding.
Any person wishing to participate in the public hearing should notify FRA by telephone or in writing, by mail or email, at the addresses provided in the Attendance section of this notice at least five business days prior to the date of the hearing. The notification should identify the party the person represents, and the particular subject(s) the person plans to address. The notification should also provide the participant's mailing address, email address (if applicable), and other contact information. FRA reserves the right to limit the duration of presentations, if necessary, to provide all participants the opportunity to speak.
To accommodate the public hearing and to provide interested parties the opportunity to submit comments in response to views or information provided at the public hearing, FRA is extending the comment period in this proceeding to March 29, 2013.
In an effort to facilitate discussion on technical issues associated with the electronic submission of data to the Crossing Inventory, FRA hosted a technical symposium on December 13, 2012. See 77 FR 68722 (Nov. 16, 2012). A transcript of the symposium is available in the public docket. As a result of discussions at that technical symposium, FRA intends to host a series of follow-up technical meetings to further discuss with all interested parties technical issues and concerns associated with electronic submission of data to the Crossing Inventory. The date, time, and location of these technical meetings will be announced in notices posted in the public docket of this rulemaking proceeding. FRA will also notify via email those individuals who participated in the December 13, 2012 technical symposium and provided their email addresses to FRA. Any person wishing to participate in these technical meetings, who has not already expressed an interest and provided an email address to FRA, should notify Ms. Michelle Silva of his or her interest by telephone or in writing (by email) at the address provided in the Attendance section of this notice. Note, however, that these technical meetings are intended to allow for the free flow of technical data and information between all interested parties. Any individual's or organization's involvement in any of these technical meetings will not be construed as official comments to the NPRM. Any person wishing to comment on the NPRM must present his or her comments at the February 19, 2013 public hearing or submit such comments in writing to the docket as instructed in this document. Although the proceedings of these additional technical meetings will not be transcribed, minutes of the meetings will be kept by FRA personnel and placed in the underlying rulemaking docket (docket no. FRA-2011-0007).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings; correction.
On January 16, 2013, we, NMFS, published a proposed rule to designate a nonessential experimental population of Central Valley spring-run Chinook salmon under section 10(j) of the Endangered Species Act in portions of the San Joaquin River and a notice of availability for the draft environmental assessment associated with this action. The proposed rule contained incorrect dates for two of our meetings. We announce new dates for public meetings on this action.
The first meeting will be in Fresno, CA on January 29, 2013, at the Fresno Metropolitan Flood Control District, Board Meeting Room, 5469 E. Olive Avenue from 5:30 p.m. to 7:30 p.m. (The public should park in the front parking area (rear parking area closes at 5:30 p.m. with no exit after that time) and enter the door located on the west side of the front building). The second meeting will be in Los Banos, CA on January 30, 2013, at the Los Banos Community Center, 645 7th
You may submit comments on this proposed rule, identified by NOAA-NMFS-2012-0221 by any of the following methods:
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• Visit NMFS' Reintroduction Web site at
• Call (916) 930-3723 and request to have a CD or hard copy mailed to you.
• Obtain a CD or hard copy by visiting NMFS' Central Valley office at 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814.
Please see the draft EA for additional information to comment on that document.
Elif Fehm-Sullivan, National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814 (916-930-3723) or Dwayne Meadows, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 (301-427-8403).
On January 16, 2013 we, NMFS, published a proposed rule (78 FR 3381) to designate a nonessential experimental population of Central Valley spring-run Chinook salmon under section 10(j) of the Endangered Species Act in portions of the San Joaquin River and a notice of availability for the draft environmental assessment associated with this action. The proposed rule contained incorrect dates for two of our meetings. Three public meetings will be held at which the public can make comments on the draft EA and proposed rule.
The first meeting will be in Fresno, CA on January 29, 2013, at the Fresno Metropolitan Flood Control District, Board Meeting Room, 5469 E. Olive Avenue from 5:30 p.m. to 7:30 p.m. (The public should park in the front parking area (rear parking area closes at 5:30 p.m. with no exit after that time) and enter the door located on the west side of the front building). The second meeting will be in Los Banos, CA on January 30, 2013, at the Los Banos Community Center, 645 7th Street from 2 p.m. to 4 p.m. The third meeting will be in Chico, CA on February 5, 2013, at the Chico Masonic Family Center, 1110 West East Avenue from 5:30 p.m. to 7:30 p.m.
16 U.S.C. 1533
1. Open session, Tuesday, October 23, 2012,
2. Closed session, Tuesday, October 23, 2012,
Agricultural Marketing Service, USDA.
Notice of Funds Availability: Inviting Applications From State Departments of Agriculture for the Agricultural Management Assistance Organic Certification Cost-Share Program.
This notice invites the following eligible States: Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming, to submit an Application for Federal Assistance (Standard Form 424), and to enter into a Cooperative Agreement with the Agricultural Marketing Service (AMS) for the allocation of organic certification cost-share funds. The AMS has allocated $1.425 million for this organic certification cost-share program. Funds are available to 16 designated States to provide cost-share assistance to organic crop and livestock producers certified under the U.S. Department of Agriculture (USDA) Organic Standards (7 CFR 205) that either receive organic certification or incur expenses for continued certification during the period of October 1, 2012 through September 30, 2013. Eligible States interested in obtaining cost-share funds for their organic producers must submit an Application for Federal Assistance (Standard Form 424) via
Completed Applications for Federal Assistance (Standard Form 424) and signed Cooperative Agreements must be received by February 7, 2013.
Applications for Federal Assistance (Standard Form 424) must be submitted via
Signed cooperative agreements should be sent via express mail to Patricia Atkins, Agricultural Marketing Specialist, National Organic Program, USDA/AMS/NOP, Room 2648-South, Ag Stop 0268, 1400 Independence Avenue SW., Washington, DC 20250-0268.
Patricia Atkins, Agricultural Marketing Specialist, NOP, USDA/AMS/NOP, Room 2648-South, Ag Stop 0268, 1400 Independence Avenue SW., Washington, DC 20250-0268; Telephone: (202) 720-3252. Email:
This Organic Certification Cost-Share Program is part of the Agricultural Management Assistance (AMA) Program authorized under the Federal Crop Insurance Act (FCIA), as amended, (7 U.S.C. 1524). Under the applicable FCIA provisions, USDA is authorized to provide cost-share assistance to organic producers in the States of Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming. The AMS has allocated $1.425 million for this year's organic certification cost-share program. This program provides financial assistance to organic producers certified under the USDA Organic Regulations (7 CFR 205), which were authorized under the Organic Foods Production Act of 1990, as amended (7 U.S.C. 6501
To participate in the program, eligible States, through their State Departments of Agriculture, must complete an Application for Federal Assistance (Standard Form 424) and enter into a written Cooperative Agreement with AMS. State Departments of Agriculture refers to agencies, commissions, or departments of State government responsible for implementing regulation, policy or programs on agriculture within their State. The program will provide cost-share assistance, through participating States, to organic crop and livestock producers receiving certification or incurring expenses for the continuation of certification by a USDA accredited certifying agent during the period of October 1, 2012 through September 30, 2013. USDA has determined that payments will be limited to 75% (seventy-five percent) of an individual producer's certification costs, up to a maximum of $750 (seven-hundred and fifty dollars).
To receive cost-share assistance, organic crop and livestock producers should contact their State agencies. Procedures for applying are outlined in the cost share policies and procedures at
The AMA Organic Certification Cost-Share Program is listed in the “Catalog of Federal Domestic Assistance” under number 10.171. Subject agencies must adhere to Title VI of the Civil Rights Act of 1964, which bars discrimination in all Federally-assisted programs. Additional information on the AMA Organic Certification Cost-Share Program can be found on the NOP's Web site at
7 U.S.C. 1524.
U.S.D.A. Forest Service, Pacific Southwest Region, California.
Notice of Intent to initiating the first phase of the forest planning process for the Bio-Region.
Come gather 'round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You'll be drenched to the bone
If your time to you is worth savin'
Then you better start swimmin' or you'll sink like a stone
For the times, they are a-changin'.
The Pacific Southwest Region is initiating the first phase of the forest planning process pursuant to the 2012 Forest Planning Rule which will describe the strategic direction for management of forest resources for the next ten to fifteen years. This notice communicates that the informal phase of the Bio-Regional Assessment has begun.
The Bio-Regional Assessment Report will be completed in July 2013. The Forest-level Assessment Reports for the three early adopter Forests which will tier from the Bio-Regional Assessment Report and will be completed in December, 2013. The formal revision process will begin in 2014.
U.S. Forest Service, Pacific Southwest Region 5, Attn.: Ecosystem Planning, 1323 Club Drive, Vallejo, California, 94592.
Ronald L. Pugh, Deputy Director, Ecosystem Planning, 707-562-8951. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The Pacific Southwest Region of the United States, United States Department of Agriculture, along with the Sierra, Inyo, and Sequoia National Forests, are initiating the first phase of the forest planning process pursuant to the 2012 Forest Planning Rule. Forest plans describe the strategic direction for management of forest resources for the next ten to fifteen years, and are adaptive and amendable as conditions change over time. This initial phase includes the assessment of resource condition and trend at the bioregional and forest scales. Although not required by the new Planning Rule, the Region will complete a Bio-Regional Assessment to help provide a landscape scale perspective to the required forest assessments. An assessment is the first step in revising forest plans.
Under the 2012 Planning Rule, the planning process is continuous and includes three stages extending over the life of the Revised Forest Plan. The first stage is the assessment of resources, and occurs in the first year. The second stage is the formal process required by the National Environment Policy Act (NEPA) and includes the preparation of Draft Environmental Impact Statements and Revised Forest Plan for public review and comment, and the preparation of the Final Environmental Impact Statement and Revised Forest Plan. We expect the second stage to take two years. The third stage of the process is monitoring and feedback, which is ongoing over the life of the revised forest plans.
We are committed to collaboration and to strengthening public engagement throughout the process. Collaboration and communication plans are being developed with the help of stakeholders at the regional and forest levels. Each plan is unique to the needs of the people and communities being served. The goal is not complete agreement; we seek common context and understanding.
Regional and forest specialists have begun collecting information to describe existing resource conditions and trends. The Bio-Regional Assessment Report will be completed in July 2013.
Regional Forester Randy Moore, Pacific Southwest Region, U.S.D.A. Forest Service.
Region-wide conditions and trends will be addressed in the Bio-Regional Assessment to help provide a landscape scale context for the Sierra Nevada, southern Cascades, and the Modoc Plateau. The bio-regional Assessment Report will be completed in July 2013.
At this phase of forest plan revision there is no formal Scoping Process; however, we are committed to collaboration and to strengthening public engagement throughout the process. A collaboration and communication plan that was developed with the help of stakeholders is in place.
For information on current events, meetings, workshops, important dates and how to participate in forest plan revision, visit the Pacific Southwest Region 5 Web site:
Forest Service, USDA.
Notice of meeting.
The Ashley Resource Advisory Committee will meet in Vernal, Utah. The committee is meeting
The meetings will be held February 28, 2013, from 6 p.m. to 9 p.m.
The meeting will be held in the Fire Center conference room at the Ashley National Forest Supervisor's Office, 355 North Vernal Avenue in Vernal, Utah. Written comments should be sent to Ashley National Forest, 355 North Vernal Avenue, Vernal, UT 84078. Comments may also be sent via email to
All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at Ashley National Forest, 355 North Vernal Avenue, Vernal, UT.
Louis Haynes, RAC Coordinator, Ashley National Forest, (435) 781-5105; email:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The meeting is open to the public. The following business will be conducted: (1) Welcome and roll call; (2) Approval of meeting minutes; (3) Review of completed and approved projects; (4) review of next meeting purpose, location, and date; (5) Receive public comment. Persons who wish to bring related matters to the attention of the Committee may file written statements with the committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by February 18, 2013 will have the opportunity to address the committee at these meetings.
Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Financial Services Transactions between U.S. Financial Services Providers and Foreign Persons (BE-185). This mandatory survey is conducted under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108, as amended) and by Section 5408 of the Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C. 4908(b)).
This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, the survey. Reports are due 45 days after the end of the U.S. person's fiscal quarter, except for the final quarter of the U.S. person's fiscal year when reports must be filed within 90 days. The BE-185 survey forms and instructions are available on the BEA Web site at
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Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Foreign Airline Operators' Revenues and Expenses in the United States (BE-9). This mandatory survey is conducted under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108, as amended). This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, the survey. Reports are due 45 days after the end of each calendar quarter. The BE-9 survey forms and instructions are available on the BEA Web site at
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Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting the mandatory survey titled Quarterly Survey of Insurance Transactions by U.S. Insurance Companies with Foreign Persons (BE-45). This mandatory survey is conducted under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108, as amended). This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, the survey. Reports are due 60 days after the end of the U.S. person's fiscal quarter, except for the final quarter of the U.S. person's fiscal year when reports must be filed within 90 days. The BE-45 survey forms and instructions are available on the BEA Web site at
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Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce is informing the public that it is conducting the mandatory survey titled Survey of Foreign Ocean Carriers' Revenues and Expenses in the United States (BE-29). This mandatory survey is conducted under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108, as amended). This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, the survey. Reports are due 90 days after the end of each calendar year. The BE-29 survey forms and instructions are available on the BEA Web site at
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Bureau of Economic Analysis, Commerce.
Notice of reporting requirements.
By this Notice, the Bureau of Economic Analysis (BEA), Department of Commerce, is informing the public that it is conducting a mandatory survey titled Survey of Ocean Freight Revenues and Foreign Expenses of United States Carriers (BE-30). This mandatory survey is conducted under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-
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International Trade Administration (ITA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before March 25, 2013.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Maria D'Andrea, Office of Textiles and Apparel, U.S. Department of Commerce, Tel. (202) 482-1550,
Title III, Subtitle B, Section 321 through Section 328 of the United States-Oman Free Trade Agreement Implementation Act (the “Act”) implements the textile and apparel safeguard provisions, provided for in Article 3.1 of the United States-Oman Free Trade Agreement (the “Agreement”). This safeguard mechanism applies when, as a result of the elimination of a customs duty under the Agreement, an Omani textile or apparel article is being imported into the United States in such increased quantities, in absolute terms or relative to the domestic market for that article, and under such conditions as to cause serious damage or actual threat thereof to a U.S. industry producing a like or directly competitive article. In these circumstances, Article 3.1 permits the United States to increase duties on the imported article from Oman to a level that does not exceed the lesser of the prevailing U.S. normal trade relations (NTR)/most-favored-nation (MFN) duty rate for the article or the U.S. NTR/MFN duty rate in effect on the day before the Agreement entered into force.
The Statement of Administrative Action accompanying the Act provides that CITA will issue procedures for requesting such safeguard measures, for making its determinations under section 322(a) of the Act, and for providing relief under section 322(b) of the Act. In Proclamation No. 8332 (73 FR 80,289), the President delegated to CITA his authority under Subtitle B of Title III of the Act with respect to textile and apparel safeguard measures.
CITA must collect information in order to determine whether a domestic textile or apparel industry is being adversely impacted by imports of these products from Oman, thereby allowing CITA to take corrective action to protect the viability of the domestic textile industry, subject to section 322(b) of the Act.
Pursuant to Section 321(a) of the Act and Section 7 of Presidential Proclamation, an interested party in the U.S. domestic textile and apparel industry may file a request for a textile and apparel safeguard action with CITA. Consistent with longstanding CITA practice in considering textile safeguard actions, CITA will consider an interested party to be an entity (which may be a trade association, firm, certified or recognized union, or group of workers) that is representative of either: (A) a domestic producer or producers of an article that is like or directly competitive with the subject Omani textile or apparel article; or (B) a domestic producer or producers of a component used in the production of an article that is like or directly competitive with the subject Omani textile or apparel article.
In order for a request to be considered, the requestor must provide
If CITA determines that the request provides the information necessary for it to be considered, CITA will publish a notice in the
CITA will make a determination on any request it considers within 60 calendar days of the close of the comment period. If CITA is unable to make a determination within 60 calendar days, it will publish a notice in the
If a determination under section 322(b) of the Act is affirmative, CITA may provide tariff relief to a U.S. industry to the extent necessary to remedy or prevent serious damage or actual threat thereof and to facilitate adjustment by the domestic industry to import competition. The import tariff relief is effective beginning on the date that CITA's affirmative determination is published in the
Entities submitting requests, responses or rebuttals to CITA may submit both a public and confidential version of their submissions. If the request is accepted, the public version will be posted on the dedicated Oman Free Trade Agreement textile safeguards section of the Office of Textile and Apparel (OTEXA) Web site. The confidential version of the request, responses or rebuttals will not be shared with the public as it may contain business confidential information. Entities submitting responses or rebuttals may use the public version of the request as a basis for responses.
When an interested party files a request for a textile and apparel safeguard action with CITA, ten copies of any such request must be provided in a paper format. If business confidential information is provided, two copies of a non-confidential version must also be provided. To the extent business confidential information is provided, a non-confidential version must also be provided.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is rescinding the administrative review of the antidumping duty order on circular welded carbon quality steel pipe from the People's Republic of China (“PRC”) for the period July 1, 2011, through June 30, 2012.
Thomas Martin or Robert Bolling, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3936 or (202) 482-3434, respectively.
On August 30, 2012, based on timely requests for review by Wheatland Tube Company (“Wheatland”) and LDR Industries, Inc. (“LDR”), the Department published in the
On September 7, 2012, LDR withdrew its request for an administrative review of Xuzhou Global Pipe & Fitting Manufacturing Co., Ltd. On November 28, 2012, Wheatland withdrew its request for an administrative review of the remaining 26 companies.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation of the requested review. In this case, LDR and Wheatland withdrew their requests within the 90-day deadline and no other parties requested an administrative review of the antidumping duty order. Therefore, we are rescinding the administrative review of circular welded carbon quality steel pipe from the PRC for the period July 1, 2011, through June 30, 2012.
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. Because the Department is rescinding this administrative review in its entirety, the entries to which this administrative review pertained shall be assessed antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c). The Department intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
National Geospatial-Intelligence Agency (NGA), DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Online GEOINT Services (OGS) directorate of NGA announces a proposed public information collection and seeks public comment on the provisions thereof. 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 information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by March 25, 2013.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Chief of Account Management, Online GEOINT Services—Customer Account Management (OGSU), National Geospatial-Intelligence Agency, ATTN: Linda White, National Geospatial-Intelligence Agency, 3838 Vogel Road, Arnold, MO 63010-6205 or call OGSU at 636-321-5351.
Respondents are geospatial professionals who participate in the tasking, collection, analysis, dissemination, or various other support roles. Many of these roles involve life and death decision-support, and NGA seeks ways to deliver geospatial information more rapidly and more efficiently. By understanding requirements, NGA can develop products and services and delivery methods that provide the necessary decision-support.
Department of Education (ED), IES, NCES.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before February 25, 2013.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
Electronically mail
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following public utility holding company filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission 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 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
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 5:00 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 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding, of CED White River Solar, LLC's application for market-based rate authority, with an accompanying rate schedule, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability is February 4, 2013.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding(s) are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
U.S. Environmental Protection Agency (EPA).
Notice of proposed settlement agreement; request for public comment.
In accordance with the Comprehensive Environmental Response Compensation, and Liability Act, as amended (“CERCLA”), notice is hereby given of a Proposed Settlement Agreement under Section 122(h) of CERCLA, between the United States, on behalf of the U.S. Environmental Protection Agency (“EPA”) and Pacific Mills Acquisition, LLC (the “Settling Party”) with respect to the Bay State Plating and Polishing Inc. Superfund Site (the “Site”). EPA completed a removal action at the Site in 2005 incurring a total of approximately $600,500. Pursuant to the Proposed Settlement Agreement, the Settling Party agrees to pay EPA $300,000 in exchange for EPA to release a lien on property owned by the Settling Party. The Settling Party has demonstrated a limited ability to pay and this Proposed Settlement Agreement represents a fair and reasonable compromise of EPA's past costs.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the Proposed Settlement Agreement. EPA will consider all comments received and may modify or withdraw its consent to the Settlement Agreement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. EPA's response to any comments received will be available for public inspection at 5 Post Office Square, Boston, MA 02109.
Comments must be submitted on or before February 25, 2013.
A copy of the Proposed Settlement Agreement may be obtained from Ann Gardner, U.S. Environmental Protection Agency, Region I, 5 Post Office Square, Suite 100, Mail Code OES 4-4, Boston, Massachusetts 02109-3912, by calling (617) 918-1895 or by email at
Ann Gardner, U.S. Environmental Protection Agency, Region I, 5 Post Office Square, Suite 100, Mail Code OES 4-4, Boston, Massachusetts 02109-3912 or via email at
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to
Written Paperwork Reduction Act (PRA) comments should be submitted on or before March 25, 2013. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the FCC contact listed below as soon as possible.
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget, via fax at 202-395-5167 or via Internet at
Benish Shah, Office of Managing Director, (202) 418-7866.
Under 47 CFR part 5 of the FCC's Rules governing the Experimental Radio Service: (1) Pursuant to section 5.55(c), each application for experimental radio authorization shall be specific and complete with regard to—station location, proposed equipment, power, antenna height, and operating frequency; and other information required by the application form and the rules; (2) pursuant to section 5.61(c), an application for experimental special temporary authority shall contain—Name, address, phone number of the applicant, description of why the STA is needed, description of the operation to be conducted and its purpose, time and dates of proposed operation, classes of station and call sign, description of the location, equipment to be used, frequency desired, power desired, and antenna height information; (3) pursuant to Section 5.75, if a blanket license is granted, licensees are required to notify the Commission of the specific details of each individual experiment, including location, number of base and mobile units, power, emission designator, and any other pertinent technical information not specified by the blanket license; (4) pursuant to Section 5.85(d), when applicants are using public safety frequencies to perform experiments of a public safety nature, the license may be conditioned to require coordination between the experimental licensee and appropriate frequency coordinator and/or all public safety licensees in its area of operation; (5) pursuant to Section 5.85(e), the Commission may, at its discretion, condition any experimental license or special temporary authority (STA) on the requirement that before commencing operation, the new licensee coordinate its proposed facility with other licensees that may receive interference as a result of the new licensee's operations; and (6) pursuant to Section 5.93(b), unless otherwise stated in the instrument of authorization, a license granted for the purpose of limited market studies requires the licensee to inform anyone participating in the experiment that the service or device is granted under an experimental authorization and is strictly temporary. In all cases, it is the responsibility of the licensee to coordinate with other users.
Federal Communications Commission.
Notice and request for comments.
The Federal Communications Commission (FCC), as part of its continuing effort to reduce paperwork burdens, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act (PRA) of 1995. Comments are requested concerning whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before March 25, 2013. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email PRA@fcc.gov and to
For additional information about the
The FCC Form 475-B Consumer Complaint Form asks complainants to provide their contact information, including address, telephone number, and email address, and to describe their complaint(s) and issue(s) concerning the practices of telecommunications entities, which they believe may have aired obscene, profane, and/or indecent programming. The FCC Form 475-B will remain unchanged. The FCC Form 1088 Consumer Complaint Form asks complainants to provide their contact information, including address, telephone number, and email address, and to describe their complaints and issues regarding “Do Not Call” and “Junk Fax” as well as other related consumer protection issues such as prerecorded messages, automatic telephone dialing systems, and unsolicited commercial email messages to wireless telecommunications devices. The FCC Form 1088 A through H will remain unchanged. The FCC Form 501 Consumer Complaint Form asks complainants to provide their contact information, including address, telephone number, and email address, and to describe their complaints and issues regarding alleged slamming violations. The FCC Form 501 will remain unchanged.
Federal Communications Commission.
Notice.
This document announces the extension of the charter of the Emergency Access Advisory Committee (Committee or EAAC). This extension of the charter will enable the EAAC to complete the important work it began in early 2011 pursuant to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA).
The EAAC charter is now effective until June 14, 2013.
Suzy Rosen Singleton, Consumer and Governmental Affairs Bureau, (202) 810-1503, or
By releasing the Public Notice (DA 13-28), the Consumer and Governmental Affairs Bureau and the Public Safety and Homeland Security Bureau of the Federal Communications Commission (FCC or Commission) extended the charter of the EAAC by six months until June 14, 2013. This extension of the charter will enable the EAAC to complete the important work it began in early 2011 pursuant to the CVAA.
The EAAC was chartered on January 14, 2011 to determine the most effective and efficient technologies and methods by which to enable equal access to emergency services by individuals with disabilities as part of our nation's migration to Next Generation 911 (NG9-1-1), and to make recommendations to the Commission on how to achieve those effective and efficient technologies and methods. In spring 2011, the EAAC conducted a nationwide survey of individuals with disabilities and released a report on that survey on July 21, 2011. Following release of the survey report, the EAAC developed recommendations, which it submitted to the Commission on December 7, 2011, as required by the CVAA. However, the EAAC clarified that the December 2011 recommendations did not constitute the full report and requested additional editorial privileges and the right to submit a full report that will contain the technical and policy background for these recommendations at a later date. The EAAC subsequently formed subcommittees to further explain in detail its initial recommendations related to interoperability testing, language assistance, gaps in existing public safety standards, timelines for deployment and pre-NG 911 mobile text-to-911 solutions.
The EAAC Charter provides that the EAAC shall terminate two years from the date of the Charter, thus expiring on January 14, 2013. The Commission has received requests from the co-chairs of
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than February 11, 2013.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1.
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 February 19, 2013.
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166-2034:
1.
B. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198-0001:
1.
Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating certain mergers or acquisitions to give the Federal Trade Commission and the Assistant Attorney General advance notice and to wait designated periods before consummation of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to terminate this waiting period prior to its expiration and requires that notice of this action be published in the
The following transactions were granted early termination—on the dates indicated—of the waiting period provided by law and the premerger notification rules. The listing for each transaction includes the transaction number and the parties to the transaction. The grants were made by
Renee Chapman, Contact Representative; or Theresa Kingsberry, Legal Assistant; Federal Trade Commission, Premerger Notification Office, Bureau Of Competition, Room H-303, Washington, DC 20580, (202) 326-3100.
By Direction of the Commission.
Department of Health and Human Services.
Notice.
This notice provides an update of the Department of Health and Human Services (HHS) poverty guidelines to account for last calendar year's increase in prices as measured by the Consumer Price Index.
Office of the Assistant Secretary for Planning and Evaluation, Room 404E, Humphrey Building, Department of Health and Human Services, Washington, DC 20201.
For information about how the guidelines are used or how income is defined in a particular program, contact the Federal, state, or local office that is responsible for that program. For information about poverty figures for immigration forms, the Hill-Burton Uncompensated Services Program, and the number of people in poverty, use the specific telephone numbers and addresses given below.
For general questions about the poverty guidelines themselves, contact Kendall Swenson, Office of the Assistant Secretary for Planning and Evaluation, Room 404E, Humphrey Building, Department of Health and Human Services, Washington, DC 20201—telephone: (202) 690-7507—or visit
For information about the percentage multiple of the poverty guidelines to be used on immigration forms such as USCIS Form I-864, Affidavit of Support, contact U.S. Citizenship and Immigration Services at 1-800-375-5283.
For information about the Hill-Burton Uncompensated Services Program (free or reduced-fee health care services at certain hospitals and other facilities for persons meeting eligibility criteria involving the poverty guidelines), contact the Office of the Director, Division of Health Facilities, Health
For information about the number of people in poverty, visit the Poverty section of the Census Bureau's web site at
Section 673(2) of the Omnibus Budget Reconciliation Act (OBRA) of 1981 (42 U.S.C. 9902(2)) requires the Secretary of the Department of Health and Human Services to update the poverty guidelines at least annually, adjusting them on the basis of the Consumer Price Index for All Urban Consumers (CPI-U). The poverty guidelines are used as an eligibility criterion by the Community Services Block Grant program and a number of other Federal programs. The
As required by law, this update is accomplished by increasing the latest published Census Bureau poverty thresholds by the relevant percentage change in the Consumer Price Index for All Urban Consumers (CPI-U). The guidelines in this 2013 notice reflect the 2.1 percent price increase between calendar years 2011 and 2012. After this inflation adjustment, the guidelines are rounded and adjusted to standardize the differences between family sizes. The same calculation procedure was used this year as in previous years. (Note that these 2013 guidelines are roughly equal to the poverty thresholds for calendar year 2012 which the Census Bureau expects to publish in final form in September 2013.)
The poverty guidelines continue to be derived from the Census Bureau's current official poverty thresholds; they are not derived from the Census Bureau's new Supplemental Poverty Measure (SPM).
The following guideline figures represent annual income.
Separate poverty guideline figures for Alaska and Hawaii reflect Office of Economic Opportunity administrative practice beginning in the 1966-1970 period. (Note that the Census Bureau poverty thresholds—the version of the poverty measure used for statistical purposes—have never had separate figures for Alaska and Hawaii.) The poverty guidelines are not defined for Puerto Rico or other outlying jurisdictions. In cases in which a Federal program using the poverty guidelines serves any of those jurisdictions, the Federal office that administers the program is generally responsible for deciding whether to use the contiguous-states-and-DC guidelines for those jurisdictions or to follow some other procedure.
Due to confusing legislative language dating back to 1972, the poverty guidelines sometimes have been mistakenly referred to as the “OMB” (Office of Management and Budget) poverty guidelines or poverty line. In fact, OMB has never issued the guidelines; the guidelines are issued each year by the Department of Health and Human Services. The poverty guidelines may be formally referenced as “the poverty guidelines updated periodically in the
Some federal programs use a percentage multiple of the guidelines (for example, 125 percent or 185 percent of the guidelines), as noted in relevant authorizing legislation or program regulations. Non-Federal organizations that use the poverty guidelines under their own authority in non-Federally-funded activities also may choose to use a percentage multiple of the guidelines.
The poverty guidelines do not make a distinction between farm and non-farm families, or between aged and non-aged units. (Only the Census Bureau poverty thresholds have separate figures for aged and non-aged one-person and two-person units.)
Note that this notice does not provide definitions of such terms as “income” or “family,” because there is considerable variation in defining these terms among the different programs that use the guidelines. These variations are traceable to the different laws and regulations that govern the various programs. This means that questions such as “Is income counted before or after taxes?”, “Should a particular type of income be counted?”, and “Should a particular person be counted as a member of the family/household?” are actually questions about how a specific program applies the poverty guidelines. All such questions about how a specific program applies the guidelines should be directed to the entity that administers or funds the program, since that entity has the responsibility for defining such terms as “income” or “family,” to the extent that these terms are not already defined for the program in legislation or regulations.
Agency for Healthcare Research and Quality, HHS.
Notice.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), announcement is made of an Agency for Healthcare Research and Quality (AHRQ) Special Emphasis Panel (SEP) meeting on “Patient Centered Outcomes Research (PCOR) Pathway to Independence Award (K99/R00)”.
February 12, 2013 (Open on February 12 from 8:00 a.m. to 9:00 a.m. and closed for the remainder of the meeting).
Hyatt Regency Hotel Bethesda,One Metro Center,Bethesda, MD 20814.
Anyone wishing to obtain a roster of members, agenda or minutes of the non-confidential portions of this meeting should contact:Mrs. Bonnie Campbell,Committee Management Officer,Office of Extramural Research, Education and Priority Populations, AHRQ,540 Gaither Road, Room 2038,Rockville, Maryland 20850,Telephone: (301) 427-1554.
Agenda items for this meeting are subject to change as priorities dictate.
A Special Emphasis Panel is a group of experts in fields related to health care research who are invited by the Agency for Healthcare Research and Quality (AHRQ), and agree to be available, to conduct on an as needed basis, scientific reviews of applications for AHRQ support. Individual members of the Panel do not attend regularly-scheduled meetings and do not serve for fixed terms or a long period of time. Rather, they are asked to participate in particular review meetings which require their type of expertise.
Substantial segments of the SEP meeting referenced above will be closed to the public in accordance with the provisions set forth in 5 U.S.C. App. 2, section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6). Grant applications for “Patient Centered Outcomes Research (PCOR) Pathway to Independence Award (K99/R00)” are to be reviewed and discussed at this meeting. 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.
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of Five AHRQ Subcommittee Meetings.
The subcommittees listed below are part of AHRQ's Health Services Research Initial Review Group Committee. Grant applications are to be reviewed and discussed at these meetings. These meetings will be closed to the public in accordance with 5 U.S.C. App. 2 section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6).
See below for dates of meetings:
1. Health System and Value Research (HSVR)
Date: February 13, 2013 (Open from 8:30 a.m. to 8:45 a.m. on February 13 and closed for remainder of the meeting)
2. Healthcare Safety and Quality Improvement Research (HSQR)
Date: February 13-14, 2013 (Open from 8:30 a.m. to 8:45 a.m. on February 13 and closed for remainder of the meeting)
3. Health Care Research and Training (HCRT)
Date: February 21-22, 2013 (Open from 8:30 a.m. to 8:45 a.m. on February 21 and closed for remainder of the meeting)
4. Healthcare Information Technology Research (HITR)
Date: February 21-22, 2013 (Open from 8:30 a.m. to 8:45 a.m. on February 21 and closed for remainder of the meeting)
5. Healthcare Effectiveness and Outcomes Research (HEOR)
Date: March 13-14, 2013 (Open from 8:30 a.m. to 8:45 a.m. on March 13 and closed for remainder of the meeting)
The five meetings will take place at the following locations:
Hyatt Regency Hotel Bethesda, One Metro Center, Bethesda, MD 20814
Hilton Washington DC/Rockville Hotel & Executive Meeting Center, 1750 Rockville Pike, Rockville, MD 20852
Gaithersburg Marriott Washingtonian Center, 9751 Washingtonian Boulevard, Gaithersburg, Maryland 20878
(to obtain a roster of members, agenda or minutes of the non-confidential portions of the meetings.) Mrs. Bonnie Campbell, Committee Management Officer, Office of Extramural Research Education and Priority Populations, AHRQ, 540 Gaither Road, Suite 2000, Rockville, Maryland 20850, Telephone (301) 427-1554
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App. 2), AHRQ announces meetings of the scientific peer review groups listed above, which are subcommittees of AHRQ's Health Services Research Initial Review Group Committee. The subcommittee meetings will be closed to the public in accordance with the provisions set forth in 5 U.S.C. App. 2 section 10(d), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(6) 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.
Agenda items for these meetings are subject to change as priorities dictate.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of Availability of Final Environmental Assessment (FINAL EA) and a Finding of No Significant Impact (FONSI) for Metropolitan Sewer District of Greater Cincinnati Easement on HHS/CDC/NIOSH Taft North Campus, Cincinnati, Ohio.
The Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services (HHS) is issuing this notice to advise the public that HHS/CDC has prepared, and signed on January 3, 2013, a Finding of No Significant Impact (FONSI) based on the Final Environmental Assessment (FINAL EA) for Metropolitan Sewer District of Greater Cincinnati Easement on the HHS/CDC/NIOSH Taft North Campus, Cincinnati, Ohio. HHS/CDC prepared the final EA, dated November 2012, in accordance with the National Environmental Policy Act (NEPA).
The FONSI and/or Final EA are available as of the publication date of this notice.
Interested parties may request copies of the FONSI and/or Final EA, from: Mr. Sam Tarr, Centers for Disease Control and Prevention, Buildings and Facilities Office, 1600 Clifton Road NE., Mailstop K96, Atlanta, GA, 30333. Telephone Number (770) 488-8170.
The Final EA evaluated the granting of an easement to the Metropolitan Sewer District of Greater Cincinnati (MSD) for the sole purpose of installing sanitary sewer and storm sewer improvements to the MSD's existing sewer system and the rehabilitation and expansion of an existing storm water detention basin. The proposed easement covers approximately 0.64 acres located adjacent to the intersection of Grandin Road and Grand Beech Lane, Cincinnati, Ohio. The EA also evaluated the construction activities associated with the MSD's sanitary sewer and storm sewer improvements. The purpose and need of the proposed easement is to provide access to MSD to implement/construct MSD sanitary sewer and storm sewer improvements on Federally-owned land in the custody and control of HHS/CDC.
The Final EA has been prepared in accordance with the National Environmental Policy Act (NEPA) of 1969. Based on the results of the EA, HHS/CDC has issued a Finding of No Significant Impact (FONSI) indicating that the proposed action will not have a significant impact on the environment. Minimization and mitigating measures will include: Compliance with applicable regulatory laws, procedures, and permits for all construction activities; development and implementation of Erosion and Sedimentation Control Plan; conduct potential habitat survey for identified wildlife; site review by state historic preservation office before construction to avoid disturbance of any site with the potential for archeological significance; and the application of best management practices (BMP) to minimize short term air quality and noise impact during construction activities.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance for the industry and FDA staff entitled “Humanitarian Use Device (HUD) Designations.” Devices are eligible for HUD designation if they are designed to treat or diagnose a disease or condition that affects or is manifested in fewer than 4,000 individuals in the United States per year. Devices that receive HUD designations may be eligible for marketing approval under the Humanitarian Device Exemption (HDE) marketing pathway. This guidance document is intended to assist applicants in the preparation and submission of HUD designation requests and FDA reviewers in evaluating such requests. This guidance finalizes the draft guidance of the same title dated December 2011.
Submit either electronic or written comments on Agency guidances at any time.
Submit written requests for single copies of the guidance to the Office of Orphan Products (OOPD), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5271, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist the office in processing your requests. The guidance may also be obtained by mail by calling OOPD at 301-796-8660. See the
Submit electronic comments on the guidance to
Eric Chen, Office of Orphan Products Development (OOPD), Food and Drug Administration, Bldg. 32, Rm. 5222, 10903 New Hampshire Ave., Silver Spring, MD 20993, 301-796-6327, email:
FDA is announcing the availability of a guidance for industry and FDA staff entitled “Humanitarian Use Device (HUD) Designations.” Devices are eligible for HUD designation if they are designed to treat or diagnose a disease or condition that affects or is manifested in fewer than 4,000 individuals in the United States per year. (See section 520(m) of the Federal Food, Drug, and Cosmetic Act (FD&C Act), 21 U.S.C. 360j(m); 21 CFR 814.102.) This guidance document is intended to assist applicants in the preparation and submission of HUD designation requests to OOPD. This guidance is also intended to assist FDA reviewers in the evaluation and analysis of HUD designation requests.
Topics addressed in this guidance include: (1) Demonstrating in HUD designation requests that the device is designed to treat or diagnose a disease or condition that affects or is manifested in fewer than 4,000 individuals in the United States per year; (2) how this demonstration varies depending on whether the device is intended for therapeutic or diagnostic purposes; (3)
Devices that receive HUD designation may be eligible for marketing approval under an HDE application. An HDE application is a premarketing application that is similar to a premarket approval (PMA) application in that the applicant must demonstrate a reasonable assurance of safety, but in an HDE application, the applicant seeks an exemption from the PMA requirement of demonstrating a reasonable assurance of effectiveness. A device that has received HUD designation is eligible for HDE approval if, among other criteria, the device will not expose patients to an unreasonable or significant risk of illness or injury and the probable benefit to health from use of the device outweighs the risk of injury or illness from its use, taking into account the probable risks and benefits of currently available devices or alternative forms of treatment. (See section 520(m)(2)(C) of the FD&C Act; 21 CFR 814.104(b)(2).) Although a HUD designation from OOPD is a prerequisite to submitting an HDE application to the Center for Devices and Radiological Health or the Center for Biologics Evaluation and Research, it does not by itself guarantee approval of the HDE application.
In the
We received several comments on the draft guidance. Most comments appreciated the clarification and explanation provided by the draft guidance. Several comments made recommendations to improve clarity.
FDA is issuing the draft guidance in final form with minor revisions to improve clarity. This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on HUD designation requests. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see
Persons with access to the Internet may obtain this guidance document at either:
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration (FDA) is announcing the following public workshop entitled “Clinical Flow Cytometry in Hematologic Malignancies.” The purpose of this public workshop is to seek public input from academia, Government, laboratorians, industry, clinicians, patients and other stakeholders on the role of clinical flow cytometry in hematologic malignancies, in order to develop a specific regulatory policy for this class of in vitro diagnostic devices.
To register for the public workshop, please visit FDA's Medical Devices News & Events—Workshops & Conferences calendar at
If you need special accommodations due to a disability, please contact Susan Monahan (email:
In order to permit the widest possible opportunity to obtain public comment, FDA is soliciting either electronic or written comments on all aspects of the public workshop topics. The deadline for submitting comments related to this public workshop is March 29, 2013.
Regardless of attendance at the public workshop, interested persons may submit either electronic or written comments. Submit electronic comments to
The earliest determination of B and T cell subsets was based on microscopic counting of cells expressing surface immunoglobulins for B cell enumeration, and sheep red blood cells rosette formation was used to enumerate T cells. The subsequent development of leukocyte-specific monoclonal antibodies and flow cytometry contributed to the automation of lymphocyte subset analysis. Flow cytometric lymphocyte subset analysis was initially used to immunophenotype hematological malignancies; however, the HIV epidemic led to a large number of 510(k) submissions addressing use for HIV immune monitoring in AIDS.
In response to these submissions, Draft Guidance for 510(k) Submission of Lymphocyte Immunophenotyping Monoclonal Antibodies was issued September 26, 1991. Prior to this draft document, reagents for CD2 and CD20 were 510(k) cleared based on methodological correlation with accepted reference methods. Following the issuance of the 1991 draft guidance, several test systems identifying CD3 T cells, CD4 and CD8 T cell subsets, NK cells and B cells were cleared under 510(k), with either single reagents or combination of reagents based on the previous clearance of CD2 and CD20 reagents. These clearances for flow cytometry system devices included flow cytometers, reagents, controls, and associated software for data acquisition and data analysis.
In 1997, the FDA issued the Analyte Specific Reagent (ASR) Rule (21 CFR 864.4020) to provide some assurance that 1) critical reagents manufacturers provided to laboratories for use in tests developed by the laboratories were made under current Good Manufacturing Practices (cGMP), 2) manufacturers registered with the FDA and listed such reagents, and 3) manufacturers reported malfunctions, injuries and deaths related to the use of such reagents to the FDA (62 FR 62260, November 21, 1997). Subsequent to publication of the ASR rule in 1997, some manufacturers began to bundle individual ASRs together in the form of reagent panels (“cocktails”) creating devices that went beyond the single reagent ASRs that the rule had anticipated. In 2007, the Agency reiterated and clarified the intentions of the ASR rule in the Guidance for Industry and FDA Staff on Commercially Distributed Analyte Specific Reagents (ASRs): Frequently Asked Questions
Clinical flow cytometry plays a major role world-wide in the diagnosis of leukemia and lymphoma and more recently in the detection of minimal residual disease (MRD). Because there are currently no FDA cleared or approved in vitro diagnostics (IVD) panels for the diagnostic evaluation of hematological malignancies, FDA recognizes that there is an unmet need for such products to assist clinical laboratories in performing this testing. FDA has been working to define the regulatory guidelines for the review of this family of devices and has been actively working with industry and
In partnership with the National Institutes of Health (NIH) and National Institute of Standards and Technology (NIST), CDRH intends to utilize the findings of this workshop in the development of an appropriate, risk-based regulatory framework for Clinical Flow Cytometry, which promotes innovation and protects patient safety.
Topics for discussion during this workshop include: (1) Overview of Quality control and standardization issues associated with Clinical Flow Cytometry (FCM), including discussion of a NIST traceable standard; (2) Biological controls in Clinical FCM: The use of stabilized whole blood samples and cryopreserved cells for normals and chronic lymphocytic leukemia (CLL); (3) Third-party flow cytometry data analysis software; and (4) Overview of FDA regulation of Clinical FCM using the 510(k) clearance process.
The FDA is seeking representation from both North American and European clinical investigators at this workshop. This Clinical FCM Workshop is being planned to occur just prior to a CDER Workshop on the role of MRD in CLL which will be held February 27, 2013 (77 FR 76051, December 26, 2012). An FDA workshop for acute lymphocytic leukemia (ALL) MRD was held April 18, 2012, and a separate workshop on acute myelogenous leukemia (AML) MRD will be held March 4, 2013 (77 FR 76050, December 26, 2012).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Board of Scientific Counselors, National Advisory Neurological Disorders and Stroke.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in sections 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Neurological Disorders and Stroke, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, March 7, 2013, 12:00 p.m. to March 7, 2013, 4:00 p.m., National Institutes of Health, 6116 Executive Boulevard, Rockville, MD, 20852 which was published in the
This notice is being amended to change the location, date and time to Hilton Washington DC North, 620 Perry Parkway, Gaithersburg, MD 20877, March 25, 2013, 8:00 a.m.-5:00 p.m. Additionally, the meeting is being held as a face-to-face meeting. The meeting is closed to the public.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Institute Clinical Trials and Translational Research Advisory Committee.
The meeting will be open to the public, 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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Cancer Institute Board of Scientific Advisors.
The meeting will be open to the public, 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.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit Information Collection Requests (ICRs) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collections of information: 1625-0065, Offshore Supply Vessels—Title 46 CFR Subchapter L; and 1625-0105, Regulated Navigation Area; Reporting Requirements for Barges Loaded with Certain Dangerous Cargoes, Inland Rivers, Eighth Coast Guard District and the Illinois Waterway, Ninth Coast Guard District. Our ICRs describe the information we seek to collect from the public. Before submitting these ICRs to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before March 25, 2013.
You may submit comments identified by Coast Guard docket number [USCG-2012-1006] to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT). To avoid duplicate submissions, please use only one of the following means:
(1)
(2)
(3)
(4)
The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12-140 on the West Building Ground Floor, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
Copies of the ICRs are available through the docket on the Internet at
Ms. Kenlinishia Tyler, Office of Information Management, telephone 202-475-3652, or fax 202-475-3929, for questions on these documents. Contact Ms. Renee V. Wright, Program Manager, Docket Operations, 202-366-9826, for questions on the docket.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collections. There is one ICR for each Collection.
The Coast Guard invites comments on whether these ICRs should be granted based on the Collections being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collections; (2) the accuracy of the estimated burden of the Collections; (3) ways to enhance the quality, utility, and clarity of information subject to the Collections; and (4) ways to minimize the burden of the Collections on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise these ICRs or decide not to seek approval of revisions of the Collections. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG-2012-1006], and must be received by March 25, 2013. We will post all comments received, without change, to
If you submit a comment, please include the docket number [USCG-2012-1006], indicate the specific section of the document to which each comment applies, providing a reason for each comment. You may submit your comments and material online (
You may submit your comments and material by electronic means, mail, fax, or delivery to the DMF at the address under
Anyone can search the electronic form of comments received in 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 statement regarding Coast Guard public dockets in the January 17, 2008, issue of the
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30-Day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting 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. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until February 25, 2013. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
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(2)
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If you need a copy of the information collection instrument with supplementary documents, or need additional information, please visit
Bureau of Land Management, Interior.
60-Day notice and request for comments.
In compliance with the Paperwork Reduction Act, the Bureau of Land Management (BLM) invites public comments on, and plans to request approval to continue, the collection of information that enables the BLM to manage Federal coal resources in accordance with applicable statutes. The Office of Management and Budget (OMB) has assigned control number 1004-0073 to this information collection.
Please submit comments on the proposed information collection by March 25, 2013.
Comments may be submitted by mail, fax, or electronic mail. Mail: U.S. Department of the Interior, Bureau of Land Management, 1849 C Street NW., Room 2134LM, Attention: Jean Sonneman, Washington, DC 20240. Fax: to Jean Sonneman at 202-245-0050. Electronic mail:
Bill Radden-Lesage, at 202-912-7116. Persons who use a telecommunication device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, to leave a message for Mr. Radden-Lesage.
OMB regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act, 44 U.S.C. 3501-3521, require that interested members of the public and affected agencies be given an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)). This notice identifies an information collection that the BLM plans to submit to OMB for approval. The Paperwork Reduction Act provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information, you are not obligated to respond.
The BLM will request a 3-year term of approval for this information collection activity. Comments are invited on: (1) The need for the collection of information for the performance of the functions of the agency; (2) the accuracy of the agency's burden estimates; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the information collection burden on respondents, such as use of automated means of collection of the information. A summary of the public comments will accompany our submission of the information collection requests to OMB.
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.
The following information is provided for the information collection:
• Form 3440-1, Application and License to Mine Coal (Free Use); and
• Form 3400-12, Coal Lease.
• Applicants for, and holders of, coal exploration licenses;
• Applicants/bidders for, and holders of, coal leases;
• Applicants for, and holders of, licenses to mine coal; and
• Surface owners and State and tribal governments whose lands overlie coal deposits.
Bureau of Land Management, Interior.
Notice.
The plats of survey of lands described below are scheduled to be officially filed in the Bureau of Land Management California State Office, Sacramento, California, thirty (30) calendar days from the date of this publication.
A copy of the plats may be obtained from the California State Office, Bureau of Land Management, 2800 Cottage Way, Sacramento, California 95825, upon required payment.
Chief, Branch of Geographic Services, Bureau of Land Management, California State Office, 2800 Cottage Way, Room W-1623, Sacramento, California 95825, (916) 978-4310.
These surveys were executed to meet the administrative needs of various federal agencies; the Bureau of Land Management, Bureau of Indian Affairs or Bureau of Reclamation. The lands surveyed are:
43 U.S.C. chapter 3.
Bureau of Land Management, Interior.
Notice of Invitation.
Pursuant to the Mineral Leasing Act of 1920, as amended by the Federal Coal Leasing Amendments Act of 1976, and to Bureau of Land Management (BLM) regulations, all interested parties are hereby invited to participate with Texas and Oklahoma Coal Company, LLC, on a pro rata cost-sharing basis, in its program for the exploration of coal deposits owned by the United States of America on lands located in Las Animas County, Colorado.
Any party electing to participate in this exploration program must send written notice to both Texas and Oklahoma Coal Company, LLC, and the BLM as provided in the
Copies of the exploration plan (case file number COC-75642) are available for review during normal business hours in the following offices: BLM, Colorado State Office, 2850 Youngfield Street, Lakewood, CO 80215, and BLM, Royal Gorge Field Office, 3028 E. Main St, Canon City, CO 81212. Any party electing to participate in this exploration program shall notify the BLM State Director, in writing, at the BLM Colorado State Office (address above) and Texas and Oklahoma Coal Company, LLC, Attn: Haldane Morris, 2711 N. Haskell Ave, Suite 550, Dallas, TX 75204.
Kurt M. Barton at 303-239-3714,
Texas and Oklahoma Coal Company, LLC, has applied to the BLM for a coal exploration license. The purpose of the exploration program is to obtain geologic information about the coal. The BLM regulations at 43 CFR 3410 require the publication of an invitation to participate in the coal exploration in the
and SW
S
These lands contain 16,323.42 acres, more or less.
The proposed exploration program is fully described in, and will be conducted pursuant to, an exploration plan to be approved by the BLM.
The foregoing is published in the
Notice is hereby given, in accordance with Public Laws 92-463 and 94-579, that the California Desert District Advisory Council (DAC) to the Bureau of Land Management (BLM), U.S. Department of the Interior, will meet in formal session on Saturday, February 9, 2013, from 8 a.m. to 4:30 p.m. at the Hampton Inn & Suites, 2710 Lenwood Rd., Barstow, CA 92311. There also will be a field trip on Friday, February 8, from 8 a.m. to 4:30 p.m. on BLM-administered lands. Meeting and field trip details will be posted on the DAC web page,
Agenda topics for the Saturday meeting will include a focus on renewable energy, including the proposed Desert Renewable Energy Conservation Plan, as well as updates by council members, the BLM California Desert District manager, five field office managers, and council subgroups. Final
All DAC meetings are open to the public. Public comment for items not on the agenda will be scheduled at the beginning of the meeting Saturday morning. Time for public comment may be made available by the council chairman during the presentation of various agenda items, and is scheduled at the end of the meeting for topics not on the agenda.
While the Saturday meeting is tentatively scheduled from 8:00 a.m. to 4:30 p.m., the meeting could conclude prior to 4:30 p.m. should the council conclude its presentations and discussions. Therefore, members of the public interested in a particular agenda item or discussion should schedule their arrival accordingly.
Written comments may be filed in advance of the meeting for the California Desert District Advisory Council, c/o Bureau of Land Management, External Affairs, 22835 Calle San Juan de Los Lagos, Moreno Valley, CA 92553. Written comments also are accepted at the time of the meeting and, if copies are provided to the recorder, will be incorporated into the minutes.
David Briery, BLM California Desert District External Affairs, (951) 697-5220.
National Park Service, Interior.
Notice.
The Bureau of Land Management (BLM), Utah State Office, in consultation with the appropriate Indian tribes, has determined that the cultural item meets the definition of both a sacred object and an object of cultural patrimony, and repatriation to the Indian tribe stated below may occur if no additional claimants come forward. Representatives of any Indian tribe that believes itself to be culturally affiliated with the cultural item may contact the BLM Utah State Office at the below address.
Representatives of any Indian tribe that believes it has a cultural affiliation with the cultural item should contact the BLM at the address below by February 25, 2013.
Mr. Juan Palma, State Director, Bureau of Land Management, Utah State Office, P.O. Box 45155, Salt Lake City, UT 84145-0155, telephone (801) 539-4010.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3005, of the intent to repatriate a cultural item in the possession of the BLM Utah State Office in Salt Lake City, UT, that meets the definition of both a sacred object and an object of cultural patrimony under 25 U.S.C. 3001.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American cultural items. The National Park Service is not responsible for the determinations in this notice.
The one cultural item is a Dilzini Gaan headdress consisting of painted wood and cloth. It was acquired in 2009 by BLM law enforcement agents during a search warrant of a Blanding, UT, home as a part of the investigation code-named “Cerberus Action.” It is unknown where or when the suspect acquired the headdress.
Tribal cultural authorities of the Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; and the Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona, consulted with BLM cultural resources staff, and identified the headdress as a sacred object and an object of cultural patrimony eligible for repatriation under NAGPRA. The tribal cultural authorities recognized the materials used in the construction of this item, as well as the item's style and type. Consequently, these tribal consultants were able to determine that the item is culturally affiliated specifically with the White Mountain Apache Tribe of the Fort Apache Reservation, Arizona, and to clearly distinguish it from other items of similar type and style associated with other Apache groups.
Officials of the BLM, Utah State Office have determined that:
• Pursuant to 25 U.S.C. 3001(3)(C), the one cultural item described above is a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Pursuant to 25 U.S.C. 3001(3)(D), the one cultural item described above has ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Dilzini Gaan headdress and the White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the Dilzini Gaan headdress should contact Mr. Juan Palma, State Director, Bureau of Land Management, Utah State Office, P.O. Box 45155, Salt Lake City, UT 84145-0155, telephone (801) 539-4010 before February 25, 2013. Repatriation of the Dilzini Gaan headdress to the White Mountain Apache Tribe of the Fort Apache Reservation, Arizona, may proceed after that date if no additional claimants come forward.
The BLM, Utah State Office is responsible for notifying the Apache Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Jicarilla Apache Nation, New Mexico; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Tonto Apache Tribe of Arizona; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona; Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona; and the Chiricahua Apache Nation (a non-Federally recognized Indian group) that this notice has been published.
National Park Service, Interior.
Notice.
The University of Washington, Department of Anthropology, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Burke Museum acting on behalf of the University of Washington, Department of Anthropology. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the University of Washington at the address below by February 25, 2013.
Dr. Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of Washington, Department of Anthropology and in the physical custody of the Burke Museum. The human remains were most likely removed from the area of the Columbia River Plateau, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Burke Museum and University of Washington professional staff in consultation with representatives of the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Confederated Tribes of the Warm Springs Reservation of Oregon; Nez Perce Tribe (previously listed as Nez Perce Tribe of Idaho); and the Wanapum Band, a non-Federally recognized Indian group. In 1995, as part of the NAGPRA compliance process, these remains were reported to the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Chehalis Reservation; Confederated Tribes of the Colville Reservation; Hoh Indian Tribe (previously listed as the Hoh Indian Tribe of the Hoh Indian Reservation, Washington); Jamestown S'Klallam Tribe; Kalispel Indian Community of the Kalispel Reservation; Lower Elwha Tribal Community (previously listed as the Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington); Lummi Tribe of the Lummi Reservation; Makah Indian Tribe of the Makah Indian Reservation; Muckleshoot Indian Tribe (previously listed as the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington); Nisqually Indian Tribe (previously listed as the Nisqually Indian Tribe of the Nisqually Reservation, Washington); Nooksack Indian Tribe; Port Gamble Band of S'Klallam Indians (previously listed as the Port Gamble Indian Community of the Port Gamble Reservation, Washington); Puyallup Tribe of the Puyallup Reservation; Quileute Tribe of the Quileute Reservation; Quinault Indian Nation (previously listed as the Quinault Tribe of the Quinault Reservation, Washington); Sauk-Suiattle Indian Tribe; Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington); Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington); Spokane Tribe of the Spokane Reservation; Squaxin Island Tribe of the Squaxin Island Reservation; Stillaguamish Tribe of Indians of Washington (previously listed as Stillaguamish Tribe of Washington); Suquamish Indian Tribe of the Port Madison Reservation; Swinomish Indians of the Swinomish Reservation of Washington; Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington); and the Upper Skagit Indian Tribe (hereafter all tribes listed in this section are referred to as “The Consulted and Notified Tribes”).
At an unknown date, most likely prior to 1965, human remains representing, at minimum, one individual (Specimen #5) were removed from an unknown area most likely within the Columbia Plateau, WA. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Washington, Department of Anthropology, have determined that:
• Based on cranial morphology, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Confederated Tribes of the Warm Springs Reservation of Oregon; and the Nez Perce Tribe (previously listed as Nez Perce Tribe of Idaho).
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Confederated Tribes of the Warm Springs Reservation of Oregon; and the Nez Perce Tribe (previously listed as Nez Perce Tribe of Idaho).
• Other credible lines of evidence, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to The Aboriginal Tribes.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849, before February 25, 2013. Disposition of the human remains to The Aboriginal Tribes may proceed after that date if no additional requestors come forward.
The University of Washington, Department of Anthropology is responsible for notifying The Consulted and Notified Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Arkansas State University Museum has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that, pursuant to 25 U.S.C. 3001(2), there is a cultural affiliation between the human remains and associated funerary objects and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Arkansas State University Museum. Repatriation of the human remains and associated funerary objects to the Indian tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the Arkansas State University Museum at the address below by February 25, 2013.
Dr. Marti Allen, Director, Arkansas State University Museum, P.O. Box 490, State University, Jonesboro, AR 72467, telephone (870) 972-2074.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of Arkansas State University Museum, Jonesboro, AR. The human remains and associated funerary objects were removed from Marion County, AR.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Arkansas State University Museum and Arkansas Archaeological Survey professional staff in consultation with representatives of the Quapaw Tribe of Indians and The Osage Nation.
Between 1961 and 1962, human remains representing, at minimum, 12 individuals were removed from a cave site on the Deep Valley Ranch, in Marion County, AR, by Dr. Eugene Wittlake of Arkansas State University. The remains were subsequently donated to the Arkansas State University Museum. No known individuals were identified. The 665 associated funerary objects are 3 Mississippian plain rim sherds; 19 Mississippian plain body sherds; 130 unworked animal bones; 4 charcoal fragments; 6 wood fragments; 425 small shells; 9 mussel shell fragments; 1 celt; 8 natural lithics; 1 chert core; 2 worked stones; 10 partial projectile points; 7 projectile points; 3 partial biface lithics; and 37 chert debitage pieces.
Excavation records indicate that 10 of the individuals were in single inhumations in quadrant 12, which measured 5 feet by 5 feet. All the objects found in this quadrant were determined to be associated funerary objects. Excavation records do not indicate the location of the burials belonging to the other two individuals. Historical evidence, material culture, and oral history indicate that this region is part of the traditional territory of The Osage Nation. The Osage were semi-nomadic people who lived and hunted in southwestern Missouri, northwestern Arkansas, southeast Kansas, and northeast Oklahoma. Marion County, AR, is located on land ceded by the Osage in an 1825 treaty.
Officials of the Arkansas State University Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of a minimum of 12 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 665 objects described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the associated funerary objects and The Osage Nation.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Marti Allen, Director, Arkansas State University Museum, P.O. Box 490, State University, Jonesboro, AR 72467, telephone (870) 972-2074, before February 25, 2013. Repatriation of the human remains and associated funerary objects to The Osage Nation may proceed after that date if no additional claimants come forward.
The Arkansas State University Museum is responsible for notifying the Quapaw Tribe of Indians and The Osage Nation that this notice has been published.
National Park Service, Interior.
Notice.
The University of Washington, Department of Anthropology, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary objects may contact the Burke Museum acting on behalf of the University of Washington, Department of Anthropology. Disposition of the human remains and associated funerary objects to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains and associated funerary objects should contact the University of Washington at the address below by February 25, 2013.
Dr. Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects in the possession of the University of Washington, Department of Anthropology. The human remains were removed from a location near the Skagit River in Skagit County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains and associated funerary objects was made by the Burke Museum and University of Washington professional staff in consultation with representatives of the Lummi Tribe of the Lummi Reservation; Muckleshoot Indian Tribe (previously listed as the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington); Nooksack Indian Tribe; Samish Indian Nation (previously listed as the Samish Indian Tribe, Washington); Sauk-Suiattle Indian Tribe; Stillaguamish Tribe of Indians of Washington (previously listed as the Stillaguamish Tribe of Washington); Suquamish Indian Tribe of the Port Madison Reservation; Swinomish Indians of the Swinomish Reservation of Washington; Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington); and the Upper Skagit Indian Tribe. In 1995, as part of the NAGPRA compliance process, these remains were reported to the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Chehalis Reservation; Confederated Tribes of the Colville Reservation; Hoh Indian Tribe (previously listed as the Hoh Indian Tribe of the Hoh Indian Reservation, Washington); Jamestown S'Klallam Tribe; Kalispel Indian Community of the Kalispel Reservation; Lower Elwha Tribal Community (previously listed as the Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington); Lummi Tribe of the Lummi Reservation; Makah Indian Tribe of the Makah Indian Reservation; Muckleshoot Indian Tribe (previously listed as the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington); Nisqually Indian Tribe (previously listed as the Nisqually Indian Tribe of the Nisqually Reservation, Washington); Nooksack Indian Tribe; Port Gamble Band of S'Klallam Indians (previously listed as the Port Gamble Indian Community of the Port Gamble Reservation, Washington); Puyallup Tribe of the Puyallup Reservation; Quileute Tribe of the Quileute Reservation; Quinault Indian Nation (previously listed as the Quinault Tribe of the Quinault Reservation, Washington); Sauk-Suiattle Indian Tribe; Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington); Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington); Spokane Tribe of the Spokane Reservation; Squaxin Island Tribe of the Squaxin Island Reservation; Stillaguamish Tribe of Indians of Washington (previously listed as Stillaguamish Tribe of Washington); Suquamish Indian Tribe of the Port Madison Reservation; Swinomish Indians of the Swinomish Reservation of Washington; Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington); and the Upper Skagit Indian Tribe (hereafter all tribes listed in this section are referred to as “The Consulted and Notified Tribes”).
In 1978, human remains representing, at minimum, one individual (Specimen #14) were removed from a location near the north fork of the Skagit River in Skagit County, WA. The human remains were identified during the installation of a septic tank and removed by a pathologist on behalf of the Skagit County Coroner. No known individuals were identified. The one associated funerary object is a non-human mammal bone.
Officials of the University of Washington, Department of Anthropology, have determined that:
• Based on cranial morphology and original documentation records, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains and associated funerary objects were removed is the aboriginal land of the Lower Skagit. The Lower Skagit signed the Point Elliot Treaty of January 22, 1855, and thereafter moved to the Swinomish Reservation. Descendants of the Lower Skagit are members of the present-day Swinomish Indians of the Swinomish Reservation of Washington and the Tulalip Tribes of Washington (previously listed as the Tulalip Tribes of the Tulalip Reservation, Washington).
• The Point Elliot Treaty of January 22, 1855, was signed by representatives from the Lummi Tribe of the Lummi Reservation; Muckleshoot Indian Tribe (previously listed as the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington); Nooksack Indian Tribe; Samish Indian Nation (previously listed as the Samish Indian Tribe, Washington); Sauk-Suiattle Indian Tribe; Stillaguamish Tribe of
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the one object described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains and associated funerary objects may be to The Aboriginal Tribes. As of the date of publication, the Samish Indian Nation (previously listed as the Samish Indian Tribe, Washington); Stillaguamish Tribe of Indians of Washington (previously listed as the Stillaguamish Tribe of Washington); and the Swinomish Indians of the Swinomish Reservation have claimed the human remains and funerary objects.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains and associated funerary object or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849, before February 25, 2013. Disposition of the human remains to The Aboriginal Tribes may proceed after that date if no additional requestors come forward.
The University of Washington, Department of Anthropology is responsible for notifying The Consulted and Notified Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The University of Washington, Department of Anthropology, has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that there is no cultural affiliation between the remains and any present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Burke Museum acting on behalf of the University of Washington, Department of Anthropology. Disposition of the human remains to the Indian tribes stated below may occur if no additional requestors come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the University of Washington at the address below by February 25, 2013.
Dr. Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the University of Washington, Department of Anthropology and in the physical custody of the Burke Museum. The human remains were most likely removed from Lincoln County, WA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3) and 43 CFR 10.11(d). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Burke Museum and University of Washington professional staff in consultation with representatives of the Confederated Tribes of the Colville Reservation; Confederated Tribes of the Umatilla Indian Reservation (previously listed as the Confederated Tribes of the Umatilla Reservation, Oregon); Nez Perce Tribe (previously listed as the Nez Perce Tribe of Idaho); Spokane Tribe of the Spokane Reservation; and the Wanapum Band, a non-Federally recognized Indian group. In 1995, as part of the NAGPRA compliance process, these remains were reported to the Confederated Tribes and Bands of the Yakama Nation; Confederated Tribes of the Chehalis Reservation; Confederated Tribes of the Colville Reservation; Hoh Indian Tribe (previously listed as the Hoh Indian Tribe of the Hoh Indian Reservation, Washington); Jamestown S'Klallam Tribe; Kalispel Indian Community of the Kalispel Reservation; Lower Elwha Tribal Community (previously listed as the Lower Elwha Tribal Community of the Lower Elwha Reservation, Washington); Lummi Tribe of the Lummi Reservation; Makah Indian Tribe of the Makah Indian Reservation; Muckleshoot Indian Tribe (previously listed as the Muckleshoot Indian Tribe of the Muckleshoot Reservation, Washington); Nisqually Indian Tribe (previously listed as the Nisqually Indian Tribe of the Nisqually Reservation, Washington); Nooksack Indian Tribe; Port Gamble Band of S'Klallam Indians (previously listed as the Port Gamble Indian Community of the Port Gamble Reservation, Washington); Puyallup Tribe of the Puyallup Reservation; Quileute Tribe of the Quileute Reservation; Quinault Indian Nation (previously listed as the Quinault Tribe of the Quinault Reservation, Washington); Sauk-Suiattle Indian Tribe; Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (previously listed as the Shoalwater Bay Tribe of the Shoalwater Bay Indian Reservation, Washington); Skokomish Indian Tribe (previously listed as the Skokomish Indian Tribe of the Skokomish Reservation, Washington); Spokane Tribe of the Spokane Reservation; Squaxin Island Tribe of the Squaxin Island Reservation; Stillaguamish Tribe of Indians of Washington (previously listed as Stillaguamish Tribe of Washington); Suquamish Indian Tribe of the Port Madison Reservation; Swinomish Indians of the Swinomish Reservation of Washington; Tulalip Tribes of
At an unknown date, most likely prior to 1955, human remains representing, at minimum, one individual (Specimen #6) were removed from an unknown area most likely within the Lincoln County, WA. No known individuals were identified. No associated funerary objects are present.
Officials of the University of Washington, Department of Anthropology, have determined that:
• Based on cranial morphology, the human remains are Native American.
• Pursuant to 25 U.S.C. 3001(2), a relationship of shared group identity cannot be reasonably traced between the Native American human remains and any present-day Indian tribe.
• According to final judgments of the Indian Claims Commission, the land from which the Native American human remains were removed is the aboriginal land of the Confederated Tribes of the Colville Reservation and the Spokane Tribe of the Spokane Reservation.
• Multiple lines of evidence, including treaties, Acts of Congress, and Executive Orders, indicate that the land from which the Native American human remains were removed is the aboriginal land of the Confederated Tribes of the Colville Reservation and the Spokane Tribe of the Spokane Reservation.
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• Pursuant to 43 CFR 10.11(c)(1), the disposition of the human remains may be to the Confederated Tribes of the Colville Reservation and the Spokane Tribe of the Spokane Reservation.
Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains or any other Indian tribe that believes it satisfies the criteria in 43 CFR 10.11(c)(1) should contact Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849, before February 25, 2013. Disposition of the human remains to the Confederated Tribes of the Colville Reservation and the Spokane Tribe of the Spokane Reservation may proceed after that date if no additional requestors come forward.
The University of Washington, Department of Anthropology is responsible for notifying The Consulted and Notified Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Arkansas State University Museum has completed an inventory of human remains, in consultation with the appropriate Indian tribes, and has determined that, pursuant to 25 U.S.C. 3001(2), there is a cultural affiliation between the human remains and a present-day Indian tribe. Representatives of any Indian tribe that believes itself to be culturally affiliated with the human remains may contact the Arkansas State University Museum. Repatriation of the human remains to the Indian tribe stated below may occur if no additional claimants come forward.
Representatives of any Indian tribe that believes it has a cultural affiliation with the human remains should contact the Arkansas State University Museum at the address below by February 25, 2013.
Dr. Marti Allen, Director, Arkansas State University Museum, P.O. Box 490, State University, Jonesboro, AR 72467, telephone (870) 972-2074.
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of Arkansas State University Museum, Jonesboro, AR. The human remains were removed from the St. Francis River Valley region in Cross and Poinsett counties, AR.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Arkansas State University Museum and Arkansas Archaeological Survey professional staffs in consultation with representatives of the Quapaw Tribe of Indians and The Osage Nation.
Sometime prior to 1977, human remains representing, at minimum, one individual were removed from an unknown location, most likely in Poinsett County, AR. In June 1977, the human remains were donated by Mr. Curtis Noble of Poinsett County, AR, to the Arkansas State University Museum. No known individual was identified. No associated funerary items are present. The remains were donated by Mr. Curtis Noble as part of his procured collection. The donation record states the collection contains “objects [Noble] collected, mostly from Poinsett County, over a 40 year period.” Although the specific location of removal is unknown, museum officials reasonably believe that the remains were removed from Poinsett County.
In 1958, human remains representing, at minimum, three individuals were removed from the Cherry Valley Mounds (site 3CS40), in Cross County, AR, by Dr. Eugene Wittlake of Arkansas State University. The remains were subsequently donated to the Arkansas State University Museum in November of 1958. No known individuals were identified. No associated funerary objects are present. Situated on the west side of Crowley's Ridge, the site consisted of four mounds numbered one through four and was originally excavated by the Gilcrease Institute of Oklahoma. Dr. Wittlake was given permission by the Gilcrease Institute to excavate only at mound number four. Non-funerary artifacts removed from the site date the human remains to the Mississippian Period (A.D. 1050-1400).
Between 1957 and 1958, human remains representing, at minimum, four individuals were removed from the Walnut Mound (site 3PO57), in Poinsett County, AR, by Dr. Eugene Wittlake of Arkansas State University. The human remains were subsequently donated to the Arkansas State University Museum
Between 1959 and 1964, human remains representing, at minimum, 103 individuals were removed from Ballard Mound (site 3PO115), in Poinsett County, AR by Dr. Eugene Wittlake of Arkansas State University. The remains were subsequently donated to the Arkansas State University Museum later that same year. No known individuals were identified. No associated funerary objects are present. Ballard Mound was excavated between 1959 and 1964 by Dr. Wittlake. Non-funerary artifacts removed from the site date the human remains to the Cherry Valley Phase of the Early Mississippian Period (A.D. 1050-1150).
Sometime between 1956 and 1960, human remains representing, at minimum, 16 individuals were removed from the McDuffee site (3CG21), in Craighead County, AR, by unknown individuals. The remains were subsequently donated to the Arkansas State University Museum between 1956 and 1960. No known individuals were identified. No associated funerary objects are present. Excavation records for this site from the Gilcrease Museum in Oklahoma show that the site consisted of a “large village with two mounds.” Non-funerary artifacts removed from the site date the human remains to the Middle Mississippian Period (A.D. 1170-1300).
Sometime prior to 1957, human remains representing, at minimum, 14 individuals were removed from the Huber Site, in Poinsett County, AR, by unknown individuals. The remains were subsequently donated to the Arkansas State University Museum in September of 1957. No known individuals were identified. No associated funerary objects are present. Although no excavation records exist for this site, discussions with a descendant of the site owner suggest that there were at least four mounds on the property. All four mounds have now been land leveled. Non-funerary artifacts removed from the site date the human remains to the Mississippian Period (A.D. 900-1500).
Sometime prior to 1961, human remains representing, at minimum, one individual were removed from the Judd Hill Plantation site, in Poinsett County, AR, by Dr. Eugene Wittlake of Arkansas State University. The remains were subsequently donated to the Arkansas State University Museum in July of 1961. No known individual was identified. No associated funerary objects are present. Non-funerary artifacts removed from the site date the human remains anywhere from the Middle Woodland Period (A.D. 1-500) to the Middle Mississippian Period (A.D. 1170-1300).
In 1957, human remains representing, at minimum, three individuals were removed from the Miller site (3PO24), in Poinsett County, AR, by Dr. Eugene Wittlake of Arkansas State Unviersity. The remains were subsequently donated to the Arkansas State University Museum in November of 1957. No known individuals were identified. No associated funerary objects are present. Non-funerary artifacts removed from the site date the human remains to the Mississippian Period (A.D. 1050-1400).
Oral history evidence presented by representatives of the Quapaw Tribe of Indians indicates that the St. Francis River Valley region, which includes Cross and Poinsett counties, has long been included in the traditional and hunting territory of the Quapaw. French colonial records (A.D. 1700) also indicate that the Quapaw were known to be the only Native American group present at that time in the St. Francis River valley region.
Officials of the Arkansas State University Museum have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described above represent the physical remains of a minimum of 145 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and the Quapaw Tribe of Indians.
Representatives of any other Indian tribe that believes itself to be culturally affiliated with the human remains should contact Dr. Marti Allen, Director, Arkansas State University Museum, P.O. Box 490, State University, Jonesboro, AR 72467, telephone (870)-972-2074, before February 25, 2013. Repatriation of the human remains to the Quapaw Tribe of Indians may proceed after that date if no additional claimants come forward.
The Arkansas State University Museum is responsible for notifying the Quapaw Tribe of Indians and The Osage Nation that this notice has been published.
National Park Service (NPS), Interior.
Meeting notice.
As required by the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770), the NPS is hereby giving notice that the Aniakchak National Monument SRC, Denali National Park SRC, and the Wrangell-St. Elias SRC will hold meetings to develop and continue work on NPS subsistence program recommendations and other related subsistence management issues. The NPS SRC program is authorized under Title VIII, Section 808 of the Alaska National Interest Lands Conservation Act, Public Law 96-487.
National Park Service, Interior.
Native American Graves Protection and Repatriation Review Committee: Findings.
This notice is published as part of the National Park Service's administrative responsibilities pursuant to the Native American Graves Protection and Repatriation Act (25 U.S.C. 3006 (g)). The recommendations, findings and actions of the Review Committee associated with this dispute are advisory only and not binding on any person. These advisory findings and recommendations do not necessarily represent the views of the National Park Service or Secretary of the Interior. The National Park Service and the Secretary of the Interior have not taken a position on these matters.
The Native American Graves Protection and Repatriation Review Committee (Review Committee) was established by Section 8 of the Native American Graves Protection and Repatriation Act (NAGPRA; 25 U.S.C. 3006), and is an advisory body governed by the Federal Advisory Committee Act (5 App. U.S.C. 1-16). At a November 17-19, 2010 public meeting in Washington, DC, and acting pursuant to its statutory responsibility to convene the parties to a dispute relating to the return of cultural items, and to facilitate the resolution of such a dispute, the Review Committee heard a dispute between the Wrangell Cooperative Association, joined by Sealaska Corporation, and the Alaska State Museum. The issue before the Review Committee was whether, in response to a request for the repatriation of a cultural item in the possession of the Alaska State Museum, the Alaska State Museum presented evidence proving that the Museum has a “right of possession” to the cultural item, as this term is defined in the NAGPRA regulations. The Review Committee found that the Alaska State Museum had not presented evidence proving that the Museum has a “right of possession” to the cultural item. The Review Committee meeting transcript containing the dispute proceedings and Review Committee deliberation and finding is available from the National NAGPRA Program upon request (
Since 1969, a Tlingit Teeyhíttaan Clan
Disputing the Alaska State Museum's claim of right of possession to the Clan Hat, Sealaska Corporation and the Wrangell Cooperative Association joined in asking the Review Committee to facilitate the resolution of the dispute between themselves and the Alaska State Museum. The Designated Federal Official for the Review Committee agreed to the request.
At its November 17-19, 2010 meeting, the Review Committee considered the dispute. The issue before the Review Committee was whether, in response to the request for the repatriation of the Clan Hat, the Alaska State Museum presented evidence proving, by a preponderance of the evidence, that the Museum has a “right of possession” to the Clan Hat. As defined in the NAGPRA regulations, “ `right of possession' means possession obtained with the voluntary consent of an individual or group that had authority of alienation.” Right of possession to the Clan Hat, therefore, would be deemed to have been given to the Alaska State Museum if, at the time the Museum acquired possession of the Clan Hat from the Tlingit Teeyhíttaan Clan, the transferor consented to transfer possession, the transferor's consent was voluntary, and the transferor had the authority to alienate the Clan Hat to the Museum.
United States International Trade Commission.
Notice of institution of investigation and scheduling of public hearing.
Following receipt of a request on January 8, 2013, from the United States Trade Representative (USTR), the U.S. International Trade Commission (Commission) instituted investigation No. 332-538,
February 11, 2013: Deadline for filing requests to appear at the public hearing.
February 13, 2013: Deadline for filing pre-hearing briefs and statements.
February 27, 2013: Public hearing.
March 4, 2013: Deadline for filing post-hearing briefs and statements.
March 4, 2013: Deadline for filing all other written submissions.
April 8, 2013: Transmittal of Commission report to the United States Trade Representative.
All Commission offices, including the Commission's hearing rooms, are located in the United States International Trade Commission Building, 500 E Street SW., Washington, DC. All written submissions should be addressed to the Secretary, United States International Trade Commission, 500 E Street SW., Washington, DC 20436. The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at
Information specific to this investigation may be obtained from Alberto Goetzl, Project Leader, Office of Industries (202-205-3323 or
The USTR has also requested, under authority delegated by the President, pursuant to section 332(g) of the Tariff Act of 1930, and in accordance with section 503(d)(1)(A) of the Trade Act of 1974, that the Commission provide advice on whether any industry in the United States is likely to be adversely affected by a waiver of the competitive need limitation specified in section 503(c)(2)(A) of the Trade Act of 1974 for the following countries and HTS subheadings (articles): Indonesia for HTS 0410.00.00 (edible products of animal origin, not elsewhere specified or included); Thailand for HTS 0603.13.00 (orchids: cut flowers and flower buds of a kind suitable for bouquets or for ornamental purposes, fresh, dried, dyed, bleached, impregnated or otherwise prepared); Thailand for HTS 1102.90.25 (rice flour); Thailand for HTS 2106.90.99 (food preparations not elsewhere specified or included, not canned or frozen); Indonesia for HTS 6911.10.37 (porcelain or china (o/than bone china) household table and kitchenware in sets in which aggregate value of arts./US note 6(b) o/$56 n/o $200); Russia for HTS 7202.21.50 (ferrosilicon containing by weight more than 55% but not more than 80% of silicon, nesoi); Georgia for HTS 7202.30.00 (ferrosilicon manganese); Brazil for HTS 7202.99.20 (calcium silicon ferroalloys); India for HTS 7307.21.50 (stainless steel, not cast, flanges for tubes/pipes, not forged or forged and machined, tooled and otherwise processed after forging); India for HTS 7307.91.50 (iron or steel (o/than stainless), not cast, flanges for tubes/pipes, not forged or forged and machined, tooled and processed after forging); Thailand for HTS 7408.29.10 (copper wire, coated or plated with metal); and Thailand for HTS 9506.70.40 (ice skates w/footwear permanently attached).
With respect to the waiver of the competitive need limitation, the USTR also requested that the Commission provide its advice with respect to whether like or directly competitive products were being produced in the United States on January 1, 1995; that the Commission provide its advice as to the probable economic effect on total U.S. imports, as well as on consumers, of the requested waivers; and, with respect to the competitive need limit in section 503(c)(2(A)(i)(I) of the Trade Act of 1974, that the Commission use the dollar value limit of $155,000,000.
As requested by USTR, the Commission will provide its advice by April 8, 2013. The USTR indicated that those sections of the Commission's report and related working papers that contain the Commission's advice will be classified as “confidential,” and that USTR considers the Commission's report to be an inter-agency memorandum that will contain pre-decisional advice and be subject to the deliberative process privilege.
Any submissions that contain confidential business information must also conform with the requirements of section 201.6 of the
The USTR has asked that the Commission make available a public version of its report shortly after it sends its report to the President and the USTR, with any classified or privileged information deleted. Any confidential business information received in this investigation and used in the preparation of the report will not be published in the public version of the report in such manner as would reveal the operations of the firm supplying the information.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has issued a general exclusion order prohibiting importation of infringing LED photographic lighting devices and components thereof. The Commission has also determined to terminate certain respondents on the basis of a consent order stipulation, and has issued a consent order.
Amanda S. Pitcher, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2737. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on September 7, 2011, based on a complaint filed by Litepanels, Inc. and Litepanels, Ltd. (collectively, “Litepanels”). 76 FR 55416 (Sept. 7, 2011). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain LED photographic lighting devices and components thereof that infringe certain claims of U.S. Patent Nos. 7,429,117 (later terminated from the investigation); 7,510,290 (later terminated from the investigation); 7,972,022 (“the '022 patent”); 7,318,652 (“the '652 patent”); and 6,948,823 (“the '823 patent”).
Visio, Nanguang, and F&V were terminated based on entry of consent orders, Elation was terminated based upon a settlement agreement and Tianjin was found in default.
On November 16, 2012, complainants Litepanels, and the Fotodiox respondents and Ikan (collectively “Consenting Respondents”) filed a joint motion to terminate the investigation based on a consent order stipulation and proposed consent order. At the time the parties filed the joint motion, the investigation was under review by the Commission and no longer before the ALJ. The IA filed a response that was generally in support of the motion, but included an objection to specific language in the consent order. In response to the IA's objection, the parties submitted a revised proposed consent order on November 30, 2012. The stipulation and consent order satisfied the IA's objection. Litepanels and the Consenting Respondents assert that the consent order and consent order stipulation do not impose any undue burden on the public health and welfare, competitive conditions in the United States economy, the product of like or directly competitive articles in the United States or to United States consumers. We are not aware of any adverse impact that termination of the investigation as to the Consenting Respondents would have on the public interest. In addition, termination of the investigation as to the Consenting Respondents, as proposed in the motion, is generally in the public interest. Accordingly, the Commission grants the joint motion to terminate the Consenting Respondents and issues a consent order. The remaining respondents are Flolight, Prompter, Cool Lights and Stellar.
On September 7, 2012, the Administrative Law Judge (“ALJ”) issued his Final Initial Determination (“ID”), finding a violation of section 337. The ALJ held that a violation occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain LED photographic lighting devices and components thereof that infringe one or more of claims 1, 57-58, and 60 of the '022 patent; claims 1, 2, 5, 16, 18, 19, 25 and 27 of the '652 patent; and claim 19 of the '823 patent. ID at ii. The ALJ further held that no violation of section 337 occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain LED photographic lighting devices and components thereof that infringe claims 17 and 28 of the '823 patent because claims 17 and 28 are invalid as anticipated.
On September 24, 2012, Litepanels, the IA and the Respondents petitioned for review of the ID. On October 2, 2012, the parties filed responses to the various petitions.
On November 13, 2012, the Commission determined to review the ID in part and requested briefing on the issues under review, and on remedy, the public interest and bonding. 77 FR 69499-500 (November 19, 2012). The issues reviewed include: (1) The ALJ's determination that the preambles of the asserted independent claims of the '652 patent, the '823 patent and the '022 patent were not limitations and his alternative construction of the preambles; (2) the ALJ's findings of infringement; (3) the ALJ's findings of obviousness and anticipation; (4) the ALJ's construction of the limitation of “an integrated power source” of claim 17 of the '823 patent; and (5) the ALJ's findings on the technical prong of domestic industry as related to the asserted patents.
Having examined the record of this investigation, including the ALJ's final ID, and the parties' and public submissions, the Commission has determined that there is a violation of section 337 with respect to the '022 and '652 patents. The Commission has also determined to reverse the ALJ's finding of a violation based on the '823 patent because the only claim of the '823 patent that Litepanels alleges is practiced by the domestic industry products (
The Commission has further determined that the appropriate remedy is a general exclusion order prohibiting from entry LED photographic lighting devices and components thereof that infringe claims 1, 57, 58, and 60 of the '022 patent and claims 1-2, 5, 16,18-19, 25, and 27 of the '652 patent. The Commission has determined that the public interest factors enumerated in section 337(d) (19 U.S.C. 1337(d)) do not preclude issuance of the general exclusion order. Finally, the Commission has determined that a bond in the amount of 43 percent of the entered value is required to permit temporary importation during the period of Presidential review (19 U.S.C. 1337(j)) of LED photographic lighting devices and components thereof that are subject to the order. The Commission's order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42-46 and 210.50 of the Commission's Rules of Practice and Procedure (19 CFR 210.42-46 and 210.50).
By order of the Commission.
On January 17, 2013, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Utah in the lawsuit captioned
Edge Products, L.L.C. is an aftermarket motor vehicle parts manufacturer located in Ogden, Utah. In the Complaint, filed on January 17, 2013, on behalf of the Environmental Protection Agency (“EPA”), the United States alleges that Edge violated the Clean Air Act by manufacturing and selling aftermarket motor vehicle devices that were designed to hinder or disable required emission controls on certain model year 2007 and later heavy duty diesel trucks. The manufacture and sale of such devices for use on motor vehicles is prohibited by Section 203(a)(3)(B) of the Clean Air Act, 42 U.S.C. 7522(a)(3)(B).
The proposed Consent Decree, lodged on January 17, 2013, resolves the allegations in the Complaint. The terms of the Consent Decree include a prohibition on the manufacture and sale of specified devices; a recall and reimbursement program intended to get the devices off of vehicles and to keep them out of the stream of commerce; a wood-stove replacement project designed to mitigate the harm from the estimated 158 tons of excess particulate emissions EPA attributed to the use of the devices; and a civil penalty of $500,000. The amount of the civil penalty is based on the United States' evaluation of Edge's ability to pay a penalty.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $12.00 (25 cents per page reproduction cost) payable to the United States Treasury.
In notice document 2012-30878, appearing on page 76073, in the issue of Wednesday, December 26, 2012, make the following correction:
In the first column, under the heading
Pursuant to the authority contained in Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 165th open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held on March 1, 2013.
The meeting will take place in C5521 Room 4, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. The purpose of the open meeting, which will run from 1:30 p.m. to approximately 4:30 p.m. Eastern Standard Time, is to welcome the new members, introduce the Council Chair and Vice Chair, receive an update from the Assistant Secretary of Labor for the Employee Benefits Security Administration, and determine the topics to be addressed by the Council in 2013.
Organizations or members of the public wishing to submit a written statement may do so by submitting 30 copies on or before February 21, 2013 to Larry Good, Executive Secretary, ERISA Advisory Council, U.S. Department of Labor, Suite N-5623, 200 Constitution Avenue NW., Washington, DC 20210. Statements also may be submitted as email attachments in text or pdf format transmitted to
Individuals or representatives of organizations wishing to address the Advisory Council should forward their requests to the Executive Secretary by email or telephone (202-693-8668). Oral presentations will be limited to ten minutes, time permitting, but an extended statement may be submitted for the record. Individuals with disabilities who need special accommodations should contact the Executive Secretary by February 21, 2013.
Employment and Training Administration, Department of Labor.
Notice.
The Employment and Training Administration (ETA) is announcing a new initiative to make available to the general public appropriately redacted copies of H-1B, H-1B1, E-3, H-2A, H-2B and permanent labor certification documents through its iCERT Visa Portal System. This new online tool, formally called the
Effective July 1, 2013.
For further information, contact William L. Carlson, Ph.D., Administrator, Office of Foreign Labor Certification, ETA, U.S. Department of Labor, 200 Constitution Avenue NW., Room C-4312, Washington, DC 20210; Telephone (202) 693-3010 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.
For technical issues related to the Department's implementation of the labor certification registry, please contact the iCERT Visa Portal System Team, Office of Foreign Labor Certification (OFLC) by email at
The Immigration and Nationality Act (INA) assigns specific responsibilities to the U.S. Secretary of Labor for the administration of certain employment-based immigration programs that require either a labor certification or, in the case of an H-1B, H-1B1, or E-3 visa, a labor condition application (LCA). These statutory responsibilities include, in the case of labor certifications, determining whether there are able, willing, and qualified U.S. workers for a position for which certification is requested and whether there would be any adverse impact on similarly employed U.S. workers should labor certification be granted. Statutory and regulatory provisions require all employers seeking a labor certification for either permanent or temporary nonimmigrant labor to first apply to the Secretary of Labor for certification or for an LCA. The Secretary has delegated the responsibilities for the administration of these programs to the Employment and Training Administration's (ETA) Office of Foreign Labor Certification (OFLC). Foreign labor certification programs have as a primary responsibility the review of employer-filed applications requesting the Secretary of Labor's certification to ensure that the hiring of a foreign worker will not adversely impact the wages and working conditions of U.S. workers, and that no qualified U.S. workers are willing or available to fill a given vacancy.
As a component of the Department of Labor's (the Department) Open Government initiative, the OFLC is implementing a new Labor Certification Registry (LCR) through its iCERT Visa Portal System that provides the general public access to appropriately redacted copies of labor certification documents issued to employers in the H-1B, H-1B1, E-3, H-2A, H-2B and permanent labor certification programs. The iCERT LCR provides the public with a single, easy to search, location to the OFLC's labor certification and LCA documents as well as the office's latest quarterly and annual case disclosure data. Public release of these documents and data provides an additional level of transparency while respecting any personally identifiable information. OFLC has taken steps to ensure that private, sensitive, or legally protected information will be redacted, as appropriate.
This initiative is in compliance with the Privacy Act, the Trade Secrets Act and the Confidential Information Protection and Statistical Efficiency Act. We have taken steps to ensure that appropriate information will be redacted in connection with the Department's responsibilities, or potential responsibilities, pursuant to these statutes. This information will change depending upon the form, but will include data such as the Federal Employer Identification Number (FEIN) of the employer, revenue reported by the employer, and the name, address and class of admission of the foreign worker.
Prior to this public database becoming available, access to OFLC labor certification and LCA documents typically required submitting a Freedom of Information Act (FOIA) request directly to the Department and waiting for a response. For the first time, the iCERT LCR will provide the general public with real-time access to appropriately redacted copies of current and historical labor certification and LCA documents that are searchable across a series of common data points. OFLC anticipates that public access to labor certification and LCA documents through the iCERT LCR will significantly reduce the need for individuals to request and obtain such documents through the Department's FOIA process.
Public access to the LCR will be available through the iCERT Visa Portal System at
The functional components of the iCERT LCR are built upon and fully integrated with the iCERT H-2A Public Job Registry, which was released on July 1, 2010, as part of the Department's implementation of the H-2A 2010 Final Rule and will provide the public with the following functional features:
• An interactive map of U.S. states and territories displaying all labor certification and LCA documents posted within the last 30 calendar days;
• A “quick search” feature from the main home page allowing users to execute basic queries along a common set of data points including the ETA case number, visa classification, employer name, job title, industry, state or territory, zip code radius, and posting date range;
• An advanced search feature allowing users to conduct more detailed
• Easy-to-understand search results displayed in a table format with sortable column headings, select data points to further filter the search results, and quick links to view or download the document in either redacted Adobe PDF or HTML format;
• Access to OFLC's latest program annual and quarterly performance reports and case file datasets in easily accessible formats for performing more in-depth longitudinal statistical research and analysis; and
• Access to important social media platforms for users to stay connected to the Department's Open Government initiative and provide meaningful feedback.
Initially, the iCERT LCR will provide the public with access to appropriately redacted copies of H-1B, H-1B1, E-3, H-2A, H-2B and permanent labor certification documents issued by the OFLC on or after April 15, 2009; the date on which the iCERT Visa Portal System was implemented. Beginning July 1, 2013, the iCERT LCR will post for public access all labor certification documents no later than 2 business days after the official decision is rendered.
Those members of the public needing technical assistance accessing or searching the Labor Certification Registry should direct requests to the iCERT System Team, OFLC, at
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. The Bureau of Labor Statistics (BLS) is soliciting comments concerning the proposed reinstatement, with change, of a previously approved collection for which approval has expired collection of the “National Longitudinal Survey of Youth 1997.” A copy of the proposed information collection request (ICR) can be obtained by contacting the individual listed in the
Written comments must be submitted to the office listed in the Addresses section below on or before March 25, 2013.
Send comments to Nora Kincaid, BLS Clearance Officer, Division of Management Systems, Bureau of Labor Statistics, Room 4080, 2 Massachusetts Avenue NE., Washington, DC 20212. Written comments also may be transmitted by fax to 202-691-5111 (this is not a toll free number).
Nora Kincaid, BLS Clearance Officer, 202-691-7628 (this is not a toll free number). (See
The National Longitudinal Survey of Youth 1997 (NLSY97) is a nationally representative sample of persons who were born in the years 1980 to 1984. These respondents were ages 12-17 when the first round of annual interviews began in 1997; starting with round sixteen, the NLSY97 will be conducted on a biennial basis. Round sixteen interviews will occur from September 2013 to May 2014. The Bureau of Labor Statistics (BLS) contracts with the National Opinion Research Center (NORC) at the University of Chicago to conduct the NLSY97. The primary objective of the survey is to study the transition from schooling to the establishment of careers and families. The longitudinal focus of this survey requires information to be collected from the same individuals over many years in order to trace their education, training, work experience, fertility, income, and program participation.
One of the goals of the Department of Labor (DOL) is to produce and disseminate timely, accurate, and relevant information about the U.S. labor force. The BLS contributes to this goal by gathering information about the labor force and labor market and disseminating it to policymakers and the public so that participants in those markets can make more informed, and thus more efficient, choices. Research based on the NLSY97 contributes to the formation of national policy in the areas of education, training, work experience, fertility, income, and program participation. In addition to the reports that the BLS produces based on data from the NLSY97, members of the academic community publish articles and reports based on NLSY97 data for the DOL and other funding agencies. To date, approximately 266 articles examining NLSY97 data have been published in scholarly journals. The survey design provides data gathered from the same respondents over time to form the only dataset that contains this type of information for this important population group. Without the collection of these data, an accurate longitudinal dataset could not be provided to researchers and policymakers, thus adversely affecting the DOL's ability to perform its policy- and report-making activities.
The BLS seeks approval to conduct round 16 of annual interviews of the NLSY97. Respondents to the NLSY97 will undergo an interview of approximately 61 minutes during which they will answer questions about schooling and labor market experiences, family relationships, and community background.
During the fielding period for the main round 16 interviews, about 2 percent of respondents will be asked to participate in a brief validation interview a few weeks after the initial interview. The purpose of the validation interview is to verify that the initial interview took place as the interviewer reported and to assess the data quality of selected questionnaire items.
The BLS plans to record randomly selected segments of the main interviews during round 16. Recording interviews helps the BLS and NORC to ensure that the interviews actually took place and interviewers are reading the questions exactly as worded and entering the responses properly. Recording also helps to identify parts of the interview that might be causing problems or misunderstanding for interviewers or respondents. Each respondent will be informed that the
The round 16 questionnaire will resemble the round 15 questionnaire with few modifications. Some of the modifications have been made because the interview will be conducted biennially rather than annually. The round 16 questionnaire will include questions about whether the respondent's parents owned a business, served a prison sentence or served in the military. A short section on childcare will be asked. Additional income questions on the Earned Income tax credit (EITC) and whether a spouse or partner received income from worker's compensation. A series of questions on personality traits will also be added in round 16. Personality traits will include task completion, pursuit of goals, diligence, hard work, dealing with setbacks, focus, and distractibility. These questions will allow researchers to measure non-cognitive skills which may be important measures of labor market success.
Round 16 will include a trial Internet collection of selected information used to locate respondents for interviews. Approximately 20 percent of the sample will be offered the opportunity to participate. The purpose of the trial is to determine whether Internet collection yields information of higher quality when compared to the current method of collecting the information as part of the interview. The Internet trial also will be used to assess respondent acceptance of Internet collection generally and whether such collection can reduce respondent burden without reducing the quality of the survey information.
As in prior rounds of the NLSY97, round 16 will include a pretest conducted several months before the main fielding to test survey procedures and questions and resolve problems before the main fielding begins.
The Bureau of Labor Statistics is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility.
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they also will become a matter of public record.
9:00 a.m. to 5:00 p.m., Thursday, February 7, 2013.
Westward Look Wyndham Grand Resort & Spa, 245 E. Ina Road, Tucson, Arizona 85704.
This special meeting of the Board of Trustees will be open to the public, unless it is necessary for the Board to consider items in executive session.
(1) Minutes of the November 9, 2012, Board of Trustees Meeting; (2) Election of Officers of the Board; (3) Election of Executive Committee Members; (4) Allocation of operating costs between the Morris K. Udall and Stewart L. Udall Trust Fund and the Environmental Dispute Resolution Fund; (5) PIF Fund, Inc., Cooperating Organization Agreement; (6) Final report of the Organizational Development Consultants; (7) Discuss the Final Report of the Organizational Development Consultants; (8) Review Personnel Matters; (9) Review the findings and recommendations from the U.S. Department of the Interior's Inspector General regarding the Udall Foundation audit; and (10) Possible action on the Organizational Development Consultants Report recommendations.
All agenda items except as noted below.
Executive session to discuss the final report of the Organizational Development Consultants, review personnel matters, and review the findings and recommendations from the U.S. Department of the Interior's Inspector General regarding the Udall Foundation audit.
Philip J. Lemanski, Acting Executive Director, 130 South Scott Avenue, Tucson, AZ 85701, (520) 901-8500.
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meeting.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that one meeting of the Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue NW., Washington, DC, 20506 as follows (ending time is approximate):
February 12, 2013; 2:00 p.m. to 3:00 p.m. EST.
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC, 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 15, 2012, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
Thursday, February 7, 2013, at 10:00 a.m.; and Friday, February 8, at 8:30 a.m. and 10:30 a.m.
Washington, DC, at U.S. Postal Service Headquarters, 475 L'Enfant Plaza SW., in the Benjamin Franklin Room.
Thursday, February 7 at 10:00 a.m.—Closed; Friday, February 8 at 8:30 a.m.—Open; and at 10:30 a.m.—Closed.
1. Strategic Issues.
2. Financial Matters.
3. Pricing.
4. Personnel Matters and Compensation Issues.
5. Governors' Executive Session—Discussion of prior agenda items and Board Governance.
1. Approval of Minutes of Previous Meetings.
2. Remarks of the Chairman of the Board.
3. Remarks of the Postmaster General and CEO.
4. Appointment of Committee Members and Committee Reports.
5. Quarterly Report on Financial Performance.
6. Quarterly Report on Service Performance.
7. Tentative Agenda for the April 9, 2013, meeting in Washington, DC
1. Continuation of Wednesday's closed session agenda.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260-1000. Telephone (202) 268-4800.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt investigation, disciplinary, sanction, and other procedural rules that are modeled on the rules of the Financial Industry Regulatory Authority (“FINRA”) and to make certain conforming and technical changes. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to adopt investigation, disciplinary, sanction, and other procedural rules that are modeled on the rules of FINRA and to make certain conforming and technical changes.
On July 30, 2007, the National Association of Securities Dealers, Inc. (“NASD”), the Exchange, and NYSE Regulation, Inc. (“NYSER”) consolidated their member firm regulation operations into a combined organization, FINRA, and entered into a plan to allocate to FINRA regulatory responsibility for common rules and common members (“17d-2 Agreement”).
To facilitate FINRA's performance of these enforcement functions under the RSA and to further harmonize the rules of FINRA and NYSE generally, NYSE is proposing to adopt the text of the FINRA Rule 8000 Series and Rule 9000 Series, which set [sic] forth rules for conducting investigations and enforcement actions, with certain modifications that are described below.
The Exchange notes that most of its member organizations are members of FINRA and as such are already subject to the FINRA Rule 8000 Series and Rule 9000 Series. Those member organizations that are not members of FINRA are members of The NASDAQ Stock Market (“NASDAQ”), which has similar disciplinary rules to FINRA and thus are also already subject to such rules. Thus, all Exchange members, by virtue of their membership either in FINRA or NASDAQ, are already subject to the FINRA rules described herein.
This section sets forth a summary of NYSE's current disciplinary rules.
NYSE Rule 475 sets forth summary procedures under which the Exchange may prohibit or limit access to services. Under Rule 475(a), except as otherwise provided in Rule 475(b), the Exchange may not prohibit or limit any person with respect to access to services offered by the Exchange or any member or member organization thereof unless the Exchange has provided 15 days' prior written notice of, and an opportunity to be heard upon, the specific grounds for such prohibition or limitation. The Exchange must keep a record of any such proceeding. Any determination by the Exchange to prohibit or limit access to services must be supported by a statement setting forth the specific grounds for the prohibition or limitation.
Under NYSE Rule 475(b), the Exchange may summarily suspend persons subject to its jurisdiction that have been expelled or suspended by another SRO, or barred or suspended from being associated with a member or any such SRO, as long as any such summary suspension imposed by the Exchange does not exceed the termination of the suspension imposed by the other SRO. The Exchange also may suspend a member or member organization that is in such financial or operating difficulty that the Exchange determines, and so notifies the SEC, that the member or member organization cannot be permitted to continue to do business with safety to investors, creditors, other members or member organizations, or the Exchange. The Exchange also may limit or prohibit any person with respect to access to Exchange services if such person has been summarily suspended under this rule or, in the case of a person who is not a member or member organization, if the Exchange determines that such person does not meet the qualification requirements or other prerequisites for such access and such person cannot be permitted to continue to have such access with safety to investors, creditors, members, member organizations, or the Exchange.
Any person subject to summary action must receive written notice and an opportunity to be heard by the Exchange upon the specific grounds for the action, and the Exchange must keep a record of any summary proceeding. Any determination by the Exchange with respect to such summary action must be supported by a statement setting forth the specific grounds on which the summary action is based. The Commission, by order, may stay any such summary action in accordance with the provisions of the Act.
NYSE Rule 475(c) governs hearings and proceedings pursuant to Rule 475(a) and (b). Hearings are conducted by a Hearing Officer, appointed by the Exchange Board of Directors, acting alone. The Hearing Officer schedules and conducts hearings promptly and, in doing so, provides such discovery to the person whose access or suspension is the subject of such a hearing and to the Exchange officers and employees. The Hearing Officer renders determinations based upon the record at such hearings. The Hearing Officer may modify, reverse, or terminate a summary action, unless within 10 days of such
Under NYSE Rule 475(d), whenever a member or member organization fails to perform its contracts, becomes insolvent, or is in such financial or operating difficulty that it cannot be permitted to continue to do business as a member or member organization with safety to investors, creditors, other members or member organizations, or the Exchange, such member or member organization must promptly give written notice thereof to the Secretary of the Exchange.
Under NYSE Rule 475(e), any person suspended under the provisions of the rule must, at the request of the Exchange, submit to the Exchange its books and records or the books and records of any employee thereof and furnish information to or to appear or testify before or cause any such employee to appear or testify before the Exchange.
Under NYSE Rule 475(f), any person suspended under Rule 475 may, at any time, be reinstated by the Exchange Board of Directors.
Under NYSE Rule 475(g), any person suspended under Rule 475 may be disciplined in accordance with the Exchange's rules for any offense committed before or after the suspension.
Under NYSE Rule 475(h), a member suspended under Rule 475 is deprived during the term of the suspension of all rights and privileges of membership, and any suspension of a member or allied member creates a vacancy in any office or position held by such member or allied member.
Under NYSE Rule 475(i), the limitations on the Chief Executive Officer (“CEO”) of the Exchange contained in NYSE Rule 476(l) that prohibit the CEO from initiating a call for review apply to all matters under NYSE Rule 475.
Under NYSE Rule 475(j), any member of the Exchange Board of Directors, any member of the NYSER Committee for Review, any Executive Floor Governor, the Division of the Exchange initiating the proceedings, and the respondent may require a review by the Exchange Board of Directors of any determination under Rule 475 by filing with the Secretary of the Exchange a written request thereof within 10 days following such determination. The Exchange Board of Directors shall have the power to affirm, modify, or reverse any such determination, or remand the matter for further proceedings.
NYSE Rule 476 governs disciplinary proceedings involving charges against members, member organizations, principal executives, approved persons, employees, or others subject to the Exchange's jurisdiction. Under NYSE Rule 476(a), if such a person is adjudged guilty of certain offenses in a proceeding under NYSE Rule 476, then a Hearing Panel or Hearing Officer may impose disciplinary sanctions on such person, including expulsion; suspension; limitation as to activities, functions, and operations, including the suspension or cancellation of a registration in, or assignment of, one or more stocks; fine; censure; suspension or bar from being associated with any member or member organization; or any other fitting sanction. The list of offenses under NYSE Rule 476(a)(1)-(11) includes, for example, violating an Exchange rule or the Act, making a material misstatement, or engaging in manipulation.
NYSE Rule 476(b) describes the role of Hearing Panels and Hearing Officers. Under NYSE Rule 476(b), all proceedings under NYSE Rule 476, except for matters resolved by a Hearing Officer when authorized by the rule, are conducted at a hearing in accordance with the Rule and held before a Hearing Panel consisting of at least three persons of integrity and judgment: A Hearing Officer, who chairs the Hearing Panel, and at least two members of the Hearing Board, at least one of whom must be engaged in securities activities differing from that of the respondent or, if retired, was so engaged in differing activities at the time of retirement. In any disciplinary proceeding involving activities on the Floor of the Exchange, no more than one of the persons serving on the Hearing Panel may be, or if retired, may have been, active on the Floor of the Exchange. A Hearing Panel may include only one retired person.
The Chairman of the Exchange Board of Directors (“Chairman”), subject to the approval of the Exchange Board of Directors, from time to time appoints a Hearing Board to be composed of persons of integrity and judgment who are members and allied members of the Exchange who are not members of the Exchange Board of Directors, and registered and non-registered employees of members and member organizations, and such other persons as the Chairman deems necessary. Former members, allied members, or registered and non-registered employees of members and member organizations who have retired from the securities industry may be appointed to the Hearing Board within five years of their retirement. The members of the Hearing Board are appointed annually and serve at the pleasure of the Exchange Board of Directors.
The Chairman, subject to the approval of the Exchange Board of Directors, annually designates a Chief Hearing Officer and one or more other Hearing Officers who have [sic] no Exchange duties or functions relating to the investigation or preparation of disciplinary matters. Hearing Officers serve at the pleasure of the Exchange Board of Directors. An individual cannot be a Hearing Officer (including the Chief Hearing Officer) if he or she is, or within the last three years was, a member, allied member, or registered or non-registered employee of a member or member organization.
Under the rule, the decision of a majority of the Hearing Panel is the decision of the Hearing Panel and is final and conclusive, unless a request to the Exchange Board of Directors for review is filed.
NYSE Rule 476(c) governs procedural matters and the conduct of the hearing. Under NYSE Rule 476(c), upon application to the Chief Hearing Officer by either party to a proceeding, the Chief Hearing Officer, or any Hearing Officer designated by the Chief Hearing Officer, resolves any and all procedural and evidentiary matters and substantive legal motions, and may require the Exchange to permit the respondent to inspect and copy documents or records in the possession of the Exchange that are material to the preparation of the defense or are intended for use by the Division of the Exchange initiating the proceeding as evidence in chief at the hearing. The respondent may be required to provide discovery of non-privileged documents and records to the Exchange. The rule does not authorize the discovery or inspection of reports, memoranda, or other internal Exchange documents prepared by the Exchange in connection with the proceeding. There is no interlocutory appeal to the Exchange Board of Directors of any
NYSE Rule 476(d) governs Charge Memorandums, Answers, and motions. Under NYSE Rule 476(d), except as otherwise provided in NYSE Rule 476(g), which governs Stipulations and Consents, the specific charges against the respondent must be in the form of a written statement (a “Charge Memorandum”) and signed by an authorized officer or employee of the Exchange on behalf of the Division of the Exchange bringing the charges. A copy of such Charge Memorandum must be filed with the Hearing Board at the same time it is served upon the respondent. Service is deemed effective by personal service of such Charge Memorandum, or by leaving the same either at the respondent's last known office address during business hours or respondent's last place of residence as reflected in Exchange records, or upon mailing same to the respondent at such office address or place of residence. The Hearing Board assumes jurisdiction upon receipt of the Charge Memorandum.
A written Answer to the Charge Memorandum must be filed not later than 25 days from the date of service or within such longer period of time as the Hearing Officer may deem proper. The Answer must be signed by or on behalf of the respondent and filed with the Hearing Board, with a copy served on the Division of the Exchange bringing the charges. The Answer must indicate specifically which assertions of fact and charges in the Charge Memorandum are denied and which are admitted, and also contain any specific facts in contradiction of the charges and any affirmative defenses. A general denial is insufficient. Any assertions of fact not specifically denied in the Answer may be deemed admitted and failure to file an Answer may be deemed an admission of any facts asserted in the Charge Memorandum.
The Hearing Board sets a schedule for the filing of motions and establishes hearing dates. If the respondent has failed to file an Answer, the Division of the Exchange bringing the charges, by motion, accompanied by proof of notice to the respondent, may request a determination of guilt by default, and may recommend a penalty to be imposed. If the respondent opposes the motion, the Hearing Officer, on a determination that the respondent had adequate reason to fail to file an Answer, may adjourn the hearing date and direct the respondent to promptly file an Answer. If the default motion is unopposed, or the respondent did not have adequate reason to fail to file an Answer, or the respondent failed to file an Answer after being given an opportunity to do so, the Hearing Officer, on a determination that the respondent has had notice of the charges and that the Exchange has jurisdiction in the matter, may find guilt and determine a penalty.
Notice of the hearing is served upon the Division of the Exchange and the respondent. The respondent is entitled to be personally present. The Hearing Officer determines the specific facts at issue, and with respect to those facts only, both the Division of the Exchange bringing the charges and the respondent may produce witnesses and any other evidence and they may examine and cross-examine any witnesses so produced. After hearing all the witnesses and considering all the evidence, the Hearing Panel determines whether the respondent is guilty of the charges, and if so, may impose a penalty.
NYSE Rule 476(e) concerns the hearing record and time for appeal. Under Rule 476(e), the Exchange must keep a record of any hearing conducted and a written notice of the result served upon the respondent and the Division of the Exchange that brought the charges.
The determination of the Hearing Panel, or of the Hearing Officer on a determination of default, and any penalty imposed, is final and conclusive 25 days after notice has been served upon the respondent, unless a request to the Exchange Board of Directors for review of such determination and/or penalty is filed, in which case any penalty imposed is stayed pending the outcome of such review.
NYSE Rule 476(f) concerns appeals to the Exchange Board of Directors. Under NYSE Rule 476(f), the Division of the Exchange that brought the charges, the respondent, and any member of the Exchange Board of Directors, any member of the NYSER Committee for Review, and any Executive Floor Governor may require a review by the Exchange Board of Directors of any determination or penalty, or both, imposed by a Hearing Panel or Hearing Officer. A written request for review must be filed with the Secretary of the Exchange within 25 days after notice of the determination and/or penalty is served upon the respondent. The Secretary of the Exchange gives notice of any such request for review to the Division of the Exchange that brought the charges and any respondent affected thereby.
Any review by the Exchange Board of Directors is based on oral arguments and written briefs and is limited to consideration of the record before the Hearing Panel or Hearing Officer. Upon review, the Exchange Board of Directors, by majority vote, may sustain any determination or penalty imposed, or both; may modify or reverse any such determination; and may increase, decrease or eliminate any such penalty, or impose any penalty permitted under the provisions of this rule, as it deems appropriate. Unless the Exchange Board of Directors otherwise specifically directs, the determination and penalty, if any, of the Exchange Board of Directors after review is final and conclusive, subject to the provisions for review under the Act.
Notwithstanding the foregoing, if either party upon review applies to the Exchange Board of Directors for leave to adduce additional evidence, and shows to the satisfaction of the Exchange Board of Directors that the additional evidence is material and that there was reasonable ground [sic] for failure to adduce it before the Hearing Panel or Hearing Officer, the Exchange Board of Directors may remand the case for further proceedings, in whatever manner and on whatever conditions the Exchange Board of Directors considers appropriate.
NYSE Rule 476(g) sets forth an alternative Stipulation and Consent procedure that may be used in lieu of the procedures set forth in NYSE Rule 476(d). Under NYSE Rule 476(g), a Hearing Officer acting alone may determine whether a person subject to the Exchange's jurisdiction has committed an offense on the basis of a written Stipulation and Consent entered into between the respondent and any authorized officer or employee of the Exchange. Any such Stipulation and Consent must contain a stipulation with respect to the facts, or the basis for findings of fact by the Hearing Officer; a consent to findings of fact by the Hearing Officer, including a finding that a specified offense had been committed; and a consent to the imposition of a specified penalty.
A Hearing Officer must convene a Hearing Panel if the Hearing Officer requires clarification or further information on the Stipulation and Consent, or if either party requests a hearing before a Hearing Panel. A Hearing Officer, acting alone, may not reject a Stipulation and Consent, but must convene a Hearing Panel to consider such action.
Notice of any hearing held for the purpose of considering a Stipulation and Consent is served upon the respondent as provided in NYSE Rule 476(d). In any such hearing, if the Hearing Panel determines that the respondent has committed an offense, it
Such rejection does not preclude the parties to the proceeding from entering into a modified Stipulation and Consent or preclude the Exchange from bringing or presenting the same or different charges to a Hearing Panel in accordance with NYSE Rule 476(d). The Exchange must keep a record of any hearing conducted under this Rule and a written notice of the result setting forth the requirements contained in Section 6(d)(1) of the Act must be served on the parties to the proceeding.
The determination of the Hearing Panel or Hearing Officer and any penalty imposed are final and conclusive 25 days after notice thereof has been served upon the respondent, unless a request to the Exchange Board of Directors for review of such determination and/or penalty is filed, in which case any penalty imposed is stayed pending the outcome of such review.
Any member of the Exchange Board of Directors, any member of the NYSER Committee for Review, and any Executive Floor Governor may require a review by the Exchange Board of Directors of any determination or penalty, or both, imposed by a Hearing Panel or Hearing Officer in connection with a Stipulation and Consent. The respondent or the Division that entered into the Stipulation and Consent may require a review by the Exchange Board of Directors of any rejection of such Stipulation and Consent by the Hearing Panel. A written request for review must be filed with the Secretary of the Exchange within 25 days after notice of the determination and/or penalty is served on the respondent. The Secretary of the Exchange gives notice of any such request for review to the Division of the Exchange involved in the proceeding and any respondent affected thereby.
Any review by the Exchange Board of Directors consists of oral arguments and written briefs and is limited to consideration of the record before the Hearing Panel or Hearing Officer. Upon review, the Exchange Board of Directors, by majority vote, may fix and impose the penalty agreed to in such Stipulation and Consent or any penalty that is less severe than the stipulated penalty, or may remand for further proceedings. Unless the Exchange Board of Directors otherwise specifically directs, the determination and penalty, if any, of the Exchange Board of Directors after review is final and conclusive, subject to the provisions for review under the Act.
NYSE Rule 476(h) concerns legal representation. Under the rule, a person subject to the Exchange's jurisdiction has the right to be represented by legal counsel or other representative in any hearing or review held under Rule 476 and in any investigation before any committee, officer, or employee of the Exchange. A Hearing Officer may impose a fine or any other appropriate sanction on any party or the party's representative for improper conduct in connection with a matter before the Hearing Board, and may, if appropriate, exclude any participant, including any party, witness, attorney or representative from a hearing on the basis of such conduct.
Under NYSE Rule 476(i), a member or allied member of the Exchange who is associated with a member organization is liable to the same discipline and penalties for any act or omission of such member organization as for the member or allied member's own personal act or omission. The Hearing Panel that considers the charges against such member, or allied member, or the Exchange Board of Directors upon any review thereof, may relieve him from the penalty therefor or may remit or reduce such penalty on such terms and conditions as the Hearing Panel or the Exchange Board of Directors deems fair and equitable.
NYSE Rule 476(j) governs suspensions. When a member is suspended under Rule 476, such member is deprived during the term of the member's suspension of all rights and privileges of membership. The expulsion of a member terminates all membership rights and privileges.
NYSE Rule 476(k) addresses non-payment of fines and other sums due to the Exchange. Under this rule, if any approved person or registered or non-registered employee fails to pay any fine within 45 days after the same is payable, such individual may, after written notice mailed to such individual at either the member's office or last place of residence as reflected in Exchange records, be summarily suspended from association in any capacity with a member organization or have the member's approval withdrawn until such fine is paid. The rule further provides that any member, member organization or allied member that fails to pay a fine or any other sums due to the Exchange within 45 days is reported by the Exchange Treasurer to the Chairman of the Exchange Board of Directors and, after written notice mailed to such member, member organization or allied member of such arrearages, may be suspended by the Exchange Board of Directors until payment is made. An individual or organization may be proceeded against for any offense other than that for which such individual or organization was suspended. In addition, the suspension or expulsion of a member or allied member under the provisions of this rule creates a vacancy in any office or position held by the member or allied member. Similarly, current NYSE Rule 309 provides that any member, member organization or allied member that fails to pay a fee or any other sums due to the Exchange (excluding a fine) with 45 days after the same are payable shall be reported to the Chief Financial Officer of the Exchange or [sic] designee who, after notice has been given to such member, member organization or allied member of such arrearages, may suspend access to some or all of the facilities of the Exchange until payment is made. Written suspension notices under both NYSE Rules 309 and 476(k) are immediately effective upon such notice and the rules provide no further process; upon payment of the fine or amount due, the suspension is lifted.
Under NYSE Rule 476(l), the CEO may not require a review by the Exchange Board of Directors under Rule 476 and is recused from deliberations and actions of the Board with respect to such matters.
Under NYSE Rule 476A(a), in lieu of commencing a disciplinary proceeding under NYSE Rule 476, the Exchange may impose a fine not to exceed $5,000 on any member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization for the rules listed in NYSE Rule 476A. Any fine imposed pursuant to this rule and not contested is not publicly reported, except as may be required by SEC Rule 19d-1 and as may be required by any other regulatory authority.
Under NYSE Rule 476A(b), the person against whom a minor rule violation fine is imposed is served with a written statement, signed by an authorized officer or employee of the Exchange on behalf of the Division or Department of the Exchange taking the action, setting forth (i) the rule or rules alleged to have been violated; (ii) the act or omission constituting each such violation; (iii) the fine imposed for each such violation; and (iv) the date by which such determination becomes final and such fine becomes due and payable to the Exchange, or such determination must be contested as provided in NYSE Rule 476A(d). Such date may not be less than
Under NYSE Rule 476A(c), if the person against whom a minor rule violation fine is imposed pays the fine, such payment is deemed to be a waiver by such person of such person's right to a disciplinary proceeding under NYSE Rule 476 and any review of the matter by a Hearing Panel or the Exchange Board of Directors.
Under NYSE Rule 476A(d), any person against whom a minor rule violation is imposed may contest the Exchange's determination by timely filing a written response meeting the requirements of an answer as provided in NYSE Rule 476(d), at which point the matter becomes a disciplinary proceeding subject to the provisions of NYSE Rule 476. In any such disciplinary proceeding, if the Hearing Panel determines that the person is guilty of the rule violation(s) charged, the Hearing Panel is free to impose any one or more of the disciplinary sanctions provided in NYSE Rule 476 and determine whether the rule violation(s) is minor in nature. NYSER, the person charged, any member of the Exchange Board of Directors, any member of the NYSER Committee for Review, and any Executive Floor Governor may require a review by the Board of any determination by the Hearing Panel by proceeding in the manner described in NYSE Rule 476(f).
Under NYSE Rule 476A(e), the Exchange must prepare and announce to its members and member organizations from time to time a listing of the Exchange rules as to which the Exchange may impose minor rule violation fines. Such listing also indicates the specific dollar amount that may be imposed as a fine or may indicate the minimum and maximum dollar amounts that may be imposed by the Exchange with respect to any such violation. The Exchange is free, whenever it determines that any violation is not minor in nature, to proceed under NYSE Rule 476 rather than under NYSE Rule 476A.
The remainder of NYSE Rule 476A sets forth the list of rule violations that may be treated as minor rule violations and fines, which may not exceed $5,000.
Under NYSE Rule 477(a), if, prior to termination, or during the period of one year immediately following the receipt by the Exchange of written notice of the termination, of a person's status as a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, the Exchange serves (as provided in NYSE Rule 476(d)) a written notice on such person that it is making inquiry into, or serves a Charge Memorandum on such person with respect to, any matter or matters occurring prior to the termination of such person's status, the Exchange may thereafter require such person to comply with any requests of the Exchange to appear, testify, submit books, records, papers, or tangible objects, respond to written requests and attend hearings in every respect in conformance with the Rules of the Exchange in the same manner and to the same extent as if such person had remained a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization.
Under NYSE Rule 477(b), prior to termination, or during the period of one year immediately following the receipt by the Exchange of written notice of the termination of a person's status as a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, the Exchange may, through the exercise of its jurisdiction, as described in NYSE Rule 477(a) above, require such person to comply with any requests of an organization or association included in NYSE Rule 476(a)(11) to appear, testify, submit books, records, papers, or tangible objects, respond to written requests and attend hearings in every respect in conformance with the Exchange rules in the same manner and to the same extent as if such person had remained a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization with respect to any matter or matters occurring prior to the termination of such person's status.
Under NYSE Rule 477(c), if a former member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, provided such notice or Charge Memorandum is or has been served, is adjudged guilty in a proceeding under NYSE Rule 476 of having refused or failed to comply with any such requirement, such person may be barred permanently, or for such period of time as may be determined, or until such time as the Exchange has completed its investigation into the matter or matters specified in such notice or Charge Memorandum, has determined a penalty, if any, to be imposed, and until the penalty, if any, has been carried out.
Under NYSE Rule 477(d), following the termination of a person's status as a member, member organization, principal executive, approved person, or registered or non-registered employee of a member or member organization, provided such notice or Charge Memorandum is or has been served, such person may also be charged with having committed, prior to termination, any other offense with which such person might have been charged had such status not been terminated. Any such charges shall be brought and determined in accordance with the provisions set forth in NYSE Rule 476.
The Exchange proposes to adopt many of FINRA's rules that are set forth in FINRA Rule 8000 and 9000 Series with no modification
Following approval of the proposed rule change, the Exchange intends to announce the effective date of the new rules at least 30 days in advance in an Information Memorandum to its members and member organizations. To further facilitate an orderly transition from the current rules to the new rules, the Exchange proposes that certain
Specifically, current NYSE Rule 475 would continue to apply with respect to a proceeding for which a written notice had been issued prior to the effective date of the new rules. Current NYSE Rules 476 and 476A would continue to apply with respect to a proceeding for which a Charge Memorandum had been filed with the Hearing Board under NYSE Rule 476(d) prior to the effective date of the new rules. Current NYSE Rule 476 also would continue to apply to a matter for which a written Stipulation and Consent has been submitted to a Hearing Officer prior to the effective date of the new rules. Current NYSE Rules 475, 476, or 476A would continue to apply until any such proceeding was final. In all other cases, the proposed NYSE Rule 9000 Series, as described below, would apply.
Until the effective date, the Exchange could issue a written notice of suspension for non-payment of a fine or other sum due to the Exchange under current NYSE Rule 476(k), which would remain in effect until payment was made. Thereafter, the Exchange would proceed against an individual or entity subject to its jurisdiction that failed to pay a fine or monetary sanction under proposed NYSE Rule 8320, which would be modeled on the counterpart FINRA rule that similarly provides for a summary suspension until such fine or monetary sanction is paid. With respect to non-payment of amounts other than fines and monetary sanctions, the Exchange proposes to delete the language in current NYSE Rule 476(k) regarding these matters because it is duplicative of the language in current NYSE Rule 309, which authorizes the Exchange's Chief Financial Officer to address non-payment of amounts due to the Exchange other than fines and monetary sanctions. Thus, following the effective date, NYSE Rule 309 would govern non-payment of sums owed to the Exchange other than fines and monetary sanctions. Current NYSE Rule 309 includes a cross-reference to NYSE Rule 476(k), which would be replaced with a reference to proposed NYSE Rule 8320.
As noted above, current NYSE Rule 476(a)(1)-(11) also contains substantive elements in addition to its procedural elements. Specifically, NYSE Rule 476(a)(1)-(11) contains a list of offenses for which the Exchange can take disciplinary action. The proposed rule change would not alter this substantive aspect of Rule 476(a). The Exchange could continue to take disciplinary action against a member organization or other person subject to its jurisdiction for committing any of these substantive violations; following the transition described above, the Exchange would bring disciplinary cases for such offenses under the proposed NYSE Rule 9000 Series.
Similarly, the retention of jurisdiction provisions of NYSE Rule 477 would continue to apply to any member organization that resigned or had its membership canceled or revoked and any person whose status as a person subject to the Exchange's jurisdiction was terminated or whose registration was revoked or canceled if such member organization or person had been served with a Charge Memorandum or written notice of inquiry pursuant to NYSE Rule 477 prior to the effective date of the new rules. As described above, current NYSE Rule 477 generally provides that the Exchange retains jurisdiction for one year after such status is terminated and such jurisdiction continues if during that one-year period the Exchange has provided written notice that it is making inquiry into matters that arose prior to termination. In all other cases, the retention of jurisdiction provisions of proposed NYSE Rule 8130 would apply, which would set forth retention of jurisdiction provisions modeled on Article IV, Section 6 and Article V, Section 4 of the FINRA Bylaws. Under the proposed rule change, as described below, the Exchange would retain jurisdiction to file a complaint against a member organization or person subject to its jurisdiction for two years after such status was terminated, and the proposed NYSE Rule 8000 Series and Rule 9000 Series generally would apply.
When the transition is complete and there are no longer any member organizations or persons who would be subject to NYSE Rules 475, 476, 476A, and 477, the Exchange intends to submit a proposed rule change that would delete such rules (except for the listed offenses under NYSE Rule 476(a)).
To continue the current coverage of the NYSE disciplinary rules, the proposed rule change would use the terms “member organization” and “covered person” rather than “member” and “person associated with a member,” respectively, which terms are used throughout the FINRA Rule 8000 and 9000 Series. The term “member” has different meanings under FINRA and NYSE rules. Under FINRA Rule 0160(b)(9), “member” means an organization that is a member of FINRA; NYSE's equivalent term is “member organization.”
The Exchange proposes to use the term “covered person” rather than the Act's definition of “associated person” or FINRA's definition of “associated person” so that the proposed rule change appropriately captures each of the individuals and entities other than member organizations that are currently subject to the Exchange's rules, thus preserving the Exchange's current scope of jurisdiction. These individuals and entities are members, principal executives, approved persons, and registered and non-registered employees of a member or member organization, and any other person subject to the Exchange's jurisdiction.
However, the definition in the Act is broader in scope that [sic] the individuals and entities currently subject to the Exchange's jurisdiction and for that reason the Exchange could not use the Act's definition for purposes of the proposed rule change. For example, the Act's definition of associated person includes any person under common control with a broker-dealer. However, the Exchange's scope of jurisdiction is not so broad. Specifically, the definition of approved person
Where the term “FINRA” appears in FINRA's rule text, the term “Exchange” would be substituted in the proposed rule change. As noted in Exchange Rule 0, Exchange Rules that refer to NYSER, NYSER staff or departments, Exchange staff, and Exchange departments should be understood as also referring to FINRA staff and FINRA departments acting on behalf of the Exchange pursuant to the RSA, as applicable.
Proposed NYSE Rule 8001 would include the effective date of the proposed rule change for the NYSE Rule 8000 Series, noting the exception for the retention of jurisdiction dates in proposed NYSE Rule 8130 and the transition from current NYSE Rule 476(k) to proposed NYSE Rule 8320, as described above; FINRA does not have a Rule 8001. The text of FINRA Rules 8110 through 8330 would be adopted as NYSE Rules 8110 through 8330, with certain changes as described below.
Proposed NYSE Rule 8110 would require an NYSE member organization to provide access to the Exchange's rules to its customers. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule with only conforming and technical amendments. Although there is no comparable requirement in the current NYSE Rules, the Exchange already meets the requirement because the Exchange's rules are available on the Exchange's Web site.
As noted above, proposed NYSE Rule 8120 would provide cross-references to definitions of the terms “Adjudicator” and “covered person” in proposed NYSE Rule 9120. Similarly, FINRA Rule 8120 cross-references the definition of “Adjudicator.” Proposed Rule 8120 is simply technical in nature.
Proposed NYSE Rule 8130 would set forth retention of jurisdiction provisions modeled on Article IV, Section 6 and Article V, Section 4 of the FINRA Bylaws. The text of the proposed rule is substantially the same as the text in FINRA's Bylaws, except that it contains a provision in paragraph (d) for the transition period as described above. Under the proposed rule change, the Exchange would retain jurisdiction to file a complaint against a member organization or covered person for two years after such member organization's or covered person's status is terminated. This differs from current NYSE Rule 477, which provides that the Exchange retains jurisdiction after the termination of status as long as a Charge Memorandum or written notice of inquiry is served within one year after termination of such status. The Exchange believes that the longer period under the proposed rule is appropriate because it will harmonize the Exchange's rule with FINRA's rule and provide a fixed time period for a complaint to be brought, which provides repose [sic] to respondents while still providing Exchange staff with sufficient time to determine if a complaint should be brought.
Proposed NYSE Rule 8210 would set forth procedures for the provision of information and testimony and inspection and copying books by the Exchange. The proposed text of the rule is substantially the same as the text in FINRA's counterpart rule, with only technical and conforming amendments.
Proposed NYSE Rule 8210(a) would require a member organization and covered person to provide information and testimony and permit the inspection of books, records, and accounts for the purpose of an investigation, complaint, examination, or proceeding authorized by the Exchange's rules. As noted above, under proposed NYSE Rule 8130, the Exchange would retain jurisdiction over a member organization or covered person to file a complaint or otherwise initiate a proceeding for two years after such member organization's or covered person's status is terminated and as such can continue to obtain information and testimony during such period and thereafter if a complaint or proceeding is timely filed. Currently the Exchange also requires persons subject to its jurisdiction to provide books and records and appear and testify upon request under current NYSE Rules 475(e), 476(a)(11), and 477(a) and (b), and as noted above, the Exchange retains jurisdiction after termination of a registration as long as a Charge Memorandum or written notice of inquiry has been served within one year after termination of such status. The Exchange believes the proposed rule is appropriate because it will harmonize the Exchange's rules with FINRA's rules with respect to jurisdiction and obtaining books and records from member organizations and covered persons.
Proposed Rule 8210(b) would authorize Exchange staff to enter into regulatory cooperation agreements with a domestic federal agency or subdivision thereof or a foreign regulator. Current NYSE Rule 27 permits the Exchange to enter into agreements with domestic or foreign SROs or associations, contract markets and registered futures associations, but does not specify domestic federal agencies or subdivisions thereof or foreign regulators; because the scope of current NYSE Rule 27 is different, the Exchange would retain it along with proposed NYSE Rule 8210(b).
The remainder of proposed NYSE Rule 8210 would set forth certain procedures for investigations. Proposed Rule 8210(c) would require member organizations and covered persons to comply with information requests under the Rule. This requirement is substantially the same as current NYSE Rules 475(e), 476(a)(11), and 477(a) and (b), as noted above.
Proposed NYSE Rule 8210(d) would provide that a notice under this Rule would be deemed received by the member organization or covered person to whom it is directed by mailing or otherwise transmitting the notice to the last known business address of the member organization or the last known residential address of the covered person as reflected in the Central Registration Depository. If the Adjudicator or Exchange staff responsible for mailing or otherwise transmitting the notice to the member organization or covered person had actual knowledge that the address in the Central Registration Depository is out of date or inaccurate, then a copy of the notice would be mailed or otherwise transmitted to: (1) The last known business address of the member organization or the last known residential address of the covered person as reflected in the Central Registration Depository; and (2) any other more current address of the member organization or covered person known to the Adjudicator or Exchange staff responsible for mailing or otherwise transmitting the notice. Current NYSE Rules 475(e), 476(a)(11), and 477(a) and (b), which require persons subject to the Exchange's jurisdiction to provide books and records and appear and testify upon the Exchange's request, do not specify the address to which a notice of such request must be directed. The additional specificity in proposed NYSE Rule 8210(d) would afford member organizations and covered persons additional procedural protections in that respect.
Proposed NYSE Rule 8210(e) would provide that in carrying out its responsibilities under this Rule, the Exchange may, as appropriate, establish programs for the submission of information to the Exchange on a regular basis through a direct or indirect electronic interface between the Exchange and member organizations. Proposed NYSE Rule 8210(f) would permit a witness to inspect the official transcript of the witness's own testimony, and permit a person who has submitted documentary evidence or testimony in an Exchange investigation to get a copy of the person's documentary evidence or the transcript of the person's testimony under certain circumstances. Finally, proposed NYSE Rule 8210(g) would require any member organization or covered person who in response to a request pursuant to this Rule provided the requested information on a portable media device to ensure that such information was encrypted. The Exchange's current rules do not contain comparable provisions.
Proposed NYSE Rule 8211 would set forth the procedures for the automated submission for trading data requested by the Exchange (commonly referred to as “blue sheets”) for transactions on the Exchange. These procedures are substantially the same as the procedures in FINRA's counterpart rule, with only conforming and technical amendments, and substantially the same as current NYSE Rule 410A. Because FINRA now performs all surveillance functions based on the information gathered as a result of these rules, the Exchange believes that the procedures for the automated submission of trading data should be harmonized with the FINRA rules, and therefore proposes to delete current NYSE Rule 410A and adopt proposed NYSE Rule 8211 instead.
Proposed NYSE Rule 8310 would set forth the range of sanctions that could be imposed in connection with disciplinary actions under the proposed rule change. Such sanctions would include censure, fine, suspension, revocation, bar, expulsion, or any other fitting sanction. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, with only conforming and technical amendments. The sanctions also are substantially the same as the permitted sanctions set forth in current NYSE Rule 476(a)(11), which are expulsion; suspension; limitation as to activities, functions, and operations, including the suspension or cancellation of a registration in, or assignment of, one or more stocks; fine; censure; suspension or bar from being associated with any member or member organization; or any other fitting sanction. Although there is some difference between the text of the current and proposed NYSE rules, the Exchange believes that in practice the range of sanctions is the same due to the inclusion in both rules of the general category “any other fitting sanction.”
Proposed NYSE Rule 8310 would also allow the Exchange to impose a temporary or permanent cease and desist order against a member organization or covered person. This new authority, not currently available under NYSE rules, is described in further detail below in the section concerning the proposed NYSE Rule 9800 Series.
Proposed NYSE Rule 8311 would provide that if the Commission or the Exchange imposed a suspension, revocation, cancellation or bar on a covered person, a member organization may not permit such person to remain associated, and, in the case of a suspension, may not make any remuneration that results from any securities transaction. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, with only conforming and technical amendments. The proposed rule is similar in result to current NYSE Rule 476(j), which provides that a member will be deprived of all rights and privileges of membership during a suspension and that an expulsion of a member terminates all rights and privileges arising out of the membership. However, the proposed rule is broader because it applies to all covered persons subject to a suspension, revocation, cancellation or bar and more explicitly prohibits the payment of compensation in the case of a suspension.
Proposed NYSE Rule 8313 would provide that the Exchange will publish all final disciplinary decisions issued under the proposed NYSE Rule 9000 Series, other than minor rule violations,
Proposed NYSE Rule 8320(a) would provide that all fines and other monetary sanctions shall be paid to the Treasurer of the Exchange. Unlike FINRA Rule 8320(a), the Rule would not provide that such monies could be used for general corporate purposes. The Exchange uses fine monies for regulatory purposes subject to the approval of the NYSER Board.
Proposed NYSE Rule 8320(b) and (c) would permit the Exchange, after seven days' notice in writing, to suspend or expel a member organization from membership or revoke the registration of a covered person for failure to pay a fine. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, with only conforming and technical amendments. As noted above, under current NYSE Rule 476(k), a member organization or covered person may be summarily suspended for failing to pay a fine within a 45-day notice period; a membership cancellation or bar also could be imposed in a regular disciplinary proceeding for non-payment of a fine. Although FINRA's rules do not specifically so provide, FINRA typically gives a Respondent at least 30 days to pay a fine after the conclusion of a proceeding. Thus, the Exchange believes that such period, along with the seven days notice provided under proposed NYSE Rule 8320, would provide Respondents with an adequate amount of time to pay a fine and avoid any further sanction by the Exchange. For clarity regarding the transition, proposed NYSE Rule 8001 would provide that the Exchange may issue a written notice of suspension for non-payment of a fine under Rule 476(k) until the effective date of the proposed rule change, and thereafter proposed NYSE Rule 8320 would apply.
Proposed NYSE Rule 8330 would provide that a disciplined member organization or covered person may be assessed the costs of a proceeding. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, with only conforming and technical amendments. There is no comparable requirement in the current NYSE Rules, although the Exchange may assess costs as a “fitting sanction” under current NYSE Rule 476(a)(11).
Proposed NYSE Rule 9001 would set forth the effective date of the rule, noting the transitional provisions described above. The text of proposed NYSE Rule 9001 would be identical to the proposed introductory text of NYSE Rule 476, except that the transition with respect to proposed NYSE Rule 8320 would be reflected in proposed NYSE Rule 8001 as described above.
The Exchange proposes to adopt the text of FINRA Rules 9110 through 9290 with certain changes as described below. Proposed NYSE Rule 9110 would state the types of proceedings to which the proposed NYSE Rule 9000 Series would apply (each of which is described below) and the rights, duties, and obligations of member organizations and covered persons, and would set forth the defined terms and cross-references. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, with only conforming and technical amendments. The Exchange does not have a comparable rule.
Proposed NYSE Rule 9120 would set forth definitions. Certain defined terms in FINRA Rule 9120 would be inapplicable in the Exchange's rules—“Counsel to the National Adjudicatory Council,” “District Committee,” “Extended Proceeding,” “Extended Proceeding Committee,” “FINRA Board,” “FINRA Regulation Board,” “General Counsel,” “Governor,” “Market Regulation Committee,” “Primary District Committee,” “Review Subcommittee,” “Statutory Disqualification Committee,” and “Subcommittee”—and therefore are not included in the proposed rule change. As described in more detail below, the Exchange proposes to continue to use its own Hearing Board for Panelists
The Exchange proposes to include certain definitions that are not included in FINRA's rule text: “Board of Directors,” “Chief Regulatory Officer” or “CRO,” “covered person,” “Department of Market Regulation,” “Department of Member Regulation,” “Exchange,” “Floor-Based Panelist,” “Head of Market Regulation,” and “Office of Hearing Officers.” These definitions appear in subsequent proposed rules, as described below, and are necessary for harmonization with the Exchange's rules.
The remaining definitions—“Adjudicator,” “Chief Hearing Officer,” “Code,” “Counsel to the Exchange Board of Directors,” “Department of Enforcement,” “Director,” “Document,” “Extended Hearing,” “Extended Hearing Panel,” “Head of Enforcement,” “Hearing Officer,” “Hearing Panel,” “Interested Staff,” “Office of Disciplinary Affairs,” “Panelist,” “Party,” and “Respondent”—are substantially the same as FINRA's definitions. To the extent the definitions differ, the differences are technical and conforming to reflect the Exchange's continued use of its Hearing Board and appellate processes and other differences noted below.
Proposed NYSE Rules 9130 through 9138 would govern the service of a complaint or other procedural documents under the NYSE Rules. Proposed NYSE Rule 9131 would set forth the requirements for serving a complaint or document initiating a proceeding. Proposed NYSE Rule 9132 would cover the service of orders, notices, and decisions by an Adjudicator. Proposed NYSE Rule 9133 would govern the service of papers other than complaints, orders, notices, or decisions. Proposed NYSE Rule 9134 would describe the methods of service and the procedures for service. Proposed NYSE Rule 9135 would set forth the procedure for filing papers with an Adjudicator. Proposed NYSE Rule 9136 would govern the form of papers filed in connection with any proceeding under the proposed NYSE Rule 9200 and 9300 Series. Proposed NYSE Rule 9137 would state the requirements for and the effect of a signature in connection with the filing of papers. Finally, proposed NYSE Rule 9138 would establish the computation of time. The text of these proposed rules, other than proposed NYSE Rule 9135, is identical to FINRA's counterpart rules.
By comparison, current NYSE Rule 476(d), which governs service of process, is generally less detailed and, as noted above, provides that service is deemed effective by personal service of the Charge Memorandum, or by leaving the same either at the respondent's last known office address during business hours or the respondent's last place of residence as reflected in Exchange records, or upon mailing same to the respondent at such office address or place of residence. Under proposed NYSE Rule 9134, as under current FINRA Rule 9134, papers served on a natural person could be served at the natural person's residential address, as reflected in the Central Registration Depository (“CRD”), if applicable. When a Party or other person responsible for serving such person had actual knowledge that the natural person's CRD address was out of date, duplicate copies would be required to be served on the natural person at the natural person's last known residential address and the business address in the CRD of the entity with which the natural person is employed or affiliated. Papers could also be served at the business address of the entity with which the natural person is employed or affiliated, as reflected in CRD, or at a business address, such as a branch office, at which the natural person is employed or at which the natural person is physically present during a normal business day. The Hearing Officer could waive the requirement of serving documents (other than complaints) at the addresses listed in the CRD if there were evidence that these addresses were no longer valid and there was a more current address available. If a natural person were represented by counsel or a representative, papers served on the natural person, excluding a complaint or a document initiating a proceeding, would be required to be served on the counsel or representative.
Similarly, under proposed NYSE Rule 9134, papers served on an entity would be required to be made by service on an officer, a partner of a partnership, a managing or general agent, a contact employee as set forth on Form BD, or any other agent authorized by appointment or by law to accept service. Such papers would be required to be served at the entity's business address as reflected in CRD, if applicable; provided, however, that when the Party or other person responsible for serving such entity had actual knowledge that an entity's CRD address was out of date, duplicate copies would be required to be served at the entity's last known address. If an entity were represented by counsel or a representative, papers served on such entity, excluding a complaint or document initiating a proceeding, would be required to be served on such counsel or representative.
The Exchange's current rules do not explicitly permit service of a Charge Memorandum or other document on a respondent's counsel or other authorized representative. FINRA recently amended FINRA Rule 9131(a) to provide that when counsel for a Party or other person authorized to represent others agrees to accept service of a complaint, FINRA's Department of Enforcement or Department of Market Regulation may serve the complaint on counsel for a respondent or other person authorized to represent others under FINRA Rule 9141.
The Exchange believes that these more detailed procedures for service of process would increase the likelihood of successful service of process while providing appropriate due process protections to its member organizations and covered persons.
Proposed NYSE Rules 9140 through 9148 would contain various rules relating to the conduct of disciplinary proceedings.
Proposed NYSE Rule 9141 would govern appearances in a proceeding, notice of appearances, and representation. The text of the proposed rule is the same as the text of FINRA's counterpart rule, except that the Exchange does not propose to adopt the text of FINRA Rule 9141(c), which provides that no former officer of FINRA shall, within one year after termination of employment with FINRA, make an appearance before an adjudicator on behalf of any other person under the Rule 9000 Series. The Exchange does not believe that it is necessary to bar its former employees from such appearances because its employees generally are not involved in the regulatory and disciplinary functions carried out by FINRA on behalf of the Exchange; as such, their appearance does not create the same type of conflict of interest. Thus, proposed NYSE Rule 9141(c) is marked “Reserved.”
Proposed NYSE Rule 9141 would permit a Respondent to represent himself or be represented by an attorney, just as is permitted under current NYSE Rule 476(h). Current NYSE Rule 476(h) is more general, in that it permits a respondent to be represented by an attorney or other representative, while proposed NYSE Rule 9141 is more specific in that it permits a Respondent to be represented by a bar-admitted U.S. attorney, permits a partnership to be represented by a partner, and permits a corporation, trust, or association to be represented by an officer of such entity. Proposed NYSE Rule 9141 also requires an attorney or representative to file a notice of appearance, which is not required under current Exchange rules.
Proposed NYSE Rule 9142 would require an attorney or representative to file a motion to withdraw. The text of the proposed rule is the same as the text of FINRA's counterpart rule. There is no current comparable NYSE rule.
Proposed NYSE Rule 9143(a) would prohibit certain ex parte communications with an Adjudicator or Exchange employee. Under proposed NYSE Rule 9143(b), an Adjudicator participating in a decision with respect to a proceeding, or an Exchange employee participating or advising in the decision of an Adjudicator, who received, made, or knowingly caused to be made a communication prohibited by the Rule would be required to place in the record of the proceeding: (1) All such written communications; (2) memoranda stating the substance of all such oral communications; and (3) all written responses and memoranda stating the substance of all oral responses to all such communications.
Proposed NYSE Rule 9144 would establish the separation of functions for Interested Staff and Adjudicators and provide for waivers. The text of the proposed rule is modeled on the text of FINRA's counterpart rule, with conforming and technical changes and changes to reflect that the Exchange would retain its appellate process. There is no current comparable NYSE rule.
Proposed NYSE Rule 9145 would provide that formal rules of evidence would not apply in any proceeding brought under the proposed NYSE Rule 9000 Series. The text of the proposed rule is the same as the text of the FINRA counterpart rule, with only a conforming and technical change. The NYSE does not have a current comparable rule that explicitly makes such a statement, although in practice the result is the same—formal rules of evidence do not apply to current NYSE disciplinary proceedings.
Proposed NYSE Rule 9146 would govern motions a Party may make and requirements for responses and formatting. A Party would be permitted to make written and oral motions, although an Adjudicator could require that a motion be in writing. An opposition to a written motion would have to be filed within 14 days, but the moving party would have no right to reply, unless an Adjudicator so permits, in which case such reply generally would be due within five days. Proposed NYSE Rule 9146 also would permit a Party to move for a protective order. The text of the proposed rule is modeled on the text of FINRA's counterpart rule, with conforming and technical changes and changes to reflect that the Exchange would retain its appellate process. There is no current comparable NYSE rule that contains such detail. Current NYSE Rule 476(c) simply provides that the Chief Hearing Officer or a Hearing Officer may resolve any substantive legal motions. The Exchange believes that the more detailed provisions of the proposed rule would provide additional clarity to all Parties to a proceeding.
Proposed NYSE Rule 9147 would provide that Adjudicators may rule on procedural matters. The text of the proposed rule is the same as the text of the FINRA counterpart rule, except that certain text is amended to reflect that the Exchange would retain its appellate process. The proposed rule is similar to current NYSE Rule 476(c), which provides that the Chief Hearing Officer or a Hearing Officer may resolve any procedural matters. However, the Exchange's current rules do not explicitly provide for the Exchange Board of Directors ruling on procedural matters.
Finally, proposed NYSE Rule 9148 would generally prohibit interlocutory review, except as provided in proposed NYSE Rule 9280 for contemptuous conduct. The text of the proposed rule is the same as that in FINRA's counterpart rule. Similarly, current NYSE Rule 476(c) provides that there is no interlocutory appeal to the Exchange Board of Directors.
Proposed NYSE Rule 9150 would provide that a representative can be excluded by an Adjudicator for improper or unethical conduct. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, except for conforming and technical amendments and an amendment to reflect the Exchange's retention of its appellate process. The proposed rule also is substantially the same as the text in current NYSE Rule 476(h), which provides that the Hearing Board can exclude a representative for improper conduct in a proceeding.
Proposed NYSE Rule 9160 would provide that no person may act as an Adjudicator if he or she has a conflict of interest or bias, or circumstances exist where his or her fairness could reasonably be questioned. In such case, the person must recuse himself or may be disqualified. The proposed rule would cover the recusal or disqualification of an Adjudicator, the Chair of the Exchange Board of Directors, or a Director. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, except that it does not reference certain Adjudicators used by FINRA that the Exchange will not utilize in its proceedings (
Proposed NYSE Rule 9200 would cover disciplinary proceedings. Proposed NYSE Rule 9211 would permit FINRA's Department of Enforcement and Department of Market Regulation to request the authorization of FINRA's Office of Disciplinary Affairs to issue a complaint against a member organization or covered person, thereby commencing a disciplinary proceeding. The text of the proposed rule is substantially the same as the text in FINRA's counterpart rule, with only conforming and technical changes. The complaint would replace the Charge Memorandum currently used by the Exchange under current NYSE Rule 476(d), as described above, which requires that the specific charges against the respondent in the form of a written statement be signed by an authorized officer or employee of the Exchange on
Proposed NYSE Rule 9212 would set forth the requirements of the complaint, amendments to the complaint, withdrawal of the complaint, and service of the complaint. The text of the proposed rule is modeled on the text in FINRA's counterpart rule, except that FINRA Rule 9212(a)(2) permits the Department of Enforcement or Department of Market Regulation to propose that the Chief Hearing Officer select one Panelist from the Market Regulation Committee if certain trading-related violations, described in FINRA Rule 9120(u), are alleged in the complaint. The Exchange proposes instead to permit the Chief Hearing Officer to select one Floor-Based Panelist, who would be a person who is, or, if retired, was, active on the Floor of the Exchange, to serve on a Hearing Panel if the complaint alleges at least one cause of action involving activities on the Floor of the Exchange. Each subsequent reference in the FINRA rules to a Market Regulation Committee Panelist would be substituted with a reference to a Floor-Based Panelist in the proposed NYSE Rules.
Under the proposed rule change, the form of the complaint also would be more prescribed than under current NYSE Rule 476. Current NYSE Rule 476 also does not address the amendment or withdrawal of complaints.
Proposed NYSE Rule 9213 would provide for the appointment of a Hearing Officer and Panelists by the Chief Hearing Officer. The text of the proposed rule is the same as FINRA Rule 9213. Current NYSE Rule 476(b) is similar in that it provides for the appointment of a Chief Hearing Officer by the Exchange Board of Directors and the utilization of three-person hearing panels led by a Hearing Officer.
Proposed NYSE Rule 9214 would permit the Chief Hearing Officer to sever or consolidate two or more disciplinary proceedings under certain circumstances and permit a Party to move for such action under certain circumstances. The text of the proposed rule is the same as FINRA Rule 9214. There is no NYSE rule comparable to proposed NYSE Rule 9214 for severing or consolidating proceedings. Under current NYSE Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all procedural matters and substantive legal motions.
Proposed NYSE Rule 9215 would set forth requirements for answering a complaint, including form, service, notice, content, defenses, amendments, default, and timing. The text of the proposed rule is the same as FINRA Rule 9215. An answer to a Charge Memorandum under current NYSE Rule 476(d) and an answer to a complaint under the proposed rule change have the same 25-day response deadline; however, proposed NYSE Rule 9215 would explicitly allow for an extension of time to answer an amended complaint.
Proposed NYSE Rule 9216 would establish the acceptance, waiver, and consent (“AWC”) procedures by which a Respondent, prior to the issuance of a complaint, may execute a letter accepting a finding of violation, consenting to the imposition of sanctions, and agreeing to waive such Respondent's right to a hearing, appeal, and certain other procedures.
Under FINRA's rule, the Review Subcommittee or Office of Disciplinary Affairs may accept such AWC or letter or refer it to FINRA's National Adjudicatory Council (“NAC”) for acceptance or rejection, or the Review Subcommittee may reject such AWC or letter or refer it to the NAC for acceptance or rejection. Because the Exchange does not propose to use a Review Subcommittee or the NAC, procedures and references relating to these entities would not be included.
While the AWC process has some similarity to the Exchange's current Stipulation and Consent procedure in NYSE Rule 476(g) in that it provides a settlement mechanism, there are certain key differences. Under current NYSE Rule 476(g), a Hearing Officer must act on a Stipulation and Consent submitted by the parties and may choose to convene a Hearing Panel. No Hearing Officer would be involved in the process under the proposed rule. Furthermore, any member of the Exchange Board of Directors, any member of the NYSER Committee for Review, and any Executive Floor Governor may require a review by the Exchange Board of Directors of any determination or penalty, or both, imposed by a Hearing Panel or Hearing Officer in connection with a Stipulation and Consent. In addition, the Respondent or the Division which entered into the written consent may require a review by the Exchange Board of Directors of any rejection of a Stipulation and Consent by the Hearing Panel. There would be no appeals or reviews of AWCs by the Exchange Board of Directors under the proposed rule change.
Although by adopting proposed NYSE Rule 9216 the Exchange would be changing the type of review associated with settlement procedures, the Exchange believes that the proposed process provides appropriate controls to assure consistency and protect against aberrant settlement. Specifically, FINRA's Office of Disciplinary Affairs, which is an independent body from FINRA's Department of Enforcement,
The Exchange also proposes to adopt aspects of FINRA's process and fine levels for minor rule violations while retaining the specific list of rules included in the Exchange's current minor rule violation plan, with certain technical and conforming amendments. Proposed NYSE Rule 9216(b) would be similar to FINRA Rule 9216(b), with technical amendments and amendments to make it consistent with proposed NYSE Rule 9216(a) in that the Office of Disciplinary Affairs could accept or reject the minor rule violation letter. While FINRA Rule 9216(b) provides that a member or associated person that executes a minor rule violation letter waives any right to claim bias or prejudgment of FINRA's General Counsel, the National Adjudicatory Council, or any member of the National Adjudicatory Council, the Exchange's proposed Rule would provide that a member organization or covered person could not claim bias or prejudgment by CRO, the Exchange Board of Directors, Counsel to the Exchange Board of Directors, or any Director in order to conform with the Exchange's proposed rules. Unlike current NYSE Rule 476A, which is described above, the proposed rule would not permit a Respondent to contest a minor rule violation letter by filing an answer and convert it into a regular disciplinary proceeding. Rather, under the proposed rule, if the Respondent rejects the minor rule violation letter, then a complaint must be filed under proposed NYSE Rule 9211, and the minor rule violation letter may not be introduced into evidence. The Exchange believes that the proposed rule provides similar and sufficient procedural protections to Respondents.
FINRA's maximum fine for minor rule violations under FINRA Rule 9216(b) is $2,500. Currently, the Exchange's maximum fine for minor rule violations under current NYSE Rule 476A(a) is $5,000. The Exchange believes that it is appropriate to lower the maximum fine amount to achieve harmony with FINRA rules. Like FINRA, the Exchange would still be able to pursue a fine greater than $2,500 in a regular disciplinary proceeding or an AWC under the proposed NYSE Rule 9000 Series as appropriate.
Finally, proposed NYSE Rule 9217 would set forth the list of rules under which a member organization or covered person may be subject to a fine under a minor rule violation plan as described in proposed NYSE Rule 9216(b). The Exchange would retain the list of rules currently set forth in its own minor rule violation plan (and found in current NYSE Rule 476A) with certain technical and conforming changes under proposed NYSE Rule 9217, rather than adopt the list of rules in FINRA's plan. The technical and conforming changes are as follows. First, the NYSE's current list of minor rules includes a reference to the record retention provisions in NYSE Rule 472(c); the reference would be corrected to refer to NYSE Rule 472(d). Second, the reference to the submission of blue sheets under NYSE Rule 410A would be supplemented with a reference to proposed NYSE Rule 8211. Third, the reference to the submission of books and records under NYSE Rule 476(a)(11) would be supplemented with a reference to proposed NYSE Rule 8210. Finally, there is a reference to NYSE Rule 1000-1005. NYSE Rule 1005 was deleted from the NYSE rules in 2006 and as such the Exchange proposes to change the reference to NYSE Rule 1000-1004.
The current list of NYSE minor rules includes references to certain rules that have been more recently removed from the NYSE rules as part of the FINRA rule harmonization process, including previous NYSE Rules 312(h), 382(a), 352(b) and (c), 392, and 445(4). The Exchange proposes to maintain the references to these former rules in its current list of minor rules in proposed NYSE Rule 9217. By doing so, the Exchange could continue to resolve violations of them that occurred prior to the harmonization via a minor rule violation letter.
Proposed NYSE Rules 9221 and 9222 would describe how a Respondent can request a hearing, the notice of a hearing, and timing considerations. The text of the proposed rules is the same as that in FINRA's counterpart rules, except that it permits a Respondent to request a Floor-Based Panelist rather than a Market Regulation Committee Panelist. Proposed Rule 9221 provides that a Hearing Officer generally must provide at least 28 days notice of the hearing. Current NYSE Rule 476 does not have comparable provisions relating to how a hearing can be ordered and time for notices; rather, current NYSE Rule 476(b) states that all proceedings under the Rule, except as to matters which are resolved by a Hearing Officer when so authorized, are conducted at a Hearing in accordance with the provisions of NYSE Rule 476.
Proposed NYSE Rules 9231 and 9232 would govern how a Hearing Panel, Extended Hearing Panel, Replacement Hearing Officer, Panelists, Replacement Panelists, and Floor-Based Panelists are appointed and their composition and criteria for selection.
Under the proposed rule change, the Exchange would use FINRA's Chief Hearing Officer and Hearing Officers from FINRA's Office of Hearing Officers, rather than have the Exchange Board of Directors appoint such persons as it does today under current NYSE Rule 476(b). Because such positions are staff positions, the Exchange believes that it is reasonable to utilize FINRA staff, just as it is doing with respect to other proposed rules.
The proposed rules also differ from the counterpart FINRA rules in that the Exchange would not use FINRA's pool of Panelists but would instead continue to draw Panelists appointed from an Exchange Hearing Board. As it is today, the Hearing Board would be appointed annually by the Chairman and would be composed of members of the Exchange who are not members of the Exchange Board of Directors and registered employees and non-registered employees of members and member organizations, as well as former members, allied members, or registered and non-registered employees of members and member organizations who have retired from the securities industry.
In addition, as noted above, while FINRA's rules permit the Chief Hearing Officer to select one Panelist from the Market Regulation Committee if certain trading-related violations are alleged in the complaint, the Exchange proposes instead to permit the Chief Hearing Officer to select one Floor-Based Panelist to serve on a Hearing Panel if the complaint alleges at least one cause of action involving activities on the Floor of the Exchange, consistent with the Exchange's practice under current NYSE Rule 476(b).
Proposed Rule 9232 would also include certain Panelist selection criteria that are included in FINRA Rule 9232. These criteria are expertise, absence of any conflict of interest or bias or any appearance thereof, availability, and the frequency with which a person has served as a Panelist in the last two years, favoring the selection of a person as a Panelist who has never served or who has served infrequently as a Panelist during the period. NYSE Rule 476(b) currently does not include these criteria.
Proposed NYSE Rules 9233 and 9234 would establish the processes for recusal and disqualification of Hearing Officers, Hearing Panels, or Extended Hearing Panels. The text of the proposed rules is identical to the text in FINRA's counterpart rules. Current NYSE Rule 22 similarly prohibits a person from participating in an adjudication if he or she has a personal interest but does not specifically provide for recusals and disqualifications in the manner in which the comparable FINRA rule does.
Proposed NYSE Rule 9235 would set forth the Hearing Officer's duties and authority in detail. The text of the proposed rule is identical to that in FINRA's counterpart rule. The proposed rule change is similar to current NYSE Rule 476(c), which gives the Hearing Officer general authority in procedural and evidentiary matters.
Proposed NYSE Rules 9241 and 9242 would govern the substantive and procedural requirements for pre-hearing conferences and pre-hearing submissions. The text of the proposed rules is identical to FINRA's counterpart rules, except that the Exchange does not propose to adopt the text of FINRA Rule 9242(b), which provides that no former officer of FINRA may, within one year after termination of employment with FINRA, appear as an expert witness in a proceeding under the Rule 9000 Series except on behalf of FINRA. The Exchange does not believe that it is necessary to bar its former employees from such appearances because its employees generally are not involved in the regulatory and disciplinary functions carried out by FINRA on behalf of the Exchange; as such, their appearance does not create the same type of conflict of interest. As such, proposed NYSE Rule 9242(b) is marked “Reserved.” As stated above, current NYSE Rule 476(c) gives Hearing Officers general authority in procedural matters, but there are no specific provisions in the current NYSE rules relating to pre-hearing conferences and submissions.
Proposed NYSE Rules 9250 through 9253 would address discovery, including the requirements and limitations relating to the inspection and copy of documents in the possession of Exchange staff, requests for information and limitations on such requests, and the production of witness statements and any harmless error relating to the production of such witness statements.
Proposed NYSE Rule 9251 would generally require the Department of Enforcement or Department of Market Regulation to make available to a Respondent any documents prepared or obtained in connection with the investigation that led to the proceedings, except that certain privileged or other internal documents, such as examination or inspection reports or documents that would reveal an examination, investigation, or enforcement technique or confidential source, or documents that are prohibited from disclosure under federal law, are not required to be made available. A Hearing Officer may require that a withheld document list be prepared. Proposed NYSE Rule 9251 also sets forth procedures for inspection and copying of produced documents. In addition, if a Document required to be made available to a Respondent pursuant to the proposed Rule was not made available by the Department of Enforcement or the Department of Market Regulation, no rehearing or amended decision of a proceeding already heard or decided would be required unless the Respondent establishes that the failure to make the Document available was not harmless error. The Hearing Officer, or, upon review under proposed NYSE Rule 9310, the Exchange Board of Directors, would determine whether the failure to make the document available was not harmless error, applying applicable Exchange, FINRA, SEC, and federal judicial precedent. The text of the proposed rule is substantially the same as FINRA's counterpart rule, except for conforming and technical changes and changes to reflect the Exchange's retention of its current appeals process, and the addition of the Exchange's consideration of its own precedent with respect to determining harmless error. The proposed Rule would not establish any preference for Exchange versus other precedent in this respect; rather the Adjudicators could determine in their discretion what precedent to apply.
Current NYSE Rule 476(c) contains provisions that address the same subject. As described above, under that rule the Chief Hearing Officer, or any Hearing Officer designated by the Chief Hearing Officer, may require the Exchange to permit a respondent to inspect and copy documents or records in the possession of the Exchange that are material to the preparation of the defense or are intended for use by the Division of the Exchange initiating the proceeding as evidence in chief at the hearing; however, the rule does not authorize the discovery or inspection of reports, memoranda, or other internal Exchange documents prepared by the Exchange in connection with the proceeding. Under the proposed rule, there would be no materiality standard. The Exchange believes that eliminating the materiality standard will ease administration of the rule while still providing appropriate protections for internal Exchange documents.
In addition, under current NYSE Rule 476(c), the respondent may be required to provide discovery of non-privileged documents and records to the Exchange. There is no explicit counterpart in the proposed NYSE or current FINRA rules, but the Exchange notes that proposed
Under proposed NYSE Rule 9252, a Respondent could request that the Exchange invoke proposed Rule 8210 to compel the production of Documents or testimony at the hearing if the Respondent can show that certain standards are met,
Under proposed NYSE Rule 9253, a Respondent could file a motion to obtain certain witness statements. The text of the proposed rule is substantially the same as FINRA's counterpart rule, except for conforming and technical changes and changes to reflect the Exchange's retention of its current appeals process. The Exchange's current rules do not contain such a provision.
Proposed NYSE Rules 9260 through 9269 would govern hearings and decisions.
Proposed NYSE Rule 9261 would generally require the Parties to submit a list of documentary evidence and witnesses no later than 10 days before the hearing. The text of the proposed rule is identical to the counterpart FINRA rule. The Exchange's current rules do not contain such a provision.
Proposed NYSE Rule 9262 would require persons subject to the Exchange's jurisdiction to testify under oath or affirmation at a hearing. The proposed rule is substantially the same as FINRA's counterpart rule, with only conforming and technical changes. The Exchange's current rules do not contain such a provision.
Proposed NYSE Rule 9263 would authorize the Hearing Officer to exclude irrelevant, immaterial, or unduly repetitious or prejudicial evidence and a Party to object; excluded evidence would be part of the record. The text of the proposed rule is identical to the text of FINRA Rule 9263. Under current NYSE Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all evidentiary issues. There is no explicit provision in the Exchange's current rules for excluded evidence to be included in the record.
Proposed NYSE Rule 9264 would allow Parties to file a motion for summary disposition under certain circumstances and would describe the procedures for filing and ruling on such motion. The text of the proposed rule is identical to the text of FINRA Rule 9264. Under current NYSE Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all procedural matters, but the Rule does not specifically address motions for summary disposition. In practice, however, the NYSE Hearing Panels accept and rule on motions for summary disposition.
Proposed NYSE Rule 9265 would require that the hearing be recorded by a court reporter, that a transcript be prepared and made available for purchase, and that a Party be permitted to seek a correction of the transcript from the Hearing Officer. The text of the proposed rule is identical to the text of FINRA Rule 9265. Current NYSE Rule 476(e) provides generally that the Exchange must keep a record of hearings.
Proposed NYSE Rule 9266 would authorize the Hearing Officer to require a post-hearing brief or proposed finding of facts and conclusions of law and would outline the form and timing for such submissions. The text of the proposed rule is identical to the text of FINRA Rule 9266. Under current NYSE Rule 476(c), the Chief Hearing Officer or a Hearing Officer resolves all procedural matters, but the rule does not specifically address such post-hearing activities.
Proposed NYSE Rule 9267 would detail the required contents of the hearing record and the treatment of any supplemental documents attached to the record. The text of the proposed rule is substantially the same as the text of FINRA Rule 9267, except for conforming and technical changes. The Exchange's current rules do not contain such a provision.
Proposed NYSE Rule 9268 would set forth the timing and the contents of a decision of the Hearing Panel or Extended Hearing Panel and the procedures for a dissenting opinion, service of the decision, and any requests for review. The text of the proposed rule is similar to FINRA Rule 9268, except for conforming and technical changes and changes to reflect the Exchange's retention of its appeal process, and except for an additional provision to address the fact that the Exchange has member affiliates.
Finally, proposed NYSE Rule 9269 would establish the process for the issuance and review of default decisions by a Hearing Officer when a Respondent fails to timely answer a complaint or fails to appear at a pre-hearing conference or hearing where due notice has been provided. A Party may, for good cause shown, file a motion to set aside a default decision. The text of the proposed rule is similar to FINRA Rule 9268, except for conforming and technical changes and changes to reflect the Exchange's retention of its appeal process.
Current NYSE Rule 476(d) provides a similar mechanism for default decisions as the proposed rule change. As described above, under the current rule, if the respondent has failed to file an answer, the Division of the Exchange bringing the charges, by motion, accompanied by proof of notice to the respondent, may request a determination of guilt by default, and may recommend a penalty to be imposed. If the respondent opposes the motion, the Hearing Officer, on a determination that the respondent had adequate reason to fail to file an answer, may adjourn the hearing date and direct the respondent to promptly file an answer. If the default motion is unopposed, or the respondent did not have adequate reason to fail to file an answer, or the respondent failed to file an answer after being given an opportunity to do so, the Hearing Officer, on a determination that the respondent has had notice of the charges and that the Exchange has jurisdiction in the matter, may find guilt
Proposed NYSE Rule 9270 would provide for a settlement procedure for a Respondent who has been notified that a proceeding has been instituted against him or her. The proposed settlement procedure would be different from both FINRA Rule 9270 and the Stipulation and Consent procedure under current NYSE Rule 476(g), which is described above.
Under proposed NYSE Rule 9270(a), a Respondent notified of the institution of a disciplinary proceeding could make a written offer of settlement at any time, but the proposal would not stay the proceeding unless the Hearing Officer determined otherwise. The proposed rule is identical to FINRA's counterpart rule. The proposed rule differs from current NYSE Rule 476(g), which requires that a Stipulation and Consent be agreed to by both the respondent and Exchange staff.
Under proposed NYSE Rule 9270(b), a Respondent would be prohibited from making a frivolous settlement offer or one that was inconsistent with the seriousness of the violations. The proposed rule is identical to FINRA's counterpart rule. Current NYSE Rule 476(g) does not contain a similar provision.
Proposed NYSE Rule 9270(c) would set forth the required content of the proposal, which would include a statement consenting to findings of fact and violations and a proposed sanction. The proposed rule would be substantially the same as FINRA's rule, except for conforming and technical changes and except that it would not require that the proposed sanction be consistent with FINRA's Sanction Guidelines because the Exchange currently does not have Sanction Guidelines and does not propose to follow FINRA's because they are tailored to FINRA's rules, not the Exchange's rules. The Exchange notes that other SROs, such as BATS Exchange, Inc. and Direct Edge, also do not publish sanction guidelines. Current Rule 476(g) similarly requires that a Stipulation and Consent contain proposed findings of facts, violations, and a specified penalty.
Proposed NYSE Rule 9270(d) would provide that submission of a settlement offer waives a Respondent's right to a hearing, to claim bias or ex parte communication violations, and the right to review by the Exchange Board of Directors, the Commission, or the courts. This differs from current NYSE Rule 476(g), which allows either party to request a hearing on a Stipulation and Consent or a Hearing Officer to convene a hearing on a Stipulation and Consent in certain circumstances; in addition, current NYSE Rule 476(g) allows the Exchange Board of Directors to call for review a determination or penalty imposed by a Hearing Panel or Hearing Officer. The Exchange does not believe that it is necessary to preserve the hearing process or call for review in instances where the parties have agreed upon a resolution of the matter and such resolution has been subject to a review by the Office of Disciplinary Affairs, which is independent of the parties. The text of the rule would differ from FINRA's counterpart rule to reflect the Exchange's retention of its appellate process and its designation of its CRO, rather than FINRA's General Counsel, to determine certain procedural matters. In addition, the text of the rule would differ from FINRA's counterpart in that it would delete references to General Counsel, the National Adjudicatory Council, or any member of the National Adjudicatory Council with respect to waiving claims of bias and replace them with references to the CRO, the Exchange Board of Directors, Counsel to the Exchange Board of Directors, or any Director to conform those provisions to the Exchange's proposed rules.
Proposed Rule 9270(e) would address contested settlement offers. Under the proposed rule, if a Respondent made an offer of settlement and the Department of Enforcement or the Department of Market Regulation opposed it, the offer of settlement would be contested and thereby deemed rejected, and thus the proceeding would continue to completion under the proposed NYSE Rule 9200 Series. The contested offer of settlement would not be transmitted to the Office of Hearing Officers, Office of Disciplinary Affairs, or Hearing Panel or Extended Hearing Panel, and would not constitute a part of the record in any proceeding against the Respondent making the offer. The proposed rule differs from FINRA's counterpart rule, FINRA Rule 9270(f), which permits a Hearing Panel or Extended Hearing Panel and the NAC to act on contested offers of settlement. The Exchange has determined that if the Parties cannot reach agreement on the offer of settlement, then the matter should proceed under the proposed Rule 9200 Series. The Exchange believes that its proposed rule would encourage Respondents to make reasonable offers of settlement that will be acceptable to the Department of Enforcement or Department of Market Regulation and is consistent with its current process under NYSE Rule 476(g), which does not contemplate contested settlement offers but rather requires that both the respondent and the Exchange staff agree on the Stipulation and Consent.
Proposed NYSE Rule 9270(f) and (h) would address uncontested settlement offers. Under the proposed rule, if a hearing on the merits had not begun, the Office of Disciplinary Affairs could accept the settlement offer; if a hearing on the merits had begun, the Hearing Panel or Extended Hearing Panel could accept the settlement offer.
Proposed NYSE Rule 9270(i) would address disciplinary proceedings with multiple Respondents and permit settlement offers to be accepted or rejected as to any one or all of such Respondents. The text of the proposed rule is identical to FINRA's counterpart rule. Current NYSE Rule 476(c) does not have a similar provision.
Proposed NYSE Rule 9270(j) would provide that a Respondent may not be prejudiced by a rejected offer of settlement nor may it be introduced into evidence. The text of the proposed rule is substantially the same as FINRA Rule 9270(j), except that it references the Office of Disciplinary Affairs and does not include references to the NAC and Review Subcommittee, which the Exchange does not propose to utilize. The current NYSE rules do not have a similar provision.
Proposed NYSE Rule 9280 would set forth sanctions for contemptuous conduct by a Party or attorney or other representative, which may include exclusion from a hearing or conference, and sets forth a process for reviewing such exclusions. The text of the proposed rule is substantially the same as that in FINRA's counterpart rule, except that rather than having the NAC review exclusions, the Exchange proposes to have the Chief Hearing Officer review exclusions. The Exchange does not believe that it is necessary for the Exchange Board of Directors to conduct such reviews, and they do not do so under the Exchange's current rules. The Exchange believes that Respondents and their attorneys and representatives will have adequate procedural protections with a review by the Chief Hearing Officer. Current NYSE Rule 476 does not have similar procedures for contemptuous conduct generally, but NYSE Rule 476(h) does allow for a fine or sanction for improper conduct before a Hearing Board.
The Exchange proposes to adopt the text of FINRA Rule 9290 for expedited disciplinary proceedings. Under proposed NYSE Rule 9290, for any disciplinary proceeding, the subject matter of which also is subject to a temporary cease and desist proceeding initiated pursuant to proposed NYSE Rule 9810 or a temporary cease and desist order, hearings would be required to be held and decisions rendered at the earliest possible time. The text of the proposed rule is identical to FINRA Rule 9290. The Exchange currently does not have a similar rule.
The Exchange is not proposing to adopt FINRA's appellate and call for review processes as set forth in the FINRA Rule 9300 Series. Rather, the text of current NYSE Rule 476(f) and (l) as described above would be moved to proposed NYSE Rule 9310, with certain technical and substantive changes that are described below.
Under proposed NYSE Rule 9310(a)(1), any Party, any Director, and any member of the NYSER Committee for Review could require a review by the Exchange Board of Directors of any determination or penalty, or both, imposed by a Hearing Panel or Extended Hearing Panel under the proposed NYSE Rule 9200 Series, except that neither Party could request a review by the Exchange Board of Directors of a decision concerning an Exchange member that is an affiliate. A request for review would be made by filing with the Secretary of the Exchange a written request therefor, which states the basis and reasons for such review, within 25 days after notice of the determination and/or penalty was served upon the Respondent. The Secretary of the Exchange would give notice of any such request for review to the Parties.
The proposed rule differs from the current rule in one substantive respect. It would eliminate the authority of an Executive Floor Governor to require a review of a disciplinary decision. The Exchange believes that such authority is no longer necessary because the Exchange has moved away from a Floor-only trading model, and the Exchange's roster of member organizations includes those without any Floor presence. Accordingly, the Executive Floor Governors no longer represent the full community of market participants who may be subject to disciplinary action. The text also contains certain conforming and technical changes to align it with terms used in the remainder of the proposed NYSE Rule 9000 Series.
Under proposed NYSE Rule 9310(a)(2), the Secretary of the Exchange would direct the Office of Hearing Officers to complete and transmit a record of the disciplinary proceeding in accordance with NYSE Rule 9267. Within 21 days after the Secretary of the Exchange gives notice of a request for review to the Parties, or at such later time as the Secretary of the Exchange could designate, the Office of Hearing Officers would assemble and prepare an index to the record, transmit the record and the index to the Secretary of the Exchange, and serve copies of the index upon all Parties. The Hearing Officer who participated in the disciplinary proceeding, or the Chief Hearing Officer, would certify that the record transmitted to the Secretary of the Exchange was complete. Current NYSE Rule 476(f) does not contain such requirements; the text is modeled on FINRA Rule 9321.
Under proposed NYSE Rule 9310(b), any review by the Exchange Board of Directors would be based on oral arguments and written briefs and limited to consideration of the record before the Hearing Panel or Extended Hearing Panel. Upon review, the Exchange Board of Directors, by the affirmative vote of a majority of the Exchange Board of Directors then in office, could sustain any determination or penalty imposed, or both, may modify or reverse any such determination, and may increase, decrease or eliminate any such penalty, or impose any penalty permitted under the Exchange's rules, as it deems appropriate. Unless the Exchange Board of Directors otherwise specifically directed, the determination and penalty, if any, of the Exchange Board of Directors after review would be final and conclusive, subject to the provisions for review under the Act. The proposed rule is substantially the same as provided in current NYSE Rule 476(f), other than conforming and technical changes to align it with terms used in the remainder of the proposed NYSE Rule 9000 Series.
Under proposed NYSE Rule 9310(c), notwithstanding the foregoing, if either Party upon review applied to the Exchange Board of Directors for leave to adduce additional evidence, and showed to the satisfaction of the Exchange Board of Directors that the additional evidence was material and that there were reasonable grounds for failure to adduce it before the Hearing Panel or Extended Hearing Panel, the Exchange Board of Directors could remand the case for further proceedings, in whatever manner and on whatever conditions the Exchange Board of Directors considered appropriate. The proposed rule is substantially the same as provided in current NYSE Rule 476(f), other than conforming and technical changes to align it with terms used in the remainder of the proposed NYSE Rule 9000 Series.
Under proposed NYSE Rule 9310(d), notwithstanding any other provisions of the proposed NYSE Rule 9000 Series, the CEO could not require a review by the Exchange Board of Directors under this Rule and would be recused from deliberations and actions of the Exchange Board of Directors with respect to such matters. The proposed rule is substantially the same as provided in current NYSE Rule 476(l), other than conforming and technical changes to align it with terms used in the remainder of the proposed NYSE Rule 9000 Series.
The proposed NYSE Rule 9500 Series would relate to all other proceedings under the Exchange Rules.
The proposed NYSE Rule 9520 Series would govern eligibility proceedings for persons subject to statutory disqualifications that are not FINRA members. The Exchange does not currently have any rules governing this
Proposed NYSE Rule 9521 would add certain definitions relating to eligibility proceedings that are not currently part of the NYSE's rules, including “Application,” “disqualified member organization,” “disqualified person,” and “sponsoring member organization.” Proposed NYSE Rule 9522 would govern the initiation of an eligibility proceeding by the Exchange and the obligation for a member organization to file an application to initiate an eligibility proceeding if it has been subject to certain disqualifications. Further, under the proposed rule, the Department of Member Regulation could approve a written request for relief from the eligibility requirements under certain circumstances. Proposed NYSE Rule 9523 would allow the Department of Member Regulation to recommend a supervisory plan to which the disqualified member organization, sponsoring member organization, and/or disqualified person, as the case may be, may consent and by doing so, waive the right to hearing or appeal if the plan is accepted and the right to claim bias or prejudgment, or prohibited ex parte communications. If such a supervisory plan were rejected, proposed NYSE Rule 9524 would allow a request for review by the applicant to the Exchange Board of Directors. Proposed NYSE Rule 9527 would provide that a filing of an application for review would not stay the effectiveness of final action by the Exchange unless the Commission otherwise ordered.
The text of the proposed rule change is similar to that in FINRA's counterpart rules, except for conforming and technical changes and except as follows. First, under proposed NYSE Rule 9523, if the disqualified member organization, sponsoring member organization, and/or disqualified person executed a letter consenting to a supervisory plan, it would be submitted to the Exchange's CRO. Under FINRA's rule, the letter is submitted to FINRA Office of General Counsel, which submits it to the Chairman of the Statutory Disqualification Committee, acting on behalf of the NAC; the Chairman may accept or reject the plan or refer it to the NAC for action. The Exchange does not propose to utilize the NAC or the Statutory Disqualification Committee Chairman for this purpose. The Exchange believes that its CRO is independent of the Department of Member Regulation and as such can provide an appropriate review. The CRO is performing this same function today when the CRO reviews statutory disqualification decisions reached by FINRA. In addition, under FINRA's rule, the waiver of bias or prejudgment is with respect to the Department of Member Regulation, the FINRA General Counsel, the NAC and any member thereof, while under proposed NYSE Rule 9523, the waiver would be with respect to the Department of Member Regulation, the CRO, the Exchange Board of Directors, or any member thereof to conform to the Exchange's proposed rules.
Second, under proposed NYSE Rule 9524, if the CRO rejects the plan, the member organization or applicant may request a review by the Exchange Board of Directors. This differs from FINRA's process, which provides for a hearing before the NAC and further consideration by the FINRA Board of Directors. Because the Exchange does not propose to utilize the NAC, the Exchange proposes instead that any appeal be heard by the Exchange Board of Directors. FINRA Rule 9525 also allows for discretionary review by the FINRA Board and the Exchange does not propose to adopt a comparable rule.
Proposed NYSE Rules 9550 through 9559 would govern expedited proceedings.
The Exchange does not believe that it is necessary to adopt the text of FINRA Rule 9551, which concerns failure to comply with the advertising and sales literature requirements in NASD Rule 2210. All NYSE member organizations that circulate advertising or sales literature are by definition doing business with the public, and therefore must be members of FINRA and are already subject to FINRA Rules 2210 and 9551. In addition, under the SEC Rule 17d-2 agreement, FINRA is allocated responsibility for NYSE Rule 472, NYSE's counterpart to NASD Rule 2210.
Proposed NYSE Rule 9552 would establish procedures in the event that a member organization or covered person failed to provide any information, report, material, data, or testimony requested or required to be filed under the Exchange's rules, or failed to keep its membership application or supporting documents current. In the event of the foregoing, under proposed NYSE Rule 9552, the member organization or covered person could be suspended if corrective action were not taken within 21 days after service of notice. A member organization or covered person served with a notice could request a hearing within the 21-day period. A member organization or covered person subject to a suspension could file a written request for termination of the suspension on the ground of full compliance. A member organization or covered person suspended under the proposed rule change that failed to request termination of the suspension within three months of issuance of the original notice of suspension would automatically be expelled or barred.
The text of the proposed rule change is substantially the same as that in FINRA's counterpart rule, except for conforming and technical changes and except that it does not include the text of FINRA Rule 9552(i), which requires a notice to FINRA's membership of final action under the rule. The Exchange does not propose to include a notice requirement because it would be duplicative of proposed NYSE Rule 8313.
There is no provision for such an expedited proceeding under the NYSE's current rules. Under current NYSE Rule 476(a)(11), a member organization or covered person is subject to a regular, as opposed to expedited, disciplinary proceeding for failure to submit books and records or provide testimony upon request of the Exchange and for failure to update a Form BD.
The Exchange does not propose to adopt the text of FINRA Rule 9553, which concerns failure to pay fees, dues, assessments or other charges. As described above, the Exchange proposes to adopt the text of FINRA Rule 8320, which addresses the non-payment of fines and monetary sanctions and would continue to use NYSE Rule 309 for non-payment of all other amounts due to the Exchange. Accordingly, proposed NYSE Rule 9553 would be designated “Reserved” to maintain consistency with FINRA's rule numbering.
Proposed NYSE Rule 9554 would contain similar procedures and consequences as proposed NYSE Rule 9552 relating to a failure to comply with an arbitration award or related settlement or an Exchange order of restitution or Exchange settlement agreement providing for restitution. Under proposed NYSE Rule 9554, if a member organization or covered person failed to comply with an arbitration award or a settlement agreement related to an arbitration or mediation under the Exchange's rules, or an Exchange order of restitution or Exchange settlement agreement providing for restitution, Exchange staff could provide written notice to such covered person or member organization stating that the failure to comply within 21 days of service of the notice will result in a suspension or cancellation of membership or a suspension from associating with any member organization. The text of the proposed rule change is substantially the same as that in FINRA's counterpart rule, except for technical and conforming changes, and except that it does not include the text of FINRA Rule 9554(h), which requires a notice to FINRA's membership of final action under the Rule, because it would be duplicative of proposed NYSE Rule 8313. Under current NYSE Rule 600A(c), the failure to honor an arbitration award subjects a member organization, member, or registered person to a regular disciplinary proceeding under NYSE Rule 476.
Proposed NYSE Rule 9555 would govern the failure to meet the eligibility or qualification standards or prerequisites for access to services offered by the Exchange. Under proposed NYSE Rule 9555, if a member organization or covered person did not meet the eligibility or qualification standards set forth in the Exchange's rules, Exchange staff could provide written notice to such covered person or member organization stating that the failure to become eligible or qualified will result in a suspension or cancellation of membership or a suspension or bar from associating with any member organization. Similarly, if a member organization or covered person did not meet the prerequisites for access to services offered by the Exchange or a member organization thereof or could not be permitted to continue to have access to services offered by the Exchange or a member organization thereof with safety to investors, creditors, members, or the Exchange, Exchange staff could provide written notice to such member organization or covered person limiting or prohibiting access to services offered by the Exchange or a member organization thereof. The limitation, prohibition, suspension, cancellation, or bar referenced in the notice would become effective 14 days after service of the notice unless the member organization or covered person requested a hearing during that time, except that the effective date for a notice of a limitation or prohibition on access to services would be upon service of the notice. The text of the proposed rule change is substantially the same as that in FINRA's counterpart rule, except for conforming and technical changes and except that it does not include the text of FINRA Rule 9555(h), which requires a notice of final action under the Rule, because it would be duplicative of proposed NYSE Rule 8313.
As described above, under Rule 475(a), the Exchange currently may prohibit or limit access to services offered by the Exchange or any member or member organization thereof if the Exchange has provided 15 days' prior written notice of, and an opportunity to be heard upon, the specific grounds for such prohibition or limitation, and provides a written decision.
Proposed NYSE Rule 9556 would provide procedures and consequences for a failure to comply with temporary and permanent cease and desist orders, which would be authorized by proposed NYSE Rule 9810. The text of proposed NYSE Rule 9556 is the same as FINRA Rule 9556, except in the following respects. First, the text contains conforming and technical changes. Second, under FINRA's rule, FINRA's CEO authorizes proceedings under FINRA Rule 9556; under the Exchange's proposed rule, the Exchange's CRO would have such authority. Third, FINRA's rule permits service of process by facsimile; the Exchange does not believe that this alternative service method is necessary and the service methods permitted under proposed NYSE Rule 9134 (which are identical to FINRA Rule 9134) would be sufficient. Finally, the Exchange does not propose to include a notice to its membership of decisions under the rule, as FINRA does, because it would be duplicative of proposed NYSE Rule 8313. The Exchange currently does not issue temporary or permanent cease and desist orders and, as such, there is no counterpart in the Exchange's current rules.
Proposed NYSE Rule 9557 would allow the Exchange to issue a notice directing a member organization to comply with the provisions of NYSE Rule 4110 (Capital Compliance), 4120 (Regulatory Notification and Business Curtailment), or 4130 (Regulation of Activities of Section 15C Member Organizations Experiencing Financial and/or Operational Difficulties) or otherwise directing it to restrict its business activities. The notice would be immediately effective, except that a timely request for a hearing would stay the effective date for 10 business days (unless the Exchange's CRO determined otherwise) or until an order was issued by the Office of Hearing Officers, whichever was earlier. The notice could be withdrawn upon a showing that all the requirements were met.
The text of the proposed rule change is substantially the same as that in FINRA Rule 9557, except in the following respects. First, the text contains conforming and technical changes. Second, under FINRA's rule, FINRA's CEO exercises authority with respect to stays under the rule; under the Exchange's proposed rule, the Exchange's CRO would have such authority. Third, FINRA's rule permits service of process by facsimile; the Exchange does not believe that this alternative service method is necessary
Currently, if a member organization fails to comply with NYSE Rule 4110, 4120, or 4130 (which are substantially the same as FINRA Rules 4110, 4120, and 4130), the Exchange issues a notice, for FINRA members, pursuant to FINRA Rule 9557, and for member organizations that are not FINRA members, pursuant to NYSE Rule 475(b), which authorizes summary suspensions, as described above.
Proposed NYSE Rule 9558 would allow the Exchange's CRO to provide written authorization to the Exchange staff to issue a written notice for a summary proceeding for an action authorized by Section 6(d)(3) of the Act. Such notice would be immediately effective. The text of the proposed rule change is substantially the same as that in FINRA Rule 9558, except as follows. First, the text contains conforming and technical changes. Second, under FINRA's rule, FINRA's CEO authorizes such proceedings. Third, FINRA's rule permits service of process by facsimile; the Exchange does not believe that this alternative service method is necessary for the reasons stated above. Finally, the Exchange does not propose to include a notice to its membership of decisions under the rule, as FINRA does, because it would be duplicative of proposed NYSE Rule 8313. Such summary proceedings are currently authorized under NYSE Rule 475(b), under which the Exchange has authority to summarily suspend a member organization that is expelled or suspended by another SRO or a covered person that is barred or suspended by an SRO or limit or prohibit any person with respect to access to Exchange services in certain circumstances; while this rule also provides for notice and an opportunity for a hearing, it does not set forth a specific time limit for requesting a hearing.
Proposed NYSE Rule 9559 would set forth uniform hearing procedures for all expedited proceedings under the proposed NYSE Rule 9550 Series. Proposed NYSE Rule 9559 differs from FINRA Rule 9559 as follows. First, any call for review would be conducted by the Exchange's Board of Directors rather than FINRA's NAC. Second, the Exchange would not utilize current or former members of the FINRA Financial Responsibility Committee for proceedings initiated under proposed NYSE Rule 9557, as FINRA does under its counterpart rule. The Exchange would use the same pool of Hearing Panelists from the Hearing Board as it uses for other proceedings. Third, any instance in FINRA's rule that authorized FINRA's CEO to act would instead authorize the Exchange's CRO to act. Fourth, the Exchange does not propose to adopt the text of FINRA Rule 9559(r), which provides for the publication of decisions under the Rule, because it would be duplicative of proposed NYSE Rule 8313. Fifth, the Exchange does not propose to adopt the text of FINRA Rule 9559(q)(1) that sets forth 14-day and 21-day call for review periods because a call for review period would be described in proposed NYSE Rule 9310. Proposed NYSE Rule 9559(q)(1) will instead state that calls for review would be conducted in accordance with proposed NYSE Rule 9310, which, consistent with the time period in current NYSE Rule 476(f), would provide for a 25-day call for review period. Finally, the proposed text contains conforming and technical changes. Currently, the Exchange does not have a rule comparable to FINRA Rule 9559.
The Exchange proposes to adopt a new NYSE Rule 9600 Series, which would set forth procedures by which a member organization could seek exemptive relief from current NYSE Rules 4311(carrying agreements) and 4360 (fidelity bonds) and proposed NYSE Rule 8211 (submission of electronic blue sheet data). Under proposed NYSE Rule 9610, a member organization seeking exemptive relief would be required to file a written application with the appropriate department or staff of the Exchange and provide a copy of the application to the CRO. Under proposed NYSE Rule 9620, after considering the application, the Exchange staff would be required to issue a written decision setting forth its findings and conclusions. The decision would be served on the Applicant pursuant to proposed NYSE Rules 9132 and 9134. Under proposed NYSE Rule 9630, an Applicant that wished to appeal the decision would be required to file a written notice of appeal with the Exchange's CRO within 15 calendar days after service of the decision. Under proposed NYSE Rule 9630(e), the CRO would affirm, modify, or reverse the decision issued under proposed NYSE Rule 9620 and issue a written decision setting forth his or her findings and conclusions and serve the decision on the Applicant. The decision would be served pursuant to proposed NYSE Rules 9132 and 9134, would be effective upon service, and would constitute final action of the Exchange.
The rule text would be modeled on FINRA's Rule 9600 Series; the Exchange's proposed rules primarily differ from FINRA's in that they contain technical and conforming changes and that the Exchange's CRO, rather than FINRA's Office of General Counsel, would receive the request and any notice of appeal, and the CRO, rather than FINRA's NAC, would carry out the proposed appellate process.
FINRA's Rule 9700 Series provides redress for persons aggrieved by the operations of any automated quotation, execution, or communication system owned or operated by FINRA. As this would be inapplicable to the Exchange, the Exchange proposes to designate the proposed NYSE Rule 9700 Series as reserved to maintain consistency with FINRA's rule numbering conventions. The Exchange notes that under current NYSE Rule 18, if a member organization suffers a loss related to an Exchange system failure, it can submit a claim pursuant to the procedures of that rule.
The Exchange proposes to adopt a new NYSE Rule 9800 Series to set forth procedures for issuing temporary cease and desist orders. Under proposed NYSE Rule 9810, with the prior written authorization of the Exchange's CRO or such other senior officers as the CRO may designate, FINRA's Department of Enforcement or the Department of Market Regulation could initiate a temporary cease and desist proceeding with respect to alleged violations of Section 10(b) of the Act, SEC Rules 10b-
Under proposed NYSE Rule 9830, the hearing would be held not later than 15 days after service of the notice and filing initiating the temporary cease and desist proceeding, unless otherwise extended by the Hearing Officer with the consent of the Parties for good cause shown. Proposed NYSE Rule 9830 would govern how the hearing was conducted.
Under proposed NYSE Rule 9840, the Hearing Panel would be authorized to issue a written decision stating whether a temporary cease and desist order would be imposed. The Hearing Panel would be required to issue the decision not later than 10 days after receipt of the hearing transcript, unless otherwise extended by the Hearing Officer with the consent of the Parties for good cause shown. Under proposed NYSE Rule 9850, at any time after the Office of Hearing Officers served the Respondent with a temporary cease and desist order, a Party could apply to the Hearing Panel to have the order modified, set aside, limited, or suspended. The Hearing Panel generally would be required to respond to the request in writing within 10 days after receipt of the request. Proposed NYSE Rule 9860 would authorize the initiation of a suspension or cancellation of a Respondent's association or membership under proposed NYSE Rule 9556 if the Respondent violated a temporary cease and desist order.
Finally, proposed NYSE Rule 9870 would provide that temporary cease and desist orders issued under the proposed NYSE Rule 9800 Series would constitute final and immediately effective disciplinary sanctions imposed by the Exchange, and that the right to have any action under this rule series reviewed by the Commission would be governed by Section 19 of the Act. The filing of an application for review would not stay the effectiveness of the temporary cease and desist order, unless the Commission otherwise ordered.
The proposed rule text would be substantially the same as that in FINRA's Rule 9800 Series, except for conforming and technical amendments and except that the Exchange's CRO, rather than FINRA's CEO, would authorize the initiation of temporary cease and desist proceedings and the initiation of suspension or cancellation proceedings for a violation of a temporary cease and desist order. As noted above, the Exchange currently does not have procedures comparable to FINRA's Rule 9800 Series.
The Exchange proposes technical and conforming changes to NYSE Rules 2A, 20, 36, 103B, 309, 345A, 600A, 619, 772, 1301, 1301A, 1301B, 4110, 4120, 4130, and 4360 and NYSE Rule Interpretation 345A.
NYSE Rule 2A would be amended to specify that the list of disciplinary sanctions currently set forth in that Rule would apply to proceedings under current NYSE Rules 475 and 476, and the list of disciplinary sanctions set forth in proposed NYSE Rule 8310(a) would apply to proceedings initiated under the proposed NYSE Rule 9000 Series.
Current NYSE Rule 20(b) requires that NYSE Regulation establish a Regulatory Advisory Committee, which includes persons associated with member organizations and representatives of both those member organizations doing business on the Floor of the Exchange and those who do not do business on the Floor. The Regulatory Advisory Committee acts in an advisory capacity regarding disciplinary matters and regulatory rules other than trading rules. The Exchange proposes to delete the reference to the Regulatory Advisory Committee acting in an advisory capacity regarding disciplinary matters because it would not perform such a function under the proposed rule change—only the Adjudicators specified under the proposed rule change would have authority over disciplinary proceedings. The Regulatory Advisory Committee has not performed this function since FINRA assumed responsibility for the Exchange's disciplinary proceedings; as such, the Exchange proposes to remove this out-of-date reference in NYSE Rule 20(b).
NYSE Rule 36 would be amended to include a reference to proposed NYSE Rule 9558, which relates to summary proceedings for actions authorized by Section 6(d)(3) of the Act.
NYSE Rule 103B would be amended to include references to the proposed NYSE Rule 8000 Series and Rule 9000 Series, which would contain proceedings for which a Designated Market Maker (“DMM”) unit could lose its registration in a specialty stock.
As noted above, NYSE Rule 309 would be amended to replace the term “allied member” with “principal executive”
NYSE Rule 345A would be amended to delete a reference to NYSE Rule 346(f) because NYSE Rule 346 was recently deleted in its entirety.
NYSE Rule 600A would be amended to correct typographical errors in the rule title, include references to the disciplinary proceedings of the proposed NYSE Rule 8000 Series and Rule 9000 Series for failure to honor an arbitration award, and change references from “NASD DR” to “FINRA.”
NYSE Rule 619 would be amended to include a reference to proposed NYSE Rule 8210, which would govern the authority of the Exchange to request information and testimony.
NYSE Rule 772 would be amended to include references to the disciplinary proceedings of the proposed NYSE Rule 8000 Series and Rule 9000 Series, which would govern ways in which a member organization may be suspended.
NYSE Rules 1301, 1301A, and 1301B would be amended to include a reference to the proposed NYSE Rule 8000 Series, which would govern the production of books and records, and replace the term “allied member” with “principal executive.
NYSE Rules 4110, 4120, and 4130 would be amended to revise a cross-reference to FINRA Rule 9557 as the Exchange proposes to adopt NYSE Rule 9557.
NYSE Rule 4360 would be amended to provide that any request for an exemption would be processed under the proposed NYSE Rule 9600 Series rather than FINRA rules.
NYSE Rule Interpretation 345A would be amended to include a reference to the proposed Rule 9000 Series, which would govern the time periods allowed to appeal or request a review.
Certain aspects of current Exchange rules described above would not be included in the proposed NYSE Rule 8000-9000 Series, either because the Exchange does not believe they are necessary or the authority is implicit in the proposed rule change.
First, under current NYSE Rule 475(f), any person suspended under current Rule 475 may, at any time, be reinstated by the Exchange Board of Directors. The Exchange does not believe that it would continue to be appropriate for the Exchange Board of Directors to have the authority to overturn a suspension imposed by another Adjudicator in light of the detailed procedural rules, comprehensive protections to Respondents, and continued availability
Second, under current NYSE Rules 475(g) and 476(k), any person suspended under such rules may be disciplined in accordance with the Exchange's rules for any offense committed before or after the suspension. The Exchange believes that such authority is implicit in proposed NYSE Rule 9211 and need not be express in the proposed rule change.
Under current NYSE Rules 475(h) and 476(j) and (k), a suspended person is deprived during the term of the suspension of all rights and privileges of membership, and any suspension of a member or allied member creates a vacancy in any office or position held by such member or allied member. The Exchange believes that this is implicit in the concept of a suspension and need not be express in the proposed rule change.
Under current NYSE Rule 476(i), a member or allied member of the Exchange who is associated with a member organization is liable to the same discipline and penalties for any act or omission of such member organization as for the member or allied member's own personal act or omission. The Hearing Panel that considers the charges may relieve him from the penalty therefor or may adjust the penalty on such terms and conditions as the Hearing Panel or the Exchange Board of Directors deems fair and equitable. The Exchange believes that this authority is contained in proposed rule change because complaints may be brought against both member organizations and covered persons and are subject to review by Hearing Panel and the Exchange Board of Directors.
The proposed rule change is consistent with Section 6(b) of the Act,
The proposed changes will provide greater harmonization between Exchange and FINRA rules of similar purpose, resulting in less burdensome and more efficient regulatory compliance for dual members. As previously noted, in many instances the proposed rule text is identical to FINRA's current rule text,
Certain key aspects of the Exchange's disciplinary proceedings would be retained. In particular, the Exchange would retain its current selection process for Hearing Panelists. The Exchange believes that it is necessary to do so in order to provide a fair procedure to its member organizations and covered persons, some of which are not subject to FINRA's jurisdiction. As such, the Exchange's Hearing Panelists cannot be drawn solely from a pool of FINRA members and associated persons but rather must include NYSE-only member organizations and persons with experience in NYSE Floor matters in order for the Exchange's members to have a fair representation in its affairs. For the same reasons, the Exchange also believes that its current Board of Directors remains the appropriate body for appeals or reviews of initial disciplinary decisions because its Board of Directors includes fair representation candidates from its membership. A FINRA-only appellate body would not provide such representation. Similarly, the Exchange believes that its CRO is better suited to resolving certain procedural matters and rendering certain decisions under the proposed rule change because the Exchange's CRO will have greater familiarity with the Exchange's rules and membership than would FINRA's General Counsel.
The Exchange further believes that the proposed processes for settling disciplinary matters both before and after the issuance of a complaint are fair and reasonable. While such proposed rules differ both from certain aspects of the Exchange's current Stipulation and Consent process and FINRA's current settlement processes, the Exchange believes that the proposed rule change nonetheless provides adequate procedural protections to all Parties and promotes efficiency. In particular, the Exchange believes that it would be fair and efficient to have the Office of Disciplinary Affairs act as a check and balance against the agreements reached by the Parties for resolving disciplinary matters.
Finally, the Exchange would retain its list of minor rule violations, which have already been approved by the Commission,
The [sic] Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather is designed to provide greater harmonization between Exchange and FINRA rules of similar purpose for investigations and disciplinary matters, resulting in less burdensome and more efficient regulatory compliance for dual members and facilitating FINRA's performance of its regulatory functions under the RSA.
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.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange is proposing to: (1) define the term “Clearing Member” under Exchange Rule 1.5; and (2) adopt Exchange Rule 16.4 to allow Equity Trading Permit (“ETP”)
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 parts of such statements.
The Exchange is proposing to: (1) define the term “Clearing Member” under Exchange Rule 1.5; and (2) adopt Exchange Rule 16.4 to allow ETP Holders to pay their Exchange and vendor invoices for Exchange-related services through the Exchange's IBS.
The Exchange is proposing to: (1) define the term “Clearing Member” under Exchange Rule 1.5 as “[a]n ETP Holder that is a member of a Qualified Clearing Agency defined in Section Q below.” Section Q of Exchange Rule 1.5 defines “Qualified Clearing Agency” as “a clearing agency registered with the Commission pursuant to Section 17A of the Act that is deemed qualified by the Exchange.” In adding a definition of Clearing Member to Exchange Rule 1.5, the Exchange does not propose to add a new category of Exchange member or alter current ETP Holder obligations. The Exchange simply proposes this definition to describe ETP Holders that may also be members of a Qualified Clearing Agency as a means to add clarity to the integrated billing solution
The Exchange also proposes to adopt Exchange Rule 16.4 to allow ETP Holders to pay their Exchange and vendor invoices for Exchange-related services through the Exchange's IBS, unless payment by check of [sic] bank transfer is agreed to between the Exchange and ETP Holder.