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Privacy and Civil Liberties Oversight Board.
Final rule; correction.
The Privacy and Civil Liberties Oversight Board is issuing a correction to fix a duplicate section designation published in a final rule in the
This correction is effective June 28, 2013.
Susan Reingold, Chief Administrative Officer, Privacy and Civil Liberties Oversight Board, at 202–331–1986.
In rule FR Doc. 2013–13166 published in the
Accordingly, the Privacy and Civil Liberties Oversight Board amends 6 CFR part 1000 by making the following correcting amendment:
5 U.S.C. 552.
Small Business Administration.
Final rule.
This rule implements provisions of the Small Business Jobs Act of 2010 (Jobs Act) pertaining to small business size and status integrity. This rule amends the U.S. Small Business Administration's (SBA or Agency) program regulations to implement statutory provisions establishing that there a presumption of loss equal to the value of the contract or other instrument when a concern willfully seeks and receives an award by misrepresentation. The rule implements statutory provisions that provide that: The submission of an offer or application for an award intended for small business concerns will be deemed a size or status certification or representation in certain circumstances; an authorized official must sign in connection with a size or status certification or representation for a contract or other instrument; and concerns that fail to update their size or status in the Online Representations and Certifications Application (ORCA) database or a successor thereto (such as the System for Award Management (SAM) database) at least annually shall no longer be identified in the database as small or some other socioeconomic status, until the representation is updated. The rule also amends SBA's regulations to clarify when size is determined for purposes of entry into the 8(a) Business Development, HUBZone and Small Disadvantaged Business (SDB) programs.
This rule is effective August 27, 2013.
Dean R. Koppel, Office of Government Contracting, 409 Third Street SW., Washington, DC 20416; (202) 205–7322;
On September 27, 2010, Congress amended the Small Business Act to provide that if a concern willfully seeks and receives an award by misrepresenting its small business size or status, there is a presumption of loss to the United States equal to the value of the contract, subcontract, cooperative agreement, cooperative research and development agreement or grant. The Small Business Act was also amended to provide that certain actions, such as submitting an offer in response to a solicitation set aside for small business concerns, will be deemed a representation of small business size or status. The Small Business Act was amended to provide that the signature of an authorized official of a concern is required in making a small business size or status representation in connection with certain actions, such as submitting an offer. The Small Business Act now provides that concerns must update their size and status certifications in SAM at least annually, or the status will be lost until such time as the update is made. Finally, the Small Business Act provides that SBA must promulgate regulations to protect individuals and concerns from liability in cases of unintentional errors, technical malfunctions and other similar situations.
SBA published a proposed rule regarding these statutory provisions in the
SBA received and considered twenty comments on the proposed rule. Two commenters fully supported the rule as proposed. One comment addressed the proposed Small Business Subcontracting Rule published at 76 FR 61626 on October 5, 2011. This comment was outside the scope of this proposed rulemaking and was not
SBA received several comments regarding SBA's proposal that the presumption of loss to the United States for a willful misrepresentation of size or status be irrefutable. 13 CFR §§ 121.108(a), 121.411(d), 124.521(a), 124.1015(a), 125.29(a), 126.900(a), and 127.700(a). As noted in the proposed rule, SBA based its proposed imposition of an irrefutable presumption of loss on Senate Report language indicating that the presumption shall be “irrefutable.” Senate Rep. No. 111–343, p. 8, available at:
One commenter suggested that SBA eliminate “irrefutable” from the regulatory text. This commenter stressed that: (1) Irrefutable presumptions deny due process of law; and (2) Senate Report language does not possess statutory authority. Another commenter argued that the cited Senate Report was not the Senate Report for the legislation in question, but was instead a Senate Report for a prior piece of proposed legislation. Upon additional reflection, SBA has decided to remove the term “irrefutable” from the regulations, rendering the presumption rebuttable. SBA notes that the presumption of loss provisions will be utilized in civil and criminal Federal court proceedings, where due process will be provided. Further, SBA's regulations limit liability in the case of unintentional error, technical malfunction, or other similar situations. 13 CFR §§ 121.108(d), 121.411(g), 124.521(d), 124.1015(d), 125.29(d), 126.900(d), and 127.700(d). As such, an “irrefutable” presumption would be inappropriate in these instances.
Another commenter suggested that SBA ensure firms have sufficient due process to contest a finding of willful misrepresentation before penalties are imposed. This commenter made several suggestions as to how SBA could ensure protection of business concerns' due process—these suggestions included: (1) Provision of an agency level response period; and (2) empowering SBA's Office of Hearings and Appeals (OHA) to hear appeals of determinations under the proposed rule. As discussed above, the statutory presumption of loss provisions will be applied in Federal civil and criminal court proceedings where due process will be provided and as explained above, in certain instances, SBA's regulations limit liability. 13 CFR §§ 121.108(d), 121.411(g), 124.521(d), 124.1015(d), 125.29(d), 126.900(d), and 127.700(d). As such, SBA does not believe that this provision requires modification.
One commenter suggested that SBA impose a rebuttable presumption where a size determination finds that a firm is small by itself (i.e., absent the firm's affiliates) that the firm did not willfully misrepresent its size. Likewise, this commenter suggested that SBA impose a rebuttable presumption that the firm willfully misrepresented its size when a size determination finds the firm to be other than small by itself (i.e., absent the firm's affiliates). As discussed above, the rule now provides that the presumption is rebuttable. The question of whether a firm has willfully misrepresented its size is a factual determination best made by a judge, jury, or other decider of fact. Given the fact-specific nature of such a finding, SBA declines to impose a presumption as to an actor's intent.
Two commenters suggested clarification of the language in proposed 13 CFR §§ 121.108(a), 121.411(d), 124.521(a), 124.1015(a), 125.29(a), 126.900(a), and 127.700(a) which provide that the presumption of loss applies “whenever it is established” that a firm willfully misrepresented its status. Specifically, the commenters requested clarification of who makes the finding of willful misrepresentation, how a firm is notified of such a finding, whether the determination is appealable, and how a company may defend its representation. Consistent with the intent of the Jobs Act, it is SBA's intent that the presumption of loss shall be applied in all manner of criminal, civil, administrative, contractual, common law, or other actions, which the United States government may take to redress willful misrepresentation. As such, the finder of fact, notice requirements, and means of defense must depend on the specific action taken against a business concern. SBA does not believe any changes to the proposed rule or other clarification would be appropriate and adopts the proposed provisions as final in this rule.
Another commenter requested clarification as to whether an adverse size determination automatically leads to a presumption that the relevant firm willfully misrepresented its size. SBA recognizes that an unsophisticated firm or one new to the Federal government arena may certify its status as a small business in good faith, but may ultimately be found to be other than small. Similarly, a firm may incorrectly apply an ownership or control requirement for the service-disabled veteran-owned (SDVO) or women-owned small business (WOSB) programs in good faith, and ultimately be found not to qualify as a SDVO or WOSB small business. In either case, if the situation truly is a good faith misinterpretation of SBA's rules, SBA does not believe that action should be taken against the firm or its principals. Again, the question of whether a firm submitted a misrepresentation in good faith or intentionally (or recklessly) submitted a false size or status representation or certification is a factual determination best made by a judge, jury, or other decider of fact.
One commenter recommended that SBA amend the proposed rule to include a provision requiring the government to “prominently mark” any solicitation set aside as contemplated by the proposed rule. Currently, solicitations issued under the Federal Acquisition Regulation (FAR) must contain specific clauses providing notice regarding set-asides, reserves, partial set-asides, price evaluation preferences, source selection factors, and other mechanisms which somehow classify a solicitation as intended for award to specific entities. 48 CFR §§ 52.219–3, 52.219–4, 52.219–6, 52.219–7, 52.219–13, 52.219–18, 52.219–23, 52.219–27, 52.219–29, and 52.219–30. Therefore, SBA does not believe any change to the rule is necessary.
One commenter requested clarification of situations where an offer may be “otherwise classified as intended for award to small business” without being specifically identified as set aside for small business. Consistent with the underlying statutory text, it is SBA's intent that the rule be broadly inclusive of set-asides, reserves, partial set-asides, price evaluation preferences, source selection factors, and any other mechanisms which are not specifically addressed by the FAR. SBA does not feel that additional clarification is necessary and has adopted the proposed rule as final.
One commenter expressed concern that proposed §§ 121.108(b)(2), 121.411(e)(2), 124.521(b)(2), 124.1015(b)(2), 125.29(b)(2), 126.900(b)(2), and 127.700(b)(2) are too broad and could permit attenuated acts or omissions to give rise to a deemed certification. SBA disagrees. Federal agencies are statutorily required to establish goals for the participation of small business concerns, SDVO small business concerns, HUBZone small business concerns, small disadvantaged business concerns, and WOSB concerns. 15 U.S.C. 644(g). At the conclusion of each fiscal year, Federal agencies must
Another commenter recommended that SBA eliminate proposed §§ 121.108(b)(3), 121.411(e)(3), 124.521(b)(3), 124.1015(b)(3), 125.29(b)(3), 126.900(b)(3), and 127.700(b)(3), which provide that registration on any Federal electronic database for the purpose of being considered for award shall be deemed an affirmative, willful, and intentional certification as to the relevant concern's small business size and status. This is a statutory requirement that SBA cannot eliminate. The Jobs Act specifically deems registration on a Federal electronic database as a willful certification as to size and status. 15 U.S.C. § 632(w)(2)(C). As such, SBA is precluded by statute from eliminating these provisions and they remain in this final rule.
SBA received two comments regarding proposed §§ 121.108(c), 121.411(f), 124.521(c), 124.1015(c), 125.29(c), 126.900(c), 127.700(c), which require an authorized official to sign the small business size and status certification page of any solicitation, bid or proposal for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved for small business concerns. The first commenter suggested that the rule specifically give electronic signatures the same effect as wet signatures. For the purpose of Government contracts, such a provision already exists at 48 CFR § 4.502(d) which provides that agencies may accept electronic signatures and records. However, SBA lacks the statutory authority to enact such a rule and has not adopted this comment.
The second commenter questioned whether the signature requirement is superfluous given that a signature on an offer is meant to certify all the offer's contents. SBA considered this comment, but has adopted the proposed provisions as final in this rule. The Jobs Act specifically requires that a certification as to a firm's small business size or other status shall contain the signature of an authorized official on the same page as the certification. 15 U.S.C. 632(w)(3)(B). As such, SBA is precluded by statute from eliminating the signature requirement. Further, the Federal Acquisition Council will implement the signature requirement in the Federal Acquisition Regulation and associated clauses. SBA has made minor wording changes in these provisions for clarity. The word “solicitation” has been replaced by the words “offer” and “proposal” to clarify that it is the offer that a contractor is signing, not the solicitation.
Two commenters suggested that SBA amend proposed §§ 121.108(d), 121.411(g), 124.521(d), 124.1015(d), 125.29(d), 126.900(d), and 127.700(d) to adopt the statutory language which protects firms from liability where misrepresentation was the result of “unintentional errors, technical malfunctions, or other similar situations.” SBA feels that the addition of “or other situations” more accurately captures the breadth of situations in which liability is to be limited and has therefore adopted this comment in the final rule.
Two commenters suggested that SBA clarify the standard of care required in making representations. Under proposed §§ 121.108(a), 121.411(d), 124.521(a), 124.1015(a), 125.29(a), 126.900(a), and 127.700(a), the presumption of loss applies only where a firm willfully misrepresents its small business size or other status. Sections 121.108(d), 121.411(g), 124.521(d), 124.1015(d), 125.29(d), 126.900(d), and 127.700(d) further provide that misrepresentations which are the result of “unintentional errors, technical malfunctions, or other similar situations” are not considered to be willful. In addition, the statute and implementing regulations provide that certain actions are deemed to be willful and require an official to sign on the same page as size or status representation. As discussed above, whether a representation is willful or should result in liability or criminal penalty is a fact-based decision that will be made by a judge, jury or other decider of fact. SBA has made minor wording changes in the limitation of liability provisions to make clear that the question of whether a misrepresentation is willful is a fact-based decision that will be made, not by SBA, but by a judge, jury or other decider of fact. To clarify that the limitation of liability provisions convey discretion to the finder of fact, the phrase “shall not apply” has been amended as “may be determined not to apply.” Further, the phrase “consideration shall be given to” has been changed to “relevant factors to consider in making this determination may include.”
One commenter asked if SBA would agree that thirty days is a reasonable amount of time in which to correct an erroneous representation. It is SBA's view that the question of whether an erroneous representation was corrected in a timely manner is dependent on the facts of a given case. SBA believes such a determination is best made by a judge, jury, or other decider of fact.
Two commenters suggested that business concerns be protected from liability when their misrepresentation resulted from ambiguity in SBA's regulations. As discussed above, SBA believes that a good faith misinterpretation of SBA's rules should not be considered a willful misrepresentation of size or status. Whether a regulation is ambiguous and whether a misinterpretation is reasonable and made in good faith is a fact- specific determination that will be made by a judge, jury, or other decider of fact.
Two commenters suggested that the list of mitigating factors set forth in the proposed rule be clarified and expanded. It is not SBA's intent that the list of mitigating factors included in the proposed rule be exhaustive. Again, the question of whether a firm willfully misrepresented its size or status is a factual determination best made by a judge, jury, or other decider of fact. SBA does not believe any additional changes or clarification is warranted.
One commenter argued that annual recertification is too burdensome. SBA disagrees. This rule does not impose new reporting requirements—concerns must certify their size and status annually in order to be identified as a small business or other socioeconomic concern in ORCA under existing regulations. 48 CFR § 4.1201(b).
Two commenters recommended that firms awarded contracts longer than five years be required to recertify only on the fifth year. SBA considered this comment but has adopted the proposed provisions as final. For purposes of establishing continuing eligibility for previously awarded long term contracts, recertification is required within 60 to 120 days prior to the end of the fifth year of the contract. 48 CFR § 52.219–28; 13 CFR § 121.404(g)(3). However, this requirement is distinct from the annual recertification requirements in the proposed rule. The annual recertification requirement contemplated in the proposed rule is for purposes of being considered for award of future contracts. Such a requirement already exists under 48 CFR § 4.1201(b). Accordingly, SBA has not adopted this comment in the Final rule.
One commenter suggested that SBA provide notification and an opportunity for business concerns to comply with the annual certification requirement. SBA does not believe such notification is necessary given that concerns are already required to certify their size and status annually under 48 CFR § 4.1201(b). Further, SBA lacks the statutory authority to implement such a notification system. Accordingly, SBA has not adopted this comment in the Final rule.
Another commenter suggested that SBA issue additional guidance to clarify the annual certification requirement as applied to business concerns operating in industries with a revenue-based size standard. This commenter expressed concern that an annual certification requirement would not take into consideration revenue fluctuations common to many small business concerns. SBA disagrees. At any given time, a firm's size may be determined under a revenue-based size standard by dividing the sum of firm's annual receipts from the past three completed fiscal years by three. 13 CFR § 121.104(c). This method is specifically designed to account for revenue fluctuations and SBA does not believe the annual recertification requirement has any implications specific to those firms operating in industries with revenue-based size standards.
Another commenter suggested that the annual recertification requirement be applied to 8(a) Business Development and HUBZone program participants. As noted in the proposed rule, SBA did not impose the recertification requirement for these programs because SBA is responsible for providing certification designations in federal procurement databases for these programs. Therefore, SBA has not adopted this comment in the final rule.
One commenter recommended that SBA provide clarification as to the rule's application to misrepresentations by subcontractors. It is SBA's intent that the presumption of loss shall apply to subcontractors who willfully misrepresent their size or status in order to receive a subcontract award. Accordingly, proposed §§ 121.108(a), 121.411(d), 124.521(a), 124.1015(a), 125.29(a), 126.900(a), and 127.700(a) explicitly provided that a presumption of loss to the United States shall be imposed whenever it is established that a business concern willfully sought and received award of a subcontract by misrepresentation. SBA does not believe any additional clarification is necessary. The same commenter also requested clarification of the prime contractor's liability when a subcontractor misrepresents its status to the prime contractor. Pursuant to 48 CFR § 19.703(b), a prime contractor acting in good faith may rely on the written representation of its subcontractor regarding the subcontractor's small business size or status. When read in conjunction with the final rule, SBA believes this insulates prime contractors acting in good faith from liability for misrepresentations made by their subcontractors. In response to this comment, SBA has clarified this point in the limitation of liability sections of the Final rule.
One commenter suggested that SBA provide clarification as to a contracting officer's duty to stop work on a contract if it becomes clear that the awardee misrepresented its status before completion of the contract. Under SBA's existing regulations, contracting officers have the authority to file a size protest at any time, even after award. 13 CFR §§ 121.1004(b), 124.1010(c)(1)(iii), 125.25(d)(3), 126.801(d)(3), and 127.603(c)(3). SBA's regulations also address the effect of a negative eligibility determination on the procurement in question. 13 CFR §§ 121.1009(g), 124.1013(h), 125.27(g), 126.803(d), and 127.604(f).
Another commenter suggested that SBA amend its regulations to impose suspension and debarment only when misrepresentation resulted in actual award. SBA does not believe that receipt of an award should be a prerequisite for debarment, suspension or any other penalty outlined in the Small Business Act or SBA's regulations. Firms have an obligation to accurately represent their size and/or status. Any fraudulent misrepresentation which inhibits the government's ability to rely on future statements made by the contractor should be subject to possible suspension and debarment actions. Accordingly this comment has not been adopted in the final rule. However, for clarity and accuracy, the title “debarring official” has been changed to “suspension and debarment official” in 13 CFR §§ 121.108(e)(1), 121.411(h)(1), 124.1015(e)(1), 125.29(e)(1), 126.900(e)(1), and 127.700(e)(1).
One commenter recommended that ORCA/SAM be modified to require the contractor to make an affirmative acknowledgment that the software interface correctly determined the business's size. Proposed §§ 121.108(c), 121.411(f), 124.521(c), 124.1015(c), 125.29(c), 126.900(c), 127.700(c) require an authorized official to sign the small business size and status certification page of any solicitation. SBA does not believe any additional clarification or changes to the proposed rule are necessary and adopts the provisions in the Final rule as proposed.
Another commenter suggested that SBA address situations where a firm claims to be small under its primary NAICS code and submits an offer on a procurement issued under a different NAICS code with a more restrictive size standard. SBA believes its regulations are clear on this point. 13 CFR § 121.402(a) provides that “a concern must not exceed the size standard for the NAICS code specified in the solicitation,”and 13 CFR § 121.405(a) further provides that “a concern must self-certify it is small under the size standard specified in the solicitation.” As such, SBA has not made additional changes to the rule in response to this comment.
One commenter recommended the creation of an IRS portal through which relevant parties may look up a business's tax returns for purposes of determining size. Tax returns are not public documents and SBA lacks the statutory authority to implement such a system.
One commenter proposed that footnote 18 to 13 CFR § 121.201 be applied to all value-added resellers. The proposed rule did not address specific
Another commenter suggested that SBA eliminate all programs based on sex, race or minority status. The proposed rule did not address the elimination of any SBA programs and, therefore, this comment is beyond the scope of the proposed rulemaking.
The Office of Management and Budget (OMB) has determined that this rule is a significant regulatory action for purposes of Executive Order 12866. In the proposed rule, SBA set forth its initial regulatory impact analysis, which addressed the following: Necessity of the regulation; the potential benefits and costs of the regulation; and alternative approaches to the proposed rule. SBA did not receive any comments which specifically addressed this regulatory impact analysis. Therefore, SBA adopts as final its initial regulatory impact analysis.
This final rule implements important statutory provisions intended to prevent and deter fraud and misrepresentation in small business government contracting and other programs. SBA has amended all applicable Parts of its regulations to put participants in those programs on notice of the penalties associated with misrepresentation, and to the extent practicable, utilized identical language in each Part. SBA has also included in each Part other relevant applicable statutory provisions concerning the penalties for misrepresentation. The costs associated with these rules, requiring a signature in connection with a size or status representation and requiring concerns to update online certifications annually, are minimal and required by statute. As part of its implementation of this executive order and consistent with its commitment to public participation in the rulemaking process, SBA held public forums around the country to discuss implementation of the Jobs Act, including the provisions in this rule.
For the purpose of Executive Order 12988, this final rule meets applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. This rule has no preemptive or retroactive effect.
This final rule does not have federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various layers of government, as specified in the order. As such it does not warrant the preparation of a Federalism Assessment.
For the purpose of the Paperwork Reduction Act, 44 U.S.C. Chapter 35, SBA has determined that this rule does not impose new reporting requirements and does not require new recordkeeping requirements. In accordance with 48 CFR §§ 4.1202, 52.204–8, 52.219–1 and 13 CFR §§ 121.404(a), 121.411, concerns must submit paper or electronic representations or certifications in connection with prime contracts and subcontracts. The Jobs Act requires that each offeror or applicant for a Federal contract, subcontract, or grant shall contain a certification concerning the small business size and status of a business concern seeking the Federal contract, subcontract or grant. The Jobs Act mandates that an authorized official must sign the certification on the same page containing the size and status claimed by the concern. Offerors are already required to sign their offers, bids or quotes (Standard Forms 18, 33, and 1449), so this provision does not create new reporting or recordkeeping requirements.
SBA has determined that this rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612. Accordingly, SBA set forth an Initial Regulatory Flexibility Act (IRFA) analysis in the proposed rule. The IRFA addressed the impact of the proposed rule in accordance with 5 U.S.C. 603. The IRFA examined the objectives and legal basis for the proposed rule; the kind and number of small entities that may be affected; the projected recordkeeping, reporting, and other requirements; whether there were any Federal rules that may duplicate, overlap, or conflict with the proposed rule; and whether there were any significant alternatives to the proposed rule. The Agency's final regulatory flexibility analysis (FRFA) is set forth below.
These regulatory amendments implement Sections 1341 and 1342 of the Small Business Jobs Act of 2010, Public Law 111–240, 124 Stat. 2504, September 27, 2010 (Jobs Act); 15 U.S.C. 632(w), (x). The purpose of the statute and implementing regulations is to prevent or deter firms from misrepresenting their size or socioeconomic status.
The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of entities that may be affected by the proposed rules, if adopted. The RFA defines “small entity” to include “small businesses,” “small organizations,” and “small governmental jurisdictions.” SBA's programs do not apply to “small organizations” or “small governmental jurisdictions” because they are non-profit or governmental entities and do not generally qualify as “business concerns” within the meaning of SBA's regulations. SBA's programs generally apply only to for-profit business concerns. Therefore, the regulation will not impact small organizations or small governmental jurisdictions.
In fiscal year 2010, there were approximately 1.6 million small business contract actions (out of 3.36 million total small business eligible contract actions). This final rule's presumption of loss will only impact small business concerns that misrepresent their size or status in connection with a contract, subcontract, cooperative agreement, cooperative research and development agreement or grant in such a way that criminal prosecution or other action is taken by the Government in order to redress the misrepresentation. In fiscal year 2010, SBA found approximately 200 firms to be ineligible for a contract (14 HUBZone, 33 Service-Disabled Veteran-Owned, 0 Women-Owned Small Business, 151 size). Not all of these firms would be criminally prosecuted or have others actions taken against them. Thus, the regulations concerning presumption of loss will impact very few concerns, and some of these concerns are not actually small.
There are in approximately 348,000 concerns listed as small business concerns in the Dynamic Small Business Search (DSBS) database. The regulations concerning deemed certifications and the requirement for a
This final rule does not impose a new information collection, recordkeeping or compliance requirement on small businesses. A firm's size or socioeconomic status is generally based on records that it already possesses, such as payroll records and annual tax returns. Firms currently must represent their size or status in connection with contracts and subcontracts, either electronically or in paper form. 48 CFR §§ 4.1202, 52.204–8, 52.219–1 and 13 CFR §§ 121.404(a), 121.411. The rule requires an authorized official to sign on the page containing a concern's size or status representation. Offerors are already required to sign their offers, so the burden on small business concerns to also sign their size or status representation or certification is minimal. Standard Forms 18, 33, 1447 and 1449.
Section 1342 of the Jobs Act requires that firms that fail to meet the annual certification or representation requirement shall lose their status in the database. Firms will not be able submit offers for small business contracts based on their online representations or certifications (48 CFR § 4.1201(c)), but instead must have an authorized official sign in connection with the firm's size or status. Firms must already sign offers, so the impact will be negligible. Standard Forms 18, 33, 1447 and 1449.
This final rule implements Sections 1341 and 1342 of the Jobs Act. The final rule is directed at small business concerns seeking government contracts, subcontracts, grants, and cooperative agreements. The final rule is intended to prevent or deter firms from misrepresenting their size or socioeconomic status. The impact on firms that accurately represent their size or status will be minimal. An authorized official will have to sign an offer where the firm represents its size and status, but authorized officials are currently required to sign offers. Firms will have to update their size and socioeconomic status in ORCA/SAM at least annually, but that too is already required. 48 CFR § 4.1201(b)(1).
The SBA received one comment that addressed the IRFA or the subjects discussed in the IRFA. This commenter expressed concern regarding a portion of the IRFA which read: “The proposed regulations concerning presumption of loss will only impact small business concerns that misrepresent their size or status in connection with a contract, subcontract, cooperative agreement, cooperative research and development agreement or grant in such a way that criminal prosecution or other action is taken by the Government.” Specifically, the commenter felt that SBA's reference to “other action” requires clarification. As noted above, it is SBA's intent that the presumption of loss shall be applied in all manner of criminal, civil, administrative, contractual, common law, or other actions, which the United States government may take to redress willful misrepresentation. In fiscal year 2010, SBA found approximately 200 firms to be ineligible for a contract (14 HUBZone, 33 Service-Disabled Veteran-Owned, 0 Women-Owned Small Business, 151 size). Not all of these firms willfully misrepresented their size or status. Thus, SBA continues to believe that the regulations concerning presumption of loss will impact very few concerns, most of which will not qualify as small.
Administrative practice and procedure, Reporting and recordkeeping requirements, and Small businesses.
Administrative practice and procedure, Minority businesses, Reporting and recordkeeping requirements, and Technical assistance.
Government contracts, Reporting and recordkeeping requirements, Small businesses, and Technical assistance.
Administrative practice and procedure, Penalties, Reporting and recordkeeping requirements and Small businesses.
Government procurement, Reporting and recordkeeping requirements, and Small businesses.
For the reasons stated in the preamble, SBA amends parts 121, 124, 125, 126 and 127 of title 13 of the Code of Federal Regulations as follows:
15 U.S.C. 632, 634(b)(6), 636(b), 637(a), 644 and 662(5); and Pub. L. 105–135, sec. 401 et seq., 111 Stat. 2592.
(a)
(b)
(1) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to small business concerns.
(2) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a small business concern.
(3) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and
(c)
(d)
(e)
(1)
(2)
(3)
(a) In order to be identified as a small business concern in the System for Award Management (SAM) database (or any successor thereto), a concern must certify its size in connection with specific size standards at least annually.
(b) If a firm identified as a small business concern in SAM fails to certify its size within one year of a size certification, the firm will not be listed as a small business concern in SAM, unless and until the firm recertifies its size.
(d)
(e)
(1) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to small business concerns.
(2) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a small business concern.
(3) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement, as a small business concern.
(f)
(g)
(h)
(1)
(2)
(3)
(f)
15 U.S.C. 634(b)(6), 636(j), 637(a), 637(d) and Pub. L. 99–661, Pub. L. 100–656, sec. 1207, Pub. L. 101–37, Pub. L. 101–574, section 8021, Pub. L. 108–87, and 42 U.S.C. 9815.
(a)
(b)
(1) Submission of a bid or proposal for an 8(a) sole source or competitive contract.
(2) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement, as a small disadvantaged business (SDB).
(c)
(d)
(a)
(b)
(1) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to SDBs.
(2) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a SDB.
(3) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement, as a SDB.
(c)
(d)
(e)
(1)
(2)
(3)
(a) In order to be identified as a SDB in the System for Award Management (SAM) database (or any successor thereto), a concern must certify its SDB status in connection with specific eligibility requirements at least annually.
(b) If a firm identified as a SDB in SAM fails to certify its status within one year of a status certification, the firm will not be listed as a SDB in SAM, unless and until the firm recertifies its SDB status.
15 U.S.C. 632, 634(b)(6), 637, 644 and 657f.
(a)
(b)
(1) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to SDVO SBCs.
(2) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a SDVO SBC.
(3) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement, as a SDVO SBC.
(c)
(d)
(e)
(1)
(2)
(3)
(a) In order to be identified as a SDVO SBC in the System for Award Management (SAM) database (or any successor thereto), a concern must certify its SDVO SBC status in connection with specific eligibility requirements at least annually.
(b) If a firm identified as a SDVO SBC in SAM fails to certify its status within one year of a status certification, the firm will not be listed as a SDVO SBC in SAM, unless and until the firm recertifies its SDVO SBC status.
15 U.S.C. 632(a), 632(j), 632(p) and 657a.
(a)
(b)
(1) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to HUBZone SBCs.
(2) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a HUBZone SBC.
(3) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement, as a HUBZone SBC.
(c)
(d)
(e)
(1)
(2)
(3)
15 U.S.C. 632, 634(b)(6), 637(m), and 644.
(a)
(b)
(1) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to EDWOSBs or WOSBs.
(2) Submission of a bid, proposal, application or offer for a Federal grant, contract, subcontract, cooperative agreement or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a EDWOSB or WOSB.
(3) Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement, as an EDWOSB or WOSB.
(c)
(d)
(e)
(1)
(2)
(3)
(a) In order to be identified as an EDWOSB or WOSB in the System for Award Management (SAM) database (or any successor thereto), a concern must certify its EDWOSB or WOSB status in connection with specific eligibility requirements at least annually.
(b) If a firm identified as an EDWOSB or WOSB in SAM fails to certify its status within one year of a status certification, the firm will not be listed as an EDWOSB or WOSB in SAM, unless and until the firm recertifies its EDWOSB or WOSB status.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Eurocopter France Model EC 155B, EC155B1, SA–366G1, SA–365N, SA–365N1, AS–365N2, and AS 365 N3 helicopters, which requires modifying the fuel tank draining system. This AD is prompted by a closed fuel tank drain that, in the event of a fuel leak, could result in fuel accumulating in an area containing electrical equipment. The actions are intended to prevent accumulation of fuel in an area with electrical equipment or another ignition source, which may lead to a fire.
This AD is effective August 2, 2013.
The Director of the Federal Register approved the incorporation by reference of certain documents listed in this AD as of August 2, 2013.
For service information identified in this AD, contact American Eurocopter Corporation, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
You may examine the AD docket on the Internet at
Chinh Vuong, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
On November 26, 2012, at 77 FR 70382, the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, issued EASA AD No. 2011–0190, dated September 30, 2011 (AD No. 2011–0190), to correct an unsafe condition for the Eurocopter France EC 155, SA 366, SA 365, and AS 365 model helicopters, except those with certain modifications. EASA reports that the fuel tank drains were closed with plugs during production to maintain buoyancy during emergency landings in water. EASA states that this closing of the fuel tank drains with plugs “disregards compliance with an airworthiness certification requirement” and, in the event of a fuel leak in flight, creates “the risk of fuel accumulation and/or migration” to an adjacent area that may contain electrical equipment “susceptible of constituting a source of ignition.” EASA states that this condition, if not corrected, could result in ignition of fuel vapors, “resulting in a fire and consequent damage to the helicopter, or injury to its occupants.” As a result, EASA required modification of the fuel tank compartments' draining system.
After our NPRM (77 FR 70382, November 26, 2012) was published, we received comments from one commenter.
The commenter called this “a health and safety issue” and stated that the repairs should be done immediately, as the costs of the repair are relatively minor.
We partially agree. We are not requiring that the repairs be accomplished immediately. We evaluated the safety data and determined that allowing helicopter owners and operators time to plan and obtain parts to make the repairs would not adversely affect safety.
These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are issuing this AD because we evaluated all information provided by EASA, reviewed the relevant information, considered the comments received, and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.
We require within six months modifying the fuel tank drain system for helicopters with an emergency buoyancy system. EASA requires compliance within 24 months.
Eurocopter issued Alert Service Bulletin (ASB) No. EC155–53A031 for its B and B1 model helicopters, ASB No. AS366–53.11 for its G1 model helicopters, and ASB No. AS365–53.00.50 for its N, N1, N2 and N3 model helicopters. The ASBs were all dated May 3, 2011, and were all followed with Revision 1 dated September 21, 2011.
For helicopters not equipped with emergency buoyancy fixed parts, the ASBs describe procedures to modify the fuel tank draining system by removing drain plugs in the fuel tanks, to make draining possible. For helicopters equipped with emergency buoyancy fixed parts, the ASBs contain additional procedures to seal one drain plug per fuel tank compartment and to install new drain points and self-sealing drain valves in specified fuel tanks. EASA AD No. 2011–0190 classifies these ASBs as mandatory to ensure the airworthiness of these helicopters.
We estimate that this AD affects 46 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:
Sealing drain plugs, and installing new drain points and self-sealing drain valves at other locations on helicopters equipped with emergency buoyancy fixed parts require 16 work-hours. Parts cost $11,154 for a total cost of $12,514 per helicopter. For helicopters equipped with emergency buoyancy fixed parts and a sixth fuel tank, this work instead requires 17 work-hours for a total cost of $12,599 per helicopter.
Removing drain plugs on helicopters not equipped with emergency buoyancy fixed parts requires one work-hour and no parts for a total cost of $85 per helicopter. For helicopters not equipped with emergency buoyancy fixed parts but equipped with a sixth fuel tank, this work instead requires two work-hours for a total cost of $170 per helicopter.
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 helicopters identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866;
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities
We prepared an economic 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 AD applies to Eurocopter France Model EC 155B, EC155B1, and SA–366G1 helicopters, except those with modification 365A084485.00, or modifications 0753C98 and 0745C96; and Model SA–365N, SA–365N1, AS–365N2, and AS 365 N3 helicopters, except those with modifications 0753C98, 0745C96, and (if a sixth fuel tank is installed) 365A081003.00, or modification 365A081003.00 and (if a sixth fuel tank is installed) 365A084485.00.
This AD defines the unsafe condition as a closed fuel tank drain that, in the event of a fuel leak, could result in fuel accumulating in an area containing electrical equipment or other ignition source. This condition could result in a fire in the helicopter.
This AD becomes effective August 2, 2013.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) Within 110 hours time-in-service (TIS):
(i) For helicopters
(ii) For the Model SA–365N, SA–365N1, AS–365N2, and AS 365 N3 helicopters, if there is an optional sixth fuel tank installed, install a self-sealing drain valve in accordance with paragraph 3.B.2.c. of ASB 365.
(2) Within six months:
(i) For helicopters with an emergency buoyancy system, modify the fuel tank drain system in accordance with the Accomplishment Instructions, paragraphs 3.B.2.a.1. through 3.B.2.a.3, of the ASB appropriate for your model helicopter.
(ii) For the Model SA–365N, SA–365N1, AS–365N2, AS 365 N3 helicopters, if there is an optional sixth fuel tank installed, install a self-sealing drain valve in accordance with paragraph 3.B.2.c. of ASB 365.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Chinh Vuong, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2011–0190, dated September 30, 2011. You may view the EASA AD at
Joint Aircraft Service Component (JASC) Code: 2810, fuel storage.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Eurocopter Alert Service Bulletin No. EC155–53A031, Revision 1, dated September 21, 2011.
(ii) Eurocopter Alert Service Bulletin No. AS365–53.00.50, Revision 1, dated September 21, 2011.
(iii) Eurocopter Alert Service Bulletin No. AS366–53.11, Revision 1, dated September 21, 2011.
(3) For Eurocopter service information identified in this AD, contact American Eurocopter Corporation, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222–5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final Rule.
We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model DHC–8–400 series airplanes. This AD was prompted by reports of chafing found on the main landing gear (MLG) yoke. The chafing was attributed to contact between the nacelle fire detection wires and the MLG yoke. This AD requires inspections of the nacelle fire detection wires and the MLG yoke for damage; replacing nacelle fire detection wires, if necessary; repairing the MLG yoke, if necessary; and installing brackets and associated hardware to secure the fire detection wires. We are issuing this AD to prevent chafing between the nacelle fire detection wires and the MLG yoke. Chafing could lead to cracking and subsequent failure of the MLG yoke, which could adversely affect the safe landing of the airplane. In addition, chafing of the nacelle fire detection wires could cause them to fail and prevent the detection of a fire in the nacelle assembly.
This AD becomes effective August 2, 2013.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 2, 2013.
You may examine the AD docket on the Internet at
Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE–171, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone (516) 228–7301; fax (516) 794–5531.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the
We gave the public the opportunity to participate in developing this AD. We considered the comments received.
Horizon Air requested that the last sentence in paragraph (g)(2)(ii) of the NPRM (77 FR 66413, November 5, 2012) be deleted. That sentence states, “The approved repair must specifically reference this AD.” Horizon Air stated that Bombardier references Transport Canada Civil Aviation ADs on repair drawings and the requirement to reference an FAA AD has not been included in previous ADs issued by the FAA. Horizon noted that a reference to the Canadian AD should be sufficient and the final rule should be changed to allow a reference to the Canadian AD.
For the reasons presented by the commenter we agree to delete the last sentence of paragraph (g)(2)(ii) in this AD. That sentence was inadvertently included in the NPRM (77 FR 66413, November 5, 2012).
Horizon Air requested that paragraph (g)(3) of the NPRM (77 FR 66413, November 5, 2012) be revised to delete the word “new” from the sentence, “Install new brackets and associated hardware . . . .” Horizon acknowledged that this sentence was included in Canadian AD CF–2012–15, dated April 30, 2012, which is referenced in the NPRM, but based on the FAA's policy of strict interpretation of the word “new” as a zero-time part, this sentence places an additional requirement on U.S. operators to ensure that only zero-time brackets are installed.
We agree to revise paragraph (g)(3) in this final rule to delete the word “new.” This will remove the requirement that operators only install “new” brackets. We also deleted the word “new” in the
We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously and minor editorial changes. We have determined that these changes:
• Are consistent with the intent that was proposed in the NPRM (77 FR 66413, November 5, 2012) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 66413, November 5, 2012).
We estimate that this AD will affect 80 products of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $332 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $46,960, or $587 per product.
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);
3. Will not affect intrastate aviation in Alaska; and
4. 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.
You may examine the AD docket on the Internet at
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.
Amendment 39–17445. Docket No. FAA–2012–1155; Directorate Identifier 2012–NM–115–AD.
This airworthiness directive (AD) becomes effective August 2, 2013.
None.
This AD applies to Bombardier, Inc. Model DHC–8–400, –401, and –402 airplanes; certificated in any category; serial numbers 4001 through 4382 inclusive.
Joint Aircraft System Component (JASC)/Air Transport Association (ATA) of America Code 26, Fire protection.
This AD was prompted by reports of chafing found on the main landing gear (MLG) yoke. We are issuing this AD to prevent chafing between the nacelle fire detection wires and the MLG yoke. Chafing could lead to cracking and subsequent failure of the MLG yoke, which could adversely affect the safe landing of the airplane. In addition, chafing of the nacelle fire detection wires could cause them to fail and prevent the detection of a fire in the nacelle assembly.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
Within 6,000 flight hours or 36 months after the effective date of this AD, whichever occurs first, accomplish the actions specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84–26–11, Revision A, dated January 25, 2012.
(1) Do a detailed inspection of the left and right nacelle fire detection wires for damage (i.e., chafing). If damage is found on any nacelle fire detection wire: Before further flight, remove and replace the damaged wire with a new wire, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84–26–11, Revision A, dated January 25, 2012.
(2) Do a detailed inspection of the MLG yoke for damage (e.g., chafing, nicks, cracking).
(i) If any damage is found within the limitations specified in Figure 8 of Bombardier Service Bulletin 84–26–11, Revision A, dated January 25, 2012: Before further flight, repair the MLG yoke, in accordance with Figure 9, steps 1 through 10, of Bombardier Service Bulletin 84–26–11, Revision A, dated January 25, 2012.
(ii) If any damage exceeds the limitations specified in Figure 8 of Bombardier Service Bulletin 84–26–11, Revision A, dated January 25, 2012: Before further flight, repair the MLG yoke using a method approved by either the Manager, New York Aircraft Certification Office (ACO), ANE–170, FAA; or Transport Canada Civil Aviation (or its delegated agent).
(3) Install brackets and associated hardware, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 84–26–11, Revision A, dated January 25, 2012.
This paragraph provides credit for actions required by paragraphs (g)(1), (g)(2), and (g)(3) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 84–26–11, dated December 19, 2011, which is not incorporated by reference in this AD.
The following provisions also apply to this AD:
(1) Refer to MCAI Canadian Airworthiness Directive CF–2012–15, dated April 30, 2012 (
(2) Service information identified in this AD that is not incorporated by reference in this AD may be obtained at the addresses specified in paragraphs (k)(3) and (k)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Bombardier Service Bulletin 84–26–11, Revision A, dated January 25, 2012.
(ii) Reserved.
(3) For service information identified in this AD, contact Bombardier, Inc., Q Series Technical Help Desk, 123 Garratt Boulevard, Toronto, Ontario M3K 1Y5, Canada; telephone 416–375–4000; fax 416–375–4539; email
(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are publishing a new airworthiness directive (AD) for various model helicopters with certain part-numbered and serial-numbered Goodrich externally-mounted hoists installed. This AD requires performing a cable conditioning lift and a load inspection test, deactivating or replacing any hoist that fails the load inspection test, and recording the results of the load inspection test. This AD is prompted by a report of a failure of the overload clutch resulting in an in-flight failure of a hoist containing a dummy load during a maintenance flight. These actions are intended to detect conditions that may result in failure of the hoist and injury to persons being lifted.
This AD becomes effective July 15, 2013 to all persons except those persons to whom it was made immediately effective by Emergency AD (EAD) No. 2013–06–51, issued on March 25, 2013, which contained the requirements of this AD.
The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of July 15, 2013.
We must receive comments on this AD by August 27, 2013.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
For service information identified in this AD, contact: Goodrich Corporation, Sensors & Integrated Systems (SIS–CA), Brea, CA 92821; telephone (714) 984–1461;
Matt Wilbanks, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.
We are issuing this AD to publish EAD No. 2013–06–51, issued on March 25, 2013, which was for helicopter models with certain part-numbered and serial-numbered Goodrich externally-mounted hoists. EAD No. 2013–06–51 was prompted by an incident that occurred during a maintenance check of a rescue hoist that lost the ability to hold the load at maximum rated capacity, causing the test load to strike the ground. A Eurocopter Deutschland GmbH (ECD) Model MBB–BK 117 C–2 helicopter picked up a dummy load of 552 lbs. to conduct a “maximum load cycle” on the rescue hoist. Initially, the cable reeled out and stopped as commanded by the winch operator; however, the cable continued to reel-out without further command by the winch operator, causing the dummy load to strike the ground. Examination of the affected hoist determined that the overload clutch had failed. EAD No. 2013–06–51 requires performing a cable conditioning lift, performing a load inspection test, and recording the results on the hoist component history card or equivalent record. The actions of EAD No. 2013–06–51 were intended to detect conditions that may result in failure of the hoist and injury to persons being lifted.
EAD No. 2013–06–51 was prompted by AD No. 2013–0065–E, issued March 14, 2013 (2013–0065–E), and superseded with AD No. 2013–0077–E, issued March 22, 2013, by the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD 2013–0065–E to correct an unsafe condition for helicopters with certain part-numbered and serial-numbered Goodrich hoists installed. EASA advised of the report that an ECD Model MBB–BK 117 C–2 helicopter experienced an incident of its rescue hoist containing a dummy load of 552 lbs. that reeled-out without command of the operator and impacted the ground during a maintenance check flight. Examination of the affected hoist determined that the overload clutch had failed. The overload clutch design is common to many Goodrich externally-mounted rescue hoists installed on the applicable model helicopters. EASA further stated its AD action is considered an interim action and further AD action may follow.
Since we issued EAD No. 2013–06–51, EASA revised its AD with EASA AD No. 2013–0077R1, dated March 27, 2013 (2013–0077R1). In issuing AD No. 2013–0077R1, EASA changed the initial compliance time, reduced the applicability of certain model helicopters for which no EASA approvals of the hoist installation are known, and partially adopted FAA EAD
In publishing this AD, we are retaining the applicability and required actions of EAD No. 2013–06–51. As we have determined that the MD Helicopters, Inc., Model MD900 helicopter is another model helicopter on which an affected hoist may be installed, we are adding that model helicopter to the applicability. This addition does not increase the economic burden on any operator nor does it increase the scope of the AD.
These helicopters have been approved by the aviation authorities of Canada, Italy, France, and Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with the European countries, EASA, their technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all known relevant information and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.
Goodrich issued Alert Service Bulletin No. 44301–10–15, dated March 8, 2013 (ASB), for certain externally-mounted rescue hoists manufactured by Goodrich Sensors & Integrated Systems. The ASB specifies inspecting and performing an operational check of the hoist. The ASB also specifies recording the performance in the hoist log and reporting the results of the test to UTC Aerospace Systems.
This AD requires compliance with specified portions of the ASB to do the following before the next flight involving a hoist operation:
• Performing a cable conditioning lift;
• Performing a load inspection test;
• Deactivating or replacing any hoist that fails the load inspection test; and
• Recording the results of the load inspection test on the hoist component history card or equivalent record.
The EASA AD applies to specific model helicopters. This AD applies to all helicopters with certain Goodrich hoists installed that are type certificated in the U.S. This AD does not contain a requirement to report results to the manufacturer. The EASA AD requires complying with specific helicopter manufacturer ASBs, and this AD requires complying with the Goodrich ASB for conducting the load inspection test.
We consider this AD to be an interim action. Investigation of the root cause of the clutch failure is ongoing. If final action is later identified, we might consider further rulemaking.
We estimate that this AD will affect 1,378 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. It will take about 1 work-hour to perform the lift testing at an average labor rate of $85 per work-hour, for a cost per helicopter of $85 and a total cost to U.S. operators of $117,130. If necessary, replacing the hoist will take about 0.5 work-hour and required parts will cost about $95,000, for a cost per helicopter of about $95,043.
The short compliance time involved is required because risk analysis of the previously described unsafe condition indicates that failure of the hoist could result in serious injury or death if the hoist is being used for human cargo. Subsequently, the required actions must be performed before the next flight involving a hoist operation.
Since it was found that immediate corrective action was required, notice and opportunity for prior public comment before issuing this AD were impracticable and contrary to the public interest and good cause existed for making Emergency AD No. 2013–06–51 effective immediately on March 25, 2013, to all known U.S. owners and operators of the specified model helicopters. These conditions still exist and the AD is hereby published, with a minor change, in the
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.
For the reasons discussed, I certify that this AD:
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);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. 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 an economic 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 AD applies to helicopters, certificated in any category, with an externally-mounted hoist with a part number and serial number listed in Table 1 of Goodrich Alert Service Bulletin No. 44301–10–15, dated March 8, 2013 (ASB), installed, including but not limited to the following:
(1) AgustaWestland S.p.A Model A109, A109S, A109K2, A109A, A109A II, A109C, A109E, AW109SP, AB139, AW139, AB412, and AB412 EP;
(2) Bell Helicopter Textron, Inc., Model 212, 214B, 214B–1, 214ST, 412, 412CF, and 412EP;
(3) Bell Helicopter Textron Canada, Ltd., Model 429 and 430;
(4) Eurocopter France Model AS 365 N3, AS332L2, and EC225LP;
(5) Eurocopter Deutschland GmbH Model MBB–BK 117 C–2, EC135P1, EC135T1, EC135P2, EC135T2, EC135P2+, and EC135T2+;
(6) MD Helicopters, Inc., Model MD900; and
(7) Sikorsky Aircraft Corporation Model S–61L, S–61N, S–61R, S–61NM, S–70, S–70A, S–70C, S–70C(M), S–70C(M1), S–76A, S–76B, S–76C, S–76D, and S–92A helicopters.
This AD defines the unsafe condition as failure of the overload clutch resulting in in-flight failure of the hoist, which could result in injury to persons being lifted.
This AD publishes EAD No. 2013–06–51, issued March 25, 2013.
This AD becomes effective July 15, 2013 to all persons except those persons to whom it was made immediately effective by EAD No. 2013–06–51, issued March 25, 2013, which contained the requirements of this AD.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Before next flight involving a hoist operation, perform the following one-time actions:
(1) Perform a cable conditioning lift by following the Accomplishment Instructions, paragraphs 2.A. through 2.A.(2), of the ASB.
(2) Perform a load inspection test by following the Accomplishment Instructions, paragraphs 2.B. through 2.I., of the ASB. Refer to the aircraft weight and balance limitations prior to performing this test and use a balancing load if necessary to prevent helicopter rollover. Any alternate method of complying with the load inspection test must first be approved in accordance with paragraph (g) of this AD.
(3) If the hoist fails the load inspection test, deactivate or replace the hoist with an airworthy hoist.
(4) Record the result of the load inspection test on the hoist component history card or equivalent record.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Wilbanks, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2013–0077R1, dated March 27, 2013. You may view the EASA AD at
Joint Aircraft Service Component (JASC) Code: 2500, Equipment/Furnishings.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Goodrich Alert Service Bulletin No. 44301–10–15, dated March 8, 2013.
(ii) Reserved.
(3) For Goodrich Corporation's service information identified in this AD, contact Goodrich Corporation, Sensors & Integrated Systems (SIS–CA), Brea, CA 92821; telephone (714) 984–1461;
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. For information on the availability of this material at the FAA, call (817) 222–5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule: delay of effective date.
This action changes the effective date of a final rule, published in the
Effective date: 0901 UTC. The effective date of the final rule published on June 6, 2013 is delayed from June 27, 2013 to August 22, 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 June 6, 2013, the FAA published a final rule, in the
The Class E airspace designations are published in Paragraphs 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 designations listed in this document will be published subsequently in the Order.
Accordingly, pursuant to the authority delegated to me, the effective date on Airspace Docket No. 12–ASO–19, for the establishment of Class E airspace at Upper Captiva Island Heliport, Captiva, FL, as published in the
In Title 30 of the Code of Federal Regulations, Part 700 to End, revised as of July 1, 2012, on page 742, in § 1206.57, in paragraph (c)(3), the first sentence is corrected to read as follows:
(c) * * *
(3) ONNR may establish reporting dates for individual lessees different from those specified in this subpart in order to provide more effective administration. * * *
In Title 30 of the Code of Federal Regulations, Part 700 to End, revised as of July 1, 2012, on page 873, in § 1218.51, in paragraph (a), the definition for
In Title 30 of the Code of Federal Regulations, Part 700 to End, revised as of July 1, 2012, in § 1227.110, on page 907, in the last sentence in paragraph (a), the phrase “
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the special local regulation for the St. John 4th of July Carnival Fireworks Display from 8 p.m. until 10 p.m. on July 4, 2013. This action is necessary to ensure safety of life on navigable waters of the United States. During the enforcement period, a regulated area will exclude the presence of all vessels not associated with the show. All vessels not associated with the show will be prohibited from entering, transiting through, anchoring in, or remaining within the area unless authorized by the Captain of the Port San Juan or a designated representative.
The regulation in 33 CFR 100.701 Table 1 as well as the general regulations in that section will be enforced from 8 p.m. through 10 p.m. on July 4, 2013.
If you have questions on this notice, call or email Mr. Efrain Lopez, Sector San Juan Prevention Department, Coast Guard; telephone (787) 289–2097, email
The Coast Guard will enforce the special local regulation for the annual St. John 4th of July Carnival Fireworks Display in 33 CFR 100.701, Table 1, and the general regulations in that section on July 4, 2013, from 8 p.m. until 10 p.m. This rule creates a regulated area that will encompass all waters within a 200 yard radius centered on the following position: 18°19′55″ N/064°48′06″ W.
Under the general provisions of 33 CFR 100.701, vessels not associated with the show may not enter, transit through, anchor in, or remain in the regulated area, unless they receive permission from the COTP. Vessels may safely transit outside the regulated area, but may not anchor, block, loiter in, or impede the official patrol vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 100.701 and 5 U.S.C. 552 (a). The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Seattle Seafair Unlimited Hydroplane Race Special Local Regulation on Lake Washington, WA from 8 a.m. on August 2, 2013, through 11:59 p.m. on August 4, 2013, during hydroplane race times. This action is necessary to ensure public safety from the inherent dangers associated with high-speed races while allowing access for rescue personnel in the event of an emergency. During the enforcement period, no person or vessel will be allowed to enter the regulated area without the permission of the Captain of the Port, on-scene Patrol Commander or Designated Representative.
The regulations in 33 CFR 100.1301 are effective from 8 a.m. on August 2, 2013, through 11:59 p.m. on August 4, 2013.
If you have questions on this notice, call or email Ensign Nathaniel P. Clinger, Sector Puget Sound Waterways Management Division, Coast Guard; telephone 206–217–6045, email
The Coast Guard will enforce the special local regulation for the annual Seattle Seafair Unlimited Hydroplane Race in 33 CFR 100.1301 from 8 a.m. on August 2, 2013, through 11:59 p.m. on August 4, 2013.
Under the provisions of 33 CFR 100.1301, the Coast Guard will restrict general navigation in the following area; The waters of Lake Washington bounded by the Interstate 90 (Mercer Island/Lacey V. Murrow) Bridge, the western shore of Lake Washington, and the east/west line drawn tangent to Bailey Peninsula and along the shoreline of Mercer Island.
The regulated area has been divided into two zones. The zones are separated by a line perpendicular from the I–90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).
The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Auxiliary Coast Guard vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters during the periods this regulation is in effect. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.
Only authorized vessels may be allowed to enter Zone I during the hours this regulation is in effect. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by Coast Guard Officers or Petty Officers.
During the times in which the regulation is in effect, the following rules shall apply:
(1) Swimming, wading, or otherwise entering the water in Zone I by any person is prohibited while hydroplane boats are on the racecourse. At other times in Zone I, any person entering the water from the shoreline shall remain west of the swim line, denoted by buoys, and any person entering the water from the log boom shall remain within ten (10) feet of the log boom.
(2) Any person swimming or otherwise entering the water in Zone II shall remain within ten (10) feet of a vessel.
(3) Rafting to a log boom will be limited to groups of three vessels.
(4) Up to six (6) vessels may raft together in Zone II if none of the vessels are secured to a log boom. Only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.
(5) Vessels proceeding in either Zone I or Zone II during the hours this regulation is in effect shall do so only at speeds which will create minimum wake, seven (07) miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.
(6) Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven (07) miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.
(7) A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
This notice is issued under authority of 33 CFR 100.1301 and 5 U.S.C. 552(a). If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of Lake Tahoe near Incline Village, NV in support of the Execpro Services Fireworks Display on July 5, 2013. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.
This rule is effective from 7 a.m. July 2, 2013, until 10 p.m. on July 5, 2013.
Documents mentioned in this preamble are part of docket USCG–2013–0383. 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 Lieutenant Junior Grade William Hawn, U.S. Coast Guard Sector San Francisco; telephone (415) 399–7442 or email at
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” The Coast Guard is issuing this rule without prior notice and opportunity to comment because it is impracticable. The Coast Guard received the information about the fireworks display on May 9, 2013, and the fireworks display would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.
Under 5 U.S.C. 553(d)(3), for the same reasons as mentioned above, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The legal basis for the proposed rule is 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, 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.
Execpro Services will sponsor a fireworks display on July 5, 2013, in the navigable waters of Lake Tahoe near Incline Village, NV in approximate position 39°13′56″ N, 119°56′23″ W (NAD 83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18665. This safety zone establishes a temporary restricted area on the waters 100 feet surrounding the fireworks barge during the loading, transit and arrival of the pyrotechnics from the loading site to the launch site and until the commencement of the fireworks display. Upon the commencement of the 20 minute fireworks display, the safety zone will increase in size and encompass the navigable waters around the fireworks barge within a radius of 560 feet. The fireworks display is meant for entertainment purposes. This restricted area around the fireworks barge is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics.
The Coast Guard will enforce a safety zone in navigable waters around and under a fireworks barge within a radius of 100 feet during the loading, transit, and arrival of the fireworks barge to the display location and until the start of the fireworks display. From 7 a.m. until 11 p.m. on July 2, 2013, the fireworks barge will be loaded at Obexer's Marina in Homewood, CA. From 11 p.m. on July 2, 2013 to 7 a.m. on July 3, 2013, the loaded barge will transit from Obexer's Marina to the launch site near Incline Village, NV in approximate position 39°13′56″ N, 119°56′23″ W (NAD 83) where it will remain until the commencement of the fireworks display. Upon the commencement of the 20 minute fireworks display, scheduled to begin at 9:30 p.m. on July 5, 2013, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius 560 feet in approximate position 39°13′56″ N, 119°56′23″ W (NAD 83) for the Execpro Services Fireworks Display. At the conclusion of the fireworks display the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks barge while the fireworks are set up, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.
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.
We expect the economic impact of this rule does not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.
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 Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule may affect owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for a limited duration. When the safety zone is activated, vessel traffic could pass safely around the safety zone. The maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
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
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 a safety zone of limited size and duration. 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, and 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; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 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) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or a designated representative. Persons and vessels may request permission to enter the safety zone on VHF–23A or through the 24-hour Command Center at telephone (415) 399–3547.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of Carquinez Strait near Martinez, CA in support of the City of Martinez Fourth of July Fireworks Display on July 4, 2013. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.
This rule is effective on July 4, 2013, from 9:30 p.m. until 10 p.m.
Documents mentioned in this preamble are part of docket USCG–2013–0345. 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 Lieutenant Junior Grade William Hawn, U.S. Coast Guard Sector San Francisco; telephone (415) 399–7442 or email at
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Publication of an NPRM would be impracticable because the Coast Guard received the information about the fireworks display on May 1, 2013, and the fireworks display would occur before the rulemaking process would be completed.
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 legal basis for the proposed rule is 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, 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.
The City of Martinez will sponsor the City of Martinez Fourth of July Fireworks Display on July 4, 2013, in Waterfront Park near Martinez, CA in approximate position 38°01′31″ N, 122°08′24″ W (NAD 83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18657. Upon the commencement of the fireworks display, the safety zone will encompass the navigable waters around the launch site within a radius of 420 feet. The fireworks display is meant for entertainment purposes. This restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.
The Coast Guard will enforce a safety zone in navigable waters around the land based launch site in Waterfront Park near Martinez, CA. Upon the commencement of the 20 minute fireworks display, scheduled to begin at 9:30 p.m. on July 4, 2013, the safety zone will encompass the navigable waters around the fireworks launch site within a radius 420 feet from position 38°01′31″ N, 122°08′24″ W (NAD 83) for the City of Martinez Fourth of July Fireworks Display. At the conclusion of the fireworks display the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the launch site until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the launch site to ensure the safety of participants, spectators, and transiting vessels.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes 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
We expect the economic impact of this rule does not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.
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 Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule may affect owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for a limited duration. When the safety zone is activated, vessel traffic could pass safely around the safety zone. The maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
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 a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) and 35(b) 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, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 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) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or a designated representative. Persons and vessels may request permission to enter the safety zone on VHF–23A or through the 24-hour Command Center at telephone (415) 399–3547.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone in the navigable waters of Mare Island Strait near Vallejo, CA in support of the City of Vallejo Fourth of July Fireworks Display on July 4, 2013. This safety zone is established to ensure the safety of participants and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.
This rule is effective on July 4, 2013, from 9:30 p.m. until 10 p.m.
Documents mentioned in this preamble are part of docket USCG–2013–0355. 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 Lieutenant Junior Grade William Hawn, U.S. Coast Guard Sector San Francisco; telephone (415) 399–7442 or email at
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” It would be impracticable to issue a notice of proposed rulemaking because the Coast Guard received the information about the fireworks display on May 2, 2013, and the fireworks display would occur before the rulemaking process would be completed.
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 legal basis for the proposed rule is 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, 160.5; Public Law 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.
The City of Vallejo will sponsor the City of Vallejo Fourth of July Fireworks Display on July 4, 2013, on Mare Island
The Coast Guard will enforce a safety zone in navigable waters around the land based launch site on Mare Island near Vallejo, CA. Upon the commencement of the 20 minute fireworks display, scheduled to begin at 9:30 p.m. on July 4, 2013, the safety zone will encompass the navigable waters around the fireworks launch site within a radius 420 feet from position 38°06′04″ N, 122°16′10″ W (NAD 83) for the City of Vallejo Fourth of July Fireworks Display. At the conclusion of the fireworks display the safety zone shall terminate.
The effect of the temporary safety zone will be to restrict navigation in the vicinity of the launch site until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the launch site to ensure the safety of participants, spectators, and transiting vessels.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes 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.
We expect the economic impact of this rule does not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.
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 Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule may affect owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for a limited duration. When the safety zone is activated, vessel traffic could pass safely around the safety zone. The maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.
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 a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) and 35(b) 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, and Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05–1(g), 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) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or a designated representative. Persons and vessels may request permission to enter the safety zone on VHF–23A or through the 24-hour Command Center at telephone (415) 399–3547.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is temporarily changing the enforcement date of a safety zone for one recurring fireworks display in the Fifth Coast Guard District. This regulation applies to only one recurring fireworks event held in Barnegat Bay in Barnegat Township, New Jersey. The fireworks display is normally held on July 4th, but this year it will be held on July 5th. The safety zone is necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in a portion of Barnegat Bay near Barnegat Township, New Jersey, during the event.
This rule is effective on July 5, 2013, from 8:30 p.m. until 10 p.m.
Documents mentioned in this preamble are part of docket [USCG–2013–0431]. 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 Lieutenant Veronica Smith, U.S.
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. There is insufficient time to undertake an NPRM and immediate action is needed to minimize potential danger to the public during the event. The potential dangers posed by fireworks displays makes a safety zone necessary to provide for the safety of participants, spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. The Coast Guard will issue broadcast notice to mariners to advise vessel operators of navigational restrictions. On scene Coast Guard and local law enforcement vessels will also provide actual notice to mariners.
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
Recurring fireworks displays are frequently held on or adjacent to the navigable waters within the boundary of the Fifth Coast Guard District. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.
The regulation listing annual fireworks displays within the Fifth Coast Guard District and safety zones locations is 33 CFR 165.506. The Table to § 165.506 identifies fireworks displays by COTP zone, with the COTP Delaware Bay zone listed in section “(a)” of the Table.
Barnegat Township sponsors an annual fireworks display held on July 4th over the waters of Barnegat Bay, Barnegat Township, New Jersey. The Table to § 165.506, at section (a) event number “5”, describes the enforcement date and regulated location for this fireworks event.
In the Table, this fireworks display occurs annually on July 4th. However, this year, the fireworks event will be held on July 5th, 2013.
A fleet of spectator vessels are anticipated to gather nearby to view the fireworks display. Due to the need for vessel control during the fireworks display, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Under provisions of 33 CFR 165.506, during the enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.
The Coast Guard will temporarily suspend the regulation listed in Table to § 165.506, section (a) event Number “5”, and insert this temporary regulation at Table to § 165.506, at section (a.) as event Number “17”, in order to reflect that the fireworks display will be held on July 5, 2013, and therefore change the enforcement date. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 165.506 or other provisions in § 165.506 shall be affected by this regulation.
The regulated area of this safety zone includes all the waters of Barnegat Bay within a 500 yard radius of the fireworks barge in approximate position latitude 39°44′50″ N, longitude 074°11′21″ W, approximately 500 yards north of Conklin Island, NJ.
This safety zone will restrict general navigation in the regulated area during the fireworks event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the effective period. The regulated area is needed to control vessel traffic during the event for the safety of participants and transiting vessels.
In addition to notice in the
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
This rule prevents traffic from transiting a portion of the Barnegat Bay, off of Barnegat Township, New Jersey during the specified event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so that mariners can adjust their plans accordingly. Additionally, this rulemaking changes the enforcement date for Barnegat Bay, Barnegat Township, New Jersey fireworks demonstration for July 5, 2013 only and does not change the permanent enforcement period that has been published in 33 CFR 165.506, Table to § 165.506 at section (a), event Number “5”. In some cases vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.
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
This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in Barnegat Bay, off of Barnegat Township, New Jersey, where fireworks events are being held. This regulation will not have a significant impact on a substantial number of small entities because it will be enforced only during the fireworks display event that has been permitted by the Coast Guard Captain of the Port. The Captain of the Port will ensure that small entities are able to operate in the regulated area when it is safe to do so. In some cases, vessels will be able to safely transit around the regulated area at various times, and, with the permission of the Patrol Commander, vessels may transit through the regulated area. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.
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 the establishment of safety zones. 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, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
Office of Special Education and Rehabilitative Services, Department of Education.
Final priority.
The Assistant Secretary for Special Education and Rehabilitative Services announces a priority for the Disability and Rehabilitation Research Projects and Centers Program administered by the National Institute on Disability and Rehabilitation Research (NIDRR). Specifically, we announce a priority for a Rehabilitation Research and Training Center (RRTC) on Disability in Rural Areas. The Assistant Secretary may use this priority for competitions in fiscal year (FY) 2013 and later years. We take this action to focus research attention on areas of national need. We intend this priority to improve outcomes among individuals with disabilities in rural areas.
This priority is effective July 29, 2013.
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue SW., Room 5133, Potomac Center Plaza (PCP), Washington, DC 20202–2700. Telephone: (202) 245–7532 or by email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
The purpose of the RRTCs, which are funded through the Disability and Rehabilitation Research Projects and Centers Program, is to achieve the goals of the Rehabilitation Act, as amended, through advanced research, training, technical assistance, and dissemination activities in general problem areas, as specified by NIDRR. These activities are designed to benefit rehabilitation service providers, individuals with disabilities, and the family members or other authorized representatives of individuals with disabilities. Additional information on the RRTC program can be found at:
29 U.S.C. 762(g) and 764(b)(2).
We published a notice of proposed priority (NPP) in the
Except for minor technical revisions, there are no differences between the proposed priority and the final priority.
RRTC on Disability in Rural Areas.
The Assistant Secretary for Special Education and Rehabilitative Services establishes a priority for a Rehabilitation Research and Training Center (RRTC) on Disability in Rural Areas. This RRTC must conduct rigorous research, and provide training, technical assistance, and information to improve the outcomes of individuals with disabilities who live in rural areas. The RRTC must:
(a) Conduct research that examines experiences and outcomes of individuals with disabilities who live in rural areas and apply the research findings to develop interventions that improve those outcomes. Applicants must focus their research activities on topics that fall under at least one of the following major life domains identified in NIDRR's Long-Range Plan for Fiscal Years 2013–2017 (78 FR 20299): Employment, Community Living and Participation, or Health and Function;
(b) Serve as a national resource center for individuals with disabilities living in rural areas, their families, service and support providers, and other stakeholders by conducting knowledge translation activities that include, but are not limited to:
(1) Providing information and technical assistance to service providers, individuals with disabilities living in rural areas and their representatives, and other key stakeholders;
(2) Providing training, including graduate, pre-service, and in-service training, to rehabilitation service providers and other disability service
(3) Disseminating research-based information and materials related to living with a disability in rural areas; and
(c) Involve individuals with disabilities who live in rural areas in planning and implementing the RRTC's activities, and in evaluating the RRTC's work.
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does not solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the
Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing this final priority only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.
In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
The benefits of the Disability and Rehabilitation Research Projects and Centers Program have been well established over the years, as projects similar to the one envisioned by the final priority have been completed successfully. The new RRTC will generate and promote the use of new knowledge that will improve the options for individuals with disabilities to perform regular activities of their choice in the community.
You may also access documents of the Department published in the
Forest Service, USDA.
Interim final rule.
The Forest Service is amending the definition of a ski area in its regulations to make it consistent with the authority in section 3 of the Ski Area Recreational Opportunity Enhancement Act (SAROEA) of 2011 to allow authorization of other snow sports besides Nordic and alpine skiing and, in appropriate circumstances, other seasonal and year-round natural resource-based recreation activities and associated facilities at ski areas on National Forest System (NFS) lands, provided that authorization of these other activities and facilities would not change the primary purpose of the ski areas to a purpose other than skiing and other snow sports.
The rule is effective July 29, 2013.
Send comments electronically by following the instructions at the Federal eRulemaking portal at
All comments, including names and addresses when provided, will be placed in the record and will be made available for public review and copying. Those wishing to review comments should call Corey Wong at (970) 874–6668 to schedule an appointment.
Corey Wong, Acting National Winter Sports Program Manager, 970–874–6668. Individuals who use telecommunication devices for the deaf may call the Federal Information Relay Service at 800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Daylight Time, Monday through Friday.
Section 3 of SAROEA amended the National Forest Ski Area Permit Act of 1986 (16 U.S.C. 497b) to allow authorization of other snow sports besides Nordic and alpine skiing at ski areas on NFS lands, such as snowboarding, sledding, and tubing. Section 3 of SAROEA also amended 16 U.S.C. 497b to allow authorization, in appropriate circumstances, of other seasonal and year-round natural resource-based recreation activities and associated facilities at ski areas on NFS lands, provided that authorization of these other activities and facilities would not change the primary purpose of the ski areas to a purpose other than skiing and other snow sports.
The definition for a ski area in Forest Service regulations at 36 CFR 251.51 implementing the National Forest Ski Area Permit Act provides for development only for Nordic and alpine skiing at ski areas on NFS lands and limits ancillary facilities at ski areas on NFS lands to those that support skiing. Accordingly, the Department is amending the definition for a ski area in 36 CFR 251.51 to provide for development for snow sports besides Nordic and alpine skiing at ski areas on NFS lands and to provide, in appropriate circumstances, for facilities necessary for other seasonal and year-round natural resource-based recreation activities at ski areas on NFS lands, provided that authorization of these other activities and facilities would not change the primary purpose of the ski area to a purpose other than skiing and other snow sports.
The Department is expanding the requirement in the current definition of a ski area in 36 CFR 251.51 that the preponderance of revenue at a ski area derive from activities and facilities that support Nordic and alpine skiing to include revenue derived from activities and facilities that support other snow sports. This requirement can then be used to determine whether authorization of other seasonal, natural resource-based recreation activities and facilities would change the primary purpose of the ski area to a purpose other than skiing and other snow sports.
The Department has also revised the terminology for types of revenue generated by ski areas on NFS lands to track the types of revenue that are included in the land use fee calculation for ski areas on NFS lands under the National Forest Ski Area Permit Fee Act of 1996 (16 U.S.C. 497c).
The amendment of the definition for a ski area in 36 CFR 251.51 merely makes the definition consistent with the authority in section 3 of SAROEA to allow authorization of additional recreation activities and associated facilities at ski areas on NFS lands and makes additional changes in terminology consistent with the National Forest Ski Area Permit Fee Act. These revisions are dictated by statute; the Department has no discretion in implementing them. Moreover, the revisions conform precisely to the corresponding language in the statutes.
This interim final rule is making minor, purely technical, nondiscretionary changes to the definition of a ski area on NFS lands. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement rules, regulations, or policies to establish service wide administrative procedures, program processes, or instructions. The Department has determined that this interim final rule falls within this category of actions and that no extraordinary circumstances exist which require preparation of an environmental assessment or environmental impact statement.
This interim final rule has been reviewed under USDA procedures and Executive Order (E.O.) 12866 on regulatory planning and review. It has been determined that this interim final rule is not significant. This interim final rule will not have an annual effect of $100 million or more on the economy, nor will it adversely affect productivity, competition, jobs, the environment, public health or safety, or State or local governments. This interim final rule will not interfere with an action taken or planned by another agency, nor will this interim final rule raise new legal or policy issues. Finally, this interim final rule will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of beneficiaries of those programs. Accordingly, this interim final rule is not subject to review by the Office of Management and Budget under E.O. 12866.
The Department has considered this interim final rule in light of the Regulatory Flexibility Act (5 U.S.C. 602
The Department has considered this interim final rule under the requirements of E.O. 13132 on federalism. The Department has determined that this interim final rule conforms to the federalism principles set out in this E.O.; will not impose any compliance costs on the States; and will not have substantial direct effects on the states, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further determination of federalism implications is necessary at this time.
This interim final rule does not have tribal implications per E.O. 13175, Consultation and Coordination with Indian Tribal Governments. Therefore, advance consultation with tribes is not required in connection with the interim final rule.
The Department has analyzed the interim final rule in accordance with the principles and criteria in E.O. 12630 and has determined that his interim final rule will not pose the risk of a taking of private property.
The Department has reviewed this interim final rule under E.O. 12988 on civil justice reform. After adoption of this interim final rule, (1) All State and local laws and regulations that conflict with this interim final rule or that impede its full implementation will be preempted; (2) no retroactive effect will be given to this interim final rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538), the Department has assessed the effects of this interim final rule on State, local, and tribal governments and the private sector. This interim final rule will not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.
The Department has reviewed this interim final rule under E.O. 13211 of May 18, 2001, Actions Concerning Regulations That Significantly Affect Energy Supply. The Department has determined that this interim final rule does not constitute a significant energy action as defined in the E.O.
This interim final rule does not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act (44 U.S.C. 3501
Administrative practice and procedure, Electric power, National forests, Public lands–rights-of-way, Reporting and recordkeeping requirements, Water resources.
Therefore, for the reasons set forth in the preamble, the Forest Service is amending subpart B of part 251 of Title 36 of the Code of Federal Regulations to read as follows:
16 U.S.C. 4601–6a, 4601–6d, 472, 497b, 497c, 551, 580d, 1134, 3210; 30 U.S.C. 185; 43 U.S.C. 1740, 1761–1771.
U.S. Copyright Office, Library of Congress.
Interim final rule.
The U.S. Copyright Office is amending its regulations on an interim basis in order to establish a new registration option called the “single application.” This application is being introduced in order to provide an additional option for individual authors/claimants registering a single (one) work that is not a work made for hire via the Copyright Office's electronic registration system (“eCO”). Such applications are the most administratively simple for the Copyright Office to process and may make copyright registration more attractive to individual authors of single works. This application option will be available on June 28, 2013, and the Copyright Office is inviting public comments during the first 60 days of its implementation. The single application option will cost the same—$35—as a standard electronic application.
The Copyright Office strongly prefers that comments be submitted electronically. A comment page containing a comment form is posted on the Copyright Office Web site at
Robert Kasunic, Associate Register of Copyrights and Director of Registration Policy & Practice, or Chris Weston, Attorney-Advisor, Office of the General Counsel, at (202) 707–8380.
On March 28, 2012, the Office published a comprehensive notice of proposed rulemaking proposing a new schedule of fees as well as proposing to offer a separate, easier application for “a single author who is also the claimant for the online filing of a claim in a single work that is not a work made for hire” (the “NPR”). 77 FR 18743 (Mar. 28, 2012). The notice also stated that the Office would provide more details on the single author/single work registration option in a later proposed rulemaking. The Office received 10 comments directed at the proposed single application. The issues raised in these comments are addressed below.
The reasons for establishing a separate single registration application option are spelled out in detail in the NOI. Briefly, the Office believes that those registration applications that take the least time to process should enjoy a simpler online application. The Office hopes that providing a simplified application option will encourage more individual creators to register their works.
As initially proposed, the single application would only be available for “an application to register a single work when the application is submitted by a person who is the sole author and the sole copyright owner of the work, the work is not a work made for hire, and the work does not contain material that was previously published or registered.” 77 FR 3507 (Jan. 24, 2012). It was also suggested initially that the single application be available only via eCO, and that it may be used to register collections of works by the same author-claimant.
As restated in the NPR, the single application was proposed to apply only to “a single author who is also the claimant for the online filing of a claim in a single work that is not a work made for hire.” 77 FR 18743 (Mar. 28, 2012). Although the single application was initially conceived to require that the author, claimant, and remitter had to be the same individual, the Office has determined to allow a third party to remit a claim on behalf of an author-claimant, provided that the third party is also listed as the correspondent, and provided the claim meets the single registration requirements. The Office also determined that a claim for a single application may contain—but will not cover—material that was previously published or registered, so as to allow for the registration of certain derivative works.
Based on the comments received the Office has determined that the following will be the boundaries of the types of claims that are eligible for submission using the single application to be implemented on June 28, 2013:
• Electronic registration only.
• Single author (does not include joint works).
• Single claimant/owner (does not include works made for hire or works where the claimant/owner is different from the author, i.e., transferred ownership).
• Single work (e.g., one song, one poem, one photograph. Does not include collective works, unpublished collections, units of publication, group registrations, databases, or Web sites).
Regarding the requirement of one work per registration, while the Office is aware that many individual authors, particularly photographers, create multiple works that they may want to register at one time, registering multiple works creates a more complex application. A single electronic application will provide a more simplified registration option that would benefit the many individual applicants who submit such claims for registration. Any expansion beyond the limits listed above creates more complex applications, which take additional time to process, and are thus poor candidates for an application based on simplicity.
This rationale applies as well to those commenters who argued that the single application should be available both to individual creators who incorporate for business reasons (
In addition to adding regulations governing the single application, the Copyright Office is proposing minor technical amendments to the current regulation governing electronic registration in general, in order to clarify the requirements for sending physical copies or phonorecords as deposit copies. These changes appear in the new sub-paragraph 202.3(b)(2)(i)(D).
It is important to the Copyright Office that registration be as simple, equitable, and economical as possible. The Office believes that providing an easier option for registration for those authors who file the simplest kind of application is worthwhile, and may encourage registration and foster the development of a more robust public record.
The new online single registration application will appear as an option in eCO on June 28, 2013. The Office is providing the public an opportunity to comment on this implementation. The interim status of this rule means that it is likely to be revisited by the Copyright Office in the near future, which will offer the Office an opportunity to consider and act upon comments received.
Preregistration and Registration of Claims to Copyright.
In consideration of the foregoing, the Copyright Office amends part 202 of 37 CFR as follows:
17 U.S.C. 408(f), 702
(b) * * *
(2) * * *
(i)
(B) A “single” application can be made only for a single work by a single author that is owned by the person who created it, and is not a work made for hire. The claimant and the author must be the same. A third party may remit a “single” application on behalf of the author/claimant, provided that party lists itself as the correspondent. The following categories of work may not be registered using the “single” application: collective works, unpublished collections, units of publication, group registration options, databases, Web sites, works by more than one author, and works with more than one owner. The designation of a work as eligible for a “single” registration does not include work characterized as a “single work” under paragraph (b)(4) of this section.
(C) An online submission requires a payment of the application fee through an electronic fund transfer, credit or debit card, or through a Copyright Office deposit account.
(D) Deposit materials in support of an online application may be submitted electronically in a digital format (if eligible) along with the application and payment, or a remitter may send physical copies or phonorecords as necessary to satisfy the best edition requirements, by mail to the Copyright Office, using the required shipping slip generated during the online registration process.
Agricultural Marketing Service.
Proposed rule.
This proposal invites comments on amending the structure of the Administrative Committee (Committee) of the U.S. Potato Board (Board) and deleting the Board's mailing address from the Potato Research and Promotion Plan. The Plan is administered by the Board with oversight by the U.S. Department of Agriculture (USDA). Under the Plan, there are seven Committee Vice-Chairperson positions. The Board has recommended that these positions be increased to nine. This proposed change is intended to facilitate increased involvement in the Board's leadership opportunities. Further, the Board's office is being relocated and the address must be changed in the Plan. The deletion of the Board's mailing address from the Plan would require no further amendment to the Plan if the Board's office is relocated again.
Comments must be received by July 15, 2013.
Interested persons are invited to submit written comments concerning this proposal. Comments may be submitted on the Internet at:
Patricia A. Petrella, Marketing Specialist, Promotion and Economics Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., Room 1406–S, Stop 0244, Washington, DC 20250–0244; telephone: (301) 337–5295; toll free (888) 720–9917; facsimile (202) 205–2800; or electronic mail:
This proposed rule is issued under the Potato Research and Promotion Plan (Plan) (7 CFR part 1207). The Plan is authorized under the Potato Research and Promotion Act (Act) (7 U.S.C. 2611–2627).
Executive Order 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated as “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process.
This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 311 of the Act (7 U.S.C. 2620), a person subject to a plan may file a petition with USDA stating that such plan, any provision of such plan, or any obligation imposed in connection with such plan, is not in accordance with law and request a modification of such plan or to be exempted therefrom. Such person is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which such person is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided that a complaint is filed not later than 20 days after date of the entry of the ruling.
This proposed rule invites comments on amending the structure of the Committee of the Board and to delete the Board's mailing address from the Plan. The Plan is administered by the Board with oversight by USDA. Under the Plan, assessments are collected from handlers and importers and used for projects to promote potatoes and potato products.
This proposed rule modifies the structure of the Board's Administrative Committee as prescribed in the Plan by increasing the number of Vice-Chairperson positions on the Committee from seven to nine. These additional positions would be allocated, as provided in the Board's bylaws, to the Northwest and North Central caucuses. The Northwest district includes Alaska, Idaho, Montana, Oregon and Washington. The North Central district includes Illinois, Indiana, Iowa, Michigan, Missouri, Minnesota, North Dakota, Ohio, South Dakota, and Wisconsin. With this action, Board representation at the executive level for potato producers in the Northwest district increases from 28.5 percent to 33 percent and in the North Central district from 14 percent to 22 percent.
Section 1207.327(b) of the Plan provides the authority to the Board to make rules and regulations, with USDA approval, to effectuate the terms and conditions of the Plan. Section 1207.328(a) of the Plan provides the authority to the Board to select from its members such officers as may be necessary and to adopt such rules for the conduct of its business as the Board may deem advisable.
Section 1207.507(a) of the Plan's administrative rules delineates the structure of the Board's Administrative Committee. The Committee is selected from among Board members, and is composed mostly of producer members, with one or more importer member(s),
Prior to this change, the Plan provided for seven Vice-Chairperson positions on the Committee. Vice-Chairperson positions are allocated in the Board's bylaws to represent production districts as determined by the Board. This action increases the number of Vice-Chairperson positions to nine. The additional Vice-Chairpersons would be allocated to the Northwest and North Central caucuses, which historically have been the caucuses with the greatest production.
The second proposed change would delete the Board's mailing address from the Plan's rules and regulations. Section 1207.501 of the Plan specifies that all communications in connection with the Plan shall be addressed to: National Potato Promotion Board, 7555 East Hampden Avenue, Suite 412, Denver, Colorado, 80231. The Board is in the process of moving to a new location within Denver, Colorado. Therefore, this section would need to be amended. However, USDA is recommending that this section be deleted so no further amendment would be required if the Board moves its office in the future. Interested persons wanting to contact the Board can reach them through their Web site, Facebook, or smartphone application.
The Board met on March 14, 2013, and unanimously recommended amending the Committee structure of the Board and amending the Board's mailing address from the Plan. This action would contribute to effective administration of the program.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), AMS is required to examine the impact of the proposed rule on small entities. Accordingly, AMS has considered the economic impact of this action on small entities.
According to the Board, it is estimated that in 2013 there are about 2,500 producers, 1,030 handlers and 240 importers of potatoes and potato products who are subject to the provisions of the Plan.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (domestic handlers and importers) as those having annual receipts of no more than $7.0 million. Under these definitions, the majority of the handlers, producers and importers that would be affected by this rule would be considered small entities.
This proposed rule invites comments on amending the structure of the Administrative Committee of the Board and deleting the Board's mailing address from the Plan. The Plan is administered by the Board with oversight by the U.S. Department of Agriculture (USDA). Under the Plan, there are seven Committee Vice-Chairperson positions. The Board has recommended that these positions be increased to nine Vice-Chairpersons. This proposed change is intended to facilitate increased involvement in the Board's leadership opportunities. The deletion of the Board's mailing address would require no further amendment to the Plan if the Board's office is relocated. The Board's office is being relocated so an amendment change was necessary to the Plan.
This proposed rule would amend section 1207.507(a) of the Plan by changing the number of Vice-Chairperson positions from seven to nine. Also, the Board's office address would be removed from 1207.501 of the Plan.
Regarding the economic impact of this proposed rule on affected entities, this action would impose no costs on producers, handlers, and importers as a result of this action. Both changes are administrative in nature; it would merely provide additional opportunities for increased involvement by producers in the Board's leadership opportunities from the larger production areas.
Regarding alternatives, one option to the proposed action would be to maintain the status quo and not change the Administrative Committee structure. This would not alleviate the concerns voiced by the Northwest and North Central caucuses for more representation and leadership opportunities. The Board also considered combining the Southwest caucus into the Northwest caucus. The Board concluded that this would cause the Southwest producers to lose their representation as there are more Northwest producers and the available seats could possibly be absorbed by all Northwest producers. Therefore, the proposed recommendation was approved, as it would allow greater opportunity for producers from the Board's two largest caucus districts to become engaged in the Board's leadership structure. This action would also make the representation on the Board more equitable according to production.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581–0093. This proposed rule would not result in a change to the information collection and recordkeeping requirements previously approved and would impose no additional reporting and recordkeeping burden on potato producers, handlers and importers.
As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Regarding outreach efforts, this action was discussed by the Board at meetings over the past year. Board members discussed the changes with their respective regions. The Board met in March 2013 and unanimously made its recommendation. All of the Board's meetings, including meetings held via teleconference, are open to the public and interested persons are invited to participate and express their views.
We have performed this initial RFA regarding the impact of this proposed action on small entities and we invite comments concerning potential effects of this action on small businesses.
A 15-day comment period is provided to allow interested persons to respond to this proposal. Fifteen days is deemed appropriate because this rule would need to be in place as soon as possible so the additional Vice-Chairperson can participate in Committee meetings. In addition, the Board's office has already relocated so the address needs to be
Advertising, Agricultural research, Imports, Potatoes, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 1207 is proposed to be amended as follows:
7 U.S.C. 2611–2627 and 7 U.S.C. 7401.
(a) The Board shall annually select from among its members an Administrative Committee composed of producer members as provided for in the Board's bylaws, one or more importer members, and the public member. Selection shall be made in such manner as the Board may prescribe: Except that such committee shall include the Chairperson and nine Vice-Chairpersons, one of whom shall also serve as the Secretary and Treasurer of the Board.
Office of National Marine Sanctuaries (ONMS), National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Proposed rule; request for public comments.
NOAA's ONMS is announcing that it is re-establishing the sanctuary nomination process and is proposing to amend its regulations governing the process for nominating and evaluating sites for eligibility as a national marine sanctuary. This action would replace the currently inactive Sanctuary Evaluation List (SEL) with a new process for local communities and other interested parties to provide NOAA with robust, criteria-driven proposals for new national marine sanctuaries. To implement this process, NOAA is seeking public comment on proposed changes to the sanctuary nomination and designation procedures, and on the criteria by which the agency would analyze nominations for potential new national marine sanctuaries. Once these criteria have been made final, NOAA intends to solicit nominations for areas of the marine and Great Lakes environments that satisfy those criteria for possible designation as a national marine sanctuary.
Comments on this proposed rule must be received no later than August 27, 2013.
You may submit comments, identified by RIN 0648–BD20, by any one of the following methods:
•
•
All comments received are a part of the public record and will be posted to
Matt Brookhart, Chief, Policy & Planning Division, NOAA Office of National Marine Sanctuaries, 1305 East-West Highway, 11th Floor, Silver Spring, MD 20910, (301) 713–7247.
This
The National Marine Sanctuaries Act (NMSA or Act, 16 U.S.C. 1431 et seq.) authorizes the Secretary of Commerce to, among other things, identify and designate as national marine sanctuaries areas of the marine environment, including the Great Lakes, which are of special national significance; to manage these areas as the National Marine Sanctuary System (NMSS); and to provide for the comprehensive and coordinated conservation and management of these areas and the activities affecting them in a manner which complements existing regulatory authorities. Section 1433 of the NMSA provides sanctuary designation standards and factors to consider in determining whether an area qualifies for consideration as a potential sanctuary, and section 1434 establishes procedures for sanctuary designation and implementation. Day-to-day management of the NMSS has been delegated by the Secretary to the ONMS. Regulations implementing the NMSA and each sanctuary are codified in Title 15 Part 922 of the Code of Federal Regulations (CFR).
NOAA first developed a formal process for identifying and evaluating sites for consideration as potential national marine sanctuaries in the late 1970s. In 1983, NOAA replaced this process with the Site Evaluation List (SEL) (48 FR 24295). As described in NOAA regulations at 15 CFR 922.3, the SEL was a list of natural and historical marine resource sites selected by the Secretary as qualifying for further evaluation for possible designation as national marine sanctuaries. The SEL included detailed criteria, relied on regional review panels, and was intended to be reviewed and updated every five years. When it was published in 1983, the SEL included 29 sites (48 FR 35568), four of which were subsequently designated as sanctuaries: Flower Garden Banks (1991), Stellwagen Bank (1992), Western Washington Outer Coast (renamed Olympic Coast, 1994), and Thunder Bay (2000) national marine sanctuaries (NMS). The list of sites on the SEL can be found at
When the SEL was established, the criteria for nominating sites to the list focused primarily on the natural resource qualities that made an area eligible for sanctuary designation. The Marine Sanctuaries Amendments Act of 1984 (Pub. L. 98–496) added historical, research and educational qualities to the list of designation criteria. In 1988, NOAA issued a final rule (53 FR 43801) reflecting these amendments and, in 1989, announced that it would consider new sites for the SEL consistent with these revised criteria (54 FR 53432).
In 1995, the ONMS Director deactivated the SEL (60 FR 66875) to focus on management of the existing sanctuaries, which at that time there were a total of twelve national marine sanctuaries. Since then, only one national marine sanctuary, Thunder Bay National Marine Sanctuary, has been added to the NMSS. Public interest in the designation of new national marine sanctuaries has, however, remained strong. A variety of individuals, local, state, and tribal governments, academic institutions, citizen groups, and non-government organizations from coastal communities around the country have requested NOAA, the Department of Commerce, and the President to consider designating additional sanctuaries. These requests often reference the many and diverse benefits that coastal communities realize from an adjacent national marine sanctuary, including, but not limited to: Meaningful protection of nationally significant marine resources; significant social and economic benefits from expanded travel, tourism, and recreation, as well as ocean-related jobs; increased opportunity for, and access to, federal research focused on local marine resources; education programs to promote ocean literacy, sustainable uses, and stewardship; and community-driven problem solving for a myriad of ocean issues.
The purpose of this proposed rulemaking is to:
(1) Provide public notice that NOAA is re-establishing the public process to nominate areas of the marine and Great Lakes environments for consideration as national marine sanctuaries;
(2) Seek public comment on proposed changes to various sections of the ONMS regulations at 15 CFR 922; and
(3) Seek public comment on the criteria and process NOAA proposes using to evaluate new sanctuary nominations.
This proposed rule proposes criteria, process, and regulatory changes necessary to provide the American public an opportunity to nominate marine areas that NOAA may consider for designation as a national marine sanctuary. This new sanctuary nomination process intends to focus on proposals generated and driven by local and regional community groups and coalitions. As such, it would replace the old SEL process—which tended towards an agency-driven, “top-down” approach—with a more grassroots, “bottom-up” approach to sanctuary nominations. NOAA is, therefore, proposing to remove all terminology referencing the SEL in order to ensure that the sanctuary nomination process ultimately implemented by NOAA is more community driven, open to public input and analysis, and that any sites ultimately designated as national marine sanctuaries have widespread community support. NOAA will begin accepting new nominations following issuance of a final rule, which will be published after consideration of public comment on the proposed criteria and regulations below. NOAA is not accepting nominations for new national marine sanctuaries at this time, nor is it considering evaluation of sites from the deactivated SEL. If NOAA determines that a nominated site meets the final criteria, the agency may then choose to begin the public process for national marine sanctuary designation.
The public may re-nominate sites from the deactivated SEL, per the final evaluation criteria, and resubmit these areas for NOAA's consideration. The final criteria will be consistent with the existing standards in section 303(b) of the NMSA, but they may not mirror them exactly. In deciding to pursue an eligible site for designation, NOAA can, and will, contemplate additional criteria or clarifications of existing criteria, such as the ONMS' fiscal capability to manage any area as a national marine sanctuary. Ultimately, the agency seeks to have the most robust means possible for designating areas of special national significance as new national marine sanctuaries.
NOAA requests public comment on: (1) The completeness and utility of the following twelve criteria for evaluating areas of the marine environment as possible new national marine sanctuaries; (2) NOAA's proposed process steps for receiving sanctuary nominations; and (3) proposed amendments to ONMS regulations.
NOAA will analyze the comments on these criteria and any additional criteria proposed by the public and publish the final evaluation criteria in its final rule on this process. The twelve criteria NOAA proposes to evaluate ares of the marine environment as possible new national marine sanctuaries are:
(1) The area's natural resource and ecological qualities, including its contribution to biological productivity, maintenance of ecosystem structure, maintenance of ecologically or commercially important or threatened species or species assemblages, maintenance of critical habitat of endangered species, and the biogeographic representation of the site.
(2) The area's historical, cultural, archaeological, or paleontological significance.
(3) The present and potential uses of the area that depend on maintenance of the area's resources, including commercial and recreational fishing, subsistence uses, other commercial and recreational activities, and research and education.
(4) The present and potential activities that may adversely affect the significance, values, qualities, resources and uses identified above.
(5) The existing State and Federal regulatory and management authorities applicable to the area and the adequacy of those authorities to fulfill the purposes and policies of the NMSA.
(6) The manageability of the area, including such factors as its size, its ability to be identified as a discrete ecological unit with definable boundaries, its accessibility, and its suitability for monitoring and enforcement activities.
(7) The public benefits to be derived from sanctuary status, with emphasis on the benefits of long-term protection of nationally significant resources, vital habitats, and resources which generate tourism.
(8) The negative impacts produced by management restrictions on income-generating activities such as living and nonliving resources development.
(9) The socioeconomic effects of sanctuary designation.
(10) The area's scientific value and value for monitoring the resources and natural processes that occur there.
(11) The feasibility of employing innovative management approaches to protect sanctuary resources or to manage compatible uses.
(12) The value of the area as an addition to the System.
As part of the new sanctuary nomination process, NOAA is contemplating the following procedures and protocols:
(1) A nomination must have broad community support, including a combination of such entities as local government organizations, elected officials, tribes, stakeholder groups (e.g., industry or non-governmental organizations), or academia.
(2) In nominating an area for national marine sanctuary consideration, a coalition of advocates should strive to provide documentation and/or analyses that address as many of the final evaluation criteria as possible. (NOAA will publish the final evaluation criteria in its final rule on this process.)
(3) NOAA will maintain a publically transparent inventory on the ONMS Web site of those nominations that have successfully demonstrated eligibility for national marine sanctuary designation. These nominations would not automatically equate to sanctuary designation.
(4) NOAA would implement any new sanctuary designation as a separate process from the nomination process, and under the highly participatory standards enacted by the NMSA and the National Environmental Policy Act (NEPA).
In this rulemaking, NOAA proposes to revise 15 CFR 922.10 to codify a statement that NOAA is once again accepting nominations for national marine sanctuary designation. NOAA is also proposing to eliminate all regulations related to the SEL by removing 15 CFR 922.21 and 922.23, and removing SEL from the Definitions section at 15 CFR 922.3.
Note that, through a separate rulemaking action (78 FR 5998, January 28, 2013), NOAA is also proposing to revise regulations regarding the SEL as part of a comprehensive regulatory review pursuant to Executive Order 13563. NOAA will resolve any inconsistencies between these two rules in the respective final rules.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. A description of this action, its purpose, and its legal basis are described in the preamble to this proposed rule and is not repeated here. The factual basis for this certification is as follows:
This rule proposes administrative changes to the regulations. The proposed action will only modify the procedural regulations to reactivate the sanctuary nomination process and set forth the nomination process and evaluation criteria for evaluating areas of the marine environment as possible new national marine sanctuaries.
The types of small entities that may be impacted by this rulemaking are local government organizations, tribes, stakeholder groups (e.g., industry or non-governmental organizations), or academia who wish to nominate areas of the marine environment for consideration as a national marine sanctuary. The agency, however, does not currently have data reflecting how many of these entities would submit nominations for possible designation as a new national marine sanctuary, but it anticipates that it would be a very small number. The impacts of this rulemaking would also be very small, as the proposed provisions merely set forth the proposed nomination process and evaluation criteria. The submission of nominations is purely voluntary, and this rulemaking does not impose any costs or requirements beyond those related to the preparation of documentation in support of the nomination. This action does not include any decisions or determinations on future sanctuary site designations. The impact of future potential national marine sanctuary designations will be evaluated individually on a case-by-case basis and will be subject to a Regulatory Flexibility Act review at that time. Therefore, it is not expected that the modifications of the regulations at 15 CFR 922.10 will have a significant economic impact on a substantial number of small entities.
This proposed rule does not establish any new reporting, record-keeping, or other compliance requirements.
This proposed rule has been determined to not be significant within the meaning of Executive Order 12866.
Administrative practice and procedure, Amendments, Appeals, Appellant, Application requirements, Authorizations, Definitions, Designation, Environmental protection, Marine resources, Motorized personal watercraft, Natural resources, Permitting, Permit procedures, Prohibited activities, Special use permit, Stowed and not available for immediate use, Resources, Research, Traditional fishing, Water resources.
Accordingly, for the reasons set forth above, NOAA proposes to amend 15 CFR part 922 as follows:
16 U.S.C. 1431
(a) The sanctuary nomination process is currently active.
(b) To find out how to submit a nomination, contact ONMS by visiting
(c) The Director will evaluate all nominations according to the criteria identified in section 303(b) of the National Marine Sanctuaries Act, Sanctuary Designation Standards (16 U.S.C. 1433), and any further guidance issued by NOAA.
(d) The Director will maintain a publically available inventory of sites that NOAA has determined to be eligible for sanctuary designation.
(e) A determination that a site is eligible for sanctuary designation, by itself shall not subject the site to any regulatory control under the Act. Such controls may only be imposed after designation.
Federal Energy Regulatory Commission, DOE.
Notice of proposed rulemaking.
Pursuant to section 215 of the Federal Power Act, the Commission proposes to approve the retirement of 34 requirements within 19 Reliability Standards identified by the North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization. The requirements proposed for retirement either: Provide little protection for Bulk-Power System reliability or are redundant with other aspects of the Reliability Standards. In addition, the Commission proposes to withdraw 41 outstanding Commission directives that NERC develop modifications to Reliability Standards. The Commission believes that the identified outstanding directives have either been addressed in some other manner, are redundant with another directive or provide general guidance as opposed to a specific directive and, therefore, that withdrawal of these outstanding directives will have little impact the reliability of the Bulk-Power System. This proposal is part of the Commission's ongoing effort to review its requirements and reduce unnecessary burdens by eliminating requirements that are not necessary to the performance of the Commission's regulatory responsibilities.
Comments are due August 27, 2013.
Comments, identified by docket number, may be filed in the following ways:
• Electronic Filing through
•
Kevin Ryan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502–6840. Michael Gandolfo (Technical Information), Office of Electric Reliability, Division of Reliability Standards and Security, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502–6817.
1. Pursuant to section 215(d) of the Federal Power Act (FPA),
2. In addition, we propose to withdraw 41 outstanding Commission directives that NERC develop modifications to Reliability Standards. In Order No. 693 and subsequent final rules, the Commission has identified various issues and directed NERC to develop modifications to the Reliability Standards or take other action to address those issues.
3. Pursuant to Executive Order 13579, the Commission issued a plan to identify regulations that warrant repeal or modification, or strengthening, complementing, or modernizing where necessary or appropriate.
4. Section 215 of the FPA requires the Commission-certified ERO to develop mandatory and enforceable Reliability
5. In the March 2012 Order, the Commission accepted, with conditions, NERC's “Find, Fix, Track and Report” (FFT) initiative. The FFT process,
6. In its February 28, 2013 petition, NERC seeks Commission approval of the retirement of 34 requirements within 19 Reliability Standards. NERC asserts that the 34 requirements proposed for retirement “are redundant or otherwise unnecessary” and that “violations of these requirements . . . pose a lesser risk to the reliability of the Bulk-Power System.”
7. In addition, in its petition, NERC provides a description of the collaborative process adopted by industry stakeholders to respond to the Commission's proposal in paragraph 81 of the March 2012 Order. NERC maintains that the “scope of the P 81 project was limited solely to the removal of requirements in their entirety that would not otherwise compromise the integrity of the specific Reliability Standard or impact the reliability of the BES.”
8. NERC states that the “P 81 Team” developed three criteria for its review:
9. Specifically, the seven questions adopted for Criterion C are:
10. NERC maintains that the project team focused on the identification of “lower-level facilitating requirements that are either redundant with other requirements or where evidence retention is burdensome and the requirement is unnecessary” because the reliability goal is achieved through other standards or mechanisms.
11. Based on this approach, NERC identified the following 34 requirements
12. NERC also requests that the Commission approve the implementation plan, provided as Exhibit C to NERC's petition, which provides that the identified requirements will be retired immediately upon Commission approval.
13. NERC states that it will apply the “concepts” from the P 81 project to improve the drafting of Reliability Standards going forward. Specifically, NERC explains that Reliability Standards development projects “will involve stronger examination for duplication of requirements across the NERC body of Reliability Standards and the technical basis and necessity for each and every requirement will continue to be evaluated.”
14. Pursuant to section 215 of the FPA, we propose to approve the retirement of the 34 requirements within 19 Reliability Standards identified by NERC as just, reasonable, not unduly discriminatory or preferential, and in the public interest. In the March 2012 Order, the Commission explained that “some current requirements likely provide little protection for Bulk-Power System reliability or may be redundant. The Commission is interested in obtaining views on whether such requirements could be removed from the Reliability Standards with little effect on reliability and an increase in efficiency of the ERO compliance program.”
15. We agree with NERC that the elimination of certain requirements that pertain to the information collection or documentation will not result in a reliability gap. Section 400 and Appendix 4C (Uniform Compliance Monitoring and Enforcement Program) of the NERC Rules of Procedure provide NERC and the Regional entities the authority to enforce reporting obligations necessary to support reliability.
16. The specific requirements, NERC's rationale supporting retirement, and the Commission's proposed approval of the retirements are outlined below.
17. BAL–005–0.2b, Requirement R2—Automatic Generation Control:
18. NERC states that the reliability purpose of BAL–005–0.2b is “to establish requirements for Balancing Authority Automatic Generation Control (“AGC”) necessary to calculate Area Control Error (“ACE”) and to routinely deploy the Regulating Reserve.”
19. NERC states that, although the Commission has previously rejected an argument regarding the potential redundancy of Requirement R2, “this Requirement is redundant in an operational sense.”
20. We propose to approve the retirement of BAL–005–0.2b, Requirement R2 based on NERC's assertion that the requirement is redundant with BAL–001–0.1a, Requirements R1 and R2. Specifically, we propose to accept NERC's explanation that the obligation to maintain regulating reserves controlled by automatic generation control under BAL–005–0.2b, Requirement R2 is redundant from an operational perspective with the obligation to meet the Control Performance Standards in BAL–001–0.1a, Requirements R1 and R2. As NERC notes, although a balancing authority can meet the Control Performance Standards without automatic generation control, it is reasonable to assume that it cannot operate in that manner for an extended period of time and that a balancing authority must ultimately rely on regulating reserves controlled by automatic generation control.
21. CIP–003–3, –4, Requirement R1.2—Cyber Security—Security Management Controls:
22. NERC states that CIP–003 requires responsible entities to have minimum security management controls in place to protect critical cyber assets. According to NERC, the “reliability purpose and objectives of CIP–003 are unaffected by the proposed retirement of Requirement R1.2.”
23. We propose to approve the retirement of CIP–003–3, -4, Requirement R1.2 based on NERC's explanation that it is an administrative provision that provides little protection for Bulk-Power System reliability. As NERC explains, the training, procedures, and process related requirements of the CIP standards render having the cyber security policy readily available an unnecessary requirement.
24. CIP–003–3, –4, Requirements R3, R3.1, R3.2, and R3.3—Cyber Security—Security Management Controls:
25. NERC states that CIP–003 requires Responsible Entities to have minimum security management controls in place to protect critical cyber assets. NERC asserts that the “reliability purpose and objectives of CIP–003 are unaffected by the proposed retirement of Requirements R3, and R3.1 through R3.3.”
26. NERC explains that CIP–003–3, –4, Requirement R3, R3.1, R3.2, and R3.3 “have proven not to be useful and have been subject to misinterpretation.”
27. We propose to approve the retirement of CIP–003–3, –4, Requirements R3, R3.1, R3.2, and R3.3 based on NERC's explanation that Requirements R3, R3.1, R3.2, and R3.3 impose administrative tasks that provide little protection for Bulk-Power System reliability. As NERC notes, the exception process outlined under CIP–003–3, –4, Requirements R3, R3.1, R3.2, and R3.3 only applies to a responsible entity's internal corporate policy, and only in situations where a responsible entity's internal corporate policy exceeds a CIP Reliability Standard requirement. The retirement of CIP–003–3, –4, Requirements R3, R3.1, R3.2, and R3.3 will not affect a responsible entity's compliance with the body of the CIP Reliability Standards.
28. CIP–003–3, –4, Requirement R4.2—Cyber Security—Security Management Controls:
29. NERC states that CIP–003, Requirement R4.2 requires responsible entities to classify information based on its “sensitivity.” NERC characterizes
30. We propose to approve the retirement of CIP–003–3, -4, Requirement R4.2 based on NERC's explanation that Requirement R4.2 is redundant with CIP–003–3, -4, Requirement R4. Specifically, the only distinction between CIP–003–3, -4, Requirement R4.2 and Requirement R4 is the subjective term “based on the sensitivity.” The obligation in Requirement R4 that a responsible entity must identify, classify, and protect Critical Cyber Asset information remains even with the retirement of Requirement R4.2.
31. CIP–005–3a, –4a, Requirement R2.6—Cyber Security—Electronic Security Perimeter(s):
32. NERC states that the general purpose of CIP–005–3a, –4a is to ensure a proper or secure access point configuration. NERC asserts that the “implementation of an appropriate use banner . . . on a user's screen for all interactive access attempts into the Electronic Security Perimeter . . . is an activity or task that is administrative.”
33. NERC explains that Requirement R2.6 has also been the subject of numerous technical feasibility exceptions for devices that cannot support such a banner and, thus, has diverted resources from more productive efforts. NERC avers that “the ERO's compliance program would become more efficient if CIP–005–3a, –4a [Requirement] R2.6 was retired, because ERO time and resources could be reallocated to monitor compliance with the remainder of CIP–005–3a, –4a, which provides for more effective controls of electronic access at all electronic access points into the ESP.”
34. We propose to approve the retirement of CIP–005–3a, –4a, Requirement R2.6 based on NERC's explanation that Requirement R2.6 represents an administrative task that provides little protection for Bulk-Power System reliability. As NERC notes, the implementation of an appropriate use banner as required under CIP–005–3a, –4a, Requirement R2.6 does not further the general goal of controlling electronic access at all electronic access points to the Electronic Security Perimeter(s). In addition, Requirement R2.6 has been the subject of numerous technical feasibility exceptions due to the fact that not all devices can support an appropriate use banner.
35. CIP–007–3, –4, Requirement R7.3—Cyber Security—Systems Security Management:
36. NERC states that Requirement R7.3 requires the maintaining of records for the purpose of demonstrating compliance with disposing of or redeploying Cyber Assets in accordance with documented procedures. NERC asserts, however, that it and the Regional Entities can require the production of records to demonstrate compliance under section 400 of the NERC Rules of Procedure. Therefore, NERC maintains that “Requirement R7.3 is redundant and unnecessary.”
We propose to approve the retirement of CIP–007–3, –4, Requirement R7.3. The retirement of Requirement R7.3 will not relieve a responsible entity of the obligation to dispose of or redeploy a Cyber Asset in the manner set forth in CIP–007–3, –4, Requirement R7. Should NERC or the Regional Entities seek to confirm that a responsible entity is complying with the substantive obligations in CIP–007–3, –4, Requirement R7, they can invoke their authority under section 400 of the NERC Rules of Procedure.
37. EOP–005–2, Requirement R3.1—System Restoration from Blackstart Services:
38. NERC states that the reliability purpose of EOP–005–2 is to ensure that plans, Facilities, and personnel are prepared to enable system restoration from blackstart resources to assure that reliability is maintained during restoration and priority is placed on restoring the Interconnection. According to NERC, the reliability purpose of EOP–005 will be unaffected by the retirement of Requirement R3.1.
39. NERC explains that “EOP–005–2 Requirement R3 currently requires the Transmission Operator to submit its restoration plan to its Reliability Coordinator, whether or not the plan includes changes.”
40. We propose to approve the retirement of EOP–005–2, Requirement R3.1 based on NERC's explanation that Requirement R3.1 is redundant with EOP–005–2, Requirement R3. Specifically, Requirement R3 requires a responsible entity to review its restoration plan and submit the plan to its reliability coordinator annually. As NERC notes, Requirement R3.1 adds a separate, duplicative administrative burden requiring a transmission operator to confirm whether or not the restoration plan reflects any changes. The retirement of Requirement R3.1 will not remove the transmission operator's obligation to review and submit its restoration plan to its reliability coordinator on an annual basis.
41. FAC–002–1, Requirement R2—Coordination of Plans for New Facilities:
42. NERC states that the reliability purpose of FAC–002 is to avoid adverse impacts on reliability by requiring generator owners and transmission owners and electricity end-users to meet facility connection and performance requirements. Specifically, NERC maintains that “Responsible Entities have an existing obligation to produce the same information required by Requirement R2 to demonstrate compliance with Requirement R1 and its sub-requirements, thus making Requirement R2 redundant.”
43. We propose to approve the retirement of FAC–002–1, Requirement R2 based on NERC's explanation that Requirement R2 is redundant with the compliance obligations imposed by FAC–002–1, Requirement R1 and its sub-requirements. While FAC–002–1, Requirement R2 requires a responsible entity to retain documentation of the evaluation of the reliability impact of new facilities and their connections to the interconnected transmission systems for three years, Requirement R1 and its sub-requirements require a responsible entity to have evidence and documentation of the evaluation in order to show that it is in compliance. We also note that Part D, Section 1.4 of FAC–002–1 separately specifies a data retention period of three years for this evaluation. The retirement of Requirement R2 should not result in a reliability gap on account of the need to maintain evidence and documentation to show compliance with FAC–002–1, Requirement R1.
44. FAC–008–3, Requirements R4 and R5—Facility Ratings:
45. NERC states that “the reliability objective [of FAC–008 is] that facility ratings produced by the methodologies of the Transmission Owner or Generator Owner shall equal the most limiting applicable equipment rating, and consider, for example, emergency and normal conditions, historical performance, nameplate ratings, etc.”
46. NERC states further that “neither FAC–008–3 R4 nor R5 require that the Transmission Owner and Generator Owner change its methodology, rather FAC–008–3 R4 and R5 are designed as an exchange of comments that may be an avenue to advance commercial interests.”
47. We propose to approve the retirement of FAC–008–03, Requirements R4 and R5 based on NERC's explanation that Requirements R4 and R5 impose an administrative task that provides little protection for Bulk-Power System reliability. The retirement of Requirements R4 and R5 will not relieve a transmission owner or generator owner of the obligation to have documentation supporting its facility ratings methodology.
Requirements R4 and R5, therefore, impose a compliance burden with little attendant reliability benefit.
48. FAC–010–2.1, Requirement R5—System Operating Limits Methodology for the Planning Horizon:
49. NERC states that the reliability purpose of FAC–010–2.1 is to ensure that system operating limits used in the reliable planning of the bulk electric system are determined based on an established methodology.
The value (such as MW, MVar, Amperes, Frequency or Volts) that satisfies the most limiting of the prescribed operating criteria for a specified system configuration to ensure operation within acceptable reliability criteria.
50. NERC states that “FAC–010- 2.1 R5 sets forth an administrative task that does little, if anything, to benefit or protect the reliable operation of the BES, and has the potential to implicate commercially sensitive issues.”
51. We propose to approve the retirement of FAC–010–2.1, Requirement R5 based on NERC's explanation that Requirement R5 imposes an administrative task that provides little protection for Bulk-Power System reliability. The retirement of Requirement R5 will not relieve a planning authority of the obligation to document its system operating limits methodology under the remaining provisions of FAC–010–2.1. In addition, the retirement of Requirement R5 will not relieve a planning authority from its obligation pursuant to Requirement R4 of the standard to provide its system operating limits methodology, including any changes to the methodology, to the appropriate entities prior to the effective date of any such change. Based on the explanation in NERC's petition, Requirement R5 imposes a compliance burden with little attendant reliability benefit.
52. FAC–011–2.1, Requirement R5—System Operating Limits Methodology for the Operations Horizon:
53. NERC states that FAC–011–2 Requirement R5 requires that, when a reliability coordinator receives comments on its system operating limit methodology, the reliability coordinator must respond and indicate whether it has changed its methodology. According to NERC, the “retirement of FAC–011–2 R5 does not create a reliability gap, because the Reliability Coordinator must comply with the substantive requirements of FAC–011–2 R5 [
54. NERC states that FAC–011–2, Requirement R5 sets forth an administrative task that does little, if anything, to benefit or protect the reliable operation of the BES. NERC asserts that “[i]nstead of spending time and resources on FAC–011–2 R5 a Reliability Coordinator's time and resources would be better spent complying with the substantive requirements” of FAC–011–2.
55. We propose to approve the retirement of FAC–011–2, Requirement R5 based on NERC's explanation that Requirement R5 imposes an administrative task that provides little protection for Bulk-Power System reliability. The retirement of Requirement R5 will not relieve a reliability coordinator of the obligation to document its system operating limits methodology under the remaining provisions of FAC–011–2. In addition, the retirement of Requirement R5 will not relieve a reliability coordinator from its obligation pursuant to Requirement R4 of the standard to provide its system operating limits methodology, including any changes to the methodology, to the appropriate entities prior to the effective date of any such change. Based on the explanation in NERC's petition, Requirement R5 imposes a compliance burden with little attendant reliability benefit.
56. FAC–013–2, Requirement R3—Assessment of Transfer Capability for the Near-term Transmission Planning Horizon:
57. NERC states that FAC–013–2, Requirement R3 is a needlessly burdensome administrative task that does little, if anything, to benefit or protect the reliable operation of the BES. NERC explains FAC–013–2, Requirement R1 and its associated sub-requirements set forth the information that each Planning Authority must include when developing its transfer capability methodology. NERC explains further “FAC–013–2 R3 sets forth a requirement that if an entity comments on this methodology, the Planning Authority must respond and indicate whether or not it will make a change to its Transfer Capability methodology.”
58. NERC states that “it would seem unnecessarily burdensome to engage in the exchange of comments, given there is no nexus between the exchange and compliance with the substantive requirements of FAC–013–2.”
59. We propose to approve the retirement of FAC–013–2, Requirement R3 based on NERC's explanation that Requirement R3 imposes an administrative task that provides little protection for Bulk-Power System reliability. The retirement of Requirement R3 will not relieve a planning coordinator of the obligation to document its transfer capability methodology under the remaining provisions of FAC–013–2. In addition, the retirement of Requirement R3 will not relieve a planning coordinator from its obligation pursuant to Requirement R2 of the standard to provide its transfer capability methodology, including any changes to the methodology, to the appropriate entities prior to the effective date of any such change. Based on the explanation in NERC's petition, Requirement R3 imposes a compliance burden with little attendant reliability benefit.
60. INT–007–1, Requirement R1.2—Interchange Confirmation:
61. NERC states that the reliability purpose of INT–007–1 is to ensure that each arranged interchange is checked for reliability before it is implemented. NERC maintains that the reliability purpose of INT–007–1 “is unaffected by the proposed retirement of Requirement R1.2” and avers that “Requirement R1.2 is an administrative task that is now outdated.”
62. Specifically, NERC explains “[a]t one time, the identification number came from the NERC Transmission System Information Network (“TSIN”) system, which is now handled via the NAESB Electric Industry Registry.”
63. We propose to approve the retirement of INT–007–1, Requirement R1.2 based on NERC's explanation that Requirement R1.2 is an outdated administrative task that provides little protection for Bulk-Power System reliability. The identification of entities engaging in arranged interchange transactions is now addressed through the NAESB Electric Industry Registry, and the registration for such transactions is now handled through the E-Tag system. The retirement of INT–007–1, Requirement R1.2 will not result in a gap in reliability.
64. IRO–016–1, Requirement R2—Coordination of Real-Time Activities Between Reliability Coordinators:
65. NERC states that IRO–016 establishes requirements for coordinated real-time operations, including: (1) Notification of problems to neighboring reliability coordinators and (2) discussions and decisions for agreed-upon solutions for implementation. NERC explains that the reliability purpose of IRO–016–1 is to ensure that each reliability coordinator's operations are coordinated such that they will not have an adverse reliability impact on other reliability coordinator areas and to preserve the reliability benefits of interconnected operations. NERC asserts that “Requirement R2 is an administrative task and the proposed retirement will not adversely impact reliability” and, “[t]herefore, the reliability purpose of IRO–016–1 is unaffected by the proposed retirement of Requirement R2.”
66. In addition, NERC notes that NERC and the Regional Entities have the authority to require an entity to submit data and information for purposes of monitoring compliance under section 400 of the NERC Rules of Procedure. NERC asserts, therefore, that “the retirement of IRO–016–1 Requirement R2 does not affect the ability for NERC and the Regional Entities to require Reliability Coordinators to produce documentation to demonstrate compliance with IRO–016–1 Requirement R1 and its sub-requirements.”
67. We propose to approve the retirement of IRO–016–1, Requirement R2 based on NERC's assertion that Requirement R2 establishes an administrative task that provides little protection for Bulk-Power System reliability. Specifically, the retirement of IRO–016–1, Requirement R2 will not interfere with the substantive aspects of the Reliability Standard found in Requirement R1. We also note that Part D, Section 1.3 of the standard establishes for reliability coordinators a data retention obligation with respect to the substantive aspects of the standard. The retirement of Requirement R2 will not have an adverse effect on reliability, nor will retirement inhibit the ability of NERC or the Regional Entities to seek documentation to assess compliance with the reliability standard.
68. NUC–001–2, Requirements R9.1, R9.1.1, R9.1.2, R9.1.3, and R1.9.4—Nuclear Plant Interface Coordination:
69. NERC states that the reliability purpose of NUC–001–2 is to ensure the coordination between nuclear plant generator operators and transmission entities for nuclear plant safe operation and shutdown. NERC explains that Requirement 9.1 and its sub-requirements specify certain administrative elements that must be included in the agreement (required in Requirement R2) between the nuclear plant generator operator and the applicable transmission entities.
70. NERC asserts that Requirement R9.1 and its sub-requirements are administrative tasks and the proposed retirement of these Requirements will not adversely impact reliability. NERC states further that “requiring via a mandatory Reliability Standard the inclusion of boilerplate provisions is unnecessarily burdensome relative to the other significant requirements in NUC–001–2 that pertain to performance based reliability coordination and protocols between Transmission Entities and Nuclear Plant Generator Operators.”
71. We propose to approve the retirement of NUC–001–2, Requirements 9.1, 9.1.1, 9.1.2, 9.1.3 and 9.1.4 based on NERC's explanation that Requirement 9.1 and its sub-requirements reflect administrative elements currently required to be included in the nuclear plant interface requirements between a nuclear plant generator operator and applicable transmission entities. The administrative elements required under Requirement 9.1 and its sub-requirements do not relate to the substantive, technical requirements of NUC–001–2 (i.e., technical requirements and analysis, operations and maintenance coordination, and communications and training), and provide little protection for Bulk-Power System reliability.
72. PRC–010–0, Requirement R2—Assessment of the Design and Effectiveness of UVLS Programs:
73. NERC explains that PRC–010–0 requires certain registered entities to periodically conduct and document an assessment of the effectiveness of their under voltage load shedding (UVLS) program at least every five years or as required by changes in system conditions. NERC states that the purpose of PRC–010–0 is to provide system preservation measures to prevent system voltage collapse or voltage instability by implementing an UVLS program. NERC asserts that it and the Regional Entities have the authority under section 400 of the NERC Rules of Procedure “to require an entity to submit documentation of its current UVLS program assessment for purposes of monitoring compliance.”
74. NERC states further that the retirement of PRC–010–0, Requirement R2 does not affect the ability of NERC and the Regional Entities to require reliability coordinators to produce documentation to monitor compliance with PRC–010–0. Specifically, NERC explains that PRC–010–0, Requirement R1 requires entities to “document an assessment of the effectiveness of its UVLS program[.]”
75. We propose to approve the retirement of PRC–010–0, Requirement R2 based on NERC's explanation that the administrative task imposed under Requirement R2 is redundant with NERC and the Regional Entity authority under section 400 of the NERC Rules of Procedure. Requirement R1 of PRC–010–0 sets forth the substantive requirements for applicable entities to periodically conduct and document an assessment of the effectiveness of its UVLS program. Requirement R2 dictates that an entity must provide documentation of its current assessment to NERC and/or the appropriate Regional Reliability Organization upon request. The retirement of PRC–010–0, Requirement R2 will not hamper the ability of NERC or the Regional Entities to compel the production of the assessments required under Requirement R1 since these entities may obtain this information pursuant to section 400 of the NERC Rules of Procedure.
76. PRC–022–1, Requirement R2—Under-Voltage Load Shedding Program Performance:
77. NERC states that the purpose of Reliability Standard PRC–022–1 is to ensure that UVLS programs perform as intended to mitigate the risk of voltage collapse or voltage instability in the bulk electric system. NERC explains that PRC–022–1, Requirement R2 requires entities to provide documentation of its analysis of its UVLS program performance within 90 days of request. NERC maintains that the retirement of Requirement R2 “does not affect the ability of NERC to require Reliability Coordinators to produce documentation to monitor compliance with PRC–022–1 Requirement R1 and its sub-requirements.”
78. Specifically, NERC explains that PRC–022–1, Requirement R1 requires that the entity document the performance of its UVLS program. NERC avers that the retirement of PRC–022–1, Requirement R2 “is consistent with reliability principles and will not result in a gap in reliability as NERC has the ability to request [the information documented under PRC–022–1, Requirement R2] pursuant to Section 400 of the NERC Rules of Procedure.”
79. We propose to approve the retirement of PRC–022–1, Requirement R2 based on NERC's explanation that the administrative task imposed under Requirement R2 is redundant with NERC's and the Regional Entities' authority under section 400 of the NERC Rules of Procedure. Requirement R1 of PRC–022–1 sets forth the substantive requirements for each applicable entity to document its analysis of the performance of its UVLS program. The retirement of PRC–022–1, Requirement R2 will not hamper the ability of NERC or the Regional Entities to compel the production of the analysis required under Requirement R1 since they may obtain this information pursuant to section 400 of the NERC Rules of Procedure.
80. VAR–001–2, Requirement R5—Voltage and Reactive Control:
81. NERC states that the retirement of VAR–001–2, Requirement R5 is consistent with reliability principles since the requirement is redundant with the Commission's
82. In addition, NERC states that the reliability objective of VAR–001–2 is also addressed by VAR–001–2, Requirement R2.
83. We propose to approve the retirement of VAR–001–2, Requirement R5 based on NERC's assertion that Requirement R5 is redundant with provisions of the
84. We seek comment on our proposal to approve the retirement of the 34 requirements discussed above.
85. Since the issuance of Order No. 693, the Commission has issued a number of directives that require NERC to take certain actions. In an effort to make better use of NERC's and the Commission's resources, the Commission has identified 41 of the outstanding directives that the Commission believes are no longer necessary to assure the reliable operation of the Bulk-Power System. As a result, we propose to withdraw the 41 outstanding directives. Attachment A to this NOPR identifies each directive and provides an explanation why we are proposing to withdraw the directive.
86. We used the following three criteria in identifying the 41 outstanding directives for withdrawal: (1) The reliability concern underlying the outstanding directive has been addressed in some manner, rendering the directive stale; (2) the outstanding directive provides general guidance for standards development rather than a specific directive; and (3) the outstanding directive is redundant with another directive. Each of the 41 outstanding directives identified in Attachment A satisfies one or more of these criteria.
87. Therefore, we propose to withdraw the 41 directives listed in Attachment A in the interest of enhancing the efficiency of the ERO standards development process and reducing unnecessary burdens. We seek comment on our proposal to withdraw the listed directives. In particular, we seek comment on whether withdrawing the 41 directives could have a detrimental effect on the reliability of the bulk electric system.
88. The information collection requirements contained in this Proposed Rule are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.
89. The Commission based its paperwork burden estimates on the NERC compliance registry as of April 30, 2013.
90. The Commission estimates that the burden will be reduced for each requirement as dictated in the chart below, for a total estimated reduction in burden of $535,500. The Commission based the burden reduction estimates on staff experience, knowledge, and expertise.
91. The above chart does not include BAL–005–0.2b, Requirement R2; CIP–003–3, –4, Requirement R4.2, CIP–007–3, –4, Requirement R7.3, FAC–002–1, Requirement R2; PRC–010–0, Requirement R2; PRC–022–1, Requirement R2; and VAR–001–2, Requirement R5 because those requirements were found redundant with other requirements.
92.
93.
94. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email:
95. Comments concerning the information collections proposed in this NOPR and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address:
96. The Regulatory Flexibility Act of 1980 (RFA)
97. The Commission seeks comment on the estimated impact of the proposed reduction of requirements on small business entities. The Commission estimates the total reduction in burden for all small entities to be $36,060. The Commission estimates that small planning authorities/planning coordinators will see a reduction of $2,400 per entity per year, greater than for other affected small entities types.
98. Based on the above, the Commission certifies that the proposed Reliability Standards will not have a significant impact on a substantial number of small entities. Accordingly, no initial regulatory flexibility analysis is required.
99. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.
100. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due August 27, 2013. Comments must refer to Docket No. RM13–8–000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.
101. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at
102. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.
103. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.
104. In addition to publishing the full text of this document in the
105. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.
106. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at
By direction of the Commission.
Attachment A will not appear in the Code of Federal Regulations.
Food and Drug Administration, HHS.
Proposed order.
The Food and Drug Administration (FDA) is issuing a proposed administrative order to reclassify the implanted blood access device preamendments class III device into class II (special controls) and subject to premarket notification, and to further clarify the identification. FDA is proposing this reclassification under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) based on new information pertaining to the device. This action implements certain statutory requirements.
Submit either electronic or written comments on the proposed order by July 29, 2013. See section XII for the proposed effective date of any final order that may publish based on this proposed order.
You may submit comments, identified by Docket No. FDA–2012–N–0303, by any of the following methods:
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
Rebecca Nipper, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1540, Silver Spring, MD 20993, 301–796–6527.
The FD&C Act establishes a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).
Under section 513 of the FD&C Act, devices that were in commercial distribution before the enactment of the 1976 amendments, May 28, 1976 (generally referred to as preamendments devices), are classified after FDA has: (1) Received a recommendation from a device classification panel (an FDA advisory committee); (2) published the panel's recommendation for comment, along with a proposed regulation classifying the device; and (3) published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures.
Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as postamendments devices), are automatically classified by section 513(f) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR Part 807).
On July 9, 2012, the Food and Drug Administration Safety and Innovation Act (FDASIA) was enacted. Section 608(a) of FDASIA (126 Stat. 1056) amended the device reclassification procedures under section 513(e) of the FD&C Act, changing the process for reclassifying a device from rulemaking to an administrative order. Prior to the enactment of FDASIA, FDA published a proposed rule under section 513(e) proposing the reclassification of implanted blood access devices for hemodialysis (77 FR 36951; June 20, 2012). FDA is issuing this proposed administrative order to comply with the new procedural requirement created by FDASIA when reclassifying a preamendments class III device. Also as required by section 513(e) of the FD&C Act, FDA has scheduled a panel meeting to discuss the proposed reclassification for June 27, 2013 (78 FR 25747; May 2, 2013). The three comments submitted in response to the proposed rule on implanted blood access devices for hemodialysis will be considered under this proposed administrative order and do not need to be resubmitted. No objections to the proposed reclassification were submitted. This
Section 513(e) of the FD&C Act provides that FDA may, by administrative order, reclassify a device based upon “new information.” FDA can initiate a reclassification under section 513(e) or an interested person may petition FDA to reclassify a preamendments device. The term “new information,” as used in section 513(e) of the FD&C Act, includes information developed as a result of a reevaluation of the data before the Agency when the device was originally classified, as well as information not presented, not available, or not developed at that time. (See, e.g.,
Reevaluation of the data previously before the Agency is an appropriate basis for subsequent regulatory action where the reevaluation is made in light of newly available regulatory authority (see
FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. To be considered in the reclassification process, the valid scientific evidence upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending premarket approval application (PMA). (See section 520(c) of the FD&C Act (21 U.S.C. 360j(c)).) Section 520(h)(4) of the FD&C Act, added by the Food and Drug Administration Modernization Act of 1997 (FDAMA), provides that FDA may use, for reclassification of a device, certain information in a PMA 6 years after the application has been approved. This includes information from clinical and preclinical tests or studies that demonstrate the safety or effectiveness of the device, but does not include descriptions of methods of manufacture or product composition and other trade secrets.
Section 513(e)(1) of the FD&C Act sets forth the process for issuing a final order. Specifically, prior to the issuance of a final order reclassifying a device, the following must occur: (1) Publication of a proposed order in the
FDAMA added section 510(m) to the FD&C Act. Section 510(m) of the FD&C Act provides that a class II device may be exempted from the premarket notification requirements under section 510(k) of the FD&C Act if the Agency determines that premarket notification is not necessary to assure the safety and effectiveness of the device.
As discussed in the preamble to the proposed rule (46 FR 7616; January 23, 1981), the Gastroenterology-Urology Devices Panel recommended that both implanted and nonimplanted blood access devices be classified into class II. Although FDA agreed with the panel recommendation for nonimplanted blood access devices, FDA disagreed with the panel for implanted blood access devices and proposed that implanted blood access devices be classified into class III because FDA believed that the device presented a potential unreasonable risk of illness or injury to the patient. FDA also noted that the implanted blood access device is part of a life-supporting and life-sustaining system and that general controls and performance standards were insufficient to provide reasonable assurance of the safety and effectiveness of implanted blood access devices.
In 1983, FDA classified implanted blood access devices into class III, but the accessories to these devices into class II (48 FR 53012; November 23, 1983). In 1987, FDA published a clarification by inserting language in the codified language stating that no effective date had been established for the requirement for premarket approval for implanted blood access devices (52 FR 17732 at 17738; May 11, 1987).
In 2009, FDA published an order for the submission of information on implanted blood access devices (74 FR 16214; April 9, 2009). In response to that order, FDA received information in support of reclassification from 15 device manufacturers who all recommended that implanted blood access devices be reclassified to class II. The manufacturers stated that safety and effectiveness of these devices may be assured by bench testing, biocompatibility testing, sterility testing, expiration date testing, labeling, and standards.
On June 20, 2012, FDA published a proposed rule proposing the reclassification of implanted blood access devices for hemodialysis from class III to class II (77 FR 36951) and announced the availability of a draft Special Controls Guidance Document that, when finalized, would serve as a special control, if FDA reclassified these devices. FDA believed that the special controls as described in the guidance document entitled “Class II Special Controls Guidance Document: Implanted Blood Access Devices for Hemodialysis” would be sufficient to mitigate the risks to health associated with implanted blood access devices for hemodialysis.
The proposed rule provided for a comment period that was open until September 18, 2012. FDA received three comments that suggested modifications to the proposed Special Controls Guidance Document. These were considered by FDA.
On July 9, 2012, FDASIA was enacted, which amended the device reclassification procedures under sections 513 and 515 of the FD&C Act (21 U.S.C. 360c and 360e, respectively), changing the process for taking final administrative action for these devices. Accordingly, FDA is issuing a proposed administrative order to comply with the new procedural requirement created by FDASIA when reclassifying a preamendments class III device. Further, FDA intends to codify the proposed special controls within the § 876.5540(b)(1) (21 CFR 876.5540(b)(1)) classification regulation.
Implanted blood access devices include various flexible or rigid tubes,
FDA is proposing in this order to modify the identification language from how it is presently written in § 876.5540(a)(1) for additional clarification. FDA is clarifying in the identification that these are prescription devices and modifying the examples of devices (e.g., catheter, cannulae) in the identification language to be consistent with existing legally marketed devices covered by this classification.
FDA is proposing that implanted blood access devices for hemodialysis be reclassified from class III to class II. In this proposed order, the Agency has identified special controls under section 513(a)(1)(B) of the FD&C Act that, together with general controls (including prescription-use restrictions) applicable to the devices, would provide reasonable assurance of their safety and effectiveness. Absent the special controls identified in this proposed order, general controls applicable to the device are insufficient to provide reasonable assurance of the safety and effectiveness of the device. FDA believes that this new information is sufficient to demonstrate that the proposed special controls can effectively mitigate the risks to health identified in the next section, and that these special controls, together with general controls, will provide a reasonable assurance of safety and effectiveness for implanted blood access devices.
FDA believes that these devices can be utilized to provide access to a patient's blood for hemodialysis or other chronic uses for 30 days or more. When used in hemodialysis, the device is part of an artificial kidney system for the treatment of patients with renal failure or toxemic conditions and provides access to a patient's blood for hemodialysis.
FDA has considered implanted blood access devices in accordance with the reserved criteria set forth in section 510(l) and decided that the device requires premarket notification (510(k) of the FD&C Act). Therefore, the Agency does not intend to exempt this proposed class II device from premarket notification (510(k)) submission as provided under section 510(m) of the FD&C Act.
After considering available information for the classification of these devices, FDA has evaluated the risks to health associated with the use of implanted blood access devices for hemodialysis and determined the following risks to health are associated with its use:
•
•
•
•
•
•
•
FDA believes that implanted blood access devices for hemodialysis should be reclassified from class III to class II because special controls, in addition to general controls, can be established to provide reasonable assurance of the safety and effectiveness of the device, and because general controls themselves are insufficient to provide reasonable assurance of its safety and effectiveness. In addition, there is now sufficient information to establish special controls to provide such assurance.
While current clinical practice guidelines recommend avoiding implanted blood access devices, such as catheters, if possible, they are still a necessary treatment option, and are used in a significant number of hemodialysis patients. While the risks are frequently cited, there are many advantages of implanted blood access devices, which lead to their relatively frequent use, as described previously. In many cases, vascular access for hemodialysis is needed urgently, and the alternatives, such as the arteriovenous fistula or the arteriovenous graft require weeks and months, respectively, before they can be used. Implanted blood access devices are frequently used as the immediate hemodialysis vascular access and also as a bridge to a more permanent vascular access. Additionally, some patients may have inadequate vascular anatomy to establish a more permanent vascular access and may require continued implanted blood access device use.
FDA believes that the identified special controls, in addition to general controls, are necessary to provide reasonable assurance of safety and effectiveness of these devices. Therefore, in accordance with sections 513(e) and 515(i) of the FD&C Act and § 860.130, based on new information with respect to the device and taking into account the public health benefit of the use of the device and the nature and known incidence of the risk of the device, FDA, on its own initiative, is proposing to reclassify this preamendments class III device into class II. The Agency has identified special controls that would provide reasonable assurance of their safety and effectiveness. Implanted blood access devices for hemodialysis are prescription devices restricted to patient use only upon the authorization of a practitioner licensed by law to administer or use the device (proposed § 876.5540(a); § 801.109 (21 CFR 801.109) (Prescription devices.)).
Since 1983 when FDA classified implanted blood access devices into class III, sufficient evidence has been developed to support a reclassification to class II with special controls. FDA has been reviewing these devices for many years and their risks are well
FDA believes that the following special controls, together with general controls (including applicable prescription-use restrictions and continuing 510(k) notification requirements), are sufficient to mitigate the risks to health described in section V for implanted blood access devices:
1. Components of the device that come into human contact must be demonstrated to be biocompatible. Material names and specific designation numbers must be provided.
2. Performance data must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested:
a. Pressure versus flow rates for both arterial and venous lumens, from the minimum flow rate to the maximum flow rate in 100 ml/min increments, must be established. The fluid and its viscosity used during testing must be stated.
b. Recirculation rates for both forward and reverse flow configurations must be established, along with the protocol used to perform the assay, which must be provided.
c. Priming volumes must be established.
d. Tensile testing of joints and materials must be conducted. The minimum acceptance criteria must be adequate for its intended use.
e. Air leakage testing and liquid leakage testing must be conducted.
f. Testing of the repeated clamping of the extensions of the catheter that simulates use over the life of the catheter must be conducted, and retested for leakage.
g. Mechanical hemolysis testing must be conducted.
h. Chemical tolerance of the catheter to repeated exposure to commonly used disinfection agents must be established.
3. Performance data must demonstrate the sterility of the device.
4. Performance data must support the shelf life of the device for continued sterility, package integrity, and functionality over the requested shelf life that must include tensile, repeated clamping, and leakage testing.
5. Labeling must bear all information required for the safe and effective use of implanted blood access devices for hemodialysis including the following:
a. Labeling must provide arterial and venous pressure versus flow rates, either in tabular or graphical format.
b. Labeling must provide the arterial and venous priming volumes.
c. Labeling must specify the forward and reverse recirculation rates.
d. Labeling must specify an expiration date.
e. Labeling must identify any disinfecting agents that cannot be used to clean any components of the device.
f. Any contraindicated disinfecting agents due to material incompatibility must be identified by printing a warning on the catheter. Alternatively a label can be provided that can be affixed to the patient's medical record with this information.
g. The labeling must contain the following information: Comprehensive instructions for the preparation and insertion of the hemodialysis catheter, including recommended site of insertion, method of insertion, a reference on the proper location for tip placement, a method for removal of the catheter, anticoagulation, guidance for management of obstruction and thrombus formation, and site care.
h. The labeling must identify any coatings or additives and summarize the results of performance testing for any coating or material with special characteristics, such as decreased thrombus formation or antimicrobial properties.
6. For subcutaneous devices, the recommended type of needle for access must be described, stated in the labeling, and test results on repeated use of the ports must be provided.
7. Coated devices must include a description of the coating or additive material, duration of effectiveness, how the coating is applied, and testing to adequately demonstrate the performance of the coating.
In addition, implanted blood access devices are prescription devices restricted to patient use only upon the authorization of a practitioner licensed by law to administer or use the device. (Proposed § 876.5540(a); § 801.109 (Prescription devices.)). Under 21 CFR 807.81, the device would continue to be subject to 510(k) notification requirements. Elsewhere in this issue of the
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This proposed order refers to currently approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in part 807, subpart E, have been approved under OMB control number 0910–0120; the collections of information in 21 CFR Part 814, subpart B, have been approved under OMB control number 0910–0231; and the collections of information under 21 CFR Part 801 have been approved under OMB control number 0910–0485.
Prior to the amendments by FDASIA, section 513(e) of the FD&C Act provided for FDA to issue regulations to reclassify devices. Although section 513(e) as amended requires FDA to issue final orders rather than regulations, FDASIA also provides for FDA to revoke previously issued regulations by order. FDA will continue to codify classifications and reclassifications in the Code of Federal Regulations (CFR). Changes resulting from final orders will appear in the CFR as changes to codified classification determinations or as newly codified orders. Therefore, under
FDA is proposing that any final order based on this proposed order become effective on the date of its publication in the
Comments submitted to the previous dockets (2012–N–0303) have been officially noted and do not need to be resubmitted. FDA will consider previous docket comments in issuing any final orders for these devices. Interested persons may submit either electronic comments regarding this document or the associated guidance to
The following references have been placed on display in the Division of Dockets Management (see
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR Part 876 be amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a) * * *
(1) The implanted blood access device is a prescription device and consists of various flexible or rigid tubes, such as catheters, or cannulae, which are surgically implanted in appropriate blood vessels, may come through the skin, and are intended to remain in the body for 30 days or more. This generic type of device includes: Single, double, and triple lumen catheters with cuffs; subcutaneous ports with catheters; shunts; cannula; vessel tips; and connectors specifically designed to provide access to blood.
(b)
(i) Components of the device that come into human contact must be demonstrated to be biocompatible. Material names and specific designation numbers must be provided.
(ii) Performance data must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested:
(A) Pressure versus flow rates for both arterial and venous lumens, from the minimum flow rate to the maximum flow rate in 100 ml/min increments, must be established. The fluid and its viscosity used during testing must be stated.
(B) Recirculation rates for both forward and reverse flow configurations must be established, along with the protocol used to perform the assay, which must be provided.
(C) Priming volumes must be established.
(D) Tensile testing of joints and materials must be conducted. The minimum acceptance criteria must be adequate for its intended use.
(E) Air leakage testing and liquid leakage testing must be conducted.
(F) Testing of the repeated clamping of the extensions of the catheter that simulates use over the life of the catheter must be conducted, and retested for leakage.
(G) Mechanical hemolysis testing must be conducted.
(H) Chemical tolerance of the catheter to repeated exposure to commonly used disinfection agents must be established.
(iii) Performance data must demonstrate the sterility of the device.
(iv) Performance data must support the shelf life of the device for continued sterility, package integrity, and functionality over the requested shelf life that must include tensile, repeated clamping, and leakage testing.
(v) Labeling must bear all information required for the safe and effective use of implanted blood access devices for hemodialysis including the following:
(A) Labeling must provide arterial and venous pressure versus flow rates, either in tabular or graphical format.
(B) Labeling must provide the arterial and venous priming volumes.
(C) Labeling must specify the forward and reverse recirculation rates.
(D) Labeling must specify an expiration date.
(E) Labeling must identify any disinfecting agents that cannot be used to clean any components of the device.
(F) Any contraindicated disinfecting agents due to material incompatibility must be identified by printing a warning on the catheter. Alternatively a label can be provided that can be affixed to the patient's medical record with this information.
(G) The labeling must contain the following information: Comprehensive instructions for the preparation and insertion of the hemodialysis catheter, including recommended site of insertion, method of insertion, a reference on the proper location for tip placement, a method for removal of the catheter, anticoagulation, guidance for management of obstruction and thrombus formation, and site care.
(H) The labeling must identify any coatings or additives and summarize the results of performance testing for any coating or material with special characteristics, such as decreased thrombus formation or antimicrobial properties.
(vi) For subcutaneous devices, the recommended type of needle for access must be described, stated in the labeling, and test results on repeated use of the ports must be provided.
(vii) Coated devices must include a description of the coating or additive material, duration of effectiveness, how the coating is applied, and testing to adequately demonstrate the performance of the coating.
Internal Revenue Service (IRS), Treasury.
Cancellation of notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed regulations relating to the penalty under section 6708 of the Internal Revenue Code for failing to make available lists of advisees with respect to reportable transactions.
The public hearing originally scheduled for July 2, 2013 at 10 a.m. is cancelled.
Oluwafunmilayo Taylor of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration) at (202) 622–7180 (not a toll-free number).
A notice of proposed rulemaking and a notice of public hearing that appeared in the
The public comment period for these regulations expired on June 6, 2013. The notice of proposed rulemaking and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed by June 10, 2013. As of Monday, June 24, 2013, no one has requested to speak. Therefore, the public hearing scheduled for July 2, 2013, is cancelled.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revised BART determination and an alternate control measure for The Amalgamated Sugar Company, LLC. (TASCO) plant located in Nampa, Canyon County, Idaho, to meet the requirements of Best Available Retrofit Technology (BART) for regional haze. The EPA previously approved the State's BART determination for TASCO as meeting the requirements for the regional haze provisions in the Clean Air Act (CAA) on June 22, 2011. On June 29, 2012, the State of Idaho submitted revisions to its Regional Haze State Implementation Plan that included a revised BART determination for the TASCO facility, a revised emission limitation for particulate matter (PM), and an alternative control measure for TASCO to replace the Federally approved sulfur dioxide (SO
Written comments must be received on or before July 29, 2013.
Submit your comments, identified by Docket ID No. EPA–R10–OAR–2012–0581, by one of the following methods:
A.
B.
C.
D.
Steve Body, (206) 553–0782, or by email at
Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. Information is organized as follows:
In the Clean Air Act (CAA) Amendments of 1977, Congress established a program to protect and improve visibility in the Nation's national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. The EPA promulgated regional haze regulations (RHR) in 1999 to implement sections 169A and 169B of the Act. These regulations require states to develop and implement plans to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas
Regional haze is impairment of visual range or colorization caused by air pollution, principally fine particulate, produced by numerous sources and activities, located across a broad regional area. The sources include but are not limited to, major and minor stationary sources, mobile sources, and area sources including non-anthropogenic sources. These sources and activities may emit fine particles (PM
Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time in most national parks and wilderness areas. The average visual range in many Class I areas in the western United States is 100–150 kilometers, or about one-half to two-thirds the visual range that would exist without manmade air pollution.
The RHR requires each State's regional haze implementation plan to contain emission limitations representing BART and schedules for compliance with BART for each source subject to BART, unless the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions. A State may opt to implement or require participation in an emission trading program or other alternative measure rather than require sources subject to BART to install, operate, and maintain BART.
On April 16, 2007, Idaho submitted to the EPA for approval new and revised rules that provide the Idaho Department of Environmental Quality (IDEQ) the regulatory authority to address regional haze and to implement BART (BART Authority rule). The EPA approved these rules on June 9, 2011. 76 FR 33651. Idaho submitted its Regional Haze State Implementation Plan as meeting the requirements of 40 CFR 51.308 to the EPA on October 25, 2010 (2010 RH SIP submittal). The 2010 RH SIP submittal covers the planning
On June 29, 2012, Idaho submitted revisions (2012 RH SIP submittal) to the 2010 RH SIP that includes: a revised NO
The RHR contains provisions whereby a state may choose to implement an alternative measure as an alternative to BART, if the state can demonstrate that the alternative measure achieves greater reasonable progress toward achieving natural visibility conditions than would be achieved through the installation, operation and maintenance of BART. The requirements for alternative measures are established at 40 CFR 51.308(e)(2). As explained in the RHR, the state must demonstrate that all necessary emission reductions will take place during the first long term strategy period (i.e., by 2018) and that the emissions reductions resulting from the alternative measure will be surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP.
The Idaho rules provide IDEQ authority to consider and adopt alternative measures as an alternative to BART. See IDAPA 58.01.01.668.06.
Sources subject to BART must be in compliance with the BART emission limitations as soon as practical but no later than 5 years after EPA approves the implementation plan revision. 40 CFR 51.308(e)(1)(iv). The EPA approval of Idaho's BART provisions became effective July 22, 2011, thus TASCO must be in compliance with the BART requirements no later than July 22, 2016. Under the BART Alternative, as specified in the revised permit, TASCO must comply with the emission limitations by July 22, 2016, which is well within the first long term strategy period which ends December, 2018.
TASCO operates a sugar beet processing facility in Nampa, Idaho, that includes a fossil fuel fired boiler referred to as the “Riley Boiler”. The Riley Boiler is a BART eligible source and is subject to BART. In the final action on the BART provisions in the 2010 RH SIP submittal, the EPA approved IDEQ's BART determination for the Riley Boiler. 76 FR 36329. The approved BART level technology and emission limitations identified for the Riley Boiler and contained in the 2010 TASCO Tier II Operating Permit are:
PM: 14 pounds per hour (lbs/hr) and requires the emissions to be controlled using a baghouse;
SO
NO
Subsequent to the 2010 RH SIP submission and approval, TASCO submitted to IDEQ additional site-specific engineering analyses and a proposal for an alternative measure to replace the SO
The 2012 RH SIP submittal revises the NO
Regardless of the revised determination of what NOx control is technically feasible for the Riley Boiler, new, more stringent, BART emission limitations for NOx were included in the State's revised BART determination and the new, more stringent, NOx and PM emission limitations are included in the revised 2011Tier II Operating Permit. See 2012 RH SIP submittal Chapter 10, Section 10.5 Table 3, and 2011 TASCO Tier II Operating Permit Condition 3.4. The revised NOx BART determination is based on LNBs for NOx control. The revised NOx BART determination for the Riley Boiler strengthens the emission limitations from 186 lbs/hr to 147 lbs/hr, and results in a 21% reduction in NOx emissions from the original BART determination for the Riley Boiler. It also changes the identified control technology for NOx upon which the BART emission limitation is based, from LNB–OFA to LNBs. As explained below, this new BART determination and more stringent emission limitations were used in the demonstration that the BART Alternative provides for greater reasonable progress to achieve natural visibility conditions than BART.
The 2012 RH SIP submittal also proposes as a BART Alternative an alternative measure to the SO
TASCO conducted air quality dispersion modeling to estimate visibility improvement in affected Class I areas in accordance with the three-state, Washington, Idaho, and Oregon BART Modeling Protocol to demonstrate greater reasonable progress in achieving natural visibility conditions. This protocol underwent extensive review and approval and formed the basis for much of the BART modeling for regional haze conducted in the Pacific Northwest, including modeling in Idaho's 2010 RH SIP submittal. In the 2012 RH SIP submittal, the State demonstrated the visibility improving advantages of the BART Alternative by comparing the visibility improvement of the revised BART for the Riley Boiler in the 2012 RH SIP submittal with the improvement resulting from the BART Alternative. The model input emissions for SO
Emissions from the TASCO facility impairs visibility at seven mandatory Class I areas within 300 kilometers (km): Eagle Cap Wilderness Area, Oregon; Craters of the Moon National Monument, Idaho; Hells Canyon Wilderness Area, Oregon; Jarbidge Wilderness Area, Nevada; Sawtooth Wilderness Area, Idaho; Selway-Bitteroot Wilderness Area, Idaho; and the Strawberry Wilderness Area, Oregon. The results of this modeling effort for all seven Class I areas are presented in the 2012 RH SIP submittal, Chapter 10, Section 10.5, Table 6. The deciview impact for the 22nd highest day over the 2003 to 2005 time period is presented for each of the seven Class I areas. The submittal shows the number of days with impairment greater than 0.5 dv in the 2003 to 2005 time period.
The Table below presents the modeled visibility, at all Class I areas within 300 km of the TASCO facility at baseline conditions (2003 to 2005), under the revised BART, and under the proposed BART Alternative. As shown, the proposed BART Alternative achieves greater reasonable progress toward natural conditions than would be achieved through the installation, operation and maintenance of BART.
The provisions of 40 CFR part 51, Appendix Y, followed by Idaho, set forth the process used to identify control technologies and to consider the five statutory factors that must be evaluated as part of a BART determination. After site specific consideration of the factors, the best achievable retrofit technology is identified and the BART emission limitation is specified.
As discussed previously in this notice, based on a revised analysis conducted and provided by TASCO, Idaho determined that SCR is technically infeasible for the Riley Boiler. This new finding does not affect the State's final BART determination because, as the EPA previously agreed, Idaho's determination found that even if SCR was technically feasible it was not cost effective and thus, would not qualify as BART. 76 FR 3632. Thus, the 2012 RH SIP submittal determination that SCR is technically infeasible does not change the EPA's previous agreement that SCR is not BART for this facility. The EPA previously approved the NO
In the 2012 RH SIP submittal, Idaho strengthened the NO
The EPA previously approved Idaho's PM BART emission limitation for the Riley Boiler of 14 lbs/hr, based on baghouse control technology as provided in the 2010 RH SIP submittal. In the 2012 RH SIP submittal, Idaho strengthened the PM emission limitation to 12.4 lbs/hr, based on TASCO's analysis of the performance of the baghouse. The revised PM emission limitation is more stringent than the limitation previously approved and therefore the EPA is proposing to approve this revised PM limitation as a SIP strengthening measure.
The 2012 RH SIP submittal includes a proposed alternative measure to the previously approved SO
Installation of LNB control and establishing emission limitations on the B&W Boilers, along with permanently eliminating the emissions associated with the three pulp dryers, result in a total reduction in NO
As presented in Table 1 above, dispersion modeling of visibility in all Class I areas within 300 km of the TASCO facility demonstrates there is overall greater progress towards achieving natural conditions under the BART Alternative. In particular, there is greater progress in the Eagle Cap Wilderness Area (the Class I area most impacted by emissions from the TASCO facility) of 0.101 dv under the BART alternative than under the revised BART determination and in the Strawberry Mountain Wilderness Area of 0.159 dv.
The 2011 TASCO Tier II Operating Permit, Permit Condition 3.3 requires compliance with the BART Alternative by July 22, 2016, the same compliance
The 2011 TASCO Tier II Operating Permit contains the emission limitations discussed above. See 2011 TASCO Tier II Operating Permit, Permit Condition 3.4 and 3.5. The permit also contains requirements for a non-visibility impairing pollutant, specifically carbon monoxide (CO). Permit Condition 3.12 requires performance testing for CO. The EPA proposes no action on this permit condition, as it does not pertain to visibility.
The second paragraph of Condition 3.3 of the Permit allows TASCO to submit a request to obtain IDEQ approved alternatives to BART and to revise the Permit and explains that IDEQ will process the request in accordance with its permitting rules. The condition further provides that the request must be submitted in time for any such revision to the permit and the corresponding revision to the RH SIP to be approved prior to July 22, 2016. This provision is administrative in nature and addresses the State's procedure for possible future revisions to the permit. As such it is not necessary or appropriate for EPA to act on this provision. Nevertheless, we note that a revision to a Federally approved permit must meet applicable Federal requirements before it could be incorporated into the Federally approved SIP. The EPA cannot assure Idaho or TASCO that any submitted BART Alternative measure will be approved until that measure has been thoroughly evaluated by the EPA as meeting Federal requirements.
The EPA is proposing to vacate our previous BART determination for the TASCO facility and to approve Idaho's 2012 RH SIP submittal including the revised 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).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, and Visibility.
Environmental Protection Agency (EPA).
Proposed rule; extension of public comment period.
The EPA is announcing that the period for providing public comments on the May 23, 2013, proposed rule titled, “Kraft Pulp Mills NSPS Review” is being extended by 15 days.
Dr. Kelley Spence, Natural Resources Group (E143–03), Sector Policies and Programs Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541–3158; fax number: (919) 541–3470; and email address:
In response to requests from industry representatives and environmental groups, the EPA is extending the public comment period for an additional 15 days. The public comment period will end on July 23, 2013, rather than July 8, 2013.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of Proposed Rulemaking (NPRM).
FRA issues this proposed rule in accordance with a statutory mandate that the Secretary of Transportation require certain major railroads to develop, and submit to the Secretary for approval, critical incident stress plans that provide for appropriate support services to be offered to their employees who are affected by a “critical incident” as defined by the Secretary. The NPRM proposes a definition of the term “critical incident,” the elements appropriate for the rail environment to be included in a railroad's critical incident stress plan, the type of employees to be covered by the plan, a requirement that a covered railroad submit its plan to FRA for approval, and a requirement that a railroad adopt and comply with its FRA-approved plan.
Written comments must be received by August 27, 2013. Comments received after that date will be considered to the extent possible without incurring additional delay or expense.
FRA does not believe that a public, oral hearing will be necessary. However, if FRA receives a specific request for a public, oral hearing prior to July 29, 2013, FRA will schedule a hearing and publish a supplemental notice in the
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For program issues: Dr. Bernard J. Arseneau, Medical Director, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493–6232),
This NPRM proposes a regulation that would require each Class I railroad, intercity passenger railroad, and commuter railroad to establish and implement a critical incident stress plan for certain employees of the railroad who are directly involved in, witness, or respond to, a critical incident. FRA seeks comment on all aspects of this proposal.
Although FRA has never regulated critical incident stress plans, many railroads have had some form of critical incident stress plan in place for many years. This rulemaking responds to the Rail Safety Improvement Act of 2008 (Public Law 110–432, Div. A) (RSIA) mandate that the Secretary of Transportation establish regulations to define “critical incident” and to require certain railroads to develop and implement critical incident stress plans.
As discussed in detail below, FRA reviewed the applicable science and information received through the Railroad Safety Advisory Committee (RSAC), and as required by Congress, FRA proposes a definition for “critical incident” and proposes a set of minimum standards for critical incident stress plans. This approach provides covered employees with options for relief following a critical incident, yet allows for substantial flexibility within the regulatory framework so that railroads may adapt their plans commensurate with their needs. The proposal defines a “critical incident” as either — (1) An accident/incident reportable to FRA under 49 CFR part 225 that results in a fatality, loss of limb, or a similarly serious bodily injury; or (2) A catastrophic accident/incident reportable to FRA under part 225 that could be reasonably expected to impair a directly-involved employee's ability to perform his or her job duties safely. The proposed set of minimum standards for critical incident stress plans include allowing a directly-involved employee to obtain relief from the remainder of the tour of duty, providing for the directly-involved employee's transportation to the home terminal (if applicable), and offering a directly-involved employee appropriate support services following a critical incident. The proposed rule would require each applicable railroad to submit its plan to FRA for approval.
FRA has analyzed the economic impacts of this proposed rule against a “status quo” baseline that reflects present conditions (
The proposed rule contains minimum standards for employee training, leave, counseling, and other support services. These standards would help create benefits by providing employees with knowledge, coping skills, and services that would help them: (1) Recognize and cope with symptoms of normal stress reactions that commonly occur as a result of a critical incident; (2) reduce their chance of developing a disorder such as depression, Post-Traumatic Stress Disorder (PTSD), or Acute Stress Disorder (ASD) as a result of a critical incident; and (3) recognize symptoms of psychological disorders that sometimes occur as a result of a critical incident and know how to obtain prompt evaluation and treatment of any such disorder, if necessary. FRA anticipates that implementation of the proposed rule would yield benefits by reducing long-term healthcare costs associated with treating PTSD, ASD, and other stress reactions; and costs that accrue either when an employee is unable to return to work for a significant period of time or might leave railroad employment due to being affected by PTSD, ASD, or another stress reaction. In addition, safety risk posed by having a person who has just been involved in a critical incident performing safety critical functions is also reduced. The majority of the quantifiable benefits identified by FRA's analysis are associated with railroad employee retention and a reduction of long-term healthcare costs associated with PTSD cases that were not treated appropriately after a critical incident. FRA expects that the proposed rule would decrease the number of employees who leave the railroad industry due to PTSD, ASD, or other stress reactions, as early treatment for potential PTSD cases following exposure to a critical incident would reduce both the likelihood of developing PTSD and the duration of PTSD or another stress reaction. The proposed rule would therefore increase the early identification of PTSD and provide more immediate healthcare to the cases that develop. FRA estimates that the present value of the quantifiable benefits for a 20-year period would total $2,630,000. Using a 7 percent and a 3 percent discount rate, the total discounted benefits would be $1,505,622 and $2,023,548, respectively. Overall, FRA finds that the value of the anticipated benefits would justify the cost of implementing the proposed rule. FRA seeks comments on all aspects of the economic impacts of its proposal.
On October 16, 2008, the RSIA was enacted. Section 410 of the RSIA (Section 410) mandates that the Secretary of Transportation (Secretary) require “each Class I railroad carrier, each intercity passenger railroad carrier, and each commuter railroad carrier to develop and submit for approval to the Secretary a critical incident stress plan that provides for debriefing, counseling, guidance, and other appropriate support services to be offered to an employee affected by a critical incident.”
As required by Section 410(c), within 30 days after enactment of the RSIA, FRA initiated action within the DOT to commence a rulemaking to define the
Highway-rail grade crossing accidents and trespasser incidents along the railroad right-of-way are an unfortunate reality for employees in the railroad industry. Railroad work carries the risk that a covered employee will be directly involved in a critical incident, often outside the control of the railroad employees, which can lead to severe emotional and psychological distress, including Post Traumatic Stress Disorder (PTSD) and the more immediate Acute Stress Disorder (ASD).
Until this proposed rule, a national, uniform approach to critical incident response in the railroad industry did not exist, with only a handful of States taking action through statutes or regulations to aid critical incident response in the railroad industry. With this proposed rule, FRA seeks to define the term “critical incident” in the railroad setting, which if met, would trigger the requirement that appropriate support services be offered to railroad employees affected by such incidents.
PTSD and ASD can develop following any traumatic event that threatens personal safety or the safety of others, or causes serious physical, cognitive or emotional harm. While such disorders are most often initiated by a threat to one's life or the witnessing of brutal injury or traumatic death—in combat situations, for example, or during violent accidents or disasters—any overwhelming life experience can trigger the disorders, especially if the event is perceived as unpredictable and uncontrollable. Individuals exposed to traumatic events experience alterations in their neurologic, endocrine, and immune systems, which have been linked to adverse changes in overall health.
In recent years approximately 2,500 highway-rail crossing accidents and 900 casualties to persons trespassing on railroad property (trespassers) have occurred in the United States annually. Each one of these incidents, as well as other traumatic events such as railroad accidents or incidents resulting in serious injury or death to railroad employees, hold potential for causing ASD, PTSD, or other health and safety-related problems, in any railroad employee who is present. Some locomotive engineers and conductors have had the misfortune of experiencing multiple potential PTSD/ASD-invoking events over the course of their careers.
Exposure of railroad employees, particularly locomotive engineers and conductors, to prototypical potentially traumatic exposures is well established. Incursion events, such as vehicular accidents at highway-rail grade crossings and pedestrian incursions onto the railroad right-of-way (frequently as a method of suicide) often involve fatalities and the injuries sustained may be gruesome. Locomotive engineers and conductors, because of their proximity to the accident scene, must often tend to the injured and secure the scene, compounding the extent and the duration of exposure. In particular, locomotive engineers may be alone in the cab when an on-the-track accident occurs. Further, train crews are required to report the incident, secure the train, and often leave the train and examine the victims. Crew members may even provide first aid if victims are alive, and wait, sometimes for long periods, for assistance or instructions.
Systematic empirical studies of the health impact on railroad personnel of this kind of experience are limited. The best designed studies have been European and show clinically diagnosed PTSD in 7 to 14 percent of those exposed. FRA has found no empirical studies of treatment efficacy and impact within the U.S. railroad population, presumably due to the relatively small population annually treated and the different locations and systems involved in railroad employees' identification and care.
If left untreated, mental health conditions carry significant costs for employers in the form of “presenteeism,” when employees come to work, but have lowered productivity.
Most major railroads have plans to provide their employees with assistance and intervention following traumatic events. Most of these programs have been in existence for a number of years, usually as part of a railroad's “Employee Assistance Program” (EAP). The descriptions of interventions, timing, and delivery in these programs are often “transplanted” from programs created for fire, rescue, and emergency services personnel in the 1980s and 1990s. These approaches, particularly those built around “critical incident stress debriefing” and related interventions, have come under increasing scrutiny as independent research has reported such interventions to not be helpful in certain situations and even to paradoxically inhibit the natural recovery of certain vulnerable participants. Accordingly, most authoritative guidelines now caution against the routine application of these approaches and some now list them as directly contraindicated.
While there are variations among railroads' existing programs, there are also substantial similarities reflected with respect to critical elements mandated by statute.
In March 1996, FRA established RSAC, which provides a forum for developing consensus recommendations to the Administrator of FRA on rulemakings and other safety program issues. 61 FR 9740 (Mar. 11, 1996). RSAC's charter under the Federal Advisory Committee Act (Pub. L. 92–463) was most recently renewed in 2012. 77 FR 28421 (May 14, 2012).
RSAC includes representation from all of FRA's major stakeholders, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. An alphabetical list of RSAC members includes the following:
When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If the task is accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The task force then provides that information to the working group for consideration.
If a working group comes to a unanimous consensus on recommendations for action, the proposal is presented to the full RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff members play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation.
However, FRA is in no way bound to follow the RSAC recommendation, and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA will proceed to resolve the issue through traditional rulemaking proceedings.
The Critical Incident Task Force (Task Force) was formed as part of the Medical Standards Working Group, and its task statement (Task No. 09–02) was accepted by RSAC on September 10, 2009. On July 2, 2010, FRA solicited bids for a grant to assess the current knowledge of post-traumatic stress interventions and to advance evidence-based recommendations for controlling the risks associated with traumatic exposures in the railroad setting. On March 11, 2011, FRA awarded the grant to the National Fallen Firefighters
The CIWG met on June 24, 2011; September 8–9, 2011; October 11–12, 2011; and December 13, 2011. At the conclusion of the December 2011 meeting, an informal task force was formed to consider the substantive agreements made by the CIWG and to draft regulatory language around those agreements for the CIWG's consideration and vote. The small task force presented the language to the full CIWG for an electronic vote on August 6, 2012. The CIWG reached a consensus on all but one item
In addition to FRA staff, the members of the CIWG include the following:
AAR, including members from BNSF Railway Company (BNSF), Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX Transportation, Inc. (CSX), The Kansas City Southern Railway Company (KCS), Norfolk Southern Railway Company (NS), Northeast Illinois Regional Commuter Railroad Corporation (Metra), and Union Pacific Railroad Company (UP);
Amtrak;
APTA, including members from Greater Cleveland Regional Transit Authority; Long Island Rail Road (LIRR); MTA—Metro-North Railroad; and Southern California Regional Rail Authority (SCRRA);
ASLRRA (representing short line and regional railroads);
ATDA;
BLET;
BMWED;
BRC/TCIU;
BRS;
NRCMA; and
UTU.
Staff from DOT's John A. Volpe National Transportation Systems Center attended all of the meetings of the CIWG and contributed to the technical discussions.
FRA has greatly benefited from the open, informed exchange of information during the meetings. In developing this NPRM, FRA relied heavily upon the work of the CIWG.
In this NPRM, FRA proposes a definition for the term “critical incident” and proposes minimum criteria that must be addressed by each railroad's critical incident stress plan. The proposed regulatory text would allow a railroad to utilize its existing critical incident stress plan as a base, making modifications as necessary to ensure compliance with the minimum standards proposed in this NPRM. The proposed rule would provide each railroad with the opportunity to conform its critical incident stress plan's screening and intervention components to current best practices and standards for evidence-based care. This flexible, standards-based approach allows for innovation and plan modification in response to new scientific developments in this field.
Subpart A of the proposal contains the general provisions of the rule, including a statement of the rule's purpose, an application section, a statement of general duty, the critical incident stress plan coverage section, a definitions section that includes the central definition of a “critical incident,” and a statement pertaining to penalties. As discussed further in the definitions section, § 272.9, this proposal defines a “critical incident” as either—(1) An accident/incident reportable to FRA under 49 CFR Part 225 that results in a fatality, loss of limb, or a similarly serious bodily injury; or (2) A catastrophic accident/incident reportable to FRA under part 225 that could be reasonably expected to impair a directly-involved employee's ability to perform his or her job duties safely.
Proposed paragraph (a) of section 272.1 includes a formal statement of the rule's purpose. Proposed paragraph (b) of this section effectively explains that the proposed rule would set a minimum standard for critical incident stress plans and that the rule would not constrain a railroad from implementing a critical incident stress plan containing provisions beyond those proposed, provided that any additional provisions are not inconsistent with the rule.
Consistent with Section 410(a), proposed section 272.3 provides that the requirements of this part only apply to each Class I railroad, including the National Railroad Passenger Corporation, each intercity passenger railroad, and each commuter railroad. However, FRA encourages other railroads to implement critical incident stress plans and procedures consistent with this proposed regulation. FRA understands that many Class II and Class III railroads that would not be subject to this rule in fact do have critical incident stress plans in place. FRA notes that critical incident stress plans would be particularly useful for Class II and Class III railroads that are located in geographical locations prone to critical incidents, such as those locations with a large number of highway-rail grade crossings.
This proposed paragraph provides that a railroad subject to this part must adopt a written critical incident stress plan approved by the FRA under § 272.103 and must comply with that plan. Should a railroad subject to this part make a material modification to the approved plan, the railroad is required to adopt the modified plan approved by the FRA under § 272.103 and to comply with that plan as revised. As discussed in the section-by-section analysis of § 272.103 below, a material modification is a substantive change to a plan, not a
A large percentage of critical incidents occur where persons intentionally place themselves in front of a moving train (suicides) or drive around highway grade crossing warning signs, shortly before a train approaches, and a train crew is unable to stop the train in time to avoid hitting them. The crewmembers involved may be traumatized after such an event, even though there was nothing they could have done to prevent the collision. The purpose of this proposed rule is to effectuate the intent of the RSIA that train crews will be assisted following such events. After extensive discussions in the CIWG, FRA believes that other railroad-related accidents, such as those that occur in car shops, maintenance-of-way situations, or other non-main-track locations involving railroad operations, should also be covered by this proposed regulation. This extension provides additional benefits, but with little additional cost, as many railroad critical incident stress plans already extend beyond the grade crossing and trespasser context. Thus, as explained below FRA intends in this proposal that railroads make use of these critical incident stress plans to aid directly involved employees in situations other than suicides and trespassers.
To make it clear which railroad employees would be covered by this regulation, FRA is proposing language similar to the RSIA for safety-related employees and similar to existing regulatory language pertaining to railroad employees who perform safety sensitive functions.
Thus, this regulation would include an employee who performs work covered under the hours of service laws or regulations, as well as an employee who performs work that is not typically subject to the hours of service laws, but during a tour of duty, performs work covered by the hours of service laws. This regulation would also cover employees who are responsible for inspecting, repairing, and maintaining the right-of-way of a railroad, such as a person who would be included in the definitions of “roadway worker” and “railroad bridge worker” found in 49 CFR 214.7. Also included would be railroad employees who inspect, install, repair, or maintain track, roadbed, and signal and communication systems of a railroad and railroad employees who inspect, repair, or maintain locomotives, passenger cars, or freight cars. Paragraph (c) of this section was adjusted from the consensus CIWG language to maintain consistency with 49 CFR Part 209, as suggested during the full RSAC meeting on September 27, 2012. The words “inspect, install, repair, or” were added to the original phrase “[r]ailroad employees who maintain the right-of-way or structures.”
In this manner, FRA proposes to cover other employees besides locomotive engineers and conductors who could be psychologically affected or even traumatized by a critical incident as a result of railroad operations. But, by including a coverage section that would be more limited than the entire field of railroad employees, FRA is reducing the costs to railroads while ensuring that those employees who could most benefit from the regulation are included. For example, a railroad track maintainer is welding track on a siding and sees a train collide with an automobile at a nearby highway-rail grade crossing. Since the track maintainer witnessed the incident while performing his or her job duties arising from railroad operations (maintaining track), as proposed, the maintainer would be covered by the rule. In contrast, a railroad administrative assistant who works in a railroad's headquarters building would not be specifically covered by this proposed regulation if he or she witnesses an injury in the office. Although FRA does not propose to cover office injuries or accidents, FRA encourages railroads to apply their critical incident stress plans in any situation where it could be beneficial to the railroad and its employees, even if this proposed regulation would not cover the particular situation at issue or the specific railroad employee involved.
Proposed § 272.9 defines a number of terms used in this proposed part. A few of these terms have definitions that are similar to, but may not exactly mirror, definitions of the same terms used elsewhere in FRA's regulations. Definitions may differ from those in other FRA regulations because a particular word or phrase used in the definition in another FRA regulation does not have context within this proposed part.
FRA proposes to define the term
The definitions of
FRA proposes to define
FRA proposes to define
Railroads operated entirely by contract operators, such that the contractor organization itself meets the definition of a Class I railroad, intercity passenger railroad, or commuter railroad, would be subject to this rule. In these circumstances, FRA assumes that the contract operator would utilize the critical incident stress plan developed by the reporting railroad.
FRA proposes to define
Paragraph (1) of the definition is designed to reflect the presumed statutory intent to include an event that results in a fatality, loss of limb, or a similarly serious bodily injury. This element is intended to encompass the typical events that occur along the railroad right-of-way, involving highway-rail grade crossing accidents and trespasser incursions that could affect a directly-involved employee. This element also includes events resulting from railroad operations such as those in a railroad shop where an employee witnesses a workplace accident that results in another person's death or extreme injury.
Paragraph (2) of the definition expands the definition beyond an accident/incident leading to another person's actual physical harm, to include a catastrophic accident/incident reportable to FRA under part 225 of this chapter that could be reasonably expected to impair a directly-involved employee's ability to perform his or her job duties safely. FRA understands this paragraph to mean an accident/incident that had the potential for catastrophic consequences (
A fuel tanker truck is blocking a grade crossing. The train crew cannot stop their approaching train in enough time to avoid striking the tanker truck. Although the accident could have caused serious injury or death to the driver of the tanker truck and/or to the train crew, it is learned later that the tanker truck was unoccupied and the tanker truck was not loaded with fuel. The accident/incident causes damage to the locomotive, the tanker truck, and nearby track structure, causing sufficient damage to exceed the dollar reporting threshold under 49 CFR 225.19(c) and thereby making the accident reportable under 49 CFR 225.11. This type of accident/incident had the potential for catastrophic consequences (
A train derails, and railroad employees who have been working alongside the track are in danger of being seriously hurt, but in fact, the employees are able to run to safety and avoid being harmed by the derailing equipment. The employees' legitimate, reasonable fear for their own safety may cause a negative stress-reaction that could be reasonably expected to impair a directly-involved employee's ability to perform his or her job duties safely. Therefore the event of running to save one's own life is included in the term “critical incident” and those directly involved employees are covered by this proposed rule. In contrast, if several freight cars derail, but there is no involvement of the train crew or a high risk of serious injury, that type of event will not fall under the definition of a critical incident.
Additionally, this proposed rule does
FRA proposes that a
FRA proposes to define
FRA proposes that
FRA proposes that
Consistent with other FRA regulations, the proposed rule lists the penalties that may be imposed for noncompliance. This section provides minimum and maximum civil penalty amounts determined in accordance with 49 U.S.C. 21301 and 21304 and the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101–410, 104 Stat. 890, 28 U.S.C. 2461, note, as amended by Section 31001(s)(1) of the Debt Collection Improvement Act of 1996, Public Law 104–134, 110 Stat. 1321–373, April 26, 1996.
This subpart contains the basic components of the critical incident stress plan required by this proposed rule and the elements of the approval process. This proposed rule affords railroads considerable discretion in the administration of their critical incident stress plans.
The objective of the regulation is to allow each railroad to utilize its existing critical incident stress plan (if any) as a base, making modifications as necessary to ensure compliance with the minimum standards proposed and to enhance conformity of the plan's screening and intervention components to current best practices and standards for evidence-based care. Each plan to be presented to FRA for review and approval should document that the railroad has taken sufficient steps to establish how each element of the plan can be satisfactorily executed in covered critical incidents.
Proposed § 272.101 would require that a railroad's critical incident stress plan contain at least provisions for carrying out the objectives described in paragraphs (a)–(g) of the section. Among these designated objectives are allowing a directly-involved employee to obtain relief from the remainder of the tour of duty, providing for the directly-involved employee's transportation to the home terminal (if applicable), and offering a directly-involved employee appropriate support services following a critical incident. The specific details of each plan may vary, but the plans must be consistent with this section.
Under proposed paragraph (a) of the section, the plan must provide for “[i]nforming each directly-involved employee as soon as practicable of the stress relief options that he or she may request[.]” Paragraph (a) would require that a critical incident stress plan contain a provision that the railroad will notify directly-involved employees as soon as it is practicable after the critical incident in question that they may choose to be relieved from the remainder of the tour of duty. Although all employees covered under § 272.7 should already be cognizant of the opportunity to request relief following a critical incident, directly-involved employees must be reminded of this option for relief as soon as it is practicable after the occurrence of an incident. FRA's intent with this provision is to emphasize that an employee's opportunity for relief from service must be effectively communicated to covered employees. Of course, if a covered employee has been seriously injured and has already been relieved from duty for the remainder of the tour, it is not necessary to notify the employee of the opportunity to be relieved.
FRA recommends that a typical plan specify an appropriate time to notify affected employees of the option to seek relief, such as, “employees must be notified at the incident site of their opportunity to be relieved.” This reminder of the option to seek relief must be made during the early communications between the employee and the dispatcher and/or railroad management, before the employee has already continued on his or her tour of duty or much time has elapsed.
Under proposed paragraph (b) of the section, the plan must provide for “[o]ffering timely relief from the balance of the duty tour for each directly-involved employee, after the employee has performed any actions necessary for the safety of persons and contemporaneous documentation of the incident.” In accordance with proposed paragraph (a), FRA would expect directly-involved employees to be informed of their opportunity for relief from service. Consistent with that notification, in accordance with proposed paragraph (b), employees that choose to avail themselves of that opportunity for relief must be relieved of duty in a timely fashion. A directly-involved employee may have to perform certain actions following a critical incident, such as rendering aid to injured persons, tending to important safety issues, securing the train, notifying appropriate personnel, and assisting in documenting the circumstances of the critical incident. FRA recommends that critical incident stress plans outline an instructive protocol that explains what tasks and responsibilities the employee is expected to perform following a critical incident. For example, this instructive protocol might establish the proper points of contact and other communication procedures (both within the organization and official emergency responders), identify tasks that must be completed, and describe how to evaluate the incident.
While it may not be feasible to relieve employees within the first few minutes following a critical incident, relief should be provided as soon as possible. Directly-involved employees should be relieved in an efficient manner, without jeopardizing the safety of persons (themselves, other employees, and any victims of a critical incident, whether or
FRA notes that not every employee will take advantage of the relief that must be offered. However, each plan must allow for the directly-involved employee to request relief even if the employee initially stated after the event that he or she wished to continue on with the tour of duty. FRA expects the option to seek relief to remain available for the duration of the directly-involved employee's tour of duty.
Finally, there are some instances where the immediate relief of an employee is not the most constructive aid. Many employees simply want to get to their home terminal without having to wait for the train to be re-crewed. Although relief must be offered to all directly-involved covered employees, and the railroad must not deny a request for relief, this part does not require an employee to avail him or herself to this option. If leave from the tour of duty were mandated by this part, it could hinder some instances where an employee's continuation of duty serves as a coping mechanism, which has been shown, at least in some instances, to provide certain benefits to the employee. However, FRA does not intend for this option to supersede a railroad's authority to decide that an employee should not continue his or her tour of duty and must be relieved for safety-reasons, for the well-being of the employee, or for other reasons.
Under proposed paragraph (c) of the section, the plan must provide for “offering timely transportation to each directly-involved employee's home terminal, if necessary.” As outlined in proposed paragraph (b), FRA intends to convey with the proposed term “timely relief” that the directly-involved employee must be relieved as soon as practicable following the critical incident, provided that all essential tasks have been performed. Similarly, FRA understands that it may take some time to arrange and provide transportation to an employee's home terminal. Railroads must make a good faith, reasonable effort to transport directly-involved employees safely from the incident site as soon as possible after their request for such relief, with the understanding that this transportation may not be immediate (a directly-involved employee may need to wait for a van to arrive). Directly-involved employees must not, however, be required to remain at the critical incident site for any time beyond what is necessary.
Under proposed paragraph (d) of the section, the plan must provide for “offering counseling, guidance, and other appropriate support services to each directly-involved employee.” For purposes of this paragraph, the statutory term “appropriate support services” means early and proximal intervention according to evidence-based standards. This interpretation allows providers to adapt their work as necessary, without any single, limiting approach being required.
The railroad's plan should contain elements that have been demonstrated to help mitigate, attenuate, and limit stressful impacts as well as provide intervention and treatment after the fact. The phrase “other appropriate support services” is designed to be flexible to account for new approaches. Research shows that five basic principles hold a demonstrated positive impact on resiliency and resolution: (1) Restoring a sense of safety; (2) calming anxiety and agitation; (3) enhancing self-efficacy; (4) building connectedness; and (5) facilitating hope.
Taken together, these resources provide a foundation for the adaptation of any analogous existing railroad programs to meet current standards of care. For example, programs for fire and emergency medical services personnel have been substantially redesigned to be more consistent with empirical evidence respecting variability in individual reactivity and resilience; organizational roles in preparation, response, and recovery; and implementation of standards respecting screening, assessment, and specialty care.
FRA notes that the specific intervention element of “critical stress debriefing” in the scientific literature is contraindicated, as it has not been shown to be effective and may actually be harmful in some instances. “Critical stress debriefing” is an intervention
Further, by including “appropriate support services” in the regulatory text, mirroring the statutory text, it is not FRA's intent to assess or approve the clinical quality of services or providers. However, if a railroad's plan proposes to utilize a method that is shown to be contraindicated and may cause harm, the plan will not be approved. For example, if a plan requires “critical stress debriefing,” FRA will disapprove the plan, as this would not be an “appropriate support service.” While volunteer “peer-to-peer” support services and psychoeducation services may be helpful, they lack direct empirical demonstrations of efficacy and, in some settings, have also raised concern.
Under proposed paragraph (e) of the section, the plan must provide for “[p]ermitting relief from the duty tour(s) subsequent to the critical incident, for an amount of time to be determined by each railroad, if requested by a directly-involved employee as may be necessary and reasonable[.]” In this provision, FRA proposes that railroad plans address how much additional time off an employee affected by a critical incident may receive at the employee's option and what procedures must be followed in that event. Many railroads currently offer relief from the immediate tour of duty along with transportation to the employee's home terminal, then provide up to three days off along with consultation with an EAP, if any, and/or occupational medicine staff. This section would provide directly-involved employees with an opportunity, away from the railroad environment, to cope with having experienced a critical incident. This is an amount of time to be determined by each railroad to allow for a reasonable amount of rest and time following a critical incident (without necessitating a clinical diagnosis). This proposed part is neutral on the amount of additional relief a railroad should permit beyond the tour of duty during which the critical incident occurred. The specific language in this proposal was modified from the RSAC-approved language to include a qualifier on the requirement: “for an amount of time to be determined by each railroad . . . as may be necessary and reasonable” to add context and clarity on the intent of the provision.
Under paragraph (f) of the section, the plan must provide for “[p]ermitting each directly-involved employee such additional leave from normal duty as may be necessary and reasonable to receive preventive services or treatment related to the incident or both.” Beyond an initial “coping” period, as specified in paragraph (e), additional time must be provided to affected employees for preventive services and treatment as needed for the adverse effects of the critical incident. Many railroads' plans currently permit leave in addition to the duty tour(s) subsequent to the critical incident discussed in paragraph (e) if a clinical diagnosis supports the need to fulfill the employee's request. Paragraph (f) reinforces that each railroad's critical incident stress plan must provide for additional relief to be provided as necessary and reasonable to receive the preventive services or treatment related to the incident, as required by the RSIA.
Under proposed paragraph (g) of this section, the plan must provide for “[a]ddressing how the railroad's employees operating or otherwise working on track owned by or operated over by a different railroad will be afforded the protections of the plan.” This proposal was not discussed specifically in the CIWG, but was added to ensure that situations where railroad employees operate or otherwise work on track owned by or operated over by a different railroad are addressed. FRA recognizes that there may be instances where a critical incident occurs while one railroad's employees are operating over another railroad's track. For example, if track maintainers employed by Railroad A witness a critical incident involving Railroad B's train, both Railroad A's track maintainers and Railroad B's train crew must be covered by an approved critical incident stress plan. In this example, provided that this proposed regulation applies to Railroad A, Railroad A's employees would logically be covered by Railroad A's critical incident stress plan, even if the critical incident did not specifically occur with Railroad A's equipment. As such, each railroad's plan must address how the critical incident stress plan would be implemented to account for situations where multiple railroads are involved.
FRA encourages railroads to which this part would apply and labor organizations representing employees to whom this part would apply to discuss the railroad's proposed critical incident stress plan prior to formal submission of the plan to FRA for approval. This collaborative discussion should help ensure that plans are drafted and adapted to meet the needs of all potentially affected by the plan. This proposed section envisions that at a minimum, potentially-affected employees would have an opportunity to comment and to discuss the contents of the plan at an early stage, prior to implementation. Because collaborative efforts will likely benefit railroad employees and railroad management, each railroad required to submit a critical incident stress plan should aspire to consult with, employ good faith, and use its best efforts to reach agreement with all of its covered employees on the contents of the plan. However, such endeavors would not be required by this proposed regulation.
In paragraphs (b) and (c) of this section, the railroad must provide the international/national president of any non-profit employee labor organization representing a class or craft of the railroad's employees subject to this part with a copy of the railroad's critical
FRA notes that some members of the CIWG expressed their wish that this part require each railroad to notify not only the international/national president, but also the general chairpersons, of any non-profit employee labor organization representing a class or craft of the railroad's employees subject to this part. The issue of whether to require notification of the general chairpersons (in addition to the international/national president) was a point of contention in the CIWG, and a consensus was not reached. Labor representatives argued that general chairpersons are the designated collective bargaining representatives, and in many cases, the international/national presidents do not have standing on railroad property. For these reasons, labor representatives believe notifications should be sent to the general chairpersons because each plan is an on-property issue unique to each railroad and because a railroad would not be unduly burdened by contacting the relevant general chairpersons.
In response, railroad representatives and AAR argue that nothing in the RSIA requires that each railroad send a copy of its plans to each general chairperson, and they do not want to set a precedent that might be cited in a future rulemaking. Prior FRA regulations have required informing only the international/national presidents, rather than general chairpersons. Railroad and AAR representatives expressed the view that it would be less burdensome for each railroad to notify a single person at each organization, who can then pass along the information to the most relevant persons. There are many general chairpersons in each organization,
The proposal contemplates that railroads may submit existing critical incident stress plans to FRA for approval that have previously been established through any applicable collective bargaining agreement. However, FRA proposes that, in order to satisfy the eventual final rule, any preexisting critical incident stress plan would have to contain all prescribed elements of the plan as set forth in the regulation, and such a plan would have to be submitted to FRA pursuant to this section for review. Thus, FRA would approve critical incident stress plans previously vetted through the collective bargaining agreement process, provided that those plans meet the criteria specified in the final regulation. As proposed, FRA's regulation would constitute a minimum standard and would not negate any higher standards set by a collective bargaining agreement.
Under paragraph (e) of proposed § 272.103, “[a]fter FRA's initial approval of a railroad's critical incident stress plan, if the railroad makes a material modification of the plan, the railroad shall submit to FRA for approval a copy of the plan as it has been revised to reflect the material modification within 30 days of making the material modification.” The plan should be reviewed periodically for effectiveness and updated when it is prudent to do so. When material modifications are made, the railroad must submit the materially modified plan to FRA for approval. “Material modification” refers to substantive changes made to the plan, and is not intended to refer to minor updates, such as address modifications, or the like.
Under paragraph (f) of proposed § 272.103, “[u]pon FRA approval of a railroad's critical incident stress plan and any material modification of the critical incident stress plan, the railroad must make a copy of the railroad's plan and the material modification available to the railroad's employees identified in § 272.7.” This paragraph is intended to ensure that all relevant employees of the railroad are aware of the railroad's critical incident stress plan and the specific requirements of the plan. For a railroad to implement its critical incident stress plan so as to fulfill the objective of the plan, which is to aid employees who experience critical incidents, all relevant employees of the railroad, from managers at headquarters to employees at the local level, must be made aware of the railroad's critical incident stress plan and the specific requirements of the plan and must be trained on how to implement the requirements of the plan relevant to the employee.
Under paragraph (g) of proposed § 272.103, “[e]ach railroad subject to this part must make a copy of the railroad's plan available for inspection and reproduction by the Federal Railroad Administration.” This section addresses FRA's specific authority to inspect and enforce the proposed regulation, as is stated in other FRA regulations.
This section proposes the option for each railroad to which this part applies to file any plan submissions electronically. FRA intends to create a secure document submission site and will need basic information from each railroad before setting up the user's account. The points of contact information in proposed paragraph (b) are necessary in order to provide secure access.
Proposed paragraphs (c), (e), and (f) are intended to allow FRA to make the greatest use of an electronic database. It is anticipated that FRA may be able to approve or disapprove all or part of a critical incident stress plan and generate automated notifications by email to a railroad's points of contact. Thus, FRA wants each point of contact to understand that by providing any email addresses, the railroad is consenting to receive approval and disapproval notices from FRA by email. Railroads that allow notice from FRA by email would gain the benefit of receiving such notices quickly and efficiently.
Proposed paragraph (d) is necessary to provide FRA's mailing address for those railroads that need to submit something in writing to FRA. For those railroads, requesting electronic submission, the
Finally, FRA is considering whether to mandate electronic submission. FRA is strongly leaning toward finalizing this option because the agency will be devoting significant resources to develop the electronic submission process. It will be more costly for the agency to develop the electronic submission process and have to upload written submissions into the electronic database itself. FRA expects that there are few, if any, railroads who do not have Internet access and an email address, or who cannot otherwise meet the minimum requirements for electronic submission. FRA requests comments on whether mandatory electronic submission is objectionable to any railroad.
In the final rule, Appendix A will contain a detailed penalty schedule similar to that FRA has issued for most of its existing rules. Because such penalty schedules are statements of policy, notice and comment are not required prior to their issuance.
This proposed rule has been evaluated in accordance with existing policies and procedures and determined to be non-significant under both Executive Orders 12866 and 13563 and DOT policies and procedures.
The purpose of the proposed rule is to enhance safety by mandating that certain railroads (each Class I railroad, intercity passenger railroad, and commuter railroad) have a critical incident stress plan intended to mitigate the long-term negative effects of critical incidents upon railroad employees. Specifically the proposal would help ensure that every railroad employee covered by the rule who works for these railroads and who is affected by a critical incident can receive the support services needed.
The Railroad Safety Advisory Committee (RSAC) formed a working group to provide advice and recommendations on the regulatory matters involving critical incident stress plans.
FRA's analysis follows DOT's revised “Guidance on the Economic Value of a Statistical Life in US Department of Transportation Analyses,” published in March 2013. Based on real wage growth forecasts from the Congressional Budget Office, DOT's guidance estimates that there will be an expected 1.07 percent annual growth rate in median real wages over the next 20 years (2013–2033) and assuming an income elasticity of 1.0 adjusts the Value of Statistical Life (VSL) in future years in the same way. Real wages represent the purchasing power of nominal wages. VSL is the basis for valuing avoided casualties. FRA's analysis further accounts for expected wage growth by adjusting the taxable wage component of labor costs. Other non-labor hour based costs and benefits are not impacted. FRA estimates that the costs of the proposed rule for a 20-year period would total $1.9 million, with a present value (PV, 7%) of $1.3 million and (PV, 3%) of $1.6 million. In estimating these compliance costs, FRA included costs associated with training supervisors on how to interact with railroad employees who have been affected by a critical incident, additional costs associated with greater use of Employee Assistance Programs, and costs associated with the submission of critical incident stress plans to FRA. FRA also estimates that the quantifiable benefits of the proposed rule for a 20-year period would total $2.6 million, with a present value (PV, 7%) of $1.5 million and (PV, 3%) of $2.0 million. FRA is confident that potential benefits of the proposed rule would exceed the total costs.
The RIA also explains the likely benefits of this proposed rule, providing quantified estimates of the benefits where feasible. The proposed rule contains minimum standards for employee training, leave, counseling, and other support services. These standards would help create benefits by providing employees with knowledge, coping skills, and services that would help them: (1) Recognize and cope with symptoms of normal stress reactions that commonly occur as a result of a critical incident; (2) reduce their chance of developing a disorder such as depression, Post-Traumatic Stress Disorder (PTSD), or Acute Stress Disorder (ASD) as a result of a critical
Specifically, FRA anticipates that implementation of the proposed rule would yield benefits by reducing long-term healthcare costs associated with treating PTSD, ASD, and other stress reactions; and costs that accrue either when an employee is unable to return to work for a significant period of time or might leave railroad employment due to being affected by PTSD, ASD, or another stress reaction.
The majority of the quantifiable benefits identified are associated with railroad employee retention and a reduction of long-term healthcare costs associated with PTSD cases that were not treated appropriately after a critical incident. FRA estimates that one-half of one percent of railroad employees who develop PTSD exit the railroad industry. According to this estimate, one railroad employee would leave the railroad industry due to PTSD every ten years. If an employee is unable to return to work, the railroad not only loses an experienced employee, but also must train a new employee. FRA expects that the proposed rule would decrease the number of new employees that have to be trained to backfill for those who leave the railroad industry due to PTSD, ASD, or other stress reactions, as early treatment for potential PTSD cases following exposure to a critical incident by reducing both the likelihood of developing and the duration of PTSD or another stress reaction. The proposed rule would also increase the early identification and treatment of PTSD thus reducing long-term healthcare costs. Overall, FRA finds that the value of the anticipated benefits would justify the cost of implementing the proposed rule.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601
The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must prepare an initial regulatory flexibility analysis (IRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant economic impact on a substantial number of small entities (SEIOSNOSE). FRA has not determined whether this proposed rule would have a SEIOSNOSE. Therefore, FRA is publishing this IRFA to aid the public in commenting on the potential small business impacts of the requirements in the proposed rule. FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from the adoption of the proposed rule. FRA will consider all comments received in the public comment process when making a final determination.
The proposed rule would apply to each Class I railroad, intercity passenger railroad, and commuter railroad as defined by this part. Based on information currently available, FRA estimates that no small entities would be required to create a critical incident stress plan, and therefore, no small business would be negatively impacted by the proposed rule. FRA estimates that the total cost of the proposed rule for the railroad industry over a 20-year period would be $1,943,565, with a present value (PV, 7) of $1,337,830 and (PV, 3) of $1,615,519. Based on information currently available as noted above, FRA estimates that zero percent of the total railroad costs associated with implementing the proposed rule would be borne by small entities. The total regulatory cost in the RIA for this proposed rule is the basis for the estimates in this IRFA, and the RIA has been placed in the docket for public review. It provides extensive information about the total costs of the proposed regulation.
Based on the railroad reporting data from 2011, there are 719 Class III railroads. Due to the applicability of the proposed rule, however, none of these railroads would be impacted. The railroad reporting data also shows that there are 30 intercity passenger and commuter railroads.
In accordance with the Regulatory Flexibility Act, an IRFA must contain:
(1) A description of the reasons why the action by the agency is being considered.
(2) A succinct statement of the objectives of, and legal basis for, the proposed rule.
(3) A description—and, where feasible, an estimate of the number—of small entities to which the proposed rule will apply.
(4) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirements and the types of professional skills necessary for preparation of the report or record.
(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
This rulemaking responds to requirements in the Rail Safety Improvement Act of 2008 (RSIA) (Pub. L. 110–432, Div. A) that the Secretary of Transportation, as delegated to the Administrator of FRA (49 CFR 1.89(b)), establish regulations to define critical incident, and to require certain railroads to develop and implement critical incident stress plans.
The purpose of this proposed rule is to enhance safety by mandating that railroads have a critical incident stress plan that may help mitigate the long-term negative effects of critical incidents upon covered railroad employees. One of the most important assets to the railroad industry is its labor force. The railroads spend significant resources training their workforces. Although all of the railroads potentially affected by the proposed rule have policies that include critical incident stress plans, the proposed rule would promote implementation as intended to every applicable employee covered by a critical incident stress plan and also ensure that all such plans meet certain minimum Federal requirements.
After reviewing the critical incident stress plans of various railroads, FRA determined that the most cost efficient and beneficial way to help ensure implementation of the plan for railroad employees covered who witness a critical incident was to implement the requirements found in this proposed rule. FRA anticipates that the railroad industry will accept the proposed requirements.
The purpose of the proposed rule is to require each Class I, intercity passenger, and commuter railroad to develop a critical incident stress plan. This plan would cover every applicable railroad employee who witnessed a critical incident while working.
Section 410 of RSIA requires the Secretary of Transportation, as delegated to the Administrator of the Federal Railroad Administration, to prescribe a regulation mandating that certain railroads develop and implement critical incident stress plans. A Railroad Safety Advisory Committee (RSAC) working group was formed and tasked to define a critical incident, which made sure that the railroad industry and labor unions were included in the rulemaking process. The working group reached a consensus on all but one item
The universe of entities that must be considered in an IRFA generally includes only those small entities that are reasonably expected to be directly regulated by the proposed action. This proposed rule would affect Class I railroads (including the National Railroad Passenger Corporation (“Amtrak”)), intercity passenger railroads, and commuter railroads as defined in the scope of the proposed rule.
“Small entity” is defined in 5 U.S.C. 601. Section 601(3) defines a “small entity” as having the same meaning as “small business concern” under section 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) likewise includes within the definition of “small entities” not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operation.
The Small Business Administration (SBA) stipulates in its size standards that the largest a railroad business firm that is “for profit” may be and still be classified as a “small entity” is 1,500 employees for “line haul operating railroads” and 500 employees for “switching and terminal establishments.” Additionally, 5 U.S.C. 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.
Federal agencies may adopt their own size standards for small entities in consultation with the SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final statement of agency policy that formally establishes “small entities” or “small businesses” as being railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1–1, which is $20 million or less in inflation-adjusted annual revenues; and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less.
FRA finds that there are 7 Class I and 28 intercity passenger and commuter railroads, including Amtrak and the Alaska Railroad, affected by this proposed rule. Amtrak, the Alaska Railroad, and the 7 Class I railroads are not considered to be small entities. All of the affected commuter railroads are part of larger public transportation agencies that receive Federal funds and serve major jurisdictions with populations greater than 50,000; based on the definition, therefore, they are not considered small entities.
For a thorough presentation of cost estimates, please refer to the RIA, which has been placed in the docket for this rulemaking.
As FRA believes that no small entities will be affected by this proposed rule, there would also be no cost impacts on small businesses. Railroads operated entirely by contract operators, such that the contractor organization itself meets the definition of a commuter railroad, Class I, or intercity passenger railroad, would be subject to this rule. In these circumstances, FRA assumes that the contract operator would utilize the critical incident stress plan developed by the reporting railroad. FRA will hold the reporting railroads responsible for defects or deficiency, not the contracted operators. Therefore, FRA does not expect that the proposed rule will
FRA is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.
FRA invites all interested parties to submit comments, data, and information demonstrating the potential economic impact that would result from adoption of the proposals in this NPRM. FRA will consider all comments received in the public comment period for this NPRM when making a final determination of the rulemaking's economic impact on small entities.
FRA analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”).
Because this rule does not significantly or uniquely affect tribes and does not impose substantial and direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.
The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202–493–6292, or Ms. Kimberly Toone at 202–493–6137.
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via email to Mr. Brogan or Ms. Toone at the following address:
OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the
FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the
FRA has evaluated this proposed rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321
Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. If adopted, this proposed rule would not have a substantial direct effect on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. FRA has also determined that this proposed rule would not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
Moreover, FRA notes that RSAC, which endorsed and recommended the majority of this proposed rule, has as permanent members, two organizations representing State and local interests: AASHTO and ASRSM. Both of these State organizations concurred with the RSAC recommendation made in this rulemaking. RSAC regularly provides recommendations to the Administrator of FRA for solutions to regulatory issues that reflect significant input from its State members. To date, FRA has received no indication of concerns about the federalism implications of this rulemaking from these representatives or from any other representatives of State government.
However, this proposed rule could have preemptive effect by operation of law under 49 U.S.C. 20106 (Section 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “local safety or security hazard” exception to Section 20106.
In sum, FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under Section 20106. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this proposed rule is not required.
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) [currently $140,800,000] in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This proposed rule will not result in the expenditure, in the aggregate, of $140,800,000 or more in any one year, and thus preparation of such a statement is not required.
Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.”
FRA wishes to inform all interested parties that anyone is able to search the electronic form of any written communications and comments received into any agency docket by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Interested parties may also review DOT's complete Privacy Act Statement in the
Accidents, Critical incident, Penalties, Railroads, Railroad employees, Railroad safety, Safety, and Transportation.
For the reasons discussed in the preamble, FRA proposes to amend chapter II, subtitle B of Title 49 of the Code of Federal Regulations as follows:
49 U.S.C. 20103, 20107, 20109, note; 28 U.S.C. 2461, note; 49 CFR 1.89; and Sec. 410, Div. A, Public Law 110–432, 122 Stat. 4888.
(a) The purpose of this part is to promote the safety of railroad operations and the health and safety of railroad employees, especially those who are directly involved in a critical incident by requiring that the employing railroad offers and provides appropriate support services, including appropriate relief, to the directly-involved employees following that critical incident.
(b) Nothing in this part constrains a railroad from implementing a critical incident stress plan that contains additional provisions beyond those specified in this rule (including provisions covering additional incidents or persons), provided that such additional provisions are not inconsistent with this rule.
This part applies to each
(a) Class I railroad, including the National Railroad Passenger Corporation;
(b) Intercity passenger railroad; or
(c) Commuter railroad.
A railroad subject to this part shall adopt a written critical incident stress plan approved by the Federal Railroad Administration under § 272.103 and shall comply with that plan. Should a railroad subject to this part make a material modification to the approved plan, the railroad shall adopt the modified plan approved by the Federal Railroad Administration under § 272.103 and shall comply with that plan, as revised.
The critical incident stress plan of a railroad subject to this part shall state that it covers, and shall cover, the following individuals employed by the railroad if they are directly involved (as defined in § 272.9) in a critical incident:
(a) Railroad employees who are subject to the hours of service laws at—
(1) 49 U.S.C. 21103 (that is, train employees not subject to subpart F of part 228 of this chapter regarding the hours of service of train employees engaged in commuter or intercity rail passenger transportation);
(2) 49 U.S.C. 21104 (signal employees); or
(3) 49 U.S.C. 21105 (dispatching service employees);
(b) Railroad employees who are subject to the hours of service regulations at subpart F of part 228 of this chapter (regarding the hours of service of train employees engaged in commuter or intercity rail passenger transportation);
(c) Railroad employees who inspect, install, repair, or maintain railroad right-of-way or structures; and
(d) Railroad employees who inspect, repair, or maintain locomotives, passenger cars, or freight cars.
As used in this part—
(1) An accident/incident reportable to FRA under part 225 of this chapter that results in a fatality, loss of limb, or a similarly serious bodily injury; or
(2) A catastrophic accident/incident reportable to FRA under part 225 of this chapter that could be reasonably expected to impair a directly-involved employee's ability to perform his or her job duties safely.
(1) Whose actions are closely connected to the critical incident;
(2) Who witnesses the critical incident in person as it occurs or who witnesses the immediate effects of the critical incident in person; or
(3) Who is charged to directly intervene in, or respond to, the critical incident (excluding railroad police officers or investigators who routinely respond to and are specially trained to handle emergencies).
(a)
(b)
Each critical incident stress plan under this part shall include, at a minimum, provisions for—
(a) Informing each directly-involved employee as soon as practicable of the stress relief options that he or she may request;
(b) Offering timely relief from the balance of the duty tour for each directly-involved employee, after the employee has performed any actions
(c) Offering timely transportation to each directly-involved employee's home terminal, if necessary;
(d) Offering counseling, guidance, and other appropriate support services to each directly-involved employee;
(e) Permitting relief from the duty tour(s) subsequent to the critical incident, for an amount of time to be determined by each railroad, if requested by a directly-involved employee as may be necessary and reasonable;
(f) Permitting each directly-involved employee such additional leave from normal duty as may be necessary and reasonable to receive preventive services or treatment related to the incident or both; and
(g) Addressing how the railroad's employees operating or otherwise working on track owned by or operated over by a different railroad will be afforded the protections of the plan.
(a) Each railroad subject to this part shall submit to the Federal Railroad Administration, Office of Railroad Safety, 1200 New Jersey Avenue SE, Washington, DC 20590, for approval, the railroad's critical incident stress plan no later than 12 months after the effective date of the final rule.
(b) Each railroad subject to this part shall—
(1) Simultaneously with its filing with FRA, serve, either by hard copy or electronically, a copy of the submission filed pursuant to paragraph (a) of this section or a material modification filed pursuant to paragraph (e) of this section on the international/national president of any non-profit employee labor organization representing a class or craft of the railroad's employees subject to this part; and
(2) Include in its submission filed pursuant to paragraph (a) of this section or a material modification filed pursuant to paragraph (e) of this section a statement affirming that the railroad has complied with the requirements of paragraph (b)(1) of this section, together with a list of the names and addresses of the persons served.
(c) Not later than 90 days after the date of filing a submission pursuant to paragraph (a) of this section or a material modification pursuant to paragraph (e) of this section, a labor organization representing a class or craft of the railroad's employees subject to this part, may file a comment on the submission or material modification.
(1) Each comment shall be submitted to the Associate Administrator for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590; and
(2) The commenter shall certify that a copy of the comment was served on the railroad.
(d) A critical incident stress plan is considered approved for purposes of this part if and when FRA notifies the railroad in writing that the critical incident stress plan is approved, or 120 days after FRA has received the railroad's critical incident stress plan, whichever occurs first.
(e) After FRA's initial approval of a railroad's critical incident stress plan, if the railroad makes a material modification of the critical incident stress plan, the railroad shall submit to FRA for approval a copy of the critical incident stress plan as it has been revised to reflect the material modification within 30 days of making the material modification.
(f) Upon FRA approval of a railroad's critical incident stress plan and any material modification of the critical incident stress plan, the railroad must make a copy of the railroad's plan and the material modification available to the railroad's employees identified in § 272.7.
(g) Each railroad subject to this part must make a copy of the railroad's plan available for inspection and reproduction by the FRA.
(a) Each railroad to which this part applies is authorized to file by electronic means any critical incident stress plan submissions required under this part in accordance with the requirements of this section.
(b) Prior to the railroad submitting its first critical incident stress plan submission electronically, the railroad shall provide the Associate Administrator with the following information in writing:
(1) The name of the railroad;
(2) The names of two individuals, including job titles, who will be the railroad's points of contact and will be the only individuals allowed access to FRA's secure document submission site;
(3) The mailing addresses for the railroad's points of contact;
(4) The railroad's system or main headquarters address located in the United States;
(5) The email addresses for the railroad's points of contact; and
(6) The daytime telephone numbers for the railroad's points of contact.
(c) A railroad that electronically submits an initial critical incident stress plan, informational filing, or new portions or revisions to an approved critical incident stress plan required by this part shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email.
(d) A request for electronic submission or FRA review of written materials shall be addressed to the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE., Washington, DC 20590.
(e) FRA may electronically store any materials required by this part regardless of whether the railroad that submits the materials does so by delivering the written materials to the Associate Administrator and opts not to submit the materials electronically.
(f) A railroad that opts not to submit the materials required by this part electronically, but provides one or more email addresses in its submission, shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email or mail.
A civil penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $105,000 for any violation where circumstances warrant.
Fish and Wildlife Service, Interior.
Proposed rule; notice of public hearings.
We, the U.S. Fish and Wildlife Service (Service), announce notice of two public hearings associated with the recent reopening of the comment period on our May 15, 2012, proposed listing and designation of critical habitat for
(1)
(2)
Submit comments on the proposed listing rule by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R1–ES–2012–0017, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, MS 2042–PDM, Arlington, VA 22203.
Submit comments on the proposed critical habitat rule by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS–R1–ES–2013–0012, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, MS 2042–PDM, Arlington, VA 22203.
We request that you send comments only by the methods described above. We will post all comments on
Ken Berg, Manager, Washington Fish and Wildlife Office, 510 Desmond Drive, Suite 102, Lacey, WA 98503–1263; by telephone (360) 753–9440; or by facsimile (360) 534–9331. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
We will accept written comments and information during the reopened comment period and public hearings on our proposed listing and designation of critical habitat for the
As to the proposed listing determination, we are particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats.
(2) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations.
(3) Any information on the biological or ecological requirements of the species, and ongoing conservation measures for the species and their habitats.
(4) Current or planned activities in the areas occupied by these species and possible impacts of these activities on these species.
As to the proposed critical habitat determination, we are particularly interested in comments concerning:
(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act, including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.
(6) Specific information on:
(a) The amount and distribution of the species' habitat;
(b) What areas occupied by the species at the time of listing that contain features essential for the conservation of the species we should include in the designation and why;
(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential to the conservation of the species and why.
(7) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(8) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
(9) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
If you submitted comments or information on the proposed rule (77 FR 28704) during the initial comment period from May 15, 2012, to July 16,
You may submit your comments and materials concerning the proposed rules by one of the methods listed in
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on
On May 15, 2012, we published a proposed rule to list
On April 23, 2013, we published final rules for these proposed actions. We published the final listing rule under Docket No. FWS–R1–ES–2012–0017 (78 FR 23984) and the final critical habitat rule under Docket No. FWS–R1–ES–2013–0012 (78 FR 24008). The provisions of the final rules did not change from what was proposed. Both final rules had an effective date of May 23, 2013.
On May 23, 2013, we published a notice reopening the comment period on our May 15, 2012, proposed listing and designation of critical habitat (78 FR 30839) and published a document to delay the effective date of the April 23, 2013 final rules for an additional 6 months—until November 22, 2013 (May 23, 2013; 78 FR 30772). We delayed the effective date of the final rules and reopened the comment period on the proposed rules to allow us time to follow proper procedure in accordance with 16 U.S.C. 1533(b)(5). If, after review of any comments received during this reopened comment period, we determine that we should revise the final rules, we will announce this decision and our course of action in a document published in the
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Proposed rule; revision and reopening of comment period.
We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the September 5, 2012, proposed designation of critical habitat for
The comment period for the proposed rule published September 5, 2012 (77 FR 54517), is reopened. We will consider comments received or postmarked on or before July 29, 2013. Comments submitted electronically using the Federal eRulemaking Portal (see
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage
We will accept written comments and information during this comment period on our proposed designation of critical habitat for
(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(2) Specific information on:
(a) Areas containing the physical and biological features essential to the conservation of
(b) Areas proposed as revised critical habitat that do not contain the physical and biological features essential for the conservation of the species and that should not be designated as critical habitat;
(c) Areas not occupied or not known to be occupied at the time of listing that are essential for the conservation of the species and why; and
(d) Information on the projected and reasonably likely impacts of climate change on
(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.
(4) Information on the new areas that we are proposing for critical habitat designation in this document.
(5) Information that may assist us identifying or clarifying the physical and biological features essential to the conservation of
(6) Whether any specific areas being proposed as critical habitat for
(7) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
(8) Information on the extent to which the description of probable economic impacts in the DEA is complete and accurate, and specifically:
(a) Whether there are incremental costs of critical habitat designation (for example, costs attributable solely to the designation of critical habitat for
(b) Whether there are additional project modifications that may result from the designation of critical habitat for
(9) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
If you submitted comments or information on the proposed rule (77 FR 54517) during the initial comment period from September 5, 2012, to November 5, 2012, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed revised rule or DEA by one of the methods listed in
If you submit a comment via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, this document, and the DEA, will be available for public inspection on
It is our intent to discuss only those topics directly relevant to the
On September 5, 2012, we published a final rule to list
Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
We have corrected the acreage calculations for our September 5, 2012, proposal (77 FR 54517) due to a mapping error. The September 5, 2012, proposal identified 318 ac (129 (ha); the corrected total acreage is 197 ac (80 ha) for the 11 units proposed (see Revisions to Proposed Critical Habitat). We are providing corrected acreage because we have learned that our original acreage calculations were inadvertently made using a map projection that is used for web-based mapping (WGS84) rather than the local area projection used as a standard by the Service (UTM NAD83). The WGS84 projection is not designed for accurate local area measurement and resulted in inflated acreages, which have been corrected. The total acreage that we proposed has been recalculated, resulting in a total acreage of 197 ac (80 ha) proposed in the September 5, 2012, proposed rule (77 FR 54517). Please see Table 1 for revised acreages for each of these units.
On September 5, 2012, we proposed 11 units, consisting of approximately 318 ac (129 ha) in City and County of San Francisco, California, as critical habitat for
We are now proposing to increase the designation by approximately 73 ac (30 ha) to a total of approximately 270 ac (109 ha) in 13 critical habitat units in the City and County of San Francisco, California. We propose this increase based on additional information on habitat suitability that San Francisco Parks and Recreation Department (SFPRD) staff provided to us. The additional areas include: Two subunits in Unit 9 (Diamond Heights) so that the unit now consists of three subunits; and two new units at McLaren Park: Unit 12 (McLaren Park East), which consists of two subunits, and Unit 13 (McLaren Park West). Below, under Revised Proposed Critical Habitat: Additional Units, we provide an updated unit description for proposed Unit 9 and unit descriptions for proposed Units 12 and 13. We also modified the methods we used to delineate the proposed critical habitat; see “Methods” below.
As required by section 4(b)(2) of the Act, we use the best scientific data available to designate critical habitat. We review available information pertaining to the habitat requirements of the species. In accordance with the Act and its implementing regulations at 50 CFR 424.12(e), we consider whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing, if listing occurs before the designation of critical habitat—are necessary to ensure the conservation of the species. We are proposing to designate critical habitat in areas within the geographical area currently occupied by the species (see final listing determination published in the
This section provides details of the criteria and process we used to delineate the proposed critical habitat for
Although a recovery plan for
(1) Determine, in accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, the physical or biological habitat features essential to the conservation of the species and which may require special management considerations or protection.
(2) Identify multiple independent sites for
(3) In accordance with section 2(b) of the Act, select areas that would conserve the ecosystem upon which the species depends. This includes areas that contain the natural ecological interactions of the species with its habitat or areas with additional management that may be enhanced. The conservation of
(4) In selecting areas to propose as critical habitat, consider factors such as size, connectivity to other habitats, and rangewide recovery considerations. We rely upon principles of conservation biology, including: (a) Resistance and resiliency, to ensure sufficient habitat is protected throughout the range of the species to support population viability (e.g., demographic parameters); (b) redundancy, to ensure multiple viable populations are conserved throughout the species' range; and (c) representation, to ensure the representative genetic and life history of
We have determined that the additional units and subunits we are proposing as critical habitat in this document are essential for the conservation and recovery of
We have identified the additional units and subunits in part because of information indicating that some critical habitat units may be or may become unsuitable for
In order to identify the physical or biological features on the ground based on our criteria outlined above, we used the following methods to delineate the proposed critical habitat:
(1) We compiled and reviewed all available information on
(2) We also compiled and reviewed all available information on
(3) We reviewed available information on rock outcrops, bedrock, and areas identified as serpentine, greenstone, or of Franciscan formation within the San Francisco peninsula and surrounding areas south of Mount Davidson and north into Marin County to determine
(4) We compiled species occurrence information including historic record locations, the current occupied site within the Presidio, and information on the “rediscovery site” near Doyle Drive.
(5) We then compiled all this information into a Geographic Information System (GIS) database using ESRI ArcMap 10.0.
(6) We screen digitized and mapped the specific areas on which are found those physical or biological features essential to the conservation of the species or other areas determined to be essential for the conservation of the species.
Additionally, in the analysis for the additional areas we are proposing as critical habitat in this document, we used the following methods to delineate the proposed critical habitat:
(1) We used additional information we received about the suitability of habitat through our November 15, 2012, site visit and discussions with SFPRD staff. In our analysis for the proposed rule we had missed portions of Diamond Heights and McLaren Park as appropriate habitat.
(2) We examined higher-resolution imagery (0.3 meter pixel resolution versus 1.0 meter pixel resolution that was used in the September 5, 2012, proposed critical habitat). We used U.S. Geological Survey High Resolution Orthoimage USNG 10SEG325910. Orthoimage are remotely sensed image data in which the displacement of features in the image caused by terrain relief and sensor orientation have been mathematically removed. The natural color orthoimages were produced at 0.3-meter (approximately 1-foot) pixel resolution. We reviewed the remaining habitat available with the appropriate characteristics. We looked at all additional areas within San Francisco City and County that met our criteria as potential critical habitat. We double-checked suitable habitat we located against imagery that was used in the September 5, 2012, critical habitat.
(3) We mapped critical habitat. The image data were acquired between October 20, 2003, and January 21, 2004, using North American Datum (NAD) 83 Universal Transverse Mercator Zone 10N coordinates.
When determining proposed critical habitat boundaries, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack physical and biological features for
The units of critical habitat are proposed for designation based on sufficient elements of physical or biological features being present to support life-history processes for
The critical habitat designation is defined by the maps, as modified by any accompanying regulatory text, presented at the end of this document in the Proposed Regulation Promulgation section. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points, or both, on which each map is based available to the public on
We are now proposing to increase the proposed critical habitat designation for
Unit 9 consists of a total of approximately 38 ac (16 ha) and is located near Diamond Heights Boulevard (Blvd.) south of Turquoise Way, and O'Shaughnessy Blvd. This unit is comprised of three subunits. Subunit 9A (22 ac (9 ha)), which is located near Diamond Heights Blvd. south of Turquoise Way, was proposed as Unit 9 in the proposed rule published on September 5, 2012 (77 FR 54517). Subunit 9B (6 ac (2 ha)) is located east of O'Shaughnessy Blvd., and subunit 9C (11 ac (4 ha)) is located west of O'Shaughnessy Blvd. Unit 9 is currently unoccupied. The unit is within an area that: Experiences summer fog; is located on sloping terrain; and contains Franciscan Complex (greenstone) bedrock outcrops of chert, volcanic, and sedimentary materials, as well as soils derived from these formations; and open grassland habitat. The unit represents one of several areas identified for the species within the Mount Davidson area. Mount Davidson is the only site still remaining that was known to be previously occupied by the species. The units in this area would assist in establishing populations of
Unit 12 consists of a total of approximately 27 ac (11 ha) and is located at McLaren Park south of Mansell Street (St.) near Visitacion Avenue (Ave.). This unit is comprised of two subunits. Subunit 12A (14 ac (6 ha)) is located south of Mansell St. and west of Visitacion Ave. Subunit 12B (12 ac (5 ha)) is located south of Mansell St. and east of Visitacion Ave. This unit is currently unoccupied. The unit is within an area that experiences summer fog and is located on sloping terrain. It contains Franciscan Complex (greenstone) bedrock and serpentine outcrops, soils derived from these formations, and open grassland habitat. This unit would assist in establishing an additional population of
Unit 13 consists of approximately 30 ac (12 ha) and is located at McLaren Park between Geneva Ave. and Sunnydale Ave. This unit is currently unoccupied. The unit is within an area that experiences summer fog; is located on sloping terrain; and contains Franciscan Complex (greenstone) bedrock outcrops of volcanic materials, soils derived from these formations, and open grassland habitat. Including this unit would assist in establishing additional populations of
Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of
We have not proposed to exclude any areas from critical habitat. However, we will review the requests from NPS, the Presidio Trust, and the public to exclude some areas within proposed Units 1, and 2, and some areas within proposed Subunits 3B, 4B, and 5A, as well as all of Subunit 3A at the Presidio. NPS wrote in support of an exclusion for portions of Units 1 and 2 where NPS plans remediation of contaminated soils and other cultural resource management. NPS and the Presidio Trust requested an exclusion for portions of Subunit 3B and all of Subunit 3A because of concerns that designating these subunits will impair their abilities to manage habitat for the federally endangered
The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for
The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for
The DEA quantifies economic impacts of
The DEA concludes that incremental impacts resulting from the critical habitat designation would be limited to additional administrative costs of section 7 consultation. Estimating the impact of a regulation on future outcomes is inherently uncertain. Administrative time for consultations and other additional costs are project dependent and exhibit wide variability. The timing of future projects affects the present value of the cost estimates because of the time value of money, but the precise timing is uncertain. The
The DEA estimates total potential incremental economic impacts in areas proposed as critical habitat over the next 20 years (2013 to 2032) to be approximately $28,222 ($1,411 annualized) in present-value terms applying a 7 percent discount rate (RTI International 2013, pp. ES–2 and 3–2). NPS and the Presidio Trust manage lands within the four proposed unoccupied critical habitat units (Units 1, 2, 3, and 4) and the one proposed occupied critical habitat unit (Unit 5) on Federal lands at the Presidio. The remaining proposed critical habitat units (Units 6 through 13) occur on non-Federal lands unoccupied by
Administrative costs associated with section 7 consultations on a variety of NPS and Presidio Trust activities (including NPS and Presidio Trust management plans, soil remediation, and unspecified activities) on Federal lands in proposed occupied and unoccupied critical habitat (Units 1, 2, 3, 4, and 5) account for approximately 91 percent of the forecast undiscounted incremental impacts (RTI International 2013, pp. ES–2 and 3–2). Within these administrative costs, the largest incremental economic impacts are associated with section 7 consultations with NPS and the Presidio Trust for unspecified activities within Units 1, 2, 3, 4, and 5; these unspecified consultations represent approximately 75 percent of the total undiscounted incremental costs and are expected to total $32,672 (undiscounted) over the 20-year period, with costs of formal consultations distributed evenly among all 5 units and costs of informal consultations distributed evenly among the 4 unoccupied units (RTI International 2013, pp. ES–2 and p. 3–2).
The second largest incremental economic impact is associated with section 7 consultations with NPS and the Presidio Trust for soil remediation activities within Units 1 and 2. These consultations represent approximately 19 percent of the total undiscounted incremental costs and are expected to total $8,083 over the 20-year period distributed evenly between the two units (RTI International 2013, p. ES–2) (all soil remediation activities are anticipated to occur within the first year, and, therefore are not discounted) (RTI International 2013, p. 3–5).
The third largest incremental economic impact is associated with section 7 consultations on federally funded trail maintenance on SFRPD lands within proposed unoccupied critical habitat Units 12 and 13. These consultations represent approximately 6 percent of the total undiscounted incremental costs and are expected to total $2,690 (undiscounted) over the next 20 years distributed evenly between the two units (RTI International 2013, p. ES–2). The SFRPD is estimated to incur costs of approximately $363 from these consultations, with the remaining costs accruing to the Service and the Federal action agency (RTI International 2013, p. ES–3).
The fourth largest incremental economic impact is associated with the reinitiation of section 7 consultation with NPS and the Presidio Trust for their management plans within proposed critical habitat Units 1 through 5. This consultation represents approximately 0.4 percent of the total incremental costs and is expected to total $115 over the 20-year period, distributed evenly among the five units (the reinitiation of consultation on the NPS and Presidio Trust management plans is anticipated to occur within the first year and, therefore, is not discounted).
With regard to other activities on non-Federal lands, the potential for Federal nexus is very low. Therefore, no consultations were estimated for miscellaneous activities on non-Federal land within Units 6 through 11. Thus, there are no anticipated incremental economic impacts associated with the designation of critical habitat within Units 6 through 11. The only other consultations that may be anticipated on non-Federal lands include reintroduction of
Regarding road maintenance and construction, the California Department of Transportation indicated in a personal communication that any projects on the roads adjacent to the proposed units would not likely affect the
As stated earlier, we are soliciting data and comments from the public on the DEA, as well as on all aspects of the proposed rule, the revisions to that proposed rule that are described in this document, and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
In our September 5, 2012, proposed rule (77 FR 54517), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Orders (E.O.s) 12866 and 13563 (Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for
The Service's current understanding of recent case law is that Federal agencies are only required to evaluate the potential impacts of rulemaking on those entities directly regulated by the rulemaking; therefore, they are not required to evaluate the potential impacts to those entities not directly regulated. The designation of critical habitat for an endangered or threatened species only has a regulatory effect where a Federal action agency is involved in a particular action that may affect the designated critical habitat. Under these circumstances, only the Federal action agency is directly regulated by the designation, and, therefore, consistent with the Service's current interpretation of RFA and recent case law, the Service may limit its evaluation of the potential impacts to those identified for Federal action agencies. Under this interpretation, there is no requirement under the RFA to evaluate potential impacts to entities not directly regulated, such as small businesses. However, Executive Orders 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consequently, it is the current practice of the Service to assess to the extent practicable these potential impacts, if sufficient data are available, whether or not this analysis is believed by the Service to be strictly required by the RFA. In other words, while the effects analysis required under the RFA is limited to entities directly regulated by the rulemaking, the effects analysis under the Act, consistent with the E.O. regulatory analysis requirements, can take into consideration impacts to both directly and indirectly impacted entities, where practicable and reasonable.
In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the Small Business Administration, stakeholders, and the Service. Because the Service, Presidio Trust, NPS and SFRPD are the only entities with expected direct compliance costs and are not considered small entities, this rule would not result in a significant impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for
A complete list of all references we cited in the September 5, 2012, proposed rule and in this document is available on the Internet at
The primary authors of this notice are the staff members of the Sacramento Fish and Wildlife Office, Region 8, U.S. Fish and Wildlife Service.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to further amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, which was proposed to be amended at 77 FR 54517, September 5, 2012, as set forth below:
16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; unless otherwise noted.
These revisions and additions read as follows:
(a) * * *
Family Ericaceae:
(5) Index map follows:
(14) Unit 9: Diamond Heights, San Francisco County, California. Map of Unit 9 follows:
(17) Unit 12: McLaren Park East, San Francisco County, California. Map of Unit 12 follows:
(18) Unit 13: McLaren Park West, San Francisco County, California. Map of Unit 13 follows:
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request for an extension and revision of a currently approved information collection for Fruit and Vegetable Market News.
Comments must be received by August 27, 2013.
Interested persons are invited to submit written comments on
Terry C. Long, Director; Fruit and Vegetable Market News Division, Fruit and Vegetable Program, (202) 720–2175, Fax: (202) 720–0011.
The Agricultural Marketing Act of 1946 (7 U.S.C. 1621–1627), section 203(g) directs and authorizes the collection and dissemination of marketing information including adequate outlook information, on a market area basis, for the purpose of anticipating and meeting consumer requirements, aiding in the maintenance of farm income and to bring about a balance between production and utilization.
The fruit and vegetable industry provides information on a voluntary basis that is gathered through confidential telephone and face-to-face interviews by market reporters. Reporters request supply, demand, and price information of over 330 fresh fruit, vegetable, nut, ornamental, and other specialty crops. The information is collected, compiled, and disseminated by Market News in its critical role as an impartial third party. It is collected and reported in a manner which protects the confidentiality of the respondent and their operations.
The fruit and vegetable market news reports are used by academia and various government agencies for regulatory and other purposes, but are primarily used by the fruit, vegetable and ornamental trade, which includes packers, processors, brokers, retailers, producers, and associated industries. Members of the fruit and vegetable industry regularly make it clear that they need and expect the Department of Agriculture to issue price and supply market reports for commodities of regional, national and international significance in order to assist in making immediate production and marketing decisions and as a guide to the amount of product in the supply channel. In addition, the Agricultural Marketing Service buys hundreds of millions of dollars of fruit and vegetable products each year for domestic feeding programs, and Market News data is a critical component of the decision making process.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget, for an extension of the currently approved information collection National Organic Program (NOP) Reporting and Recordkeeping Requirements.
Comments received by August 27, 2013 will be considered.
Interested persons are invited to submit written comments concerning this notice. Comments must be sent to Toni Strother, Agricultural Marketing Specialist, National Organic Program, AMS/USDA, 1400 Independence Ave. SW., Room 2646–So., Ag Stop 0268, Washington, DC 20250–0268 or by Internet:
Melissa Bailey, Ph.D., Director, Standards Division, National Organic Program, USDA–AMS, 1400 Independence Ave. SW., Room 2646–So., Ag Stop 0268, Washington, DC 20250, Telephone: (202) 720–3252, Fax: (202) 205–7808.
Reporting and recordkeeping are essential to the integrity of the organic certification system. They create a paper trail that is a critical element in carrying out the mandate of OFPA and NOP. They serve the AMS mission, program objectives, and management needs by providing information on the efficiency and effectiveness of the program. The information affects decisions because it is the basis for evaluating compliance with OFPA and NOP, for administering the program, for management decisions and planning, and for establishing the cost of the program. It supports administrative and regulatory actions in response to noncompliance with OFPA and NOP.
In general, the information collected is used by USDA, State program governing State officials, and certifying agents. It is created and submitted by State and foreign program officials, peer review panel members, accredited certifying agents, organic inspectors, certified organic producers and handlers, those seeking accreditation or certification, and parties interested in changing the National List of Allowed and Prohibited Substances at sections 205.600 through 205.607. Additionally, it causes most of these entities to have procedures and space for recordkeeping.
Administrative costs for reporting, disclosure of information, and recordkeeping vary among certifying agents. Factors affecting costs include the number and size of clients, the categories of certification provided, and the type of systems maintained.
When an entity applies for accreditation as a certifying agent, it must provide a copy of its procedures for complying with recordkeeping requirements (§ 205.504(b)(3)). Once accredited, agents have to make their records available for inspection and copying by authorized representatives of the Secretary (§ 205.501(a)(9)). USDA charges certifying agents for the time required to do these document reviews. Audits require less time when the documents are well organized and centrally located.
Recordkeeping requirements for certifying agents are divided into three categories of records with varying retention periods: (1) Records created by certifying agents regarding applicants for certification and certified operations, maintain 10-years, consistent with OFPA's requirement for maintaining all records concerning activities of certifying agents; (2) records obtained from applicants for certification and certified operations, maintain 5-years, the same as OFPA's requirement for the retention of records by certified operations; and (3) records created or received by certifying agents regarding accreditation, maintain 5-years, consistent with OFPA's requirement for renewal of agent's accreditation (§ 205.510(b)).
Administrative costs for reporting and recordkeeping vary among certified operators. Factors affecting costs include the type and size of operation, and the type of systems maintained.
AMS believes that operations using product labels containing the term “organic” handle an average of 20 labels annually. Based upon AMS NOP's 2012 List of certified organic operations, there are over 10,800 certified organic handlers. For each certified handler, AMS estimates that the average annual burden to develop product labels with organic claims is one hour per product label times 20 product labels per handler. The annual burden will be lower for smaller operations and higher for large operations that produce a significant volume of organic processed product.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
7 U.S.C. 6501–6522.
Rural Utilities Service, USDA.
Notice of Funding Availability.
The Rural Utilities Service (RUS), an agency of the United States Department of Agriculture (USDA), announces the availability of $17,531,000 in grant funds and solicitation of applications for the Distance Learning and Telemedicine (DLT) Grant Program for the Fiscal Year (FY) 2013 competition.
You may submit completed applications for grants on paper or electronically per the following deadlines:
•
•
Copies of the FY 2013 Application Guides and materials for the DLT grant program may be obtained at the following sources:
(1)
(2) You may also request application guides and materials from RUS by contacting the DLT Program at 202–720–0665.
(1)
(2)
Norberto Esteves, Acting Director, Advanced Services Division, Telecommunications Programs, Rural Utilities Service. Email:
• Paper submissions must be postmarked and mailed, shipped, or sent overnight no later than August 12, 2013 to be eligible for FY 2013 grant funding. Late or incomplete applications are not eligible for FY 2013 grant funding.
DLT grants are specifically designed to provide access to education, training and health care resources for people in rural America.
The DLT Program provides financial assistance to encourage and improve telemedicine services and distance learning services in rural areas through the use of telecommunications, computer networks, and related advanced technologies to be used by students, teachers, medical professionals, and rural residents.
The grants, which are awarded through a competitive process, may be used to fund telecommunications-enabled information, audio and video equipment and related advanced technologies which extend educational and medical applications into rural locations. Grants are made for projects where the benefit is primarily delivered to end users that are not at the same location as the source of the education or health care service.
As in years past, the FY 2013 DLT Grant Application Guide has been updated based on program experience. All applicants should carefully review and prepare their applications according to instructions in the FY 2013 Application Guide and sample materials when compiling a DLT grant application.
The Agency notes that the Food, Conservation, and Energy Act of 2008 (Pub. L. 110–234) expressly added the category of libraries under Sec. 2333(c)(1) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 950aaa–2(a)(1)) to clearly establish that libraries are eligible to be recipients of DLT Loans and Grants. This confirms the longstanding Agency policy of considering libraries to be eligible entities under the DLT Program. The regulation for the DLT Grant Program can be found at 7 CFR part 1703, subpart E.
Under 7 CFR 1703.124, the Administrator has determined the maximum amount of a grant to be made available to an applicant in FY 2013 is $500,000, and the minimum amount of a grant is $50,000, subject to availability of funding.
The Agency will make awards and execute documents appropriate to the project prior to any advance of funds to successful applicants.
DLT grants cannot be renewed. Award documents specify the term of each award. The Agency will make awards and execute documents appropriate to the project prior to any advance of funds to successful applicants. Applications from existing DLT awardees are acceptable (grant applications must be submitted during the application window) and will be evaluated as new applications.
1. Only entities legally organized as one of the following are eligible for DLT financial assistance:
a. An incorporated organization or partnership,
b. An Indian tribe or tribal organization, as defined in 25 U.S.C. 450b,
c. A state or local unit of government,
d. A consortium, as defined in 7 CFR 1703.102, or
e. Other legal entity, including a private corporation organized on a for-profit or not-for-profit basis.
2. Individuals are not eligible for DLT program financial assistance directly.
3. Electric and telecommunications borrowers under the Rural Electrification Act of 1936 (7 U.S.C. 950aaa et seq.) are not eligible for grants.
4. Corporations that have been convicted of a felony (or had an officer or agency acting on behalf of the corporation convicted of a felony) within the past 24 months are not eligible. Any corporation that has any unpaid federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, is not eligible for financial assistance.
1. Required matching contributions for grants: See 7 CFR 1703.125(g) and the FY 2013 Application Guide for information on required matching contributions.
a. Grant applicants must demonstrate matching contributions, in cash or in kind (new, non-depreciated items), of at least fifteen (15) percent of the total amount of financial assistance requested. Matching contributions must be used for eligible purposes of DLT grant assistance (see 7 CFR 1703.121, paragraphs V.H.1.b of this Notice and the FY 2013 Application Guide).
b. Greater amounts of eligible matching contributions may increase an applicant's score (see 7 CFR 1703.126(b)(4) and the FY 2013 Application Guide).
c. Applications that do not provide evidence of the required fifteen percent match will be declared ineligible and returned unless a SUTA waiver of matching funds is granted . See paragraphs V.H.1.c and VI.B.2.c of this Notice, and the FY 2013 Application Guide for specific information on documentation of matching contributions.
d. Applications that do not document all matching contributions in form and substance satisfactory to the Agency as described in the Application Guide are subject to disallowance which may make an application ineligible for not meeting the minimum required match.
2. The DLT grant program is designed to bring the benefits of distance learning and telemedicine to residents of rural America (see 7 CFR 1703.103(a)(2)). Therefore, to be eligible, applicants must:
a. Operate a rural community facility; or
b. Deliver distance learning or telemedicine services to entities that operate a rural community facility or to residents of rural areas, at rates calculated to ensure that the benefit of the financial assistance is passed through to such entities or to residents of rural areas.
3. Rurality.
a. All projects proposed for DLT grant assistance must meet a minimum rurality threshold, to ensure that benefits from the projects flow to rural residents. The minimum eligibility score is 20 points.
b. Each application must apply the following criteria to each of its end-user sites, and hubs that are also proposed as end-user sites, to determine a rurality score. The rurality score is the average of all end-user sites' rurality scores.
c. The rurality score is one of the competitive scoring criteria applied to grant applications.
4. Projects located in areas covered by the Coastal Barrier Resources Act (16 U.S.C. 3501 et seq.) are not eligible for financial assistance from the DLT Program. Please see 7 CFR 1703.123(a)(11), 7 CFR 1703.132(a)(5), and 7 CFR 1703.142(b)(3).
C.
The 2008 Farm Bill (Pub. L. 110–246, codified at 7 U.S.C. 906f), authorizes the Substantially Underserved Trust Areas (SUTA) provisions, as implemented by RUS as regulation 7 CFR 1700,
FY 2013 Application Guides, copies of necessary forms and samples, and the DLT Program regulation are available from these sources:
1. The Internet:
2. The DLT Program for paper copies of these materials: 202–720–0665.
1. Applicants are reminded that the DLT Grant Program is intended to meet the educational and health care needs of rural America. Hub sites may be located in rural or non-rural areas, but end-user sites need to be located in rural areas. Non-fixed sites serving a geographical service area may include non-rural areas. However, for determining rurality and NSLP scores every incorporated and non-incorporated city, village or borough must be listed and scored accordingly, including those jurisdictions which are more populated than those defined as rural. The necessary inclusion of non-rural jurisdictions in these types of projects could cause a lower rurality score by virtue of the project's geographic and demographic layout. Because of this, the applicant should make an effort to reveal how their project will focus the delivery of service to the rural residents of their service territory. From a competitive standpoint, applicants could offset the loss of rurality points by attempting to score higher in the subjective areas of needs and benefits, innovativeness, and cost effectiveness with well crafted narratives. The FY 2013 Application Guide contains language clarifying this provision of the regulation.
2. If a grant application includes a site that is included in any other DLT grant application for FY 2013, or a site that has been included in any DLT grant funded in FY 2012 or FY 2011, the application should contain a detailed explanation of the related applications or grants. The Agency must make a nonduplication finding for each grant approved, and apparent but unexplained duplication of funding for a site can prevent such a finding.
a. Detailed information on each item in the table in paragraph V.C.1.h of this Notice can be found in the sections of the DLT Program regulation listed in the
(1) When the table refers to a narrative, it means a written statement, description or other written material prepared by the applicant, for which no form exists. The Agency recognizes that each project is unique and requests narratives to allow applicants to explain their request for financial assistance.
(2) When documentation is requested, it means letters, certifications, legal documents, or other third-party documentation that provide evidence that the applicant meets the listed requirement. For example, to confirm rurality scores, applicants can use printouts from the Web site
b. The DLT Application Guide and ancillary materials provide all necessary sample forms and worksheets.
c. While the table in paragraph V.C.1.h of this Notice includes all items of a completed application, the Agency may ask for additional or clarifying information for applications which, as submitted by the deadline, appear to clearly demonstrate that they meet eligibility requirements. The Agency will not solicit or accept eligibility or scoring information submitted after the application deadline.
d. Given the high volume of program interest, to expedite processing applicants are asked to submit the required application items in the order depicted in the FY 2013 Application Guide. The FY 2013 Application Guide specifies the format and order of all required items. Applications that are not assembled and tabbed in the order specified prevent timely determination of eligibility. For applications with inconsistency among submitted copies, the Agency will base its evaluation on the original signed application received by the Agency.
e. DUNS Number. The applicant for a grant must supply a Dun and Bradstreet Data Universal Numbering System (DUNS) number as part of an application. The Standard Form 424 (SF–424) contains a field for the DUNS number. The applicant can obtain the DUNS number free of charge by calling Dun and Bradstreet. Please see
f. Prior to submitting an application, the applicant must register in the System for Award Management (SAM) (formerly Central Contractor Registry, (CCR)).
(1) Applicants may register for the SAM at
(2) The SAM registration must remain active with current information at all times while RUS is considering an application or while a Federal Grant Award or loan is active. To maintain the registration in the SAM database the applicant must review and update the information in the SAM database annually from date of initial registration or from the date of the last update. The applicant must ensure that the information in the database is current, accurate, and complete.
g. Compliance with other federal statutes. The applicant must provide evidence of compliance with other federal statutes and regulations, including, but not limited to the following:
(1) 7 CFR part 15, subpart A—Nondiscrimination in Federally Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964.
(2) 7 CFR part 3015—Uniform Federal Assistance Regulations.
(3) 7 CFR part 3017—Government-wide Debarment and Suspension (Non-procurement).
(4) 7 CFR part 3018—New Restrictions on Lobbying.
(5) 7 CFR part 3021—Government-wide Requirements for Drug-Free Workplace.
h. Table of Required Elements of a Completed Grant Application.
a. Submit the original application and two (2) copies to RUS; and
b. Submit one (1) additional copy to the state government single point of contact (if one has been designated) at the same time as you submit the application to the Agency for the State where the project is located. If the project is located in more than one State, submit a copy to each state government single point of contact. See
2. Electronically submitted applications. Grant applications may be submitted electronically. Please carefully read the FY 2013 Application Guide for guidance on submitting an electronic application. In particular, we ask that you identify and number each page in the same way you would a paper application so that we can assemble them as you intended.
a. The additional paper copy is not necessary if you submit the application electronically through Grants.gov.
b. Submit one (1) copy to the state government single point of contact (if one has been designated) at the same time as you submit the application to the Agency. If the project is located in more than one State, submit a copy to each state government single point of contact. See
a. Address paper applications to the Telecommunications Program, RUS, United States Department of Agriculture, 1400 Independence Ave. SW., Room 2845, STOP 1550, Washington, DC 20250–1550. Applications should be marked “Attention: Acting Director, Advanced Services Division.”
b. Paper grant applications must show proof of mailing or shipping by the deadline consisting of one of the following:
(i) A legibly dated U.S. Postal Service (USPS) postmark;
(ii) A legible mail receipt with the date of mailing stamped by the USPS; or
(iii) A dated shipping label, invoice, or receipt from a commercial carrier.
c. Due to screening procedures at the Department of Agriculture, packages arriving via regular mail through the USPS are irradiated, which can damage the contents and delay delivery to the DLT Program. RUS encourages applicants to consider the impact of this procedure in selecting their application delivery method.
a. Applications will not be accepted via fax or electronic mail.
b. Electronic applications for grants will be accepted if submitted through the Federal government's Grants.gov initiative at
c. How to use Grants.gov.
(i) Grants.gov contains full instructions on all required passwords, credentialing and software.
(ii) System for Award Management. Submitting an application through Grants.gov requires that your organization list in the System for Award Management (SAM) (formerly Central Contractor Registry, CCR). The Agency strongly recommends that you obtain your organization's DUNS number and SAM listing well in advance of the deadline specified in this notice.
(iii) Credentialing and authorization of applicants. Grants.gov will also require some credentialing and online authentication procedures. These procedures may take several business days to complete, further emphasizing the need for early action by applicants to complete the sign-up, credentialing and authorization procedures at Grants.gov before you submit an application at that Web site.
(iv) Some or all of the SAM and Grants.gov registration, credentialing and authorizations require updates. If you have previously registered at Grants.gov to submit applications electronically, please ensure that your registration, credentialing and authorizations are up to date well in advance of the grant application deadline.
d. RUS encourages applicants who wish to apply through Grants.gov to submit their applications in advance of the deadlines.
e. If a system problem occurs or you have technical difficulties with an electronic application, please use the customer support resources available at the Grants.gov Web site.
1. Paper grant applications must be postmarked and mailed, shipped, or sent overnight no later than August 12, 2013 to be eligible for FY 2013 grant funding. Late applications, applications which do not include proof of mailing or shipping as described in paragraph V.E.1.b., and incomplete applications are not eligible for FY 2013 grant funding.
2. Electronic grant applications must be received by August 12, 2013 to be eligible for FY 2013 funding. Late or incomplete applications will not be eligible for FY 2013 grant funding.
The DLT grant program is subject to Executive Order 12372, “Intergovernmental Review of Federal Programs.” As stated in paragraph V.D.1 of this Notice, a copy of a DLT grant application must be submitted to the state single point of contact if one has been designated. Please see
a. For grants, rural end-user sites may receive financial assistance; hub sites (rural or non-rural) may also receive financial assistance if they are necessary to provide DLT services to end-user sites. Please see the Application Guide and 7 CFR 1703.101(h).
b. To fulfill the policy goals laid out for the DLT Program in 7 CFR 1703.101, the following table lists purposes for financial assistance and whether each purpose is generally considered to be eligible for the form of financial assistance. Please consult the FY 2013 Application Guide and the regulations (7 CFR 1703.102) for definitions, in combination with the portions of the regulation cited in the table) for detailed requirements for the items in the table. RUS strongly recommends that applicants exclude ineligible items from the grant and match portions of grant application budgets. However, some items ineligible for funding or matching contributions may be vital to the project. RUS encourages applicants to document those costs in the application's budget. Please see the FY 2013 Application Guide for a recommended budget format, and detailed budget compilation instructions.
c. Discounts. The DLT Program regulation has long stated that manufacturers' and service providers' discounts are not eligible matches. The Agency will not consider as eligible any proposed match from a vendor, manufacturer, or service provider whose products or services will be used in the DLT project as described in the application. In recent years, the Agency has noted a trend of vendors, manufacturers, and other service providers offering their own products and services as in-kind matches for a project when their products or services will also be purchased with either grant or cash match funds for that project. Such activity is a discount and is therefore not an eligible match. Similarly, if a vendor, manufacturer, or other service provider proposes a cash match (or any in-kind match) when their products or services will be purchased with grant or match funds, such activity is a discount and is not an eligible match. The Agency actively discourages such matching proposals and will adjust budgets as necessary to remove any such matches, which may reduce an application's score or result in the application's ineligibility due to insufficient match.
2. Eligible Equipment & Facilities. Please see the FY 2013 Application Guide for more information regarding eligible and ineligible items. In addition, see 7 CFR 1703.102 for definitions of eligible equipment, eligible facilities, and
3. Apportioning budget items. Many DLT applications propose to use items for a blend of specific DLT eligible project purposes and other purposes. RUS will consider funding such items in the overall context of the project, but such items will affect the competitive value of the project compared with other projects. The proposed project could receive a lower score in the subjective areas of the grant to the extent that its budget requests items that have limited or questionable value to the purposes of distance learning or telemedicine. See the FY 2013 Application Guide for detailed information on how to apportion use and apportioning illustrations.
1. American Samoa, Guam, Virgin Islands, and Northern Mariana Islands applications are exempt from the matching requirement up to a match amount of $200,000 (see 48 U.S.C. 1469a; 91 Stat. 1164).
2. 7 CFR 1703.112 directs that RUS Telecommunications Borrowers receive expedited consideration of a loan application or advance under the Rural Electrification Act of 1936 (7 U.S.C. 901–950aa, et. seq.) if the loan funds in question are to be used in conjunction with a DLT grant (See 7 CFR 1737 for loans and 7 CFR 1744 for advances).
1. Grant application scoring criteria (total possible points: 215). See 7 CFR 1703.125 for the items that will be reviewed during scoring, and 7 CFR 1703.126 for scoring criteria.
2. Grant applications are scored competitively subject to the criteria listed below.
a.
b.
c.
d. Need for services proposed in the application and the benefits that will be derived if the application receives a grant (up to 55 points).
(i)
(ii)
e. Innovativeness category—level of innovation demonstrated by the project (up to 15 points).
f. Cost Effectiveness category—system cost-effectiveness (up to 35 points).
1. In addition to the scoring criteria that rank applications against each other, the Agency evaluates grant applications for possible awards on the following items, according to 7 CFR 1703.127:
a. Financial feasibility.
b. Technical considerations. If the application contains flaws that would prevent the successful implementation, operation or sustainability of a project, the Agency will not award a grant.
c. Other aspects of proposals that contain inadequacies that would undermine the ability of the project to comply with the policies of the DLT Program.
2. Applications which do not include all items that determine project eligibility and applicant eligibility by the application deadline will be returned as ineligible. Applications that do not include all items necessary for scoring will be scored as is. Please see the FY 2013 Application Guide for a full discussion of each required item and for samples and illustrations. The Agency will not solicit or consider eligibility or scoring information submitted after the application deadline.
3. The FY 2013 grant Application Guide specifies the format and order of all required items.
4. Most DLT grant projects contain numerous project sites. The Agency requires that site information be consistent throughout an application. Sites must be referred to by the same designation throughout all parts of an application. The Agency has provided a site worksheet that requests the necessary information, and can be used as a guide by applicants. RUS strongly recommends that applicants complete the site worksheet, listing all requested information for each site. Applications without consistent site information will be returned as ineligible.
5. As stated above, DLT grant applications which have non-fixed end-user sites, such as ambulance and home health care services, are scored according to the applicant's entire service area. See the FY 2013 Application Guide for specific guidance on preparing an application with non-fixed end users.
D.
RUS generally notifies by mail applicants whose projects are selected for awards. The Agency follows the award letter with an agreement that contains all the terms and conditions for the grant. A copy of the standard agreement is posted on the RUS Web site at
The items listed in Section V of this notice, the DLT Program regulation, FY 2013 Application Guide and accompanying materials implement the appropriate administrative and national policy requirements.
1. Performance reporting. All recipients of DLT financial assistance must provide annual performance activity reports to RUS until the project is complete and the funds are expended. A final performance report is also required; the final report may serve as the last annual report. The final report must include an evaluation of the success of the project in meeting DLT Program objectives.
2. Financial reporting. All recipients of DLT financial assistance must provide an annual audit, beginning with the first year in which a portion of the
3. Recipient and Subrecipient Reporting. The applicant must have the necessary processes and systems in place to comply with the reporting requirements for first-tier sub-awards and executive compensation under the Federal Funding Accountability and Transparency Act of 2006 in the event the applicant receives funding unless such applicant is exempt from such reporting requirements pursuant to 2 CFR part 170, § 170.110(b). The reporting requirements under the Transparency Act pursuant to 2 CFR part 170 are as follows:
a. First Tier Sub-Awards of $25,000 or more in non-Recovery Act funds (unless they are exempt under 2 CFR part 170) must be reported by the Recipient to
b. The Total Compensation of the Recipient's Executives (5 most highly compensated executives) must be reported by the Recipient (if the Recipient meets the criteria under 2 CFR part 170) to
c. The Total Compensation of the Subrecipient's Executives (5 most highly compensated executives) must be reported by the Subrecipient (if the Subrecipient meets the criteria under 2 CFR part 170) to the Recipient by the end of the month following the month in which the subaward was made.
4. Record Keeping and Accounting.
The grant contract will contain provisions relating to record keeping and accounting requirements.
A.
B.
C.
D.
E.
An application has been submitted to the Foreign-Trade Zones Board (the Board) by the City of Tampa, grantee of FTZ 79, requesting two additional sites for Subzone 79C located in Dade City and Leesburg, Florida. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a–81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on June 24, 2013.
Subzone 79C was approved on June 17, 2013 (S–95–2013) with a site (515.57 acres) located at 602 McKean Street in Auburndale (Polk County) subject to a three-year ASF sunset provision to June 30, 2016.
The applicant is now requesting authority to include two additional sites:
In accordance with the Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is August 7, 2013. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to August 22, 2013.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230–0002, and in the “Reading Room” section of the Board's Web site, which is accessible via
On February 22, 2013, Southern Lithoplate, Inc. submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within FTZ 189—Site 10, in Grand Rapids, Michigan.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
In the Matter of: Billy L. Powell, Sr., 1911 Hickory Creek, Kingwood, TX 77339, Respondent.
The Bureau of Industry and Security, U.S. Department of Commerce (“BIS”),
On fifty occasions, between on or about January 14, 2006, and on or about February 23, 2008, Powell violated the Regulations by selling or transferring various oil and gas equipment parts, items subject to the Regulations
Powell knew or had reason to know that he was violating the Regulations by engaging in these transactions, because prior to engaging in these transactions, Powell had knowledge of the U.S. Government's embargo on exports to Iran based on, inter alia, multiple outreach visits and contacts by U.S. law enforcement agents between 2000 and 2007, regarding the licensing requirements for exports to embargoed destinations, including Iran. In engaging in this activity, Powell committed fifty violations of Section 764.2(e) of the Regulations.
First, Powell shall be assessed a civil penalty in the amount of $100,000, the payment of which shall be made to the U.S. Department of Commerce within 30 days of the date of this Order.
Second, that, pursuant to the Debt Collection Act of 1982, as amended (31 U.S.C. 3701–3720E (2000)), the civil penalty owed under this Order accrues interest as more fully described in the attached Notice, and if payment is not made by the due date specified herein, Powell will be assessed, in addition to the full amount of the civil penalty and interest, a penalty charge and an administrative charge, as more fully described in the attached Notice.
Third, that for a period of five (5) years from the date of this Order, Billy L. Powell, Sr., with a last known address of 1911 Hickory Creek, Kingwood, TX 77339, and when acting for or on his behalf, his successors, assigns, representatives, agents, or employees (hereinafter collectively referred to as “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including, but not limited to:
A. Applying for, obtaining, or using any license, License Exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.
Fourth, that no person may, directly or indirectly, do any of the following:
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from, or to facilitate the acquisition or attempted acquisition from, the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Fifth, that, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any person, firm, corporation, or business organization related to the Denied Person by affiliation, ownership,
Sixth, that the Proposed Charging Letter, the Settlement Agreement, and this Order shall be made available to the public.
Seventh, that this Order shall be served on Powell, and shall be published in the
This Order, which constitutes the final agency action in this matter, is effective immediately.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with May anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews.
Brenda E. Waters, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, telephone: (202) 482–4735.
The Department has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with May anniversary dates.
All deadlines for the submission of various types of information, certifications, or comments or actions by the Department discussed below refer to the number of calendar days from the applicable starting time.
If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (“POR”), it must notify the Department within 60 days of publication of this notice in the
In the event the Department limits the number of respondents for individual examination for administrative reviews, the Department intends to select respondents based on U.S. Customs and Border Protection (“CBP”) data for U.S. imports during the POR. We intend to release the CBP data under Administrative Protective Order (“APO”) to all parties having an APO within seven days of publication of this initiation notice and to make our decision regarding respondent selection within 21 days of publication of this
In the event the Department decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, the Department has found that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that has requested a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that the Department may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when the Department will exercise its discretion to extend this 90-day deadline, interested parties are advised that the Department does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has prevented it from submitting a timely withdrawal request. Determinations by the Department to extend the 90-day deadline will be made on a case-by-case basis.
In proceedings involving non-market economy (“NME”) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, the Department requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on the Department's Web site at
Entities that currently do not have a separate rate from a completed segment of the proceeding
For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.
In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than May 31, 2014.
None.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consistent with
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period, of the order, if such a gap period is applicable to the POR.
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305. On January 22, 2008, the Department published
On April 10, 2013, the Department published
Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.
These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).
Import Administration, International Trade Administration, Department of Commerce.
On March 22, 2013, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on polyester staple fiber (PSF) from Taiwan. The period of review is May 1, 2011, through April 30, 2012 (POR). We received no comments from interested parties. Accordingly, for the final results we continue to find that Far Eastern New Century Corporation (FENC) has not sold subject merchandise at less than normal value, and that Nan Ya Plastics Corporation (Nan Ya) had no shipments during the POR.
Bryan Hansen or Minoo Hatten, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3683, and (202) 482–1690, respectively.
On March 22, 2013, the Department published the preliminary results of the administrative review of the antidumping duty order on PSF from Taiwan.
The Department has conducted this administrative review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act).
The product covered by the order is PSF. PSF is defined as synthetic staple fibers, not carded, combed or otherwise processed for spinning, of polyesters measuring 3.3 decitex (3 denier, inclusive) or more in diameter. This merchandise is cut to lengths varying from one inch (25 mm) to five inches (127 mm). The merchandise subject to the order may be coated, usually with a silicon or other finish, or not coated. PSF is generally used as stuffing in sleeping bags, mattresses, ski jackets, comforters, cushions, pillows, and furniture. Merchandise of less than 3.3 decitex (less than 3 denier) currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 5503.20.00.20 is specifically excluded from the order. Also specifically excluded from the order are PSF of 10 to 18 denier that are cut to lengths of 6 to 8 inches (fibers used in the manufacture of carpeting). In addition, low-melt PSF is excluded from the order. Low-melt PSF is defined as a bi-component fiber with an outer sheath that melts at a significantly lower temperature than its inner core.
The merchandise subject to the order is currently classifiable in the HTSUS at subheadings 5503.20.00.40, 5503.20.00.45, 5503.20.00.60, and 5503.20.00.65. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to the order is dispositive.
For the final results of this review, we determine that Nan Ya had no shipments during the POR.
The Department made no changes to its calculations announced in the
In accordance with the
The Department clarified its “automatic assessment” regulation on May 6, 2003.
Consistent with the
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of PSF from Taiwan entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for FENC will be 0.00 percent, the weighted average dumping margin established in the final results of this administrative review; (2) for Nan Ya and previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation but the manufacturer is, the cash deposit rate will be the rate established for the manufacturer of the merchandise for the most recently completed segment of this proceeding; (4) the cash deposit rate for all other manufacturers or exporters will continue to be 7.31 percent, the all-others rate established in the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
The Department is issuing and publishing these final results of administrative review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On March 6, 2013, the Department of Commerce (the “Department”) published the
Steven Hampton, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–0116.
On March 6, 2013, the Department published the
The merchandise subject to the order is synthetic staple fibers, not carded, combed or otherwise processed for spinning, of polyesters measuring 3.3 decitex (3 denier, inclusive) or more in diameter. This merchandise is cut to lengths varying from one inch (25 mm) to five inches (127 mm). The subject merchandise may be coated, usually with a silicon or other finish, or not coated. PSF is generally used as stuffing in sleeping bags, mattresses, ski jackets, comforters, cushions, pillows, and furniture.
The following products are excluded from the scope of the order: (1) PSF of less than 3.3 decitex (less than 3 denier) currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) at 5503.20.0025 and known to the industry as PSF for spinning and generally used in woven and knit applications to produce textile and apparel products; (2) PSF of 10 to 18 denier that are cut to lengths of 6 to 8 inches and that are generally used in the manufacture of carpeting; and (3) low-melt PSF defined as a bi-component fiber with an outer, non-polyester sheath that melts at a significantly lower temperature than its inner polyester core (classified at HTSUS 5503.20.0015).
Certain PSF is classifiable under the HTSUS numbers 5503.20.0045 and 5503.20.0065. Although the HTSUS numbers are provided for convenience and customs purposes, the written description of the merchandise under the order is dispositive.
In the
The Department has made no changes to the
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided by sections 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed PRC and non-PRC exporters not listed above that received a separate rate in a prior segment of this proceeding, the cash deposit rate will continue to be the existing exporter-specific rate published for the most recently completed segment of this proceeding in which that exporter participated; (2) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the rate for the PRC-wide entity, 44.30 percent; and (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries
This notice also serves as a reminder to parties subject to the administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
The Department is issuing and publishing these final results of administrative review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
Brandon Custard or David Goldberger, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC, 20230; telephone: (202) 482–1823 or (202) 482–4136, respectively.
On April 2, 2013, the Department of Commerce (the Department) published in the
On April 29, 2013, in accordance with section 751(a)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b)(2), the Department received a timely request from Aquapharm Chemicals Pvt Ltd (Aquapharm), a producer and exporter of subject merchandise, to conduct an administrative review of its exports to the United States during the POR.
On June 3, 2013, the Department published in the
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if the parties that requested a review withdraw the request within 90 days of the date of publication of notice of initiation of the requested review. Aquapharm withdrew its request for review before the 90-day deadline, and no other party requested an administrative review of the antidumping duty order. Therefore, pursuant to 19 CFR 351.213(d)(1), we are rescinding this review in whole.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of this notice in the
This notice serves as the only reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is published in accordance with section 751 of the Act and 19 CFR 351.213(d)(4).
Import Administration, International Trade Administration, Department of Commerce.
As discussed below, the U.S. Department of Commerce (“the Department”) preliminarily determines that none of the companies remaining under review following the partial rescission of this administrative review have demonstrated their eligibility for a separate rate.
Catherine Bertrand or Katie Marksberry, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3207 or (202) 482–7906 respectively.
The products covered by the order are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight and flavored honey.
The Department has conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). For a full description of the methodology underlying our conclusions,
The Department is rescinding this review with regard to Anhui Honghui Foodstuff (Group) Co., Ltd., Shanghai Taiside Trading Co., Ltd., Tianjin Eulia Honey Co., Ltd., and Wuhan Bee Healthy Co., Ltd. as parties have timely withdrawn all review requests with respect to these companies. These companies have separate rates from a prior segment of this proceeding; therefore, antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(2).
We preliminarily determine that the following antidumping duty margin exists:
Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments within 30 days of the date of publication of this notice, pursuant to 19 CFR 351.309(c)(1)(ii). Rebuttal briefs, limited to issues raised in the case briefs, will be due five days later, pursuant to 19 CFR 351.309(d). We request interested parties who file case or rebuttal briefs in this proceeding to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument. Parties are requested to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited, in accordance with 19 CFR 351.309(c)(2).
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request within 30 days of the publication of this notice in the
The Department intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.
With regard to this partial rescission of the review, the Department will instruct CBP to assess antidumping duties on all appropriate entries. The Department intends to issue appropriate partial rescission assessment instructions directly to CBP 15 days after publication of these preliminary results. Further, upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recently completed period; (2) for all PRC exporters of subject merchandise that have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of $2.63 per kilogram; and, (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These preliminary results and partial rescission are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, 19 CFR 351.221(b)(4) and 19 CFR 351.213(d)(4).
In addition to the companies determined to be not eligible for separate rate status (
1 Ahcof Industrial Development Corp., Ltd.
2 Alfred L. Wolff (Beijing) Co., Ltd.
3 Anhui Changhao Import & Export Trading
4 Anhui Honghui Import & Export Trade Co., Ltd.
5 Anhui Cereals Oils and Foodstuffs I/E (Group) Corporation
6 Anhui Hundred Health Foods Co., Ltd.
7 Anhui Native Produce Imp & Exp Corp.
8 Anhui Time Tech Co., Ltd.
9 APM Global Logistics (Shanghai) Co.
10 Baiste Trading Co., Ltd.
11 Cheng Du Wai Yuan Bee Products Co., Ltd.
12 Chengdu Stone Dynasty Art Stone
13 Damco China Limited Qingdao Branch
14 Eurasia Bee's Products Co., Ltd.
15 Feidong Foreign Trade Co., Ltd.
16 Fresh Honey Co., Ltd. (formerly Mgl. Yun Shen)
17 Golden Tadco Int'l
18 Hangzhou Golden Harvest Health Industry Co., Ltd.
19 Hangzhou Tienchu Miyuan Health Food Co., Ltd.
20 Haoliluck Co., Ltd.
21 Hengjide Healthy Products Co. Ltd.
22 Hubei Yusun Co., Ltd.
23 Inner Mongolia Altin Bee-Keeping
24 Inner Mongolia Youth Trade Development Co., Ltd.
25 Jiangsu Cereals, Oils Foodstuffs Import Export (Group) Corp.
26 Jiangsu Kanghong Natural Healthfoods Co., Ltd.
27 Jiangsu Light Industry Products Imp & Exp (Group) Corp.
28 Jilin Province Juhui Import
29 Maersk Logistics (China) Company Ltd.
30 Nefelon Limited Company
31 Ningbo Shengye Electric Appliance
32 Ningbo Shunkang Health Food Co., Ltd.
33 Ningxia Yuehai Trading Co., Ltd.
34 Product Source Marketing Ltd.
35 Qingdao Aolan Trade Co., Ltd.
36 QHD Sanhai Honey Co., Ltd.
37 Qinhuangdao Municipal Dafeng Industrial Co., Ltd.
38 Renaissance India Mannite
39 Shaanxi Youthsun Co., Ltd.
40 Shanghai Bloom International Trading Co., Ltd.
41 Shanghai Foreign Trade Co., Ltd.
42 Shanghai Hui Ai Mal Tose Co., Ltd.
43 Shanghai Luyuan Import & Export
44 Shine Bal Co., Ltd.
45 Sichuan-Dujiangyan Dubao Bee Industrial Co., Ltd.
46 Sichuan Hasten Imp Exp. Trading Co., Ltd.
47 Silverstream International Co., Ltd.
48 Sunnice Honey
49 Suzhou Aiyi IE Trading Co., Ltd.
50 Suzhou Shanding Honey Product Co. Ltd.
51 Tianjin Weigeda Trading Co., Ltd.
52 Wanxi Haohua Food Co., Ltd.
53 Wuhan Shino-Food Trade Co., Ltd.
54 Wuhu Anjie Food Co., Ltd.
55 Wuhu Deli Foods Co. Ltd.
56 Wuhu Fenglian Co., Ltd.
57 Wuhu Haoyikuai I & E Co.
58 Wuhu Qinshi Tangye Co., Ltd.
59 Wuhu Xinrui Bee-Product Co., Ltd.
60 Xinjiang Jinhui Food Co., Ltd.
61 Youngster International Trading Co., Ltd.
62 Zhejiang Willing Foreign Trading Co.
1. Scope of the Order
4. Separate Rates
5. Partial Rescission of Review
6. PRC-Wide Entity
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) has received information sufficient to warrant initiation of a changed circumstances review of the antidumping duty order of tapered roller bearings and parts thereof, finished and unfinished (TRBs), from the People's Republic of China (PRC). Specifically, Shanghai General Bearing Company, Ltd. (SGBC) notified the Department that it became part of the SKF Group in 2012. As a result, SGBC has requested that the Department determine that it is the successor-in-interest to the pre-merger entity (also known as SGBC), a company which the Department revoked from the order on TRBs from the PRC in 1997. In response to this request, the Department is initiating this changed circumstances review.
Elizabeth Eastwood or Stephen Banea, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3874 or (202) 482–0656, respectively.
On June 15, 1987, the Department published in the
Effective August 1, 2012, the majority shareholder of SGBC merged with a subsidiary of the SKF Group and, as a result of the merger, both SGBC and its majority shareholder became part of the SKF Group. On February 13, 2013, SGBC requested that the Department conduct a changed circumstances review pursuant to 19 CFR 351.221(c)(3)(ii) to determine that it is the successor-in-interest to SGBC as it existed prior to the merger.
On March 22, 2013, the Department requested that SGBC supplement its request for a changed circumstances review by providing additional information regarding the merger and other supporting documentation. On
Imports covered by the order are shipments of tapered roller bearings and parts thereof, finished and unfinished, from the People's Republic of China; flange, take up cartridge, and hanger units incorporating tapered roller bearings; and tapered roller housings (except pillow blocks) incorporating tapered rollers, with or without spindles, whether or not for automotive use. These products are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) item numbers 8482.20.00, 8482.91.00.50, 8482.99.15, 8482.99.45, 8483.20.40, 8483.20.80, 8483.30.80, 8483.90.20, 8483.90.30, 8483.90.80, 8708.70.60.60, 8708.99.23.00, 8708.99.48.50, 8708.99.68.90, 8708.99.81.15, and 8708.99.81.80. Although the HTSUS item numbers are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. In accordance with 19 CFR 351.216(d), the Department finds there is sufficient information to warrant initiating a changed circumstances review because SGBC has provided evidence that it is now part of the SKF Group as a result of a merger in 2012. Therefore, pursuant to section 751(b)(1) of the Act and 19 CFR 351.216(d), we are initiating a changed circumstances review to determine whether SGBC is the successor-in-interest to SGBC as it existed prior to the merger.
The Department will publish in the
This notice is in accordance with section 751(b)(1) of the Act.
Import Administration, International Trade Administration, Department of Commerce.
On August 1, 2012, the Department of Commerce (“Department”) published in the
Maureen Price or Sally C. Gannon, Bilateral Agreements Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–4271 or (202) 482–0162, respectively.
On August 1, 2012, the Department initiated a sunset review of the suspended antidumping duty investigation on lemon juice from Mexico, pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).
The merchandise covered by the suspended investigation includes certain lemon juice for further manufacture, with or without addition of preservatives, sugar, or other sweeteners, regardless of the GPL (grams per liter of citric acid) level of concentration, brix level, brix/acid ratio, pulp content, clarity, grade, horticulture method (e.g., organic or not), processed form (e.g., frozen or not-from-
Excluded from the scope are: (1) Lemon juice at any level of concentration packed in retail-sized containers ready for sale to consumers, typically at a level of concentration of 48 GPL; and (2) beverage products such as lemonade that typically contain 20% or less lemon juice as an ingredient.
Lemon juice is classifiable under subheadings 2009.39.6020, 2009.31.6020, 2009.31.4000, 2009.31.6040, and 2009.39.6040 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this Agreement is dispositive.
All issues raised in this review are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Lynn Fischer Fox, Deputy Assistant Secretary for Policy & Negotiations, to Ronald K. Lorentzen, Acting Assistant Secretary for Import Administration, dated concurrently with this notice, which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping, the magnitude of the margin of dumping likely to prevail if the suspended investigation were terminated, and whether to disregard Ventura's response. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum, which is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available to registered users at
Pursuant to sections 751(c)(1) and (3) of the Act, the Department determines that termination of the suspended antidumping duty investigation on lemon juice from Mexico would likely lead to continuation or recurrence of dumping and that the magnitude of the margin of dumping likely to prevail if the suspended investigation were terminated is 146.10 percent for The Coca-Cola Export Corporation, Mexico Branch, 205.37 percent for Citrotam Internacional S.P.R. de R.L. (Citrotam)/Productos Naturales de Citricos (Pronacit) and 146.10 percent for all other exporters.
This notice also serves as the only reminder to parties subject to an 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. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
The Department is issuing and publishing the results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
This is a decision pursuant to Section 6(c) of the Educational, Scientific, and Cultural Materials Importation Act of 1966 (Pub. L. 89–651, as amended by Pub. L. 106–36; 80 Stat. 897; 15 CFR part 301). Related records can be viewed between 8:30 a.m. and 5:00 p.m. in Room 3720, U.S. Department of Commerce, 14th and Constitution Ave NW., Washington, DC.
Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as each is intended to be used, that was being manufactured in the United States at the time of its order.
Docket Number: 13–008. Applicant: University of Hawaii at Manoa, Honolulu, HI 96822. Instrument: Telescope. Manufacturer: Advanced Mechanical and Optical Systems, Belgium. Intended Use: See notice at 78 FR 27186, May 9, 2013. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as this is intended to be used, that was being manufactured in the United States at the time of order. Reasons: The instrument will be used in conjunction with the Panoramic Survey Telescope & Rapid Response System (Pan-STARRS), to discover and characterize Earth-approaching objects, both asteroids and comets that might pose a danger to the Earth, as well as a wide range of other research areas of astronomy. Critical performance characteristics include the ability to detect objects much fainter than has hitherto been possible with sufficient resolution to measure both the position and brightness level to the required precision, that the instrument be sufficiently robust and reliable that it can carry out continuous observations without direct human supervision under both benign and harsh meteorological observing conditions, and servicing and maintenance that can be performed as quickly as possible to minimize system down time. The heat released by the electrical/electronic components cannot have an impact on the system point spread function that exceeds a combined total of 0.1 arcseconds. Other key features that were not proposed by domestic vendors include the use of 36 actuators to control the shape of the telescope's primary mirror, active cooling of the mechanical structure containing the primary mirror, design and performance analysis of the structures holding the telescope secondary mirror in position, the mechanical design and performance analysis of the telescope “truss”, active cooling of the motors that move the telescope, additional performance margin of the telescope motors to provide additional power and torque in the presence of high motor loads, and the serviceability of several key telescope components that traditionally are both prone to failure and hard to get at, as well as allowing the removal of extremely difficult components.
Docket Number: 13–009. Applicant: Max Planck Florida Institute for Neuroscience, Jupiter, FL 33458. Instrument: Serial Block face microtome. Manufacturer: Gatan, United Kingdom. Intended Use: See notice at 78 FR 27186, May 9, 2013. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such
Docket Number: 13–012. Applicant: New Mexico Institute of Mining and Technology. Instrument: Delay-Line (DL) Trolley. Manufacturer: University of Cambridge/Cavendish Laboratory. Intended Use: See notice at 78 FR 27186, May 9, 2013. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as this is intended to be used, that was being manufactured in the United States at the time of order. Reasons: The instrument will be used to make extremely high-resolution images of a diverse range of astronomical objects. The images made using the instrument will allow a variety of astrophysical processes in the target objects to be investigated, such as protostellar accretion, disk clearing as evidence for planet formation, jest, outflows and magnetically channeled accretion, and the detection of sub-stellar companions. In order to obtain interference fringes the path lengths traveled by the light from celestial objects via the telescopes to the point where interference takes place must be equalized to a few microns. The extra path (delay) that must be inserted varies continuously as the Earth rotates, and depends on the location of the target in the sky. The instrument is used within the Magdalena Ridge Observatory Interferometer to equalize these path lengths—one trolley for each telescope—by acting as a continuously movable retro-reflector. For most of the sky to be accessible, a delay range approximately equal to the longest inter-telescope separation must be available, requiring an unprecedented monolithic delay line length of almost 200 m. The need to accommodate 350 m baselines places a unique combination of requirements on the delay lines and hence the Delay Line Trolleys that run within them.
Docket Number: 13–014. Applicant: Max Planck Florida Institute for Neuroscience, Jupiter, FL 33458. Instrument: Two-Photon Laser Scanning Microscope. Manufacturer: Femtonics Ltd., Hungary. Intended Use: See notice at 78 FR 27186–27187, May 9, 2013. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as this is intended to be used, that was being manufactured in the United States at the time of order. Reasons: The instrument will be used to examine the connectivity and functional computations performed by individual neurons in the primary visual cortex of tree shrews, as well as to study the population mechanisms responsible for rapid development of direction selectivity in the ferret primary visual cortex. Experiments will include
Docket Number: 13–015. Applicant: IUP Research Institute, Indiana, PA 15701. Instrument: IMIC Digital Microscope. Manufacturer: TILL Photonic Gmbh, Germany. Intended Use: See notice at 78 FR 27186–27187, May 9, 2013. Comments: None received. Decision: Approved. We know of no instruments of equivalent scientific value to the foreign instruments described below, for such purposes as this is intended to be used, that was being manufactured in the United States at the time of order. Reasons: The instrument will be used to resolve whether changes in intracellular ion activity are circadian in nature, identify the underlying mechanisms for stem cell regeneration in damaged tissue, and examine the regulatory mechanisms for metabolic activity in yeast. The microscopic imaging will be used to investigate cellular properties of mice, zebrafish, planaria, yeast, and paramecium, as well as to analyze the absorption and fluorescence of ceramic optical material. Intracellular ion movement requires fluorescent confocal and FRET imaging. The fate-mapping of the stem cells requires fast fluorescent scanning provided by the instrument.
National Institute of Standards and Technology, Commerce.
Notice.
The 98th Annual Meeting of the National Conference on Weights and Measures (NCWM) will be held in Louisville, Kentucky, from July 14 to 18, 2013. This notice contains information about significant items on the NCWM Committee agendas, but does not include all agenda items. As a result, the items are not consecutively numbered.
The meeting will be held July 14 to 18, 2013.
The meeting will be held at the Seelbach Hilton Louisville, 500 Fourth Avenue, Louisville, Kentucky 40202.
Ms. Carol Hockert, Chief, NIST, Office of Weights and Measures, 100 Bureau Drive, Stop 2600, Gaithersburg, MD 20899–2600. You may also contact Ms. Hockert at (301) 975–5507 or by email at
Publication of this notice on the NCWM's behalf is undertaken as a public service; NIST does not endorse, approve, or recommend any of the proposals or other information contained in this notice or in the publications of the NCWM.
The NCWM is an organization of weights and measures officials of the states, counties, and cities of the United States, federal agencies, and representatives from the private sector. These meetings bring together government officials and representatives of business, industry, trade associations, and consumer organizations on subjects related to the field of weights and measures technology, administration, and enforcement. NIST participates to encourage cooperation between federal agencies and the states in the development of legal metrology requirements. NIST also promotes uniformity in state laws and regulations as well as test methods and equipment that are used in the regulatory control of commercial weighing and measuring devices, packaged goods, and other trade and business practices.
The following are brief descriptions of some of the significant agenda items that will be considered at the NCWM Annual Meeting. Comments will be taken on these and other issues during several public comment sessions. At this stage, the items are proposals. This meeting also includes work sessions in which the Committees may also accept comments, and where they will finalize recommendations for possible adoption at this meeting. The Committees may also withdraw or carryover items that need additional development. Some of the items listed below provide notice of projects under development by groups working to develop specifications, tolerances, and other requirements for devices used in retail sales of electricity for recharging vehicles and in sub-metering applications, and the use of Global Positioning System (GPS) devices for fare determinations in the vehicle-for-hire industry (e.g., taxis and limousines). Also included is a notice about efforts to establish a method of sale for pressurized containers including those that use bag-on-valve technology to dispense product. These notices are intended to make interested parties aware of these development projects and to make them aware that reports on the status of the project will be given at the Annual Meeting. The notices are also presented to invite the participation of manufacturers, experts, consumers, users and others who may be interested in these efforts.
The Specifications and Tolerances Committee (S&T Committee) will consider proposed amendments to NIST Handbook 44, “Specifications, Tolerances, and other Technical Requirements for Weighing and Measuring Devices.” Those items address weighing and measuring devices used in commercial applications, that is, devices that are used to buy from or sell to the public or used for determining the quantity of product sold among businesses. Issues on the agenda of the NCWM Laws and Regulations Committee (L&R Committee) relate to proposals to amend NIST Handbook 130, “Uniform Laws and Regulations in the area of Legal Metrology and Engine Fuel Quality” and NIST Handbook 133 “Checking the Net Contents of Packaged Goods.”
The following items are proposals to amend NIST Handbook 44:
Railway track scales are used throughout the country for the determination of freight charges and for commercial transactions for a wide variety of commodities (e.g., coal, grains, and chemicals) totaling billions of dollars each year. The purpose of this proposal is to amend NIST Handbook 44 to recognize changes to the definition of how nominal capacity is determined for railway track scales. The proposed definition was developed by Committee 34—Scales, of the American Railway Engineering and Maintenance-of-Way Association and approved for inclusion in the American Association of Railroads (AAR) Scale Handbook. Adoption of the proposed revision will ensure that NIST Handbook 44 is consistent with the AAR Scale Handbook.
The vehicle tank meters mounted on multi-compartment tank trucks are used to deliver a wide variety of fuels and other products to businesses and consumers (e.g., diesel fuel and home heating fuel). A product depletion test is conducted to ensure that the performance accuracy of a meter remains within tolerance when air is accidentally introduced into the metering system when, for example, one compartment in the tank truck empties of product and product delivery continues uninterrupted from another compartment. This proposal would amend NIST Handbook 44 to base the product depletion test tolerances on the meter's maximum flow rate (a marking required on all meters), rather than the marked meter size (this marking is required for meters manufactured in 2009 or later). The purpose of this proposal is to ensure consistent application of the tolerances to product depletion tests whether conducted on older or newer meters. It will also eliminate an unintentional gap that allows an unreasonably large tolerance to be applied to small meters.
In 1994 both liter and gallon “equivalents” for gasoline were established by the NCWM to provide a means for consumers to make value and fuel economy comparisons between compressed natural gas (CNG) and gasoline, and to promote broader acceptance and use of CNG as a vehicle fuel. These “equivalents” are based on a specific weight (mass) per volume, called the gasoline liter equivalent (GLE) and gasoline gallon equivalent (GGE), and are calculated using an estimate of the “average” equivalent energy content—a number provided by industry. The current proposal would establish a “diesel liter equivalent (DLE)” and a “diesel gallon equivalent (DGE)” and equivalent weight (mass) values for these units when they are used in retail vehicle refueling applications. The purpose of these units is to inform consumers (e.g., truck operators) that a DLE or DGE of “compressed” or “liquefied” natural gas contains approximately the same amount of energy they would receive if they purchased a liter or gallon of diesel fuel. Comments received from weights and measures officials, consumers, and industry representatives question the usefulness of expanding the use of artificially defined “energy equivalent units” primarily on the basis that they are not traceable to national measurement standards. Another concern frequently expressed over the use of an artificial unit, even by users of the GGE originally developed in the 1990s, is that they do not accurately represent the energy content in any fuel because it varies based on factors such as the source of the CNG. Commenters
This item is presented to raise public awareness of the work that is underway in a NIST led working group to amend Section 5.54. “Taximeters” to incorporate specifications, tolerances, user and other technical requirements for devices with measuring technologies and systems that utilize Global Positioning Satellite (GPS) systems and associated software to compute fares or fees based upon distance and/or time measurements. The working group will also consider GPS systems and applications (e.g., smart phone applications) designed to compute fares based upon distance and/or time measurements that are being introduced into the vehicle for-hire industry (e.g., taxicabs, limousines) across the country. Appropriate technical and accuracy requirements for these devices must be developed for manufacturers and users of these devices, and for weights and measures officials. These requirements assure consumers of accurate fares associated with the transportation services and enable consumers to make value comparisons between competing services.
The following items are proposals to amend NIST Handbook 130 or NIST Handbook 133:
This item would establish a method of sale (i.e., the product must be offered for sale by either weight or fluid volume but not both) for packages utilizing Bag on Valve (BOV) technology. A BOV container is a pressurized package where a propellant is not expelled with the product when the valve is activated. BOV packaging has been in the marketplace for several decades and is used to sell the same types of products that are offered for sale in aerosol containers (e.g., sunscreen, wound washes, shaving cream, and car products). Some BOV packages have their net contents declared in terms of fluid volume while others are labeled by net weight. Section 10.3. Aerosols and Similar Pressurized Containers of the Uniform Regulation for the Method of Sale of Commodities require aerosols and similar pressurized containers to disclose their net quantity in terms of weight. BOV containers (net contents in fluid volume) are being used to sell the same type of products dispensed from aerosol containers (net contents in weight) and consumers are unable to make value comparisons. This proposal being considered to replace the current wording in Section 10.3., and it would require packages using BOV technology to have the net quantity of contents declared in terms of weight.
10.3. Aerosols and Similar Pressurized Containers.—The declaration of quantity on an aerosol package, including Bag on Valve (BOV) technology, and other similar pressurized packages shall disclose the net quantity of the commodity (including propellant), in terms of weight, that will be expelled when the instructions for use as shown on the container are followed.
The L&R Committee is recommending adoption of a proposal to establish a method of sale for printer ink and toner cartridges to ensure that consumers are informed about the net quantity of contents of packages to enable value comparisons. The intent of this proposal is to require manufacturers (and aftermarket refillers) to declare net quantities to facilitate both value comparison and verification by weights and measures officials, and to ensure equity between buyer and seller and fair competition between sellers, manufacturers and refillers. The following proposal to amend the Uniform Method of Sale of Commodities Regulation is under consideration:
2.XX. Printer Ink and Toner Cartridges Labeling.
2.XX.1. Definitions.
2.XX.1.1. Printer ink cartridges.—Any cartridge or module that contains ink or a similar substance in liquid form employed in the printing and/or copying of documents, papers, pictures, etc., that is used in a printing device and designed to be replaced when no longer able to supply its contents in printing and/or copying.
2.XX.1.2. Toner cartridges.—Any cartridge or module that contains toner, powder, or similar non-liquid substance employed in the copying or printing of documents, papers, pictures, etc. that is used in a printing and/or copying device and designed to be replaced when no longer able to supply its contents in printing and/or copying.
2.XX.2. Method of Sale and Labeling.
2.XX.2.1. Method of sale, Printer Ink Cartridges.—All printer ink cartridges kept, offered, or exposed for sale or sold shall be sold in terms of the count.
2.XX.2.2. Method of Sale, Toner Cartridges.—All toner cartridges kept, offered, or exposed for sale or sold shall be sold in terms of the count.
A national working group led by NIST is developing requirements for the retail sales of electricity for vehicle recharging. The working group is comprised of device manufacturers, users, regulators, and others involved in vehicle recharging. This item contains a proposed method of sale for retail sales of electricity for vehicle recharging. Among the issues the proposal addresses, in addition to method of sale requirements, are information posting requirements (e.g., information on service fees, charging rates and how to contact the party responsible for the device). Because this item provides critical guidance to an emerging transportation industry, the complete text of the proposal is presented in this
2.XX. Retail Sales of Electricity Sold as a Vehicle Fuel.
2.XX.1. Definitions.
2.XX.1.1. Electricity Sold as Vehicle Fuel.—Electrical energy transferred to and/or stored onboard an electric vehicle primarily for the purpose of propulsion.
2.XX.1.2. Electric Vehicle Supply Equipment (EVSE).—The conductors, including the ungrounded, grounded, and equipment grounding conductors; the electric vehicle connectors; attachment plugs; and all other fittings, devices, power outlets, or apparatuses installed specifically for the purpose of measuring, delivering, and computing the price of electrical energy delivered to the electric vehicle.
2.XX.1.3. Fixed Service.—Service that continuously provides the nominal power that is possible with the equipment as it is installed.
2.XX.1.4. Variable Service.—Service that may be controlled resulting in periods of reduced, and/or interrupted transfer of electrical energy.
2.XX.1.5. Nominal Power.—Refers to the “intended” or “named” or “stated” as opposed to “actual” rate of transfer of electrical energy (i.e., power).
2.XX.2. Method of Retail Sale.—All electrical energy kept, offered, or exposed for sale and sold at retail as a vehicle fuel shall be in units in terms of the megajoule (MJ) or kilowatt-hour (kWh). In addition to the fee assessed for the quantity of electrical energy sold, fees may be assessed for other services; such fees may be based on time measurement and/or a fixed fee.
2.XX.3. Retail Electric Vehicle Supply Equipment (EVSE) Labeling.
(a) A computing EVSE shall display the unit price in whole cents (e.g., $0.12) or tenths of one cent (e.g., $0.119) on the basis of price per megajoule (MJ) or kilowatt-hour (kWh). In cases where the electrical energy is unlimited or free of charge, this fact shall be clearly indicated in place of the unit price.
(b) For fixed service applications, the following information shall be conspicuously displayed or posted on the face of the device:
(1) the level of EV Service expressed as the nominal power transfer (i.e., nominal rate of electrical energy transfer), and
(2) the type of electrical energy transfer (e.g., AC, DC, wireless, etc.).
(c) For variable service applications, the following information shall be conspicuously displayed or posted on the face of the device:
(1) the type of service (i.e., “Variable”);
(2) the minimum and maximum power transfer that can occur during a transaction, including whether service can be reduced to zero;
(3) the conditions under which variations in electrical energy transfer will occur; and
(4) the type of electrical energy transfer (e.g., AC, DC, wireless, etc.).
(d) Where fees will be assessed for other services in direct connection with the fueling of the vehicle, such as fees based on time measurement and/or a fixed fee, the additional fees shall be displayed.
(e) The EVSE shall be labeled in accordance with 16 CFR, PART 309—FTC Labeling Requirements for Alternative Fuels and Alternative Fueled Vehicles.
(f) The EVSE shall be listed and labeled in accordance with the National Electric Code® (NEC) NFPA 70, Article 625 Electric Vehicle Charging Systems (
2.XX.4. Street Sign Prices and Other Advertisements.
(a) The electrical energy unit price shall be in terms of price per megajoule (MJ) or kilowatt-hour (kWh) in whole cents (e.g., $0.12) or tenths of one cent (e.g., $0.119). In cases where the electrical energy is unlimited or free of charge, this fact shall be clearly indicated in place of the unit price.
(b) In cases where more than one electrical energy unit price may apply over the duration of a single transaction to sales to the general public, the terms and conditions that will determine each unit price and when each unit price will apply shall be clearly displayed.
(c) For fixed service applications, the following information shall be conspicuously displayed or posted:
(1) The level of EV Service expressed as the nominal power transfer (i.e., nominal rate of electrical energy transfer), and
(2) the type of electrical energy transfer (e.g., AC, DC, wireless, etc.).
(d) For variable service applications, the following information shall be conspicuously displayed or posted:
(1) The type of delivery (i.e., “Variable”);
(2) the minimum and maximum power transfer that can occur during a transaction, including whether service can be reduced to zero;
(3) the conditions under which variations in electrical energy transfer will occur; and
(4) the type of electrical energy transfer (e.g., AC, DC, wireless, etc.).
All stakeholders, including vehicle and device manufacturers, consumers, public utility commissions, weights and measures officials, smart grid experts, and all others interested in the development of a method of sale and other requirements for devices used to recharge electric vehicles are invited to participate in the workgroup.
National Institute of Standards and Technology, U.S. Department of Commerce.
Notice; Request for Information (RFI).
The National Institute of Standards and Technology (NIST) is seeking information relating to Computer Security Incident Coordination (CSIC). NIST is seeking this information as part of the research needed to write a NIST Special Publication (SP) to help Computer Security Incident Response Teams (CSIRTs) to coordinate effectively when responding to computer security incidents. The NIST SP will identify technical standards, methodologies, procedures, and processes that facilitate prompt and effective response.
This RFI requests information regarding technical best practices, current practices, impediments to information sharing and response, risks of collaborative incident response, the role of technology and standards in incident coordination, specific technical standards and technologies that have been found helpful (or ineffective), opportunities for improvement, viewpoints on incident coordination objectives, and suggestions for guidance. In developing the SP, NIST will consult
Comments must be received by 5:00 p.m. Eastern time on July 29, 2013.
Written comments may be submitted by mail to Diane Honeycutt, National Institute of Standards and Technology, 100 Bureau Drive, Stop 8930, Gaithersburg, MD 20899. Submissions may be in any of the following formats: HTML, ASCII, Word, RTF, or PDF. Online submissions in electronic form may be sent to
For questions about this RFI, contact: Lee Badger, National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899–8930, telephone (301) 975–3176, email
The nation is increasingly reliant on secure and reliable operation of computing systems throughout Federal Government, key industrial sectors, and civil society. Unfortunately, modern computing systems frequently are exposed to various forms of cyber attack. In some cases, attacks can be thwarted through the use of defensive technologies, such as anti-virus scanning, cryptographically-protected communications, access control, or authentication mechanisms. Despite careful use of defensive technologies, however, some systems will be successfully attacked. When a successful attack occurs, the job of a Computer Security Incident Response Team (CSIRT) is to detect that an attack occurred, prevent ongoing damage, repair the damage to the extent possible, reconstitute the affected system functions, and report as appropriate to the United States Computer Emergency Readiness Team (US–CERT) and to other affected parties according to governing regulation and law. Maintaining a security response capability is a complex and challenging undertaking, and in order to assist those in charge of security efforts, NIST has published guidance, such as NIST SP 800–61 Revision 2 “Computer Security Incident Handling Guide.”
NIST SP 800–61 provides guidance on how to establish and operate an incident response capability. The guide provides information on developing procedures for performing incident handling and reporting, for structuring a team, staffing, and training. The guide defines an incident response life cycle encompassing four phases: Preparation, detection and analysis, containment eradication and recovery, and post-incident activity. Although the NIST incident handling guide focuses primarily on how to handle incidents within a single organization, it also provides high-level guidance on how a CSIRT may interact with outside parties, such as coordinating centers, Internet Service Providers, owners of attacking systems, victims, other CSIRTs, and vendors. This guidance focuses primarily on understanding team-to-team relationships, sharing agreements, and the role that automation techniques may play in the coordination of incident response.
This RFI seeks information for a substantial expansion of NIST guidance in how multiple CSIRTs may work together to coordinate their handling of computer security incidents and how CSIRTs might work together with other organizations within a broader information sharing community. This information will serve as input to a new NIST SP, 800–150, “Computer Security Incident Coordination.” The goal of this planned document is to provide guidance for cross-organizational incident response, particularly focusing on improving the overall response during cross-cutting and widespread incidents, inspiring effective information sharing practices, and fostering interoperability between teams with varying capabilities. The new SP 800–150 will supplement the existing NIST incident handling guide, SP 800–61, by significantly expanding the guidance on coordination and information sharing (section 4 of SP 800–61). Although work on SP 800–150 may produce guidance that eventually contributes to a revision of SP 800–61, the focus of SP 800–150 will be on the coordination aspects of incident response.
For the purposes of this RFI, the term “incident coordination” is defined as communication and collaboration with external entities during an incident response such that:
• Two or more organizations are involved.
• There is an exchange of information between organizations pertaining to incidents or indicators of incidents.
• The organizations work together to achieve common goals (i.e., fast, effective incident response).
• The organizations limit exposures of sensitive information.
NIST seeks information regarding technical best practices, current practices, impediments to information sharing and response, risks of collaborative incident response, the role of technology and standards in incident coordination, specific technical standards and technologies that have been found helpful (or ineffective), opportunities for improvement, viewpoints on incident coordination objectives, and suggestions for guidance.
The following questions cover the major areas about which NIST seeks information. The questions are not intended to limit the topics that may be addressed. Responses may include any topic believed to have implications for effective incident coordination regardless of whether the topic is included in this document.
Comments containing references, studies, research, and other empirical data that are not widely published should include copies of the referenced materials. Do not include in comments or otherwise submit proprietary or confidential information, as all comments received by the deadline will be made available publically at
1. What does your organization see as the greatest challenge in information sharing throughout the incident response lifecycle?
2. Describe your organization's policies and procedures governing information sharing throughout the incident lifecycle. Also describe to what degree senior management is involved in defining these policies and procedures.
3. What role does senior management have in the execution of your policies and procedures?
4. To what extent is information sharing incorporated into your
5. How much of your incident handling effort is spent on the different phases of the incident handling lifecycle (from NIST SP 800–61): (1) Preparation, (2) detection-and-analysis, (3) containment-eradication-and-recovery, (4) post-incident-activity.
6. What are the relevant international, sector-specific or de facto standards used or referenced by your organization to support incident handling and related information sharing activities?
7. How do you determine that an incident is in progress (or has happened)?
8. How do you determine that an incident has been handled and requires no further action?
9. How do you determine when to coordinate and/or share information with other organizations regarding an incident?
10. Do you have documented case studies or lessons learned to share (good or bad examples)? If so, please provide URLs or attachments with your response.
Incident handling teams and coordinating centers often collaborate at varying stages of the incident management lifecycle described by NIST SP 800–61. Within this context, individual organizations may offer specific capabilities and may have specific considerations related to effective incident coordination.
1. Do you maintain a list of key contacts for use during an incident? If so, are these contacts identified as individual people, or as positions?
2. What is the size of your organization (e.g. staff, contractors, members)? How many individuals are involved in incident coordination activities carried out by your organization?
3. Relative to the incident response lifecycle defined by NIST SP 800–61, what aspects of incident coordination occur within your organization?
4. What services and assistance (e.g. monitoring, analysis, information) does your organization provide to others both inside and outside your organization relating to incident coordination?
5. Does your organization have any method for understanding and describing the quality or sensitivity of different types of information shared by a third party? For each type of information, can you describe the method?
6. Approximately how many employees (please indicate full time or part time as appropriate) do you devote to incident response?
7. If possible, list examples of highly effective computer security incident response teams and comment on what made them successful.
8. Based on your personal or your organization's experience, what are the most and least effective communication mechanisms used (e.g., phone, email, etc.) when coordinating an incident, and why? In what order do you typically use specific communication mechanisms?
9. Do you have examples of alternate communication mechanisms used because an incident has degraded communications?
10. Do you hold regular incident review meetings? Between organizations? How frequently? If your team does not hold incident review meetings regularly, why not?
11. What skillsets (e.g., network sniffing, system administration, firewall configuration, reverse engineering, etc.) does your organization need most when an incident is in progress?
12. Are there incident handling and response skillsets that are specific to your industry or sector?
13. How do those skills relate to information sharing and communication before, during and after an incident?
1. Do you report incidents or indicators to US–CERT?
2. Do you coordinate incident response with organizations other than US–CERT?
3. Do you participate in an incident coordination community such as the Defense Industrial Base (DIB), the Defense Security Information Exchange (DSIE), or an Information Sharing and Analysis Center (ISAC)? What are the benefits? Are there any pain points?
4. How is information about threats and/or incidents shared among coordination community members?
5. How do you prioritize incidents?
6. How do regulatory requirements affect your organization's ability or willingness to share information or collaborate during an incident?
7. What regulatory bodies are you required to report information to regarding incidents? For each regulatory body, what kind of information does your organization report and what has been your organization's reporting experience?
1. What, if any, types of information would create risk or disadvantage if shared by your organization?
2. What kinds of information would you never share with a peer during incident handling?
3. What types of protections, redactions, or restrictions would aid your organization in sharing information?
4. Do you use specialized formats to communicate incident information?
5. What do you see as the pros and cons of specialized formats for representing and communicating incident information?
6. What incentives exist for your organization to share information with other organizations during an incident?
7. What disincentives exist that might prevent your organization from sharing information with other organizations during an incident?
8. If available, please provide an example when sharing with other organizations proved to have negative implications for your organization's incident response.
In addition to the approaches above, NIST is interested in identifying core practices that are broadly applicable across sectors and throughout industry.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will hold a meeting of the Council to establish the 2013 red snapper quotas and supplemental recreational red snapper season. The Council will also hold a formal public comment session.
The Council meeting will be held from 7 a.m. until 5 p.m. on Wednesday, July 17, 2013.
Mr. Douglas Gregory, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630; fax: (813) 348–1711; email:
The items of discussion are as follows:
7 a.m.–7:15 a.m.—Call to Order and Introductions, review the agenda and approve the minutes.
7:15 a.m.–9:30 a.m.—The Council will review an analysis of the yield stream projections for red snapper at constant catch levels. The Council will receive a summary and discuss the proposed actions in the Red Snapper Framework Action. The Council will hear a summary of the written comments received.
9:30 a.m.–12 p.m.—The Council will receive public testimony on the Final Draft of the Framework Action to establish 2013 red snapper quotas and establish the structure of the recreational red snapper season. People wishing to speak before the Council should complete a public comment card prior to the comment period.
1 p.m.–4 p.m.—The Council will select and take final action on the Red Snapper Framework Action to both establish the 2013 red snapper quotas and select the supplemental recreational fishing season structure.
4 p.m.–5 p.m.—The Council will discuss any other business.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Council Office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Issuance of permit.
Notice is hereby given that Karen G. Holloway-Adkins, East Coast Biologists, Inc. P.O. Box 33715, Indialantic, FL 32903 has been issued a permit to take green (
The permit and related documents are available for review upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376; and
Southeast Region, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; phone (727) 824–5312; fax (727) 824–5309.
Amy Hapeman or Colette Cairns, (301) 427–8401.
On February 28, 2013, notice was published in the
Ms. Holloway-Adkins has been issued a 5-year research permit to continue to characterize the population of sea turtles that utilize the nearshore hard bottom reefs in Brevard County, FL. Green and loggerhead sea turtles would be captured, flipper and passive integrated transponder tagged, measured, weighed, tissue and blood sampled and photographed before release. A subset of green sea turtles may be stomach lavaged or have an acoustic transmitter attached to the carapace for tracking movements. Researchers are also authorized to count all sea turtle species during vessel surveys in the nearshore waters of Florida and Georgia.
Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) Was applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes services previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia, 22202–4149.
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products and services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following products and services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following services are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds products and services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 10800, Arlington, Virginia 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 4/19/2013 (78 FR 23542–23543); 4/26/2013 (78 FR 24732–24733); 5/3/2013 (78 FR 25970–25971); and 5/10/2013 (78 FR 27368–27369), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.
2. The action will result in authorizing small entities to furnish the products and services to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products and services proposed for addition to the Procurement List.
Accordingly, the following products and services are added to the Procurement List:
Commodity Futures Trading Commission.
Order.
The Commodity Futures Trading Commission (CFTC) has issued an Amended Order expanding, through mutual acceptance by international regulators, the list of Legal Entity Identifiers (LEIs) that can be used by registered entities and swap counterparties in complying with CFTC's swap data reporting regulations once the conditions provided in the Amended Order are fulfilled. The Amended Order revises CFTC's order of July 23, 2012, which directed all registered entities and swap counterparties required by CFTC rules to use LEIs in swap recordkeeping and swap data reporting to use LEIs provided by DTCC–SWIFT, the utility designated by the CFTC as the provider of LEIs until establishment of the global LEI system.
David Taylor, Associate Director, Division of Market Oversight, 202–418–5488,
On July 23, 2012, the Commodity Futures Trading Commission (“Commission”) issued an order (“Order”)
As stated in the preamble to the Commission's Adopting Release for part 45:
• Regulatory oversight for the global LEI system is now provided by an international Regulatory Oversight Committee (“ROC”), established in January 2013. The Commission is a charter member of the ROC and of its Executive Committee.
• The ROC has determined that the global LEI system will be federated in nature, and will include a private sector Central Operating Unit (“COU”) and multiple Local Operating Units (“LOUs”). Under the auspices of the ROC, a foundation is being established in Switzerland to provide the COU. The COU will coordinate the system's multiple LOUs, which will issue LEIs.
• As part of the establishment of the global LEI system under the auspices of the ROC, seven identifier-issuing utilities or pre-LOUs, including the CICI Utility operated by DTCC–SWIFT and designated in the Order, have each been sponsored to the ROC by a ROC member authority that exercises oversight of the LOU, and have been given an identifier prefix for use in ensuring the uniqueness of all identifiers issued by any LOU or pre-LOU. A pre-LOU located in Germany, operated by WM Datenservice and sponsored to the ROC by Bafin, Germany's Federal Financial Supervisory Authority, has now begun issuing identifiers known as General Entity Identifiers (“GEIs”), which the Commission anticipates will become LEIs in the global LEI system. The Commission anticipates that, in the next few months, other pre-LOUs sponsored to the ROC by a ROC member with oversight authority may also start issuing identifiers that will become LEIs in the global system.
• As stated in the Order, the Commission anticipates that the CICI Utility operated by DTCC–SWIFT and designated in the Order will become one of the LOUs in the global system, and that CICIs will become LEIs in the global system.
The Commission understands that OTC derivatives data reporting in the European Union is scheduled to begin in September 2013, pursuant to reporting requirements under the European Market Infrastructure Regulation (“EMIR”) issued by the European Securities and Markets Authority (“ESMA”).
Once swap data reporting is required under both CFTC rules and the rules of another jurisdiction or jurisdictions, as will be the case when ESMA's rules take effect, cooperation by the authorities in question with respect to the LEIs used in such reporting will be required to preserve the essential Principle of Uniqueness for LEIs, already adopted by the ROC and mandated by section 45.6(b)(1) of the Commission's regulations. Since the identifiers issued by pre-LOUs recognized by the ROC, including WM Datenservice, the CICI Utility, and eventually others, will become LEIs in the global LEI system, mutual acceptance, by each ROC member that mandates use of LEIs in data reporting, of the identifiers issued by each ROC-certified pre-LOU, is the only way to avoid violation of the Uniqueness Principle resulting from issuance of multiple LEIs to a single entity.
One example of this problem would be the case of a German hedge fund that obtains an identifier from WM Datenservice, and later becomes a counterparty to a swap with a U.S. swap dealer that must be reported to a swap data repository under CFTC rules. If the CFTC does not permit the WM Datenservice identifier of the hedge fund to be reported as part of the primary economic terms data reported for that swap, but requires that a CICI be reported for the hedge fund, it would be necessary for the hedge fund to obtain a CICI in addition to its WM Datenservice identifier.
To address this issue, and facilitate the ongoing establishment of the global LEI system, the Chair and Vice Chairs of the ROC have asked the Commission and ESMA to each move as promptly as possible to take whatever action is necessary to provide for mutual acceptance, for use in data reporting required by CFTC rules or ESMA rules, of the pre-LEIs issued by either the CICI Utility or WM Datenservice. The request notes that the ROC previously has publicly identified, as minimum requirements for global acceptance of pre-LEIs issued by a pre-LOU, both issuance by the pre-LOU of pre-LEIs that comply with ISO Standard 17442
Bafin has notified the Commission, and Commission staff have verified, on the basis of a live demonstration provided by WM Datenservice to Commission staff and to other ROC members including Bafin, and of a Memorandum of Understanding adopted by DTCC–SWIFT and WM Datenservice to provide for cooperation and coordination between them with respect to adherence to the principles adopted by the ROC for the global LEI system, that: (1) The GEIs issued by WM Datenservice comply with ISO Standard 17442
The Commission anticipates, on the basis of discussions between members of the ROC including representatives of ESMA and of the Commission, that ESMA will, on a timely basis, take the action necessary to provide for mutual acceptance by ESMA and the CFTC of both the pre-LEIs (now known as CICIs) issued by DTCC–SWIFT and the pre-LEIs (now known as GEIs) issued by WM Datenservice, for data reporting
In light of the foregoing,
“2. To comply with the legal entity identifier requirements of parts 45 and 46 of the Commission's regulations:
a. Effective immediately upon (1) issuance of this Amended Order, and (2) publication on the Commission's Web site by the Commission's Chief Information Officer of a notice that ESMA has informed the Commission that LEIs issued by DTCC–SWIFT are accepted for data reporting under ESMA's EMIR regulations, registered entities and swap counterparties subject to the Commission's jurisdiction shall use either LEIs (currently known as CFTC Interim Compliant Identifiers or CICIs) provided by DTCC–SWIFT, or LEIs (currently known as General Entity Identifiers or GEIs) provided by WM Datenservice. Registered entities and swap counterparties may contact DTCC–SWIFT at
b. Prior to adoption by the ROC of standards for approval of pre-LOUs and the LEIs issued by approved pre-LOUs as globally acceptable, registered entities and swap counterparties subject to the Commission's jurisdiction may use LEIs provided by another pre-LOU that has been issued an identifier prefix by the ROC and is sponsored as a pre-LOU by a member of the ROC, in lieu of using LEIs provided by DTCC–SWIFT or WM Datenservice, but may do so only after the Commission's Chief Information Officer publishes on the Commission's Web site a notice that: (1) Commission staff have verified, on the basis of a demonstration provided to Commission staff by the pre-LOU, and the ROC member sponsoring the pre-LOU has notified the Commission, that the pre-LOU issues LEIs that are compliant with ISO Standard 17442
c. After the ROC has adopted standards for approval of pre-LOUs and the LEIs issued by them as globally acceptable, and has also approved DTCC–SWIFT as a globally acceptable pre-LOU and the LEIs issued by DTCC–SWIFT as globally acceptable LEIs, registered entities and swap counterparties subject to the Commission's jurisdiction may use LEIs provided by DTCC–SWIFT, WM Datenservice, or any other pre-LOU approved by the ROC as globally acceptable and as issuing globally acceptable LEIs. Pursuant to this paragraph, use of LEIs from pre-LOUs other than DTCC–SWIFT or WM Datenservice may commence only after the Commission's Chief Information Officer publishes on the Commission's Web site a notice that such LEIs and such LOUs have been approved by the ROC as globally acceptable.
d. Effective immediately upon ROC approval of the LEIs (currently known as CICIs) issued by DTCC–SWIFT as globally acceptable, the LEIs issued by DTCC–SWIFT shall be known as LEIs and not as CICIs. For this purpose, CICIs previously issued by DTCC–SWIFT shall be named and referred to as LEIs, but shall not be reissued.
e. As provided in section 45.6(b)(1) of the Commission's regulations, registered entities and swap counterparties subject to the Commission's jurisdiction shall be identified in all swap recordkeeping and swap data reporting by a single LEI.
7 U.S.C. 24a(b).
On this matter, Chairman Gensler and Commissioners Sommers, Chilton, O'Malia, and Wetjen voted in the affirmative. No Commissioner voted in the negative.
Department of the Army, DoD.
Notice of open meeting.
Under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended) and 41 CFR 102–3.150, the Department of Defense announces that the following Federal advisory committee meeting will take place:
For information contact Dr. Robert Savukinas, Sub-Committee's Alternate Designated Federal Officer: ATFL–APO, Monterey, CA, 93944,
Public's Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b and 41 CFR 102–3.140 through 102–3.165, this meeting is open to the public however, any member of the public wishing to attend this meeting should contact the Subcommittee's Alternate Designated Federal Officer (see
National Center for Education Statistics, Institute of Education Sciences, Department of Education (ED).
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 August 27, 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.
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44
Interested persons are invited to submit comments on or before August 27, 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.
The purpose of the Race to the Top—Early Learning Challenge program is to focus on improving early learning and development programs for young children by supporting States' efforts to: (1) Increase the number and percentage of low-income and disadvantaged children in each age group of infants, toddlers, and preschoolers who are enrolled in high-quality early learning programs; (2) design and implement an integrated system of high-quality early learning programs and services; and (3) ensure that any use of assessments conforms with the recommendations of the National Research Council's reports on early childhood. Five key program reform areas representing the foundation of an effective early learning and development reform agenda focused on school readiness and ongoing educational success. These five key reform areas are: (A) Successful State Systems; (B) High-Quality, Accountable Programs; (C) Promoting Early Learning and Development Outcomes for Children; (D) A Great Early Childhood Education Workforce; and (E) Measuring Outcomes and Progress. The first two reform areas, (A) and (B) are “Core Areas of Focus” for this program and all applicants addressed selection criteria based on these core areas. Reform areas (C), (D), and (E) are “Focused Investment Areas” where State's choose which specific areas to target based on their State's early childhood reform areas and policies. Research demonstrates that high-quality early learning and development programs and services can improve young children's health, social-emotional, and cognitive outcomes; enhance school readiness; and help close the school readiness gap that exists between children with High Needs and their more abled peers at the time they enter kindergarten.
The Annual Performance Report for this program will collect data on the performance measures and the selection criteria described in the application (note OMB approval in 2011). Program staff have reviewed this report carefully to minimize burden. The APR will be collected electronically which will enable program staff to pre-populate information on baseline data, approved performance targets, and approved annual budgets. This report will be used to provide necessary information to program staff and to the public on the implementation of these grants.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
National Institute on Disability and Rehabilitation Research (NIDRR)—Projects and Centers Program—Rehabilitation Research and Training Centers (RRTCs)—Disability in Rural Areas.
Notice inviting applications for new awards for fiscal year (FY) 2013.
The purpose of the RRTCs, which are funded through the Disability and Rehabilitation Research Projects and Centers Program, is to achieve the goals of, and improve the effectiveness of, services authorized under the Rehabilitation Act through advanced research, training, technical assistance, and dissemination activities in general problem areas, as specified by NIDRR. These activities are designed to benefit rehabilitation service providers, individuals with disabilities, and the family members or other authorized representatives of individuals with disabilities. Additional information on the RRTC program can be found at:
These priorities are:
The full text of this priority is included in the notice of final priority published elsewhere in this issue of the
The full text of this priority is included in the notice of final priorities for the Disability and Rehabilitation Research Projects and Centers Program, published in the
29 U.S.C. 762(g) and 764(b)(2).
The regulations in 34 CFR part 86 apply to institutions of higher education (IHEs) only.
The Department is not bound by any estimates in this notice.
1.
2.
1.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.133B–8.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the person or team listed under
2.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative section (Part III).
An applicant should consult NIDRR's Long-Range Plan for Fiscal Years 2013–2017 (78 CFR 20299) (Plan) when preparing its application. The Plan is organized around the following research domains: (1) Community Living and Participation; (2) Health and Function; and (3) Employment.
3.
Applications for grants under this competition must be submitted electronically using the Grants.gov Apply site (
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
4.
5.
6.
a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one business day.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2–5 weeks for your TIN to become active.
The SAM registration process may take seven or more business days to complete. If you are currently registered with the SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days to complete. Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
7.
Applications for grants under the Disability in Rural Areas RRTC program, CFDA number 84.133B–8, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement and submit, no later than two weeks before the application deadline date, a written statement to the Department that you qualify for one of these exceptions. Further information regarding calculation of the date that is two weeks before the application deadline date is provided later in this section under
You may access the electronic grant application for the Disability in Rural Areas RRTC program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material. Additional, detailed information on how to attach files is in the application instructions.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that the Department has received your application and has assigned your application a PR/Award number (an ED-specified identifying number unique to your application).
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system; and
• No later than two weeks before the application deadline date (14 calendar days or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue SW., Room 5133, PCP, Washington, DC 20202–2700. FAX: (202) 245–7323.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address: U.S. Department of Education, Application Control Center, Attention: (CFDA Number 84.133B–8), LBJ Basement Level 1, 400 Maryland Avenue SW., Washington, DC 20202–4260.
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application by hand, on or before the application deadline
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245–6288.
1.
2.
In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
4.
• The number of products (e.g., new or improved tools, methods, discoveries, standards, interventions, programs, or devices) developed or tested with NIDRR funding that have been judged by expert panels to be of high quality and to advance the field.
• The average number of publications per award based on NIDRR-funded research and development activities in refereed journals.
• The percentage of new NIDRR grants that assess the effectiveness of interventions, programs, and devices using rigorous methods.
NIDRR uses information submitted by grantees as part of their Annual Performance Reports for these reviews.
Department of Education program performance reports, which include information on NIDRR programs, are available on the Department's Web site:
5.
Marlene Spencer, U.S. Department of Education, 400 Maryland Avenue SW., Room 5133, PCP, Washington, DC 20202–2700. Telephone: (202) 245–7532 or by email:
If you use a TDD or a TTY, call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
You may also access documents of the Department published in the
Federal Student Aid, U.S. Department of Education.
Notice of an altered system of records.
In accordance with the Privacy Act of 1974, as amended (Privacy Act), 5 U.S.C. 552a, the Chief Operating Officer for Federal Student Aid (FSA) of the Department of Education (Department) publishes this notice proposing to revise the system of records entitled “National Student Loan Data System (NSLDS)” (18–11–06), originally published on December 27, 1999 (64 FR 72395–72397), altered on September 7, 2010 (75 FR 54331–54336), and most recently altered on June 24, 2011 (76 FR 37095–37100).
The Department proposes to revise the NSLDS to make necessary updates resulting from the Moving Ahead for Progress in the 21st Century Act (MAP–21), Public Law 112–141, which amended the Higher Education Act of 1965, as amended (HEA), to limit students' eligibility for Direct Subsidized Loans to no more than 150 percent of the published length of the educational program in which the student is enrolled.
We are also expanding the system's categories of records, purposes, authority, and its routine uses to reflect programmatic disclosures needed to better evaluate the effectiveness of institutions and their title IV-eligible educational programs, and to make that information available to the general public on the Department's “College Scorecard” and the Department's “Financial Aid Shopping Sheet.” Finally, we are revising and streamlining programmatic routine use 1(c).
Submit your comments on the proposed altered system of records notice on or before July 29, 2013.
The Department filed a report describing the altered system of records covered by this notice with the Chair of the Senate Committee on Homeland Security and Governmental Affairs, the Chair of the House Committee on Oversight and Government Reform, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), on June 14, 2013. This altered system of records will become effective at the later date of: (1) The expiration of the 40-day period for OMB review on July 25, 2013, unless OMB waives 10 days of the 40-day review period for compelling reasons shown by the Department; or (2) July 29, 2013, unless the system of records needs to be changed as a result of public comment or OMB review.
Address all comments to: Director, NSLDS Systems, Operations and Aid Delivery Management Services, FSA, U.S. Department of Education, Union Center Plaza (UCP), 830 First Street NE., Room 44F1, Washington, DC 20202–5454. Telephone: 202–377–3547. If you prefer to send comments by email, use the following address:
You must include the term “NSLDS comments” in the subject line of your email.
During or after the comment period, you may inspect all public comments about this notice in room 44D2, UCP, 4th floor, 830 First Street NE., Washington, DC 20202–5454 between the hours of 8:00 a.m. and 4:30 p.m., Eastern Time, Monday through Friday of each week except Federal holidays.
Director, NSLDS Systems, Operations and Aid Delivery Management Services, FSA, U.S. Department of Education, UCP, 830 First Street NE., Room 41F1, Washington, DC 20202–5454. Telephone: 202–377–3547.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
The Privacy Act of 1974 (5 U.S.C. 552a(e)(4) and (11)) requires the Department to publish this notice of an altered system of records in the
The Privacy Act applies to information about an individual that is maintained in a system of records from which information is retrieved by a unique identifier associated with each individual, such as a name or Social Security number (SSN). The information about each individual is called a “record,” and the system, whether manual or computer-based, is called a “system of records.”
The Privacy Act requires each federal agency to publish a notice of a new or altered system of records in the
This system of records was first published in the
We revise the NSLDS to make necessary updates resulting from the MAP–21, Public Law 112–141, which amended the HEA, to limit students' eligibility for Direct Subsidized Loans to no more than 150 percent of the published length of the educational program in which the student is enrolled as specified in programmatic routine use (1)(o).
In certain circumstances, under the changes made by MAP–21, students who are enrolled after reaching the 150 percent limit are responsible for accruing interest on outstanding Direct Subsidized Loans. As a result of these statutory changes, we are expanding the categories of records maintained in the system, the system's purposes, and the routine uses to reflect needed programmatic disclosures.
Specifically, as described in the notice, the types of records maintained in the system need to be expanded. Additional information will be collected from institutions regarding the credential level (e.g., certificate, associate's degree, bachelor's degree), Classification of Instructional Program (CIP) code, and published length for the educational program in which a student who receives aid from the federal student aid programs authorized under title IV of the HEA (title IV programs) is enrolled. This information will be used both to implement new statutory changes that limit borrower eligibility for Direct Subsidized Loans to no more than 150 percent of the published length of the educational program in which the student is enrolled and to determine the periods for which a borrower who enrolls after reaching the 150 percent limit will be responsible for the accruing interest on outstanding Direct Subsidized Loans.
We are also expanding the authority for the NSLDS System to include Section 431 of the General Education Provisions Act (GEPA), which directs the Secretary “to collect data and information on applicable programs for the purpose of obtaining objective measurements of the effectiveness of such programs in achieving the intended purposes of such programs” and “to inform the public regarding federally supported education programs.” 20 U.S.C. 1231a(2)–(3). In addition, we are adding as authority for the system Section 132(i) of the HEA, which directs the Secretary to post to the College Navigator Web site “consumer information” for each institution that participates in the HEA title IV programs, which includes a list of 26 specific items or groups of data specific to the institution. Notably, this list includes direction for the Department to post “a link to the appropriate section of the Bureau of Labor Statistics Web site that provides information on regional data on starting salaries in all major occupations.” 20 U.S.C. 1015a(i)(1)(W).
We are also adding a purpose for the information maintained in the NSLDS relating to title IV eligible and participating institutions obtaining data and reporting the level of study, CIP code—(a code published by the Department's National Center for Education Statistics to support the accurate tracking, assessment, and reporting of fields of study and program completions activity), and published length of an educational program in which a student receiving title IV, HEA Federal student aid is enrolled to ensure his or her eligibility for Direct Subsidized Loans is limited to no more than 150 percent of the published length of the educational program, and to determine the periods for which a borrower who enrolls after reaching the 150 percent limit will be responsible for the accruing interest on outstanding Direct Subsidized Loans.
Two additional purposes for the information maintained in the NSLDS system relating to the Department's evaluation of the educational programs offered by institutions participating in title IV of the HEA, are to calculate and distribute performance metrics related to student aid recipients and to provide data for program oversight and strategic decision-making in the administration of the title IV programs, as provided in programmatic routine use (1)(p).
This altered system of records better reflects the programmatic routine use disclosures needed by the Department to establish student eligibility, as required under the HEA, by determining the length of students' eligibility for Direct Subsidized Loans such that it does not exceed 150 percent of the published length of the educational program in which a student is enrolled, and by determining the periods for which a borrower who enrolls after reaching the 150 percent limit will be responsible for the interest incurring on outstanding Direct Subsidized Loans. In addition, it reflects routine use disclosures needed by the Department to better evaluate the effectiveness of an institution's educational programs and to provide this information to assist the public in making choices about postsecondary education options.
Finally, we have revised and streamlined programmatic routine use 1(c), to read as follows: “To determine if educational programs lead to gainful employment in a recognized occupation, the Department may disclose records to educational institutions.”
You may also access documents of the Department published in the
For the reasons discussed in the preamble, the Chief Operating Officer, Federal Student Aid, of the U.S. Department of Education (Department), publishes a notice of an altered system of records to read as follows:
National Student Loan Data System (NSLDS)
None.
Dell Perot Systems, 2300 West Plano Parkway, Plano, TX 75075–8247. (This is the computer center for the NSLDS Application Virtual Data Center.)
Iron Mountain, PO Box 294317, Lewisville, Texas 75029–4317. (This is the location where back-up tapes for NSLDS are maintained.)
This system contains records on persons who were recipients of aid under the title IV, Higher Education Act of 1965, as amended (HEA) programs. This system contains records on
NSLDS further contains student enrollment information for persons who have received title IV, HEA student assistance as well as Master Conduit Loan Program Data, Master Loan Participation Program (LPP) Data, and loan-level detail on FFEL Subsidized, Unsubsidized, and PLUS loans funded through those programs.
The system also contains records on students (both title IV, HEA recipients and students who do not receive title IV aid, but receive private educational loans and/or institutional financing for education) who, during an award year, begin attendance in a program that is at least one-academic-year training program that leads to a certificate, or other non-degree recognized credential and that prepares students for gainful employment in a recognized occupation, or who begin an eligible program provided by a proprietary institution of higher education or a postsecondary vocational institution.
The system also contains records on the level of study, CIP code, and published length of an educational program in which a student receiving title IV, HEA Federal student aid is enrolled to limit his or her eligibility for Direct Subsidized Loans to no more than 150 percent of the published length of the educational program in which the student is enrolled, and to determine the periods for which a borrower who enrolls after reaching the 150 percent limit will be responsible for the accruing interest on outstanding Direct Subsidized Loans.
Records in NSLDS include, but are not limited to: (1) Borrower identifier information including Social Security number (SSN), name, date of birth, address, phone number, email address, and driver's license information; (2) information on the borrower's loan(s) covering the period from the origination of the loan through final payment, cancellation, consolidation, discharge, or other final disposition including details such as loan amount, disbursements, balances, loan status, repayment plan and related information, collections, claims, deferments, forbearances, refunds, and cancellations; (3) for students who began a program of study that prepares them for gainful employment in a recognized occupation pursuant to sections 1001 and 1002 of the HEA (“gainful employment program”), student identifiers including the student's SSN, date of birth, and name, student enrollment information including the Office of Postsecondary Education identification number (OPEID number) of the institution, the CIP code for the gainful employment program in which the student enrolled, and, if the student completed the program, the completion date and the CIP code of the completed program, the level of study, the amount of the student's private educational loan debt, the amount of institutionally provided financing owed by the student, and whether the student matriculated to a higher credentialed program at the same institution or another institution; (4) aggregated income information on graduates and non-completers of particular gainful employment programs, and the median loan debt incurred by students enrolled in the gainful employment program, regardless of whether they completed the program; (5) student demographic information such as dependency status, citizenship, veteran status, marital status, gender, income and asset information (including income and asset information on the student's spouse, if married), expected family contribution, and address; (6) information on the parent(s) of a dependent recipient, including, but not limited to: Name, date of birth, SSN, marital status, email address, highest level of schooling completed, and income and asset information; (7) information related to a borrower's application for an income-driven repayment plan, including information such as current income, family size, repayment plan selection, and, if married, information about the borrower's spouse; (8) Federal Pell Grant, ACG Grant, National SMART Grant, TEACH Grant, and Iraq and Afghanistan Service Grant amounts and dates of disbursement; (9) Federal Pell Grant, ACG Grant, National SMART Grant, Iraq and Afghanistan Service Grant, FSEOG, and Federal Perkins Loan Program overpayment amounts; (10) demographic and contact information on the guaranty agency that guarantees the borrower's FFEL loan and the lender(s), holder(s), and servicer(s) of the borrower's loan(s); (11) NSLDS user profiles that include name, SSN, date of birth, employer, and NSLDS user name; (12) information concerning the date of any default on loans and the aggregated loan data to support cohort default rate calculations for educational institutions, financial institutions, and guaranty agencies; (13) pre- and post-screening results used to determine a student or parent's aid eligibility; (14) information on financial institutions participating in the loan participation and sale programs established by the Department under the Ensured Continued Access to Student Loan Act of 2008 (ECASLA), including the collection of: ECASLA loan-level funding amounts, dates of ECASLA participation for financial institutions, dates and amounts of loans sold to the Department under ECASLA, and the amount of loans funded by the Department's programs but repurchased by the lender; and (15) information on the student's educational institution, level of study, the CIP code, and published length for the program in which the student enrolled for an institution or programs of studies at the institution.
The authority under which the system is maintained includes sections 101, 102, 132(i), 485, and 485B of the HEA (20 U.S.C. 1001, 1002, 1015a(i), 1092, and 1092b) and section 431 of the General Education Provisions Act (20 U.S.C. 1231a(2)–(3)). The collection of SSNs of borrowers who are covered by this system is authorized by 31 U.S.C. 7701 and Executive Order 9397 (November 22, 1943), as amended by Executive Order 13478 (November 18, 2008).
The information contained in this system is maintained for the following purposes relating to students and borrowers: (1) To determine student/borrower eligibility for title IV, HEA programs by NSLDS pre- and post-screening processes; (2) to report changes in student/borrower enrollment status and enrollment in gainful employment programs; (3) to track loan
The information in NSLDS is also maintained for the following purposes relating to institutions participating in and administering the title IV, HEA programs: (1) To permit Department staff, Department contractors, guaranty agencies, eligible lenders, and eligible institutions of higher education to verify the eligibility of a student, potential student, or parent for loans or Pell grants; (2) to provide student aggregate loan calculations to educational institutions; (3) to track loan transfers from one entity to another; (4) to determine default rates for educational institutions, guaranty agencies, and lenders; (5) to prepare electronic financial aid histories on students or borrowers for educational institutions, guaranty agencies, Department staff, and Department contractors; (6) to alert educational institutions of changes in financial aid eligibility of students via the Transfer Student Monitoring process; (7) to assist Department staff, Department contractors and agents, guaranty agencies, educational institutions, lenders, and servicers in collecting debts arising from receipt of title IV, HEA funds; (8) to assess title IV, HEA program administration of guaranty agencies, educational institutions, lenders, and servicers; (9) to display organizational contact information provided by educational institutions, guaranty agencies, lenders, and servicers; (10) to provide reporting capabilities for educational institutions, guaranty agencies, lenders, and servicers for use in title IV, HEA administrative functions and for the Department for use in oversight and compliance; (11) to provide financial institutions, servicers, Department staff, and Department contractors with contact information on loan holders for use in the collection of loans; (12) to provide schools and servicers with information to resolve overpayments of Pell, ACG, National SMART, TEACH, Iraq and Afghanistan Service Grants, and FSEOG grants; (13) to assist Department staff, contractors, guaranty agencies, and the Department of Justice in the collection of debts owed to the Department under title IV of the HEA; (14) to obtain data on and to report on students in a gainful employment program for the purposes of establishing whether a particular gainful employment program is successfully preparing students to be gainfully employed and making this information available to the institution; (15) to obtain data and report the level of study, CIP code, and published length of an educational program in which a student receiving title IV, HEA Federal student aid is enrolled to ensure his or her eligibility for Direct Subsidized Loans is limited to no more than 150 percent of the published length of the educational program, and to determine the periods for which a borrower who enrolls after reaching the 150 percent limit will be responsible for the accruing interest on outstanding Direct Subsidized Loans; and (16) to provide consumer tools that are designed to simplify information that prospective students receive about costs, financial aid, and aggregate earnings of title IV aid recipients who were enrolled at postsecondary institutions participating in title IV, HEA programs so that these prospective students can make informed decisions about which postsecondary institution to attend.
The information maintained in this system is also maintained for the following purposes relating to the Department's oversight and administration of the title IV, HEA programs: (1) To assist audit and program review planning; (2) to support research studies and policy development; (3) to conduct budget analysis and program review planning; (4) to provide information that supports the Department's compliance with the Federal Credit Reform Act of 1990, as amended (CRA); (5) to ensure only authorized users access the database and to maintain a history of the student/borrower information reviewed; (6) to track the Department's interest in loans funded through ECASLA; (7) to track TEACH grants that have been converted to loans; (8) to track eligibility for and participation in Public Service Loan Forgiveness; (9) to capture data to support compliance and to calculate and distribute performance metrics related to gainful employment programs; (10) to provide data for program oversight and strategic decision-making in the administration of higher education programs; (11) to track eligibility for Direct Subsidized Loans and interest subsidy based upon the level of study, CIP code, and published length of the educational program in which a student is enrolled; and (12) to evaluate the effectiveness of an institution's education programs, and help provide information to the public at the institutional and programmatic level on this effectiveness.
The Department may disclose information contained in a record in this system of records under the routine uses listed in this system of records notice without the consent of the individual if the disclosure is compatible with the purposes for which the record was collected. These disclosures may be made on a case-by-case basis or, if the Department has complied with the computer matching requirements of the Privacy Act of 1974, as amended, under a computer matching agreement.
(1)
The Department may disclose records to the specified users for the following program purposes:
(a) To verify the identity of the applicant involved, the accuracy of the record, or to assist with the determination of program eligibility and benefits, as well as institutional program eligibility, the Department may disclose records to the applicant, guaranty agencies, educational institutions, financial institutions and servicers, and to Federal and State agencies;
(b) To support default rate calculations and/or provide information on borrowers' current loan status, the Department may disclose records to guaranty agencies, educational institutions, financial institutions, servicers, and State agencies;
(c) To determine if educational programs lead to gainful employment in a recognized occupation, the Department may disclose records to educational institutions;
(d) To provide financial aid history information to aid in their administration of title IV, HEA programs, the Department may disclose records to educational institutions, guaranty agencies, loan holders, or servicers;
(e) To support auditors and program reviewers in planning and carrying out their assessments of title IV, HEA program compliance, the Department may disclose records to guaranty agencies, educational institutions, financial institutions and servicers, and to Federal, State, and local agencies;
(f) To support governmental researchers and policy analysts, the Department may disclose records to Federal, State, and local agencies using safeguards for system integrity and ensuring compliance with the Privacy Act;
(g) To support Federal budget analysts in the development of budget needs and forecasts, the Department may disclose records to Federal and State agencies;
(h) To assist in locating holders of loan(s), the Department may disclose records to students/borrowers, guaranty agencies, educational institutions, financial institutions and servicers, and Federal agencies;
(i) To assist analysts in assessing title IV, HEA program administration by guaranty agencies, educational institutions, and financial institutions and servicers, the Department may disclose records to Federal and State agencies;
(j) To assist loan holders in locating borrowers, the Department may disclose records to guaranty agencies, educational institutions, financial institutions that hold an interest in the loan and their servicers, and to Federal agencies;
(k) To assist with meeting requirements under the CRA, the Department may disclose records to Federal agencies;
(l) To assist program administrators with tracking refunds and cancellations of title IV, HEA loans, the Department may disclose records to guaranty agencies, educational institutions, financial institutions and servicers, and to Federal and State agencies;
(m) To enforce the terms of a loan, assist in the collection of a loan, or assist in the collection of an aid overpayment, the Department may disclose records to guaranty agencies, loan servicers, educational institutions and financial institutions, to the Department of Justice and private counsel retained by the Department of Justice, and to other Federal, State, or local agencies;
(n) To assist the Department in tracking loans funded under ECASLA, the Department may disclose records to Federal agencies;
(o) To assist the Department in complying with requirements that limit eligibility for Direct Subsidized Loans to no more than 150 percent of the published length of the educational program in which the student is enrolled, and to determine the periods for which a borrower who enrolls after reaching the 150 percent limit will be responsible for the interest accruing on outstanding Direct Subsidized Loans thereafter, the Department may disclose records to the applicant, guaranty agencies, educational institutions, financial institutions and servicers, and to Federal and State agencies; and
(p) To obtain data needed to assist the Department in evaluating the effectiveness of an institution's education programs and to provide the public with greater transparency about the level of economic return of an educational institution and their programs that are paid for with title IV, HEA program assistance, the Department may disclose records to educational institutions and to Federal and State agencies, including the Social Security Administration.
(2)
(3)
(4)
(a)
(i) The Department or any of its components; or
(ii) Any Department employee in his or her official capacity; or
(iii) Any Department employee in his or her individual capacity where the Department of Justice (DOJ) agrees to or has been requested to provide or arrange for representation of the employee; or
(iv) Any Department employee in his or her individual capacity where the Department has agreed to represent the employee; or
(v) The United States, where the Department determines that the litigation is likely to affect the Department or any of its components.
(b)
(c)
(d)
(5)
(6)
(7)
(8)
(a)
(b)
(9)
(10)
(11)
(12)
(13)
Disclosures pursuant to 5 U.S.C. 552a(b)(12): The Department may disclose the following information to a consumer reporting agency regarding a valid overdue claim of the Department: (1) The name, address, taxpayer identification number, and other information necessary to establish the identity of the individual responsible for the claim; (2) the amount, status, and history of the claim; and (3) the program under which the claim arose. The Department may disclose the information specified in this paragraph under 5 U.S.C. 552a(b)(12) and the procedures contained in subsection 31 U.S.C. 3711(e). A consumer reporting agency to which these disclosures may be made is defined in 15 U.S.C. 1681a(f) and 31 U.S.C. 3701(a)(3).
The records are maintained electronically.
In order for users to retrieve student/borrower information they must supply the student/borrower SSN, name, and date of birth.
Physical access to this system housed within the Virtual Data Center is controlled by a computerized badge reading system, and the entire complex is patrolled by security personnel during non-business hours. The computer system employed by the Department offers a high degree of resistance to tampering and circumvention. Multiple levels of security are maintained within the computer system control program. This security system limits data access to Department and contract staff on a “need-to-know” basis, and controls individual users' ability to access and alter records within the system. All users of this system of records are given a unique user ID with personal identifiers. All interactions by individual users with the system are recorded.
Records are retained for 15 years after an account is paid in full, and then destroyed in accordance with the Department's records retention and disposition schedule 051.
Director, National Student Loan Data System, FSA, U.S. Department of Education, UCP, 830 First Street NE., 4th Floor, Washington, DC 20202–5454.
If you wish to determine whether a record exists regarding you in this system of records, contact the system manager and provide your name, date of birth, SSN, and the name of the school or lender from which the loan or grant was obtained. Requests for notification about whether the system of records contains information about an individual must meet the requirements of the regulations at 34 CFR 5b.5, including proof of identity.
If you wish to gain access to a record in this system, contact the system
If you wish to contest the content of a record in the system of records, you must contact the system manager with the information described in the notification procedures, identify the specific item(s) to be changed, and provide a justification for the change, including any supporting documentation. Requests to amend a record must meet the requirements of the Department's Privacy Act regulations at 34 CFR 5b.7.
Information is obtained from guaranty agencies, educational institutions, and financial institutions and servicers, and the Free Application for Federal Student Aid completed by students and parents. Information is also obtained from other Department systems such as the Direct Loan Servicing System (covered by the system of records entitled “Common Services for Borrowers”); Debt Management Collection System (covered by the system of records entitled “Common Servicers for Borrowers”); Common Origination and Disbursement System; Financial Management System; Student Aid Internet Gateway, Participant Management System (covered by the system of records entitled “Student Aid Internet Gateway Enrollment”); Postsecondary Education Participants System (covered by the system of records entitled “Postsecondary Education Participants System”); and Central Processing System (covered by the system of records entitled “Federal Student Aid Application File”).
None.
U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE), pursuant to the Paperwork Reduction Act of 1995, intends to extend, for three years, an information collection request with the Office of Management and Budget (OMB). Comments are invited on: (a) Whether the extended collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; 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 regarding this proposed information collection must be received on or before August 27, 2013. If you anticipate difficulty in submitting comments within that period or if you want access to the collection of information, without charge, contact the person listed below as soon as possible.
Written comments should be sent to the following: Richard Bonnell, U.S. Department of Energy, Office of Acquisition and Project Management, 1000 Independence Avenue SW., Washington, DC 20585–0121 or by email at
Richard Bonnell by email at
This information collection request contains: (1) OMB No. 1910–0400 (Renewal); (2) Information Collection Request Title: DOE Financial Assistance Information Clearance; (3) Type of Review: Renewal; (4) Purpose: This information collection package covers mandatory collections of information necessary to annually plan, solicit, negotiate, award and administer grants and cooperative agreements under the Department's financial assistance programs. The information is used by Departmental management to exercise management oversight with respect to implementation of applicable statutory and regulatory requirements and obligations. The collection of this information is critical to ensure that the government has sufficient information to judge the degree to which awardees meet the terms of their agreements; that public funds are spent in the manner intended; and that fraud, waste, and abuse are immediately detected and eliminated; (5) Annual Estimated Number of Respondents: 41,340; and (6) Annual Estimated Number of Total Responses; (7) Estimated Number of Burden Hours: 573,732; (8) Annual Estimated Reporting and Recordkeeping Cost Burden: $0.
Federal Grant and Cooperative Agreement Act, 31 U.S.C. 6301–6308.
Department of Energy (DOE).
Notice of Open Meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Paducah. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Thursday, July 18, 2013, 6:00 p.m.
Barkley Centre, 111 Memorial Drive, Paducah, Kentucky 42001.
Rachel Blumenfeld, Deputy Designated Federal Officer, Department of Energy Paducah Site Office, Post Office Box 1410, MS–103, Paducah, Kentucky 42001, (270) 441–6806.
• Call to Order, Introductions, Review of Agenda.
• Administrative Issues.
• Public Comments (15 minutes).
• Adjourn.
Breaks taken as appropriate.
Environmental Protection Agency (EPA).
Notice of decision.
EPA confirms that amendments promulgated by the California Air Resources Board (“CARB”) are within the scope of an existing authorization issued by EPA for California's in-use diesel-fueled TRU regulations.
Petitions for review must be filed by August 27, 2013.
EPA has established a docket for this action under Docket ID EPA–HQ–OAR–2012–0741. All documents relied upon in making this decision, including those submitted to EPA by CARB, and public comments, are contained in the public docket. Publicly available docket materials are available either electronically through
EPA's Office of Transportation and Air Quality (“OTAQ”) maintains a Web page that contains general information on its review of California waiver requests. Included on that page are links to prior waiver
Brenton M. Williams, Attorney-Advisor, Compliance Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105. Telephone: (734) 214–4341. Fax: (734) 214–4053. Email:
EPA granted an authorization for California's initial set of TRU regulations on January 9, 2009.
Since EPA's grant of an authorization for California's TRU regulations in 2009, CARB has promulgated several amendments, which are at issue here. CARB's Board adopted the TRU amendments on November 18, 2010, in Resolution 10–39. CARB's TRU amendments accomplish three main objectives: (1) Relax the TRU in-use compliance requirements for all 2003 and some 2004 model year TRUs and TRU generator sets (collectively referred to as “TRUs”); (2) clarify the operational useful life of TRU flexibility engines
These amendments allow owners of model year 2003 TRUs in the 25 horsepower (hp) and greater category the option of complying with the ATCM's in-use standards by meeting the low emission TRU (“LETRU”) standard, which achieves a 50 percent particulate matter (PM) emission reduction. Prior to amendment, the ATCM had required that owners comply with the more stringent ultra-low emission TRU (“ULETRU”) in-use standard, which achieves an 85 percent PM reduction. This change, according to CARB, provides owners with more compliance flexibility and is needed because ULETRU compliance options presently are limited and relatively costly compared to LETRU compliance costs. The compliance date for meeting one of these standards would remain December 31, 2010, seven years after the 2003 engine model year, which is the end of the TRU's operational life.
The amendments similarly provide owners of 2003 and 2004 model year TRU engines in the less than 25 hp category with the option of complying with the in-use standards by meeting the LETRU in-use standard in lieu of being required to meet the ULETRU standard by December 31, 2010, for model year 2003 engines and December 31, 2011, for model year 2004 engines. As with the larger horsepower engines, those owners electing to comply by meeting the LETRU standard would need to upgrade their model year 2003 and 2004 engines to the ULETRU standard seven years after initial compliance in either 2010 or 2011 (i.e., by December 31, 2017 or 2018, respectively).
When the TRU ATCM was first adopted, CARB assumed that TRU engines manufactured in a specific year would meet the emission standards applicable for that year and that these engines would be upgraded to more stringent emission standards seven years after initial certification. CARB subsequently discovered that TRU OEMs were using significantly more flexibility engines in California than originally anticipated, with the consequence that the ATCM is achieving fewer emission reductions than forecasted. To address this problem, CARB amended the regulation to clarify that for flexibility engines installed in new TRUs after March 7, 2011 (the date that the amendments became operative under California law), the seven-year operational life of a TRU engine must be based on the effective model year of the engine. The effective model year is defined as the last year that the lower emission tier of the flexibility engine was in effect for new engines. The amendments clarify that owners of TRU flexibility engines installed before the operative date of the amendments would be provided a full seven years of operational life from the year of the engine's manufacture before having to meet the more stringent ULETRU in-use performance standard. Flexibility engines installed after that date will have a reduced operational life given that compliance would be based on the last year that the flexibility engine's tier standard was in effect. CARB maintains that owners will not be adversely affected as TRU OEMs are required under the amendments to provide notice at the point of sale to the end-user that the TRUs are equipped with flexibility engines and have a shorter operational life. They must also provide the end-user with the date that the engine must meet the ULETRU standard.
CARB amended the TRU ATCM to require that TRU OEMs report production information, including information on flexibility engines installed in TRUs. The reporting, according to CARB, will ensure that manufacturers provide the data necessary to ensure that owners properly register TRUs in CARB's equipment registration system (ARBER) and more accurately estimate emissions inventories, as well as allow CARB and TRU owners to properly track flexibility engines. TRU OEMs would be required to periodically report data on each TRU and installed engine produced in future model years and submit reports on TRU sales from previous years.
By letter dated May 13, 2011, CARB submitted a request to EPA seeking confirmation that these amendments are within the scope of the authorization issued by EPA under section 209(e) of the Clean Air Act on January 9, 2009. EPA announced its receipt of California's within-the-scope confirmation request in a
Although CARB's request regarding its TRU amendments was submitted as a within-the-scope request, EPA invited comment on several issues. Within the context of a within-the-scope analysis, EPA invited comment on whether California's standards: (1) Undermine California's previous determination that its standards, in the aggregate, are at least as protective of public health and welfare as comparable Federal standards; (2) affect the consistency of California's requirements with section 202(a) of the Act; and (3) raise any other new issues affecting EPA's previous waiver or authorization determinations. EPA also requested comment on issues relevant to a full authorization analysis, in the event that EPA determined that California's standards should not be evaluated under the within-the-scope criteria noted above, and should instead be subjected to a full authorization analysis. Specifically, EPA sought comment on: (a) Whether CARB's determination that its standards, in the aggregate, are at least as protective of public health and welfare as applicable Federal standards is arbitrary and capricious; (b) whether California needs
No party requested an opportunity for a hearing to present oral testimony, and EPA received only one written comment. The comment supports CARB's amendments, and encourages EPA to confirm that the amendments are within the scope of CARB's TRU authorization. The written comment is from the Manufacturers of Emission Controls Association (“MECA”).
Section 209(e)(1) of the Act permanently preempts any State, or political subdivision thereof, from adopting or attempting to enforce any standard or other requirement relating to the control of emissions for certain new nonroad engines or vehicles.
(a) The Administrator will grant the authorization if California determines that its standards will be, in the aggregate, at least as protective of public health and welfare as otherwise applicable federal standards.
(b) The authorization will not be granted if the Administrator finds that any of the following are true:
(1) California's determination is arbitrary and capricious.
(2) California does not need such standards to meet compelling and extraordinary conditions.
(3) The California standards and accompanying enforcement procedures are not consistent with section 209 of the Act.
(c) In considering any request from California to authorize the state to adopt or enforce standards or other requirements relating to the control of emissions from new nonroad spark-ignition engines smaller than 50 horsepower, the Administrator will give appropriate consideration to safety factors (including the potential increased risk of burn or fire) associated with compliance with the California standard.
In order to be consistent with section 209(a), California's nonroad standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engines. To be consistent with section 209(e)(1), California's nonroad standards and enforcement procedures must not regulate engine categories that are permanently preempted from state regulation. To determine consistency with section 209(b)(1)(C), EPA typically reviews nonroad authorization requests under the same “consistency” criteria that are applied to motor vehicle waiver requests. Pursuant to section 209(b)(1)(C), the Administrator shall not grant California a motor vehicle waiver if the Administrator finds that California “standards and accompanying enforcement procedures are not consistent with section 202(a)” of the Act. Previous decisions granting waivers and authorizations have noted that state standards and enforcement procedures are inconsistent with section 202(a) if: (1) there is inadequate lead time to permit the development of the necessary technology giving appropriate consideration to the cost of compliance within that time, or (2) the federal and state testing procedures impose inconsistent certification requirements.
If California amends regulations that were previously granted an authorization, EPA can confirm that the amended regulations are within the scope of the previously granted authorization. Such within-the-scope determinations are permissible without a full authorization review if three conditions are met. First, the amended regulations must not undermine California's determination that its standards, in the aggregate, are as protective of public health and welfare as applicable federal standards. Second, the amended regulations must not affect consistency with section 202(a) of the Act. Third, the amended regulations must not raise any “new issues” affecting EPA's prior authorizations.
In previous waiver decisions, EPA has recognized that the intent of Congress in creating a limited review based on the section 209(b)(1) criteria was to ensure that the federal government did not second-guess state policy choices. This has led EPA to state:
It is worth noting . . . I would feel constrained to approve a California approach to the problem which I might also feel unable to adopt at the federal level in my own capacity as a regulator. The whole approach of the Clean Air Act is to force the development of new types of emission control technology where that is needed by compelling the industry to “catch up” to some degree with newly promulgated standards. Such an approach . . . may be attended with costs, in the shaped of reduced product offering, or price or fuel economy penalties, and by risks that a wider number of vehicle classes may not be able to complete their development work in time. Since a balancing of these risks and costs against the potential benefits from reduced emissions is a central policy decision for any regulatory agency under the statutory scheme outlined above, I believe I am required to give very substantial deference to California's judgments on this score.
The House Committee Report explained as part of the 1977 amendments to the Clean Air Act, where Congress had the opportunity to restrict the waiver provision, it elected instead to explain California's flexibility to adopt a complete program of motor vehicle emission controls. The amendment is intended to ratify and strengthen the California waiver provision and to affirm the underlying
In
The court upheld the Administrator's position that, to deny a waiver, there must be “clear and compelling evidence” to show that proposed procedures undermine the protectiveness of California's standards.
With respect to the consistency finding, the court did not articulate a standard of proof applicable to all proceedings, but found that the opponents of the waiver were unable to meet their burden of proof even if the standard were a mere preponderance of the evidence. Although
Opponents of the waiver bear the burden of showing that the criteria for a denial of California's waiver request have been met. As found in
[t]he language of the statute and its legislative history indicate that California's regulations, and California's determinations that they must comply with the statute, when presented to the Administrator are presumed to satisfy the waiver requirements and that the burden of proving otherwise is on whoever attacks them. California must present its regulations and findings at the hearing and thereafter the parties opposing the waiver request bear the burden of persuading the Administrator that the waiver request should be denied.
The Administrator's burden, on the other hand, is to make a reasonable evaluation of the information in the record in coming to the waiver decision. As the court in
We initially evaluate California's TRU amendments by application of our traditional within-the-scope analysis, as CARB requested. If we determine that CARB's request does not meet the requirements for a within-the-scope determination, we then evaluate the request based on a full authorization analysis. EPA sought comment on a range of issues, including those applicable to a within-the-scope analysis as well as those applicable to a full authorization analysis. No party submitted a comment that California's TRU amendments require a full authorization analysis. Given the lack of comments on this issue, and the nature of the amendments, EPA will evaluate California's TRU amendments by application of our traditional within-the-scope analysis, as CARB requested.
EPA can confirm that amended regulations are within the scope of a previously granted waiver of preemption if three conditions are met. First, the amended regulations must not undermine California's determination that its standards, in the aggregate, are as protective of public health and welfare as applicable federal standards. Second, the amended regulations must not affect consistency with section 202(a) of the Act. Third, the amended regulations must not raise any “new issues” affecting EPA's prior authorizations.
In its May 13, 2011 letter requesting a within-the scope determination, CARB points out that in approving the amendments relaxing the standards for 2003 and 2004 model year TRUs, it found, in Resolution 10–39,
After evaluating the materials submitted by CARB, and since EPA has not adopted any standards or requirements for in-use TRU systems or engines, and based on no comments submitted to the record, EPA cannot find that California's TRU amendments undermine California's previous determination that its standards, in the aggregate, are at least as protective of public health and welfare as applicable federal standards.
EPA has stated in the past that California standards and accompanying test procedures would be inconsistent with section 202(a) of the Clean Air Act if: (1) There is inadequate lead time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to cost of compliance within the lead time provided, or (2) the federal and California test procedures impose inconsistent certification requirements.
The first prong of EPA's inquiry into consistency with section 202(a) of the Act depends upon technological feasibility. This requires EPA to evaluate whether adequate technology already exists; or if it does not, whether there is adequate time to develop and apply the technology before the standards go into effect. In its May 13, 2011 letter, CARB states the amendments raise no new issue that disturb EPA's earlier finding that the TRU in-use performance requirements are technologically feasible within the lead time provided for compliance. The amendments relax the initially adopted performance requirements, providing additional lead time for owners of all 2003 model year TRU engines, regardless of horsepower, and for 2004 model year TRUs with horsepower ratings less than 25 hp, to comply with ULETRU in-use standard. The amendments at issue have been adopted to provide owners with more compliance flexibility, and are needed because ULETRU compliance options presently are limited and relatively costly compared to LETRU compliance costs. The relaxation will provide sufficient time for market restrictions to abate and provide the full range of compliance options that CARB envisioned when the TRU ATCM was first adopted. In regard to the TRU amendments clarifying the operational useful life of TRU flexibility engines, CARB stated in its May 13, 2011 letter that “no issue of technological feasibility exists in that manufacturers, in having used the flexibility provisions of federal and state law, have never contended that use of such provisions was necessitated for reasons of technical feasibility—i.e., because engines certified to the most stringent emission tier could not be used with newly manufactured TRU systems. Moreover, the clarifying amendments ensure that existing owners' TRU-flexibility engines will not be penalized.”
EPA received no comments indicating that CARB's TRU amendments present lead-time or technology issues with respect to consistency under section 202(a) and knows of no other evidence to that effect. Consequently, EPA cannot find that CARB's amendments affect our prior determination regarding consistency with section 202(a), based on lead-time or technological feasibility issues.
The second prong of EPA's inquiry into consistency with section 202(a) of the Act depends on the compatibility of the federal and California test procedures. California's standards and accompanying enforcement procedures would be inconsistent with section 202(a) if the California test procedures were to impose certification requirements inconsistent with the federal certification requirements. Such inconsistency means that manufacturers would be unable to meet both the California and federal testing requirements using the same test vehicle or engine.
For the reasons set forth above, EPA confirms that California's TRU amendments do not undermine our prior determination concerning consistency with section 202(a) of the Clean Air Act.
EPA has stated in the past that if California promulgates amendments that raise new issues affecting previously granted waivers or authorizations, we would not confirm that those amendments are within the scope of previous authorizations.
EPA does not believe that California's TRU amendments relaxing the TRU in-use compliance requirements for all 2003 and some 2004 model year TRUs and TRU generator sets, clarifying the operational useful life of TRU flexibility engines, and establishing new reporting and recordkeeping requirements for TRU OEMs raise any new issues with respect to our prior granting of the authorization. A relaxation of compliance requirements and a clarification of operational useful life of TRU flexibility engines are not new issues that substantively affect the previously granted authorization, and are consistent with the purpose and intent of the TRU ATCM and its previously granted authorization. Additionally, although there are “new” reporting and recordkeeping requirements for TRU OEMs, as stated above, they do not impose any new concerns regarding the technical feasibility of meeting the in-use performance requirements of the TRU ATCM and do not affect the bases for which the authorization was initially granted. Moreover, EPA did not receive any comments that CARB's TRU amendments raised new issues affecting the previously granted authorization. Therefore, EPA cannot find that CARB's TRU amendments raise new issues and consequently, cannot deny CARB's request based on this criterion.
For these reasons, EPA confirms that California's TRU amendments raise no new issues with respect to the previously granted authorization.
For all the reasons set forth above, EPA can confirm that California's amendments to its TRU ATCM are within the scope of the existing authorization.
The Administrator has delegated the authority to grant California a section 209(e) authorization to the Assistant Administrator for Air and Radiation. This includes the authority to determine whether amendments to its regulations are within the scope of a prior authorization. CARB's May 13, 2011 letter seeks confirmation from EPA that CARB's amendments to its TRU ATCM regulations are within the scope of its existing authorization. After evaluating CARB's amendments, CARB's submissions, and the public comments, EPA confirms that California's regulatory amendments meet the three criteria that EPA uses to determine whether amendments by California are within the scope of previous authorizations. First, EPA agrees with
My decision will affect not only persons in California, but also manufacturers outside the State who must comply with California's requirements in order to produce TRU systems for sale in California. For this reason, I determine and find that this is a final action of national applicability for purposes of section 307(b)(1) of the Act. Pursuant to section 307(b)(1) of the Act, judicial review of this final action may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by August 27, 2013. Judicial review of this final action may not be obtained in subsequent enforcement proceedings, pursuant to section 307(b)(2) of the Act.
As with past authorization and waiver decisions, this action is not a rule as defined by Executive Order 12866. Therefore, it is exempt from review by the Office of Management and Budget as required for rules and regulations by Executive Order 12866.
In addition, this action is not a rule as defined in the Regulatory Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a supporting regulatory flexibility analysis addressing the impact of this action on small business entities.
Further, the Congressional Review Act, 5 U.S.C. 801,
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
The U.S. Department of the Interior's Bureau of Land Management and the U.S. Department of Energy's Western Area Power Administration are joint lead agencies for the above project.
Notice of a partially open meeting of the Board of Directors of the Export-Import Bank of the United States.
Tuesday, July 9, 2013 at 9:30 a.m. The meeting will be held at Ex-Im Bank in Room 321, 811 Vermont Avenue NW., Washington, DC 20571.
Item No. 1: 2013 Review of the Content Policy.
The meeting will be open to public observation for Item No. 1 only.
Members of the public who wish to attend the meeting should call Joyce Stone, Office of the Secretariat, 811 Vermont Avenue NW., Washington, DC 20571 (202) 565–3336 by close of business Monday, July 8, 2013.
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, June 27, 2013. The meeting is scheduled to commence at 10:30 a.m. in Room TW–C305, at 445 12th Street SW., Washington, DC.
The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, and assistive listening devices will be provided on site. Other reasonable accommodations for people with disabilities are available upon request. In your request, include a description of the accommodation you will need and a way we can contact you if we need more information. Last minute requests will be accepted, but may be impossible to fill. Send an email to:
Additional information concerning this meeting may be obtained from Meribeth McCarrick, Office of Media Relations, (202) 418–0500; TTY 1–888–835–5322. Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC Live Web page at
For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services call (703) 993–3100 or go to
Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Best Copy and Printing, Inc. (202) 488–5300; Fax (202) 488–5563; TTY (202) 488–5562. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio and video tape. Best Copy and Printing, Inc. may be reached by email at
Federal Election Commission.
Tuesday, June 25, 2013 At 10:00 a.m.
999 E Street NW., Washington, DC.
This Meeting Was Closed To The Public.
Changes In The Meeting—The Commission also discussed:
Information the premature disclosure of which would be likely to have a considerable adverse effect on the implementation of a proposed Commission action.
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
Board of Governors of the Federal Reserve System.
On June 15, 1984, the Office of Management and Budget (OMB) delegated to the Board of Governors of the Federal Reserve System (Board) its approval authority under the Paperwork Reduction Act (PRA), pursuant to 5 CFR 1320.16, to approve of and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board under conditions set forth in 5 CFR 1320 Appendix A.1. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instruments are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Comments must be submitted on or before August 27, 2013.
You may submit comments, identified by FR 2420, by any of the following methods:
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All public comments are available from the Board's Web site at
Additionally, commenters may send a copy of their comments to the OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street NW., Washington, DC 20503 or by fax to (202) 395–6974.
A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Federal Reserve Board's public Web site at:
Federal Reserve Board Clearance Officer —Cynthia Ayouch—Division of Research and Statistics, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452–3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263–4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
The following information collection, which is being handled under this delegated authority, has received initial Board approval and is hereby published for comment. At the end of the comment period, the proposed information collection, along with an analysis of comments and recommendations received, will be submitted to the Board for final approval under OMB delegated authority. Comments are invited on the following:
a. Whether the proposed collection of information is necessary for the proper performance of the Federal Reserve's functions; including whether the information has practical utility;
b. The accuracy of the Federal Reserve's estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected;
d. Ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
e. Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information.
The FR 2420 would collect data for three liability types including federal funds, Eurodollars, and CDs, specifically with the amount of each transaction on the report date, the maturity of the transaction, and the interest rate for each transaction. In addition, as CDs may have floating rates, several additional items are being requested to better understand their interest rate structure.
Federal Funds (Part A)—The federal funds transaction data would be the only source of high-frequency data used in the analysis of current market conditions. Data would be reported for federal funds purchased by domestic offices of reporting institutions on the reporting date. For purposes of the FR 2420, “federal funds” would be defined as all unsecured borrowings of U.S. dollars made to the institution's U.S. offices at the close of business for the report date except:
• Deposits (as defined on Schedule E of the quarterly commercial bank Consolidated Reports of Condition and Income (FFIEC 031 and FFIEC 041; OMB No. 7100–0036) (Call Reports) and the Report of Assets and Liabilities of U.S. Branches and Agencies of Foreign Banks (FFIEC 002; OMB No. 7100–0032)),
• Debt instruments (as defined on Schedule B and Schedule D of the Call Reports and the FFIEC 002),
• Repurchase agreements and security lending transactions (as defined on RC, item 14.b on the Call Reports and RAL, item 4.b.2 on the FFIEC 002),
• Equity (as defined on RC, item 28 on the Call Report),
• Currency and Coin,
• Overdrafts,
• Affiliate and related party transactions,
• Intraday transactions, and
• All forward starting transactions, even when the reporting date is the settlement date.
Eurodollar Transactions (Part B)—There are many similarities between federal funds and Eurodollars, and Federal Reserve monitors and analyzes the Eurodollar market concurrent with
• Demand deposits (as defined on the Schedule E of the Call Report) and any deposit placed under sweep agreements or other contractual cash management agreements (as defined in the General Instructions of Report of Transaction Accounts, Other Deposits and Vault Cash (FR 2900; OMB No. 7100–0087) instructions),
• Debt instruments (as defined on Schedule B and Schedule D of the Call Report),
• Repurchase agreements and security lending transactions (as defined on RC, Item 14.b on the Call Report and RAL on the FFIEC 002),
• Related Party Transactions,
• Overdrafts,
• Intraday transactions,
• Liabilities to individuals, and
• All forward starting transactions, even when the reporting date is the settlement date.
Eurodollar transactions would be collected only from foreign offices of domestic commercial banks and thrifts and not from U.S. branches and agencies of foreign banks.
CDs (Part C)—Data on CD transactions would provide an alternative source of data for the current daily survey of CD rates conducted by the Federal Reserve. These data would also improve market monitoring capabilities because it would provide CD interest rate information that is not currently available. These data could also provide some optionality for creating a broad-based unsecured dollar rate: the CD rates could be combined with the daily commercial paper rates and the federal funds and Eurodollar rates in this collection. For purposes of the FR 2420, reportable CD transactions would be defined as those CDs that have a term of seven days or more that are booked in U.S. offices in U.S. dollars and denominated in amounts of $250 thousand or more. Reportable CD transactions would include CDs evidenced by a negotiable or nonnegotiable instrument, or CDs in book-entry form evidenced by a receipt or similar acknowledgement issued by the bank. Unlike federal funds and Eurodollars, CDs may have floating rates. For that reason, the FR 2420 would collect additional data fields for reportable CD transactions that would be necessary to understand the interest rate structure over the life of each CD. These data items would be:
• No Reset,
• Weekly,
• Monthly,
• Quarterly,
• Semi-annual,
• Annual, or
• Other.
• 0—NA,
• 1—Federal Funds Effective Rate,
• 2—Prime,
• 3—1 Month U.S. Treasury Constant Maturity Rate,
• 4—1 Month LIBOR,
• 5—3 Month LIBOR,
• 6—Overnight Swap Index, or
• 7—Other.
Reporting panel—Since federal funds are the key category for this data collection, the FR 2420 reporting panel would be comprised of commercial banks, thrifts, and branches and agencies of foreign banks. Commercial banks and thrifts with $26 billion or more in total assets on the September 30 Call Report each year would be required to submit the FR 2420 daily for the following year. This threshold would currently capture the 50 largest depository institutions which would provide sufficient coverage to have a statistically representative sample. U.S. branches and agencies of foreign banks would be required to report daily, if third-party assets are $900 million or more on the September 30 FFIEC 002. This threshold would currently capture the 105 largest U.S. branches and agencies of foreign banks.
The combined reporter panel would capture 155 banking institutions and would be based on definitions that would cap the panel size at the point of significantly reduced marginal benefits. Using the total federal funds purchased data on the September 30, 2012, Call Report, the combined panel of 155 banking institutions is expected to capture over 80 percent of federal funds outstanding. This would create a relatively small aggregate panel, minimizing the number of institutions that would be subject to the reporting burden, yet would be expected to capture a significant portion of the targeted transaction volume.
Frequency—The FR 2420 report would be submitted daily. Data collected would be used by FRBNY daily as part of the market monitoring responsibilities. Part of that analysis would be calculating average rates across products and tenors, and following trends in the aggregate levels of transactions. In order to calculate timely effective rates, daily data are needed.
Time Schedule for Information Collection—The FR 2420 is a mandatory electronic report. Respondents would be required to file the FR 2420 daily with the FRBNY by 7 a.m. ET each business day for the preceding day's reportable transactions. There would be a short transition period, during which respondents would be permitted to file their daily data at a later hour. The transition period would provide time for reporters to upgrade their systems to meet these data demands. During the transition period, daily data during for fourth quarter of 2013 would be due no later than 10 a.m. ET the next business day. Daily data for January 2014 would be due no later than 9 a.m. ET the next business day. Data for February 2014 would be due no later 8 a.m. ET the next business day. Data for March 2014 and thereafter would be due no later than 7 a.m. ET the next business day.
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
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 July 15, 2013.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
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B. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105–1579:
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The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, 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 July 25, 2013.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
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Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: “Medical Expenditure Panel Survey —Insurance Component.” In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501–3521, AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by August 27, 2013.
Written comments should be submitted to: Doris Lefkowitz, Reports Clearance Officer, AHRQ, by email at
Copies of the proposed collection plans, data collection instruments, and specific details on the estimated burden can be obtained from the AHRQ Reports Clearance Officer.
Doris Lefkowitz, AHRQ Reports Clearance Officer, (301) 427–1477, or by email at
Employer-sponsored health insurance is the source of coverage for 78 million current and former workers, plus many of their family members, and is a cornerstone of the U.S. health care system. The Medical Expenditure Panel Survey—Insurance Component (MEPS–IC) measures the extent, cost, and coverage of employer-sponsored health insurance on an annual basis. These statistics are produced at the National, State, and sub-State (metropolitan area) level for private industry. Statistics are also produced for State and Local governments.
This research has the following goals:
(1) To provide data for Federal policymakers evaluating the effects of National and State health care reforms.
(2) To provide descriptive data on the current employer-sponsored health insurance system and data for modeling the differential impacts of proposed health policy initiatives.
(3) To supply critical State and National estimates of health insurance spending for the National Health Accounts and Gross Domestic Product.
This study is being conducted by AHRQ through the Bureau of the Census, pursuant to AHRQ's statutory authority to conduct and support research on healthcare and on systems for the delivery of such care, including activities with respect to the quality, effectiveness, efficiency, appropriateness and value of healthcare services and with respect to quality measurement and improvement. 42 U.S.C. 299a(a)(1) and (2).
To achieve the goals of this project the following data collections for both private sector and state and local government employers will be implemented:
(1) Prescreener Questionnaire—The purpose of the Prescreener Questionnaire, which is collected via telephone, varies depending on the insurance status of the establishment contacted. (Establishment is defined as a single, physical location in the private sector and a governmental unit in state and local governments.) For
(2) Establishment Questionnaire—The purpose of the mailed Establishment Questionnaire is to obtain general information from employers that provide health insurance to their employees. Information such as total active enrollment in health insurance, other employee benefits, demographic characteristics of employees, and retiree health insurance is collected through the establishment questionnaire.
(3) Plan Questionnaire—The purpose of the mailed Plan Questionnaire is to collect plan-specific information on each plan (up to four plans) offered by establishments that provide health insurance to their employees. This questionnaire obtains information on total premiums, employer and employee contributions to the premium, and plan enrollment for each type of coverage offered—single, employee-plus-one, and family—within a plan. It also asks for information on deductibles, copays, and other plan characteristics.
The primary objective of the MEPS–IC is to collect information on employer-sponsored health insurance. Such information is needed in order to provide the tools for Federal, State, and academic researchers to evaluate current and proposed health policies and to support the production of important statistical measures for other Federal agencies.
Exhibit 1 shows the estimated annualized burden hours for the respondent's time to provide the requested data. The Prescreener questionnaire will be completed by 31,536 respondents and takes about 51/2 minutes to complete. The Establishment questionnaire will be completed by 27,615 respondents and takes about 23 minutes to complete. The Plan questionnaire will be completed by 23,320 respondents and will require an average of 2.2 responses per respondent. Each Plan questionnaire takes about 11 minutes to complete. The total annualized burden hours are estimated to be 22,567 hours.
Exhibit 2 shows the estimated annualized cost burden associated with the respondents' time to participate in this data collection. The annualized cost burden is estimated to be $662,116.
In accordance with the Paperwork Reduction Act, comments on AHRQ's information collection are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of AHRQ health care research and health care information dissemination functions, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of burden (including hours and costs) of the proposed collection(s) 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 upon the respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the Agency's subsequent request for OMB approval of the proposed information collection. All comments will become a matter of public record.
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 “LIMITED COMPETITION: ENHANCING INVESTMENTS COMPARATIVE EFFECTIVENESS RESEARCH RESOURCES GRANTS (R01)”.
July 23, 2013 (Open on July 23 from 8:30 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 the “LIMITED COMPETITION: ENHANCING INVESTMENTS COMPARATIVE EFFECTIVENESS RESEARCH RESOURCES GRANTS (R01)” 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.
Part E, Chapter E (Agency for Healthcare Research and Quality), of the Statement of Organization, Functions, and Delegations of Authority for the Department of Health and Human Services (61 FR 15955–58, April 10, 1996, most recently amended at 73 FR 12737, March 10, 2008) is amended to reflect recent organizational changes, including renaming of the Office of Performance, Accountability, Resources, and Technology to the Office of Management Services to better reflect its functions and the creation of divisions within the office. The specific amendment is as follows:
Under Section E–10, Organization, delete I. Office of Performance, Accountability, Resources, and Technology (EQ) and replace with the following:
Under Section E–20. Functions. Delete Office of Performance, Accountability, Resources, and Technology (EQ) and replace with Office of Management Services (EQ). Directs and coordinates the Agency's administrative services and operational activities. Specifically, the Office provides leadership, oversight, and executive support for human capital management; contracts, grants, and financial management; and administrative services including safety, security, property, space, and facilities management, as well as non-information technology acquisitions. (1) Office of the Director: Leads the design, implementation, and evaluation of management and operational programs that respond to the Agency's needs. Devises strategies to address Departmental, Office of Personnel Management, and Office of Management and Budget initiatives, including sustainability and the Agency's conference-approval process, and oversees implementation of Agency-wide efforts to address these initiatives. Conducts complex organizational and management analyses and develops major proposals and plans. (2) Division of Administrative Services: Provides oversight and implementation of major administrative programs including the Agency's ethics program, Continuity of Operations Plans, the Employee Transit Benefit Program, quality of worklife programs, and physical safety and security programs. Manages the Agency's real property and building relocation and renovation programs, as well as Federal Occupational Health activities. Oversees Public Health Service Commissioned Corps personnel activities and manages Homeland Security Presidential Directive 12 compliance. Provides administrative services including timekeeping, travel, conference and copy center management, mail, and supplies. (3) Division of Contracts Management: Manages all aspects of the Agency's acquisition program in accordance with Federal acquisition regulations policies, and initiatives. Oversees and implements the Agency's contract planning, solicitation, review, negotiation, award, post-award administration, payment, and contract closeout activities. Develops, implements, and maintains policies and procedures for the Agency's acquisition program. Provides guidance to the contracting officer representative community. Manages inter-agency agreements, the purchase card program, and acquisition workforce training and certification programs. (4) Division of Financial Management, Performance, and Evaluation: Provides guidance in all aspects of financial management, including Agency budget formulation and execution, and ensures integration of the budget and planning processes. Manages evaluation and measurement activities for the Agency including development and implementation of the Agency's annual evaluation plan. Establishes and maintains financial accounting and reporting systems and coordinates responses on budget and accounting matters with all levels of Agency management, Departmental staff, Congressional committees, and the private sector. Serves as the Agency's focal point for Government Performance and Results Act activities and Program Integrity activities and coordinates the Agency's efforts for Office of
These changes are effective upon date of signature.
Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (DHHS).
Notice of availability, and request for comments.
This notice announces the availability of Set 25 Toxicological Profiles for review and comment. Comments can include additional information or reports on studies about the health effects of Set 25 substances. Although ATSDR considered key studies for each of these substances during the profile development process, this
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), § 104(i)(3), [42 U.S.C. 9604(i)(3)], directs the ATSDR administrator to prepare toxicological profiles of priority hazardous substances and, as necessary, to revise and publish each updated toxicological profile.
To be considered, comments on the draft toxicological profiles must be received not later than September 30, 2013. Comments received after close of the public comment period will be considered solely at the discretion of ATSDR, based upon what is deemed to be in the best interest of the general public.
You may submit comments, identified by docket number ASTDR–2013–0001, by any of the following methods:
•
•
Ms. Delores Grant, Division of Toxicology and Human Health Sciences, 1600 Clifton Rd. NE., MS F–57, Atlanta, GA 30333. Phone: 770–488–3351.
The Superfund Amendments and Reauthorization Act (SARA) (Pub. L. 99–499) amends the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) (42 U.S.C. 9601
Each profile will include an examination, a summary, and an interpretation of available toxicological information and epidemiological evaluations. This information and these data identify the levels of significant human exposure for the substance and for the associated health effects. The profiles must also include a determination of whether adequate information on the health effects of each substance is available or is in the process of development. If adequate information is not available, ATSDR, in cooperation with the National Toxicology Program (NTP), is required to ensure the initiation of a program of research to determine such health effects.
All toxicological profiles issued as “Drafts for Public Comment” represent ATSDR's best efforts to provide important toxicological information on priority hazardous substances.
Set 25 toxicological profiles:
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by July 29, 2013.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–6974
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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Quantitative and qualitative data from primary and secondary sources will be gathered and analyzed for this evaluation. The primary data will be collected through site visits, key stakeholder interviews, small discussion groups and focus groups, telephone interviews, electronic templates for quantitative data submission, and quarterly demonstration-site reports. The secondary data will come from mandatory hospital cost reports provided to both us and several other existing secondary data sources, such as the American Association of Colleges of Nursing (AACN).
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On March 23, 2010, the President signed into law H.R. 3590, the Patient Protection and Affordable Care Act (Affordable Care Act), Public Law 111–148. Sections 1402 and 1412 of the Affordable Care Act provide for reductions in cost sharing on essential health benefits for low- and moderate-income enrollees in silver level qualified health plans on individual market Exchanges. It also provides for reductions in cost sharing for Indians enrolled in QHPs at any metal level. These cost-sharing reductions will help eligible individuals and families afford the out-of-pocket spending associated with health care services provided through Exchange-based QHP coverage.
The law directs QHP issuers to notify the Secretary of HHS of cost-sharing reductions made under the statute for qualified individuals, and directs the Secretary to make periodic and timely payments to the QHP issuer equal to the value of those reductions. Further, the law permits advance payment of the cost-sharing reduction amounts to QHP issuers based upon amounts specified by the Secretary.
On December 7, 2012, HHS published a proposed rule (77 FR 73118) entitled “HHS Notice of Benefit and Payment Parameters for 2014.” This rule proposed a payment approach under which we would make monthly advance payments to issuers to cover projected cost-sharing reduction amounts, and then reconcile those advance payments after the end of the benefit year to the actual cost-sharing reduction amounts. The reconciliation process described in the rule would require that QHP issuers provide us with the amount of cost-sharing paid by each enrollee, as well as the level of cost-sharing that enrollee would have paid under a standard plan without cost-sharing reductions. To determine the amount of cost-sharing an enrollee receiving cost-sharing reductions would have paid under a standard plan, QHP issuers would need to re-adjudicate each claim for these enrollees under a standard plan structure. HHS finalized the proposed notice of benefit and payment parameters for 2014 and this approach on March 11, 2013 (78 FR 15410).
During the comment period for the proposed rule, HHS received numerous comments suggesting that the reporting requirements of the reconciliation process for QHP issuers would be operationally challenging for some issuers. In response to these comments, HHS issued an interim final rule (CMS–9964–IFC) with comment period on March 11, 2013 (78 FR 15541) entitled “Amendments to the HHS Notice of Benefit and Payment Parameters for 2014,” which laid out an alternative approach that QHP issuers may elect to pursue with respect to the reporting requirements. This alternative approach would allow a QHP issuer to estimate the amount of cost-sharing an enrollee receiving cost-sharing reductions would have paid under a standard plan in the Exchange, rather than re-adjudicating each of the enrollee's claims. This approach is intended to permit a reasonable transitional period in which QHP issuers will be allowed to choose the methodology that best aligns with their operational practices, which
Prior to the start of each coverage year, QHP issuers must notify HHS of the methodology it is selecting for the benefit year. QHP issuers will receive a notification by email with instructions on how to inform HHS of their selection. All submissions will be made electronically and no paper submissions are required. The QHP issuer must select the same methodology for all plan variations it offers on the Exchange for a benefit year. Moreover, as the estimated methodology is intended as a transition to the actual methodology, the QHP issuer may not select the estimated methodology if it selected the actual methodology for the prior benefit year.
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Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments must be received by August 27, 2013:
When commenting, please reference the document identifier or OMB control number (OCN). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
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To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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Accordingly, we consider coverage for CAS reasonable and necessary (section 1862(A)(1)(a) of the Social Security Act). However, evidence for use of CAS with embolic protection for patients with high risk for carotid endarterectomy and who also have symptomatic carotid artery stenosis ≥ 70 percent who are not enrolled in a study or trial is less compelling. To encourage responsible and appropriate use of CAS with embolic protection, we issued a Decision Memo for Carotid Artery Stenting on March 17, 2005, indicating that CAS with embolic protection for symptomatic carotid artery stenosis ≥ 70 percent will be covered only if performed in facilities that have been
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The sole purpose of the ESRD Application Access Request Form is to identify the individual's data access rights once within the ESRD system. This data collection is currently being accomplished under “Part B” of the QualityNet Identity Management System Account Form. Once the ESRD Application Access Form is approved, the QualityNet Identity Management System (QIMS) Account Form will be revised to remove Part B from the QIMS data collection. The ESRD Application Access Request Form will be a new form and will be assigned its own OMB Control number. The ESRD system accounts created using the current QIMS Account Form—Part B will not need to submit an ESRD Application Access Form for the creation of their account since that information was collected under Part B.
The QIMS Account Registration and the ESRD Application Access Request forms are required for identity and security management of individuals accessing the Consolidated Renal Operations in a Web Enabled Network (CROWNWeb) system and the End Stage Renal Disease Quality Incentive Program (ESRD QIP) system. The CROWNWeb system is the system that is mandated for the Medicare and Medicaid Programs Conditions of Coverage for End-Stage Renal Disease Facilities, Final Rule published April 15, 2008.
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The Marketplace Survey will provide (1) actionable information that the Marketplaces can use to improve performance, (2) information that we and state regulatory organizations can use for oversight, and (3) a longitudinal database for future Marketplace research. The CAHPS® family of instruments does not have a survey that assesses entities similar to Marketplaces, so the Marketplace survey items were generated by the project team. The QHP survey will (1) help consumers choose among competing health plans, (2) provide actionable information that the QHPs can use to improve performance, (3) provide information that regulatory and accreditation organizations can use to regulate and accredit plans, and (4) provide a longitudinal database for consumer research. CMS plans to base the QHP survey on the CAHPS® Health Plan Survey.
We are planning for two rounds of developmental testing for the Marketplace and QHP surveys. The 2014 survey field tests will help determine psychometric properties and provide an initial measure of performance for Marketplaces and QHPs to use for quality improvement. Based on field test results, there will be further refinement of the questionnaires and sampling designs to conduct the 2015 beta test of each survey. We plan to request clearance for two additional rounds of national implementation with public reporting of scores for each survey in the future. A summary of findings from the testing rounds will be included when requesting clearance for the additional two rounds of national implementation with public reporting, which will take place in 2016 and 2017.
Office of Administration (OA), Administration for Children and Families (ACF), Department of Health and Humans Services (HHS).
Notice for public comment of new policies and procedural requirements for the electronic submission of State plans, and program and financial reporting forms, for mandatory grant programs.
The Administration for Children and Families (ACF), an Operating Division of the Department of Health and Human Services (HHS), announces the opportunity for public comment on our plan to implement required electronic submission of State plans, which includes applications as applicable; and programmatic and financial reporting forms, for mandatory grant programs. In accordance with the e-Government initiatives mandated by the Federal Financial Assistance Management Improvement Act of 1999, ACF officially acknowledges that electronically generated and/or stored documents are recognized equivalents of an official paper grant file. Recognizing the equivalency of such documents eliminates duplicative effort and administrative burden for Federal grant applicants, recipients, and the awarding agency, by facilitating the submission and storage of official grant files. ACF has previously afforded recipients of mandatory State grant programs the option of submitting State plans, and programmatic and financial reporting forms, in both electronic and paper formats. This notice announces that recipients of mandatory State grant programs will now be required to submit State plans, and programmatic and financial reporting forms, electronically. The electronic portal used to support this effort is the ACF On-Line Data Collection (OLDC) system, which is available to State applicants and grantees at
Submit written or electronic comments on the policies and procedures announced in this Notice, on or before August 27, 2013.
The public may submit written or electronic comments concerning this notice to Karen Shields, Grants Policy Specialist, Department of Health and Human Services, Administration for Children and Families, Division of Grants Policy, 370 L'Enfant Promenade SW., Aerospace Building, 6th Floor East, Washington, DC 20447. Email address:
Received comments will be available for inspection by members of the public at the Office of Administration, Aerospace Building, Division of Grants Policy, 901 D Street SW., 6th Floor East, Washington, DC 20447.
Karen Shields, Grants Policy Specialist, Department of Health and Human Services, Administration for Children and Families, OA/Division of Grants Policy, 370 L'Enfant Promenade SW., Aerospace Building, 6th Floor East, Washington, DC 20447. Email:
In previous fiscal years, recipients of mandatory State grant programs had the option of submitting State plans in a format of their choosing. Effective October 1, 2013, ACF will require the use of the Standard Form SF–424M Mandatory Form when preparing State plans. The form is available to applicants and grantees within the OLDC system at
Electronic Submission of Program Progress and Financial Reporting Forms Beginning with the effective date of October 1, 2013, the following reporting forms for mandatory State grant programs must be submitted electronically through the OLDC at
ACF recognizes that some of the recipient community may have limited or no Internet access, and/or limited computer capacity, which may prohibit uploading large files to the Internet through the OLDC system. To accommodate such recipients, ACF is instituting an exemption procedure, on a case-by-case basis, that will allow such recipients to submit hard copy, paper State plans and reporting forms by the United States Postal Service, hand-delivery, recipient courier, overnight/express mail couriers, or other representatives of the recipient.
Additionally, on a case-by-case basis, we will consider requests to accept hard copy, paper submissions of State plans and reporting forms when circumstances such as natural disasters occur (floods, hurricanes, etc.); or when there are widespread disruptions of mail service; or in other rare cases that would prevent electronic submission of the documents.
Recipients will be required to submit a written statement to ACF that the recipient qualifies for an exemption under one of these grounds: lack of Internet access; or limited computer capacity that prevents the uploading of large files to the Internet; the occurrence of natural disasters (floods, hurricanes, etc.); or when there are widespread disruptions of mail service; or in other rare cases that would prevent electronic submission of the documents.
Exemption requests will be reviewed and the recipient will be notified of a decision to approve or deny the request. The written statement must be sent to the cognizant ACF Program Official and to ACF's Grants Management Office point of contact shown in funding opportunity announcements (if applicable) or in a previously received Notices of Award. Exemption requests may be submitted by regular mail or by email.
In all cases, the decision to allow an exemption to accept submission of hard copy, paper State plans and reporting forms will rest with the cognizant ACF Program Office. Exemptions are applicable only to the Federal fiscal year in which they are received and approved. If an exemption is necessary for a future Federal fiscal year, a request must be submitted during each Federal fiscal year for which an exemption is necessary.
The HHS regulations pertaining to the retrieval, retention, disposition, and destruction of official grant files, 45 CFR 92.42, remains in effect for electronically submitted documents.
This guidance represents the initial phase of ACF's transition to required electronic submission of official grant documents for recipients of mandatory State grant programs. ACF will continue to communicate transition plans as they evolve, and will provide the recipient communities and the general public with sufficient notice of implementation details. In general, notices will be published in the
ACF is prohibited from making an award until an applicant has complied with the following requirements:
All applicants must have a DUNS number (
The Data Universal Numbering System (DUNS) Number is the nine-digit, or thirteen-digit (DUNS + 4), number established and assigned by Dun and Bradstreet, Inc. (D&B) to uniquely identify business entities.
All applicants and sub-recipients must have a DUNS number at the time of submission of the State plan in order to be considered for an award under a mandatory program.
A DUNS number is required whether an applicant is submitting a hard copy, paper State plan or using the OLDC system. Exemption procedures for submitting hard copy, paper State plans in lieu of electronic submission are discussed in an earlier section of this Notice. DUNS numbers are required for every State plan for a new award, including State plans under formula, entitlement, and block grant programs. A DUNS number may be acquired at no cost online at
Applicants must maintain an active SAM registration until the State plan submission process is complete and throughout the life of the award. Applicants should finalize a new, or renew an existing, registration at least two weeks before the State plan submission deadline. This action should allow sufficient time to resolve any issues that may arise. Failure to comply with these requirements may result in the inability to submit a State plan or receive an award. Maintain documentation (with dates) of efforts made to register or renew a registration at least two weeks before the deadline. Please see the SAM Quick Guide for Grantees at:
Applicants are strongly encouraged to register at SAM.gov well in advance of the State plan submission due date. Registration at SAM.gov must be updated annually.
It can take 24 hours or more for updates to registrations at SAM.gov to take effect. An entity's registration will become active after 3–5 days. Therefore, check for active registration well before the State plan submission due date and deadline. Recipients can view the registration status by visiting
Financial Assistance Management Improvement Act of 1999, Pub. L. 106–107.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by August 27, 2013.
Submit electronic comments on the collection of information to
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Under § 806.10 (21 CFR 806.10), each device manufacturer or importer shall submit a written report to FDA of any action initiated to correct or remove a device to reduce a risk to health posed by the device or to remedy a violation of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) caused by the device which may present a risk to health within 10-working days of initiating the correction or removal.
Under § 806.20(a) (21 CFR 806.20(a)), each device manufacturer or importer of a device who initiates a correction or removal of a device that is not required to be reported to FDA, shall keep a record of the correction or removal.
FDA currently accepts by mail reports of corrections and removals (806 reports) associated with medical and radiation emitting products regulated by CDRH under part 806 (21 CFR part 806).
For general information and assistance with 806 reports, contact the CDRH Division of Small Manufacturers, International and Consumer Assistance (DSMICA) by telephone: 1–800–638–2041 or 301–796–7100; or by email:
FDA is now proposing to make available, as a voluntary alternative to paper submissions, an electronic process for submitting 806 reports. The electronic process is expected to enhance consistency of submission data and to speed submission processing. Submission by mail will remain available and will be augmented by the new electronic submission process.
Establishing a process for using electronic submissions does necessitate some preparation by reporters, which includes obtaining both: (1) A WebTrader account and (2) a digital verification certificate. Many other FDA applications also utilize WebTrader. If an applicant already has an account with the WebTrader Electronic Submission Gateway and a digital verification certificate (certificate must be valid for 1 to 3 years), no additional burden or cost will be incurred outside of the time it takes to make the submission of corrections and removals. However, for calculating the burden for this collection, FDA is assuming that all respondents will be establishing a new WebTrader account and purchasing a digital verification certificate.
Establishing a new account for sending electronic submissions may take up to 2 weeks. During that time, new reporters are advised to submit paper reports to avoid inadvertently missing the 10-day timeframes associated with submission of reports under part 806.
Upon approval of the information collection, a submitter would go to
FDA estimates the burden of this collection of information as follows:
FDA's estimate of the reporting and recordkeeping burden is based on our experience with this program and similar programs that utilize the Electronic Submission Gateway. For respondents who use the electronic process, the operating and maintenance costs associated with this information collection are approximately $30 per year to purchase a digital verification certificate (certificate must be valid for 1 to 3 years). This burden may be minimized if the respondent has already purchased a verification certificate for other electronic submissions to FDA. However, FDA is assuming that all respondents who submit corrections and removals using the electronic process will be establishing a new WebTrader account and purchasing a digital verification certificate.
CDRH intends to establish a Web site for online support and information about electronic submissions of 806 reports. The Web site will provide the following information:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by August 27, 2013.
Submit electronic comments on the collection of information to
Ila S. Mizrachi, Office of Information Management, Food and Drug Administration, 1350 Piccard Dr., P150–400B, Rockville, MD 20850, 301–796–7726,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Focus groups provide an important role in gathering information because they allow for a more in-depth understanding of individuals' attitudes, beliefs, motivations, and feelings than do quantitative studies. Focus groups serve the narrowly defined need for direct and informal opinion on a specific topic and as a qualitative research tool have three major purposes:
• To obtain information that is useful for developing variables and measures for quantitative studies,
• To better understand people's attitudes and emotions in response to topics and concepts, and
• To further explore findings obtained from quantitative studies.
FDA will use focus group findings to test and refine its ideas and to help develop messages and other communications, but will generally conduct further research before making important decisions such as adopting new policies and allocating or redirecting significant resources to support these policies.
FDA's Center for Drug Evaluation and Research, Office of the Commissioner, and any other Centers or Offices conducting focus groups about regulated drug products may need to conduct focus groups on a variety of subjects related to consumer, patient, or healthcare professional perceptions and use of drug products and related materials, including but not limited to, direct-to-consumer prescription drug promotion, physician labeling of prescription drugs, Medication Guides, over-the-counter drug labeling, emerging risk communications, patient labeling, online sales of medical products, and consumer and professional education.
Annually, FDA projects about 20 focus group studies using 160 focus groups with an average of 9 persons per group, and lasting an average of 1.75 hours each. FDA is requesting this burden for unplanned focus groups so as not to restrict the Agency's ability to gather information on public sentiment for its proposals in its regulatory and communications programs.
FDA estimates the burden of this information collection as follows:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of the draft guidance entitled “Implanted Blood Access Devices for Hemodialysis.” This guidance was developed to support the reclassification of the Implanted Blood Access Devices for Hemodialysis into class II (special controls). This draft guidance is not final nor is it in effect at this time.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by August 27, 2013.
Submit written requests for single copies of the draft guidance document entitled “Implanted Blood Access Devices for Hemodialysis” to the Division of Small Manufacturers, International, and Consumer Assistance, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4613, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301–847–8149. See the
Submit electronic comments on the draft guidance to
Rebecca Nipper, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1540, Silver Spring, MD 20993, 301–796–6527.
This draft guidance document is being issued in conjunction with a
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on implanted blood access devices for hemodialysis. 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 statute and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in 21 CFR part 807, subpart E have been approved under OMB control number 0910–0120; the collections of information in 21 CFR part 820 have been approved under OMB control number 0910–0073; the collections of information in 21 CFR part 801 and 809 have been approved under OMB control number 0910–0485; the collections of information in 21 CFR part 812 have been approved under OMB control number 0910–0078; the collections of information in 21 CFR 56.115 have been approved under OMB control number 0910–0130; and the collections of information in 21 CFR part 54 have been approved under OMB control number 0910–0396.
Interested persons may submit either electronic comments regarding this document to
Health Resources and Services Administration, HHS.
Notice.
The Health Resources and Services Administration (HRSA) is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (“the Program”), as required by Section 2112(b)(2) of the Public Health Service (PHS) Act, as amended. While the Secretary of Health and Human Services is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact the Clerk, United States Court of Federal Claims, 717 Madison Place NW., Washington, DC 20005, (202) 357–6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 11C–26, Rockville, MD 20857; (301) 443–6593.
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa–10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at Section 2114 of the PHS Act or as set forth at 42 CFR 100.3, as applicable. This Table lists for each covered childhood vaccine the conditions which may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa–12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to submit relevant, written information” relating to the following:
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
(a) “Sustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Table but which was caused by” one of the vaccines referred to in the Table, or
(b) “Sustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the U.S. Court of Federal Claims at the address listed above (under the heading
Written comments and/or suggestions from the public and affected agencies are invited on one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB approval is requested for two years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 1,931.
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(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(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.
Coast Guard, DHS.
Notice of availability and request for comments.
The Coast Guard announces the availability of a report produced for the Coast Guard entitled “Estimating Benefits of Reducing Recreational Boating Injuries: Alternative Sources of Information on Fatalities, Injuries, and
Comments and related material must either be submitted to our online docket via
You may submit comments identified by docket number USCG–2013–0437 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this notice, call or email Mr. Jeff Ludwig, Coast Guard; telephone 202–372–1061, email
We encourage you to submit comments and related material on the report entitled “Estimating Benefits of Reducing Recreational Boating Injuries: Alternative Sources of Information on Fatalities, Injuries, and Property Damages,” dated September 12, 2011. All comments received will be posted, without change, to
To submit your comment online, go to
To view the comments and the IEc Final Report entitled, “Estimating Benefits of Reducing Recreational Boating Injuries: Alternative Sources of Information on Fatalities, Injuries, and Property Damages,” dated September 12, 2011, 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 announce the availability of a report produced for the Coast Guard, entitled “Estimating Benefits of Reducing Recreational Boating Injuries: Alternative Sources of Information on Fatalities, Injuries, and Property Damages,” and dated September 12, 2011. The report examines data on the consequences of recreational boating accidents to help the Coast Guard determine how our analyses of accident data can be enhanced to improve how we can quantify the benefits of Coast Guard regulations, policies, and programs.
The report reviews available recreational boating accident data (fatalities, nonfatal injuries and property damage) reported in Coast Guard's Boating Accident Report Database (BARD) and compares this information to national databases. The report suggests that available BARD data on fatalities and the value of reductions in fatality risks are reasonably accurate and appropriate for use in benefit-cost analysis. For nonfatal injuries, the available BARD data is more uncertain. The report notes that nonfatal injuries in BARD are underreported, with the degree of underreporting increasing as the severity of the injury decreases. In addition, the report finds that the approaches used for valuation do not directly address boating-related injuries and rely on rough proxies for willingness to pay for risk reductions. Regarding property damages, the report concludes that more research is needed to determine the accuracy of the available estimates.
The Coast Guard seeks comments on the content of the report generally, as well as any additional data or analysis that could further support the report's conclusions, could provide data to the contrary, or that may fill in any gaps identified by the report. Additionally, the Coast Guard seeks comments on, as well as any additional data or analysis, helping to identify property damages related to recreational boating activities.
This notice is issued under authority of 5 U.S.C. 552 (a).
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of AmSpec Services, LLC, as a commercial gauger and laboratory.
Notice is hereby given, pursuant to CBP regulations, that AmSpec Services, LLC, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes for the next three years as of September 5, 2012.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202–344–1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, AmSpec Services, LLC, 2800–B Loop 197 South, Texas City, TX 77590, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquires regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of Saybolt, LP, as a commercial gauger and laboratory.
Notice is hereby given, pursuant to CBP regulations, that Saybolt, LP, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes for the next three years as of February 26, 2013.
The accreditation and approval of Saybolt, LP, as commercial gauger and laboratory became effective on February 26, 2013. The next triennial inspection date will be scheduled for February 2016.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202–344–1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, Saybolt, LP, Road 127, KM 13.4, Bo. Magas Arriba Guayanilla, P.R. 00656, has been approved to gauge and accredited to test petroleum and petroleum products, organic chemicals and vegetable oils for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquires regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Multifamily Housing Program, Office of Housing Assistance and Grant Administration, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–5564 (this is not a toll-free number) or email at
Catherine M. Brennan, Director, Office of Housing Assistance and Grant Administration, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Catherine M. Brennan at
Copies of available documents submitted to OMB may be obtained from Ms. Brennan.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Multifamily Development, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–5564 (this is not a toll-free number) or email at
Theodore K. Toon, Director, Office of Multifamily Housing Development, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Theodore K. Toon, at
Copies of available documents submitted to OMB may be obtained from Mr. Toon.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to Theresa Ritta, Office of Enterprise Support Programs, Program Support Center, HHS, Room 12–07, 5600 Fishers Lane, Rockville, MD 20857; (301) 443–2265. (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses: AIR FORCE: Mr. Robert Moore, Air Force Real Property Agency, 2261 Hughes Avenue, Suite 156, Lackland AFB, TX 78236–9852, (210) 395–9512; (This is not a toll-free number).
Bureau of Land Management, Interior.
30-day notice and request for comments.
The Bureau of Land Management (BLM) has submitted an information collection request to the Office of Management and Budget (OMB) 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.
The OMB is required to respond to this information collection request within 60 days but may respond after 30 days. For maximum consideration, written comments should be received on or before July 29, 2013.
Please submit comments directly to the Desk Officer for the Department of the Interior (OMB #1004–0073), Office of Management and Budget, Office of Information and Regulatory Affairs, fax 202–395–5806, or by electronic mail at
Please indicate “Attn: 1004–0073” regardless of the form of your comments.
Bill Radden-Lesage, at 202–912–7116. Persons who use a telecommunication device for the deaf may call the Federal Information Relay Service at 1–800–877–8339, to leave a message for Mr. Radden-Lesage. You may also review the information collection request online at
The Paperwork Reduction Act (44 U.S.C. 3501–3521) and OMB regulations at 5 CFR part 1320 provide 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. In order to obtain and renew an OMB control number, Federal agencies are required to seek public comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d) and 1320.12(a)).
As required at 5 CFR 1320.8(d), the BLM published a 60-day notice in the
The BLM now requests comments on the following subjects:
1. Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
2. The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
3. The quality, utility and clarity of the information to be collected; and
4. How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
Please send comments as directed under
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 for, 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 of Intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the Bureau of Land Management (BLM) Shoshone Field Office, Shoshone, Idaho, intends to prepare a Land Use Plan amendment (Plan amendment) with an associated Environmental Impact Statement (EIS) for the Craters of the Moon National Monument and Preserve (Craters of the Moon). This notice announces the beginning of the scoping process for the Plan amendment and associated EIS to solicit public comments and identify issues.
Comments on issues related to management of livestock grazing and conservation measures for sage-grouse in the Craters of the Moon may be submitted in writing until July 29, 2013. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local media, newspapers and the BLM Web site
To be included in the analysis, all comments must be received prior to the close of the 30-day scoping period or 30 days after the last public meeting, whichever is later. We will provide additional opportunities for public participation as appropriate.
You may submit comments on issues and planning criteria related to the Craters of the Moon Plan amendment by any of the following methods:
•
•
•
•
Documents pertinent to this proposal may be examined at the Shoshone Field Office or online at
Holly Hampton, Monument Manager, telephone 208–732–7200; address 400 West F Street, Shoshone, ID 83352; email
The BLM Shoshone Field Office, Shoshone, Idaho, intends to prepare a Plan amendment with an associated EIS for the Craters of the Moon Management Plan. This notice announces the beginning of the scoping process and seeks public input on issues and planning criteria. The planning area is located in south central Idaho and encompasses approximately 750,000 acres of BLM and National Park Service (NPS) managed lands in the Craters of the Moon. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process.
In 2008, Western Watersheds Project (WWP) filed a complaint in the United States District Court for the District of Idaho (Court) alleging the Secretary of the Interior and the BLM violated NEPA and FLPMA when the BLM issued Records of Decision on 16 Resource Management Plans (RMP) between 2004 and 2008, including the Craters of the Moon Management Plan. After briefing and oral argument, the Court found that although livestock grazing was deemed by the agency to be a major contributing factor to the decline of sage-grouse habitat in the Craters of the Moon, the Management Plan/EIS failed to adequately address the best science and the agency's own policies designed to
The BLM's ongoing Idaho and Southwestern Montana Sub-Regional EIS/RMP amendment process (Sub-Regional EIS/RMP amendment) will address measures for sage-grouse conservation and is expected to result in a plan amendment to the existing Craters of the Moon Management Plan. The BLM anticipates that the Sub-Regional EIS/RMP amendment effort will be completed in the fall of 2014. The amendment announced in this Notice is expected to primarily address issues related to management of livestock grazing in the Craters of the Moon planning area. However, the BLM may also address additional issues relating to the conservation measures for sage-grouse identified in the U.S. District Court's Orders that are not addressed in the Sub-Regional EIS/RMP amendment process.
The BLM has identified the following preliminary issues: The need to comply with the Idaho District Court's September 28, 2011, and November 20, 2012, Orders by analyzing Land Use Plan-level grazing allocations, including a no grazing alternative and a reduced grazing alternative in Craters of the Moon; and the need to develop conservation measures for sage-grouse in Craters of the Moon. Preliminary planning criteria include: Compliance with FLPMA, NEPA, and all other relevant Federal law, Executive orders, and management policies of the BLM; valid existing rights will be recognized; and Native American Tribal consultations will be conducted in accordance with policy and tribal concerns will be given due consideration.
You may submit comments to the BLM on issues and planning criteria for the plan amendment at any public scoping meeting, or you may submit them using one of the methods listed in the
The BLM will use the NEPA public participation requirements to assist the agency in satisfying the public involvement requirements under Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. 470(f)) pursuant to 36 CFR 800.2(d)(3). The information about historic and cultural resources within the area potentially affected by the proposed action will assist the BLM in identifying and evaluating impacts to such resources in the context of both NEPA and Section 106 of the NHPA.
The BLM will consult with Indian tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Federal, State, and local agencies, along with tribes and other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process.
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 BLM will evaluate all submissions and identify issues to be addressed in the Plan amendment.
The BLM will use an interdisciplinary approach to develop the Plan amendment. Specialists with expertise in the following disciplines will be involved in the planning process: rangeland management, outdoor recreation, archaeology, wildlife, botany, fire ecology, and soils.
40 CFR 1501.7 and 43 CFR 1610.5–5(b).
Bureau of Land Management, Interior.
Notice of availability.
In accordance with the National Environmental Policy Act (NEPA) of 1969, as amended, and the Federal Land Policy and Management Act (FLPMA) of 1976, as amended, the Bureau of Land Management (BLM) has prepared a Draft Resource Management Plan (RMP) and Draft Environmental Impact Statement (EIS) for the Buffalo Field Office and by this notice is announcing the opening of a 90-day comment period.
To ensure that comments will be considered, the BLM must receive written comments on the Draft RMP/EIS within 90 days following the date the Environmental Protection Agency publishes its Notice of Availability (NOA) of the Draft RMP/EIS in the
You may submit comments by any of the following methods:
•
•
•
•
• By personal delivery to the Buffalo Field Office or at a BLM-hosted public meeting.
Copies of the Draft RMP/EIS are available in the Buffalo Field Office at
• Bureau of Land Management, Wyoming State Office, 5353 Yellowstone Road, Cheyenne, WY 82003
• Bureau of Land Management, High Plains District Office, 2987 Prospector Drive, Casper, WY 82604
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
Thomas Bills, Buffalo RMP Team Leader, BLM Buffalo Field Office, 1425 Fort Street, Buffalo, WY 82834; telephone 307–684–1133; or email
The planning area includes lands within the BLM Buffalo Field Office's administrative boundaries, including all of Campbell, Johnson, and Sheridan counties in Wyoming. The planning area includes all lands, regardless of jurisdiction, totaling approximately 7.35 million acres; however, the BLM will only make decisions on lands that fall under the BLM's jurisdiction. BLM-administered surface, totaling approximately 782,000 acres, and Federal mineral estate, totaling approximately 4.8 million acres, make up the decision area. BLM issued a Notice of Intent (NOI) on November 14, 2008, for the Buffalo RMP Revision Project and associated EIS, which initiated public scoping. Public meetings were held December 1–5, 2008. Approximately 130 members of the public attended the public scoping meetings held in Wright, Buffalo, Gillette, Sheridan, and Kaycee. The revised RMP will replace the 1985 Buffalo RMP as amended. The Draft RMP/EIS includes a series of management actions, within four management alternatives, designed to address management challenges and issues raised during scoping. These include, but are not limited to, energy development (coal, oil and gas, renewable energy, and uranium), wildlife habitat management including that of the greater sage-grouse, livestock grazing, air quality, lands with wilderness characteristics, suitability for wild and scenic river designation, special management areas including Areas of Critical Environmental Concern (ACEC), and travel management. The four alternatives are:
A.
B.
C.
D.
The preferred alternative has been identified as described in 40 CFR 1502.14(e). However, identification of a preferred alternative does not represent the final agency decision. The proposed RMP and final EIS will reflect changes or adjustments based on information received during public comment, new information, or changes in BLM policies or priorities. The proposed RMP may include portions of alternatives analyzed in the draft RMP/EIS. For this reason, the BLM encourages comments on all alternatives and management actions described in the Draft RMP/EIS.
In accordance with 43 CFR 1610.7–2(b) and BLM Manual 1613, this NOA announces a concurrent public comment period on proposed Areas of Critical Environmental Concern (ACECs). There are no designated ACECs in the existing BFO land use plan (Alternative A) and Alternative C does not propose designating any ACECs. Alternative B proposes eight ACECs and Alternative D proposes three ACECs. The management restrictions which would occur if areas proposed for designation were formally designated are different in alternatives B and D. In Alternative B, management for all ACEC's would prohibit all surface-disturbing activities not compatible with the area's values, including closing to all forms of solid and fluid mineral leasing and development; recommending withdrawal of all ACECs from locatable mineral entry; excluding ROWs; and either closing or limiting motorized vehicles to designated roads and trails. ACECs would be managed as visual resource management (VRM) class II, retention, under Alternative B.
Alternative D proposes ACEC specific management for the values of concern. The values of concern and the acres that would be designated under Alternatives B and D are as follows:
• Burnt Hollow, (Alternative B 17,208 acres, Alternative D not designated) Values: Visual resources, geologic features, and fragile watersheds.
• Cantontment Reno, (Alternative B 523 acres, Alternative D not designated) Value: Historic resources.
• Dry Creek Petrified Tree, (Alternative B 2,567 acres, Alternative D not designated) Value: Geologic features.
• Fortification Creek, (Alternatives B & D 32,602 acres) Values: Visual resources, wildlife resources, and fragile watersheds. Alternative D management would prohibit all surface-disturbing activities not compatible with the area's values; close the area to all forms of mineral activity including solid and fluid mineral leasing; recommend withdrawal from locatable mineral entry; exclude Rights of Ways (ROWs); and limit motorized vehicles to designated roads and trails.
• Hole-in-the-Wall, (Alternative B 11,952 acres, Alternative D not designated) Values: Visual and cultural resources.
• Pumpkin Buttes, (Alternatives B & D 1,733 acres) Value: Cultural resources. Alternative D management would prohibit surface-disturbing activities not compatible with the area's values including a No Surface Occupancy stipulation for new fluid mineral leases; recommend withdrawal from locatable mineral entry; exclude ROWs; and close the area to motorized vehicles.
• Sagebrush Ecosystem, (Alternative B 467,897 acres, Alternative D not designated) Value: Sagebrush ecosystems with dependent rare and sensitive species.
• Welch Ranch, (Alternatives B 1,748 acres, Alternative D 1,116 acres) Values: Visual resources, wildlife resources, and presence of a natural hazard. Alternative D management would prohibit all surface-disturbing activities not compatible with the area's values including closing the area to all forms of mineral leasing and development including solid minerals; recommend withdrawal from locatable mineral entry and exclude ROWs. Travel would be limited to administrative use on designated routes.
You may submit comments in writing to the BLM at any public meeting, or you may submit them to the BLM using one of the methods listed in the
All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, are available for public inspection in their entirety.
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2.
Bureau of Land Management, Interior.
Public Land Order.
This order partially revokes a withdrawal created by an Executive Order insofar as it affects 1,037.66 acres of public lands withdrawn from settlement, sale, location, or entry under the public land laws, including location for non-metaliferous minerals under the United States mining laws, for protection of springs and waterholes and designated as Public Water Reserve No. 107. This order also opens the lands to conveyance out of Federal ownership.
Effective Date: June 28, 2013.
Laura Underhill, BLM, Idaho State Office, 208–373–3866 or Jan Parmenter, BLM, Idaho Falls District Office, 208–524–7562 or John Sullivan, BLM Boise District Office, 208–384–3338. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to reach any of the contacts stated above. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with either of the above individuals. You will receive a reply during normal business hours.
The Bureau of Land Management has determined that portions of the withdrawal created by an Executive Order dated April 17, 1926, which established Public Water Reserve No. 107, encumber several parcels of land that are isolated from larger tracks of Federal land making management difficult, or are part of an Idaho State land exchange. The partial revocation of the withdrawal is needed to facilitate the land conveyances out of Federal ownership.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, (43 U.S.C. 1714), it is ordered as follows:
1. The withdrawal created by the Executive Order dated April 17, 1926, which established Public Water Reserve No. 107, is hereby revoked insofar as it affects the following described lands:
The areas described aggregate 1,037.66 acres in Caribou and Owyhee Counties.
2. At 9 a.m., on July 29, 2013, the lands described in Paragraph 1 will be open to conveyance pursuant to the land disposal and conveyance authorities of the Federal Land Policy and Management Act of 1976, as amended, (43 U.S.C. 1713), subject to valid existing rights, the provisions of existing withdrawals, other segregations of record, and the requirements of applicable law.
Foreign Claims Settlement Commission of the United States, DOJ.
Notice of a New System of Records.
Pursuant to the Privacy Act of 1974 (5 U.S.C. 552a), the Foreign Claims Settlement Commission (Commission), Department of Justice, proposes to establish a new system of records to enable the Commission to carry out its statutory responsibility to receive, examine, adjudicate and render final decisions with respect to claims for compensation of U.S. nationals referred to the Commission by the Department of State under 22 U.S.C. 1623(a)(1)(C) (“Claims Referred by the Department of State”). The Claims Referred by the Department of State System will include documentation provided by the claimants as well as background material that will assist the Commission in the processing of their claims. The system will also include the final decision of the Commission regarding the claim.
In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is given a 30-day period in which to comment. Accordingly, please submit any comments by July 29, 2013. The Office of Management and Budget (OMB), which has oversight responsibility under the Act, requires a 40-day period in which to conclude its review of the system.
The public, OMB, and Congress are invited to submit any comments to the Foreign Claims Settlement Commission of the United States, 600 E Street NW., Suite 6002, Washington, DC 20579.
The Administrative Office, Foreign Claims Settlement Commission, U.S. Department of Justice, 600 E Street NW., Suite 6002, Washington, DC 20579, or by telephone at (202) 616–6975.
In accordance with 5 U.S.C. 552a(r), the Department has provided a report to
Claims Referred by the Department of State.
Unclassified
Offices of the Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579.
Persons who file claims against a foreign government that are included within a category claims referred by the Department of State to the Foreign Claims Settlement Commission pursuant to section 4(a)(1)(C) of the International Claims Settlement Act of 1949, as amended, 22 U.S.C. 1623(a)(1)(C).
Claim information, including name and address of claimant and representative, if any; date and place of birth or naturalization; nature of claim; description of loss or injury including medical records; and other evidence establishing entitlement to compensation.
Authority to establish and maintain this system is contained in 5 U.S.C. 301 and 44 U.S.C. 3101, which authorize the Chairman of the Commission to create and maintain federal records of agency activities, and is further described in 22 U.S.C. 1622e, which vests all non-adjudicatory functions, powers and duties in the Chairman of the Commission.
To enable the Commission to carry out its statutory responsibility to determine the validity and amount of certain claims of U.S. nationals.
The information contained in this system of records will be disclosed by the Commission under the following circumstances:
a. To the Department of State and the Department of the Treasury in connection with the negotiation, adjudication, settlement and payment of claims;
b. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the federal government, when necessary to accomplish a Commission function related to this system of records;
c. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record;
d. Where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, territorial, tribal, or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law;
e. In an appropriate proceeding before the Commission, or before a court, grand jury, or administrative or adjudicative body, when the Department of Justice and/or the Commission determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding;
f. To a former employee of the Commission for purposes of: responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Commission regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Commission requires information and/or consultation from the former employee regarding a matter within that person's former area of responsibility;
g. To the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
h. To appropriate agencies, entities, and persons when (1) it is suspected or confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Commission has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Commission or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Commission's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm;
i. To such recipients and under such circumstances and procedures as are mandated by federal statute or treaty.
Paper records maintained in file folders at the Commission's office and electronic records located on the Commission's Server.
Information from this system of records will be retrieved by claim number and/or decision number. An alphabetical index may be used by the Commission for identification of a claim by claimants' name.
Paper records are under security safeguards at the Commission's office. The electronic records are safeguarded by the DOJ JCON security procedures. Access to the Commission's data requires a password and is limited to Commission employees and contractors with appropriate security clearances.
Records are maintained under 5 U.S.C. 301. Disposal of records will be in accordance with the determination by the National Archives and Records Administration.
Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616–6975. Fax: (202) 616–6993.
The Administrative Officer will inform any person or other agency about any correction or notation of dispute made in accordance with title 45 CFR 503.7 of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.
(a) Upon request in person or by mail, any individual will be informed whether or not a system of records maintained by the Commission contains
(a) Any individual may request amendment of a record pertaining to himself or herself according to the procedure in paragraph (b) of this section, except in the case of records described under paragraph (d) of this section. (b) After inspection by an individual of a record pertaining to himself or herself, the individual may file a written request, presented in person or by mail, with the Administrative Officer, for an amendment to a record. The request must specify the particular portions of the record to be amended, the desired amendments and the reasons therefor. (c) Not later than ten (10) days (excluding Saturdays, Sundays, and legal holidays) after the receipt of a request made in accordance with this section to amend a record in whole or in part, the Administrative Officer will: (1) Make any correction of any portion of the record which the individual believes is not accurate, relevant, timely or complete and thereafter inform the individual of such correction; or (2) Inform the individual, by certified mail return receipt requested, of the refusal to amend the record, setting forth the reasons therefor, and notify the individual of the right to appeal that determination as provided under 45 CFR 503.8. (d) The provisions for amending records do not apply to evidence presented in the course of Commission proceedings in the adjudication of claims, nor do they permit collateral attack upon what has already been subject to final agency action in the adjudication of claims in programs previously completed by the Commission pursuant to statutory time limitations.
Claimant on whom the record is maintained.
None.
Office of the Secretary, DOL.
Notice.
On July 1, 2013, the Department of Labor (DOL) will submit the Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) revision titled, “Claim for Compensation by a Dependent Information Reports,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995.
Submit comments on or before July 31, 2013.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OWCP, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Fax: 202–395–6881 (this is not a toll-free number), email:
Contact Michel Smyth by telephone at 202–693–4129 (this is not a toll-free number) or by email at
This ICR covers forms a dependent of a deceased Federal employee, whose death is work-related, uses to prove continued eligibility for benefits, to show entitlement to remaining compensation payments of the deceased employee, and to show dependency. The collection of this information is required by 5 U.S.C. 8110 and regulations 20 CFR 10.7, 10.105, 10.410, 10.413, 10.417, 10.535, and 10.537. Specifically, this ICR covers Forms CA–5, CA–5b, CA–1031, and CA–1074, as well as related form letters used to obtain follow-up information commonly needed to clarify an initial benefit claim.
This ICR seeks to revise Forms CA–5 and CA–5b, in order to collect information that will allow for the direct deposit of benefit payments into a beneficiary's account with a financial institution. In addition, the OWCP is adding information about how a respondent with a disability may obtain further assistance in responding to the forms and letters covered by this ICR. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Notice.
The Department of Labor (DOL) is submitting the Employment and Training Administration (ETA) sponsored information collection request (ICR) titled, “Work Application and Job Order Recordkeeping,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.).
Submit comments on or before July 29, 2013.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–ETA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503, Fax: 202–395–6881 (this is not a toll-free number), email:
Contact Michel Smyth by telephone at 202–693–4129 (this is not a toll-free number) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR is to maintain OMB approval under the PRA for the information collections associated with the regulatory requirement at 20 CFR 652.8(d)(5) for States to maintain work applications and job orders for one year. A work application is used in an American Job Center for individuals seeking assistance in finding employment or employability development services. A work application is used to collect information such as an applicant's identification, qualifications, work experience, and desired pay. A work application also includes services provided to the applicant, such as job development, and referral to supportive service. A job order is used in an American Job Center to obtain information on employer job vacancies. Information in a job order includes employer identification, job requirements, pay information, as well as identification of persons referred, hired, or refused. The information is collected at the employer's request in order to publicize job vacancies. American Job Centers collect the information and post it on electronic job banks. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on June 30, 2013. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. It should also be noted that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
National Archives and Records Administration (NARA).
Presidential Records Act Notice of Proposed Disposal of George H.W. Bush and Clinton Administration Disaster Recovery Backup Tapes. The Electronic Mail Records on These Tapes Have Been Separately Restored and Permanently Preserved at NARA; Request for Public Comment.
The National Archives and Records Administration (NARA) has identified a collection of disaster recovery backup tapes from the George H.W. Bush and Clinton Administrations, as appropriate for disposal under the provisions of 44 U.S.C. 2203(f)(3). This notice describes our reasons for determining that further retention of these disaster recovery backup tapes is not warranted, given that the Presidential and Federal electronic mail with attachments, pager and calendar records residing on these backup tapes were previously restored, and that NARA will permanently retain these Presidential and Federal records on a different set of electronic media. Because the backup tapes proposed for disposal were made for disaster recovery purposes, NARA is following a procedure similar to that in GRS 24 for Federal record backup tapes.
This notice does not constitute a final agency action, as described in 44 U.S.C. 2203(f)(3), and no Presidential records will be disposed of following this notice. NARA will publish a second notice only after it has reviewed any comments received during this 45-day notice period. The second, 60-day notice will constitute a final agency action, in the event that NARA proceeds with disposal.
Comments are due by August 12, 2013.
Comments regarding the proposed disposal of these Presidential records must be sent in writing to Susan Donius, National Archives and Records Administration, Suite 2200, 8601 Adelphi Road, College Park, Maryland 20740–6001; or by fax to 301–837–3199; or by email to
Susan Donius at 301–837–3250.
NARA proposes the disposal of 22,907 disaster recovery backup tapes created during the George H.W. Bush and Clinton Administrations. The backup tapes, consisting of what are known as “3480 cartridges,” were originally created from November 6, 1992 through July 15, 1994 by staff in the Executive Office of the President (EOP) during the George H.W. Bush and Clinton Administrations, with duplicative preservation copy sets created subsequently. The backup tapes covered by this notice were originally preserved under Court orders entered in the case of
During the George H.W. Bush and Clinton Administrations, staff in EOP's Office of Administration maintained what was known as the “VAX All-in-1” system for email communications. The email system was operated on behalf of numerous components of the EOP, including the Office of the President, the Office of the Vice President, the Office of Management and Budget, the Office of National Drug Control Policy, the Office of Science and Technology Policy, and the Council of Environmental Quality, One or more other offices also had users with email accounts on the system (e.g., staff in the National Security Council could send unclassified email communications to individuals on the All-in-1 system).
The software configuration for the VAX Cluster consisted of two main elements: The VAX Operating System, and the Office of Administration System for Information Services (OASIS) All-in-1 system (also known as the “All-in-1 software suite” or “software package”), a proprietary product made by the Digital Equipment Corporation (DEC) and further customized by OA staff. The DEC All-in-1 commercial “off the shelf” software package allowed for the creation of email and calendars. In addition to these standard features, EOP staff developed additional customized applications for All-in-1 users.
The tape restoration project carried out by EOP staff consisted of the recovery of email messages and calendars residing on the backups, as well as the recovery of the following additional “email enabled” and other applications” contained within the All-in-1 software suite: (a) Directory Change Requests (changes to profiles in the EOP on-line phone directory); (b) WAVES (Workers and Visitor Entry System) requests; (c) Suggestion Box (routing suggestions from staff to EOP Management); (d) Phone Messages (advising users of telephone calls received); and (e) Pager requests (routing electronic messages to pager devices). As stated above, NARA will retain these records on a permanent basis.
Backup tapes made for emergency purposes are not record keeping media; rather, their sole purpose is to be available for restoration in the event that electronic records are corrupted or destroyed. Given that these backup tapes have already served that purpose and NARA has no need to conduct any further restoration from them, they no longer need to be preserved. In the normal course, the disaster recovery backup tapes at issue in this notice
As of November 1995, subsequent disaster recovery backup tapes created for the same VAX/All-in-1 System operated by the Office of Administration of EOP were specifically designated as temporary records with a 90 day maximum retention period for weekly backups. See records schedule approved by Archivist John Carlin, dated November 1995, re “OASIS All-in-1 Applications and other VAX Cluster Applications, Job. No. N1–429–95–2, Item 8), These authorities are consistent with the widely accepted principle that records appropriate for preservation should be maintained in recordkeeping systems rather than on disaster recovery backups.
The sub-collections of backup tapes that have been retained and are now covered by this disposition notice consist of: (a) 2,835 “3480 cartridges” created by EOP staff between November 6, 1992 through January 20, 1993, during the George H.W. Bush Administration; (b) a preservation copy set of 2,835 media created by NARA staff in 1993 on receipt of the originals; (c) a second generation preservation copy set of 2,835 media created by NARA staff in 2003; (d) 2,156 “daily” and 6,514 “weekly” backups created by EOP staff between January 20, 1993 and July 15, 1994 during the Clinton Administration; and (e) a preservation copy set of 5,732 backups of Clinton daily and weekly backups created by EOP staff in 1996 and used for the 1996 Tape Restoration Project. A Stipulation and Order entered in the
The additional temporary record and non-record applications on the VAX/All-in-1 system consisted of: (a) Indices (lists maintained on the system of the contents of electronic folders of OASIS All-in-1 users); (b) Distribution Lists (mailing lists created by users when sending email messages); (c) EOP Directory (names of individuals, with room and telephone numbers); (d) User Directory (provided users with short-cut to enter names of intended recipients); (e) Bulletin Board (notification of scheduled events, such as blood drives, classroom training and insurance open seasons); (f) User Set-up (passwords, locations, work hours, calendar and date formats, and log-in/log-out data); (g) System Distribution Lists (mailing lists created by system managers); (h) DB/2 Services Request Form (database administration requests); (i) Security Files (system generated data to monitor requests to access); (j) Supply Order Form; (k) Training Schedules; (l) Weekly Usage Reports; (m) Calculator; (n) Information Management (news and weather displays); (o) Lock Keyboard; (p) Personal Rolodex; (q) Training Routines and HELP files; (r) World Wide Time; (s) Personnel Vacancy Search Request (government wide vacancies); (t) Presidential Remarks On-Line (Library application providing access to public statements and speeches).
As stated, copies of Presidential and Federal email with attachments, calendars, pager notes, and related records recovered as part of the 1996 Tape Restoration Project are being retained by NARA in separate electronic databases covering the George H.W. Bush and Clinton Administrations, respectively. However, NARA has no further need or use for the remaining original disaster recovery backup tapes.
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463 as amended), the National Science Foundation announces the following meeting:
On November 30, 2012, at 6:59 a.m. eastern standard time, southbound Consolidated Rail Corporation (Conrail) freight train FC4230, consisting of 2 locomotives and 82 cars, derailed 7 cars near milepost 13.7 on the Conrail Penn's Grove secondary track in Paulsboro, New Jersey. The derailment occurred while the train crossed a movable bridge over Mantua Creek, resulting in 4 tank cars leaving the bridge and coming to rest partially submerged in Mantua Creek. As a result of the derailment, the coupler on one tank car punctured another tank car, releasing an estimated
The 911 communications center was notified of the release at 7:01 a.m., and the first responders to the accident were members of the Paulsboro Fire and Police departments, assisted by hazardous materials specialists from a nearby refinery and the Gloucester County hazardous materials team. The first incident command was established about 50 yards from the bridge but was later moved a half mile away. Evacuation orders were imposed by local authorities shortly after the release, but subsequently were replaced with shelter-in-place recommendations. About 8 hours into the release, a unified command was established among the United States Coast Guard, New Jersey Department of Environmental Protection, Paulsboro Fire Department, and Conrail. On the morning of the accident, 23 local residents were treated at a nearby hospital for possible vinyl chloride exposure. The train conductor and numerous emergency responders were also tested for vinyl chloride exposure.
The investigative hearing will discuss Conrail operations and the emergency response to the hazardous materials release. Specific areas being discussed include Conrail bridge operations, Conrail procedures, incident command actions and emergency response decisions in the first day, hazardous materials emergency response operations, roles of the response teams, evacuations and communications, incident response protocols, hazmat training, oversight of Paulsboro emergency preparedness, roles of local, state and Federal agencies in emergency hazmat response, and interaction between state and Federal agencies in establishing a unified command. The goals of this hearing are to gather additional factual information regarding the actions of the first responders in Paulsboro, to explore the hierarchy of New Jersey State and local emergency management, training, regulations and standards applicable to emergency response personnel, and to examine the oversight of the Paulsboro emergency operations.
Parties to the hearing include the Federal Railroad Administration, Pipeline and Hazardous Materials Safety Administration, United States Coast Guard, Conrail, Borough of Paulsboro, State of New Jersey, Brotherhood of Locomotive Engineers and Trainmen, and the United Transportation Union.
At the start of the hearing, the public docket will be opened. Included in the docket are photographs, interview transcripts, and numerous other documents.
The accident docket is DCA13MR002.
The Investigative Hearing will be held in the NTSB Board Room and Conference Center, located at 429 L'Enfant Plaza E. SW., Washington, DC, Tuesday, July 9, and Wednesday, July 10, 2013, beginning at 9:00 a.m. The public can view the hearing in person or by live webcast at
Individuals requesting specific accommodations should contact Ms. Rochelle Hall at (202) 314–6305 or by email at
Nuclear Regulatory Commission.
Supplement to Final Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants; issuance.
Notice is hereby given that the U.S. Nuclear Regulatory Commission (NRC) has published a supplement (Volume 4) to the final plant-specific supplement 38 to the “Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS),” NUREG–1437, regarding the renewal of operating licenses DPR–26 and DPR–64 for an additional 20 years of operation for Indian Point Nuclear Generating Unit Nos. 2 and 3 (IP2 and IP3). This supplement revises specific sections of the final plant-specific Supplement 38 to the GEIS, as indicated in the supplement. The IP2 and IP3 site is located approximately 24 miles north of New York, NY. Possible alternatives to the proposed action (license renewal) include no action and reasonable alternative.
Please refer to Docket ID NRC–2008–0672 when contacting the NRC about the availability of information regarding this document. You may access information related to this document using the following methods:
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For information about the final supplemental environmental impact statement (FSEIS), this supplement to the FSEIS, or the environmental review process, please contact Lois James, telephone: 301–415–3306; email:
The NRC received an application, dated April 23, 2007, from Entergy Nuclear Operations, Inc. (Entergy), filed pursuant to Section 103 of the Atomic Energy Act of 1954, as amended, and Title 10 of the
This supplement (Volume 4) to the FSEIS is being issued as part of the NRC's process to decide whether to issue a renewed license to IP2 and IP3, pursuant to 10 CFR Part 54. This supplement to the FSEIS was prepared in compliance with the National Environmental Policy Act of 1969, as amended (NEPA), and the NRC's regulations for implementing NEPA in 10 CFR Part 51.
In December 2010, the NRC published its FSEIS related to the license renewal of IP2 and IP3, NUREG–1437, Supplement 38, Volumes 1–3. After publication, the staff identified new information that necessitated changes to its assessments in the FSEIS. In addition to supplementing the FSEIS to address the new information, the NRC is also documenting the completion of the consultation process under Section 7 of the Endangered Species Act of 1973, as amended (ESA), with the National Marine Fisheries Service (NMFS) regarding the shortnose sturgeon (
Based on (1) the analysis and findings in the GEIS, (2) the ER and other information submitted by Entergy, (3) consultation with Federal, State, Tribal, and local agencies, (4) the NRC staff's consideration of public scoping comments received, and comments on the draft SEIS, and (5) the NRC staff's independent review, the recommendation of the NRC staff is that the Commission determine that the adverse environmental impacts of license renewal for IP2 and IP3 are not so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.
In preparing this supplement (Volume 4) to the final SEIS, the NRC staff also reviewed, considered, evaluated, and addressed the public comments received during the comment process on the draft supplement to the final SEIS.
Documents related to this notice are available on the NRC's plant application for license renewal Web site at
The IP2s and IP3s license application, the IP2s and IP3s Environmental Report, and Volumes 1, 2, 3, and 4 of the NRC's FSEIS are available in ADAMS under the following Accession Numbers:
A copy of this supplement to the FSEIS and the FSEIS will be available at the the White Plains Public Library (White Plains, NY), Hendrick Hudson Free Library (Montrose, NY), and the Field Library (Peekskill, NY).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Request for action; receipt.
The U.S. Nuclear Regulatory Commission (NRC) is giving notice that by petition dated June 21, 2012, Mr. Wallace Taylor (the petitioner) has requested that the NRC take enforcement action against Fort Calhoun Station, Unit 1 (FCS). The petitioner's requests are included in the
Please refer to Docket ID NRC–2013–0111 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, using any of the following methods:
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On June 21, 2012 (ADAMS Accession No. ML11174A228), the petitioner requested that the NRC take enforcement action with regard to FCS. The petitioner also met with the Petition Review Board (PRB) and supplemented its petition during a teleconference on August 27 and November 19, 2012 (ADAMS Accession Nos. ML12250A714, and ML12352A279, respectively). As a basis for the request, the petitioner states that the NRC's own guidelines regarding enforcement sanctions would categorize the events at FCS over the past 20 years at Severity Level I, the highest level, because those events involve (1) Situations involving particularly poor licensee performance, or involving willfulness; (2) situations when the violation results in a substantial increase in risk, including cases in which the duration of the violation has contributed to the substantial increase; and (3) situations in which the licensee made a conscious decision to be in noncompliance to obtain an economic benefit (63 FR 26630–01, 26642; May 13, 1998). The petitioner states that the NRC considers these violations to be of significant concern, and it may apply its full enforcement action to remedy these violations, including issuing appropriate orders.
The request is being treated pursuant to § 2.206 of Title 10 of the
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing requesting a temporary extension of a market test on gift cards. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
On June 18, 2013, the United States Postal Service moved to temporarily extend its Gift Card market test under 39 U.S.C. 3641(d).
In support of its Motion, the Postal Service states it “needs more time to determine the impact of its efforts to improve sales, as well as the demand for closed loop cards.”
The Commission will grant a 1-month extension of the Gift Card market test, through July 27, 2013. Given the short deadline before the market test would otherwise terminate, the extension will afford interested persons an opportunity to comment on the Motion. Such comments are due no later than July 8, 2013.
Robert N. Sidman, previously designated to serve as Public Representative in this proceeding, will continue to serve in that capacity.
I support the Postal Service seeking new revenue streams. However, as I indicated initially, in Order No. 721, section 404(e)(2) prohibits the Postal Service from offering any new nonpostal services and this prohibition applies to experimental offerings.
1. The Commission grants an extension until July 27, 2013 to the expiration date of the market test of Gift Cards.
2. Comments by interested persons are due no later than July 8, 2013.
3. Robert N. Sidman, previously designated pursuant to 39 U.S.C. 505 as an officer of the Commission (Public Representative), will continue to serve in that capacity.
4. The Secretary shall arrange for publication of this notice and order in the
By the Commission.
Privacy and Civil Liberties Oversight Board.
Notice of a meeting.
The Privacy and Civil Liberties Oversight Board will conduct a public workshop with invited experts, academics and advocacy organizations regarding surveillance programs operated pursuant to Section 215 of the USA PATRIOT Act and Section 702 of Foreign Intelligence Surveillance Act.
July 9, 2013 at 9:30 a.m.–4:30 p.m. (Eastern Time).
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• Written comments may be submitted at any time prior to the closing of the docket at 12:00 p.m. Eastern Time on August 1, 2013.
All comments will be made publicly available and posted without change. Do not include personal or confidential information.
The location in Washington DC is still being determined. A notice will be published in the
Susan Reingold, Chief Administrative Officer, 202–331–1986.
The workshop will be open to the public. The Board is contemplating moderated panel discussions with invited experts, academics, and advocacy organizations. Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Susan Reingold, Chief Administrative Officer, 202–331–1986, at least 72 hours prior to the meeting date.
Privacy and Civil Liberties Oversight Board.
Notice of Privacy Act system of records.
In accordance with the Privacy Act of 1974, the Privacy and Civil Liberties Oversight Board proposes to create a new system of records titled, “PCLOB–1, Freedom of Information Act and Privacy Act Request Files”.
Written comments should be submitted on or before July 29, 2013. This new system will be effective July 29, 2013.
You may submit comments, identified by the docket number in the heading of this document, by the following methods:
To ensure proper handling, please include the docket number on your correspondence. See
Diane Janosek, Chief Legal Counsel, Privacy and Civil Liberties Oversight Board, at 202–366–0365.
Please note that all comments received are considered part of the public record and made available for public inspection online at
The Privacy and Civil Liberties Oversight Board (Board) was created as an independent agency within the executive branch by the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110–53. As a federal agency, the Board is subject to the Freedom of Information Act (FOIA), 5 U.S.C. 552, and Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a. The Board has published its notice of proposed rulemaking to establish administrative procedures for compliance with these statutes. As part of our compliance requirements, the Board must maintain certain information about FOIA and Privacy Act requests and requesters. As a result, the Board also is publishing this system of records notice to notify the public of and solicit comments about our proposed creation of a system of records for FOIA and Privacy Act case files.
Privacy and Civil Liberties Oversight Board—1, Freedom of Information Act and Privacy Act Files
This system will contain classified and unclassified records.
Records are maintained at the Privacy and Civil Liberties Oversight Board's office in Washington, DC.
Individuals who submit Freedom of Information Act (FOIA) and Privacy Act (PA) requests and administrative appeals to the Privacy and Civil Liberties Oversight Board, including individuals who make requests or appeals on behalf of other persons or entities; individuals who are the subjects of FOIA or PA requests or appeals; Board employees or Department of Justice litigators assigned to handle requests or appeals.
Categories of records in the system include: FOIA and PA requests or appeals, including requesters' names, contact (email, street address, telephone number) information, and proof of identification; names and other information about persons who are the subject of FOIA or PA requests; records received, created, or compiled in processing FOIA and PA requests or appeals, including correspondence, intra or inter agency memoranda, notes, and other documentation; copies of requested records; requesters names, contact (email, street address, telephone number) information, and proof of identification; names, addresses, and telephone numbers of submitters of requested records.
5 U.S.C. 552; 5 U.S.C. 552a; 44 U.S.C. 3101
The purpose of this system is to process FOIA and PA requests and appeals, and to carry out other Board obligations under the FOIA and PA.
In addition to those disclosures permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed by the Board as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (including U.S. Attorney Offices) or other federal agency conducting litigation or in proceedings before any court, adjudicative or administrative body, when it is necessary to the litigation and one of the following is a party to or has an interest in the litigation:
1. The Board;
2. Any Board member or employee in his/her official capacity;
3. Any Board member or employee in his/her individual capacity if DOJ or the Board has agreed to represent the member or employee;
4. The United States or any agency thereof if the Board determines that the records are both relevant and necessary to the litigation and the use of such records is compatible with the purpose for which the Board collected the records.
B. To a congressional office, provided that the individual who is the subject of the record at issue authorized the congressional office to request the record on his or her behalf.
C. To the National Archives and Record Administration or other federal agency pursuant to records management inspections conducted under 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations authorized by law, but only to the extent necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. The Board suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. The Board determines that because of the suspected or confirmed compromise, there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Board or other agency or entity), or harm to individuals that rely on compromised information; and
3. Disclosure is necessary to assist with the Board's efforts to respond to the suspected or confirmed compromise, and prevent, minimize, or remedy such harm.
F. To contractors and their agents; grantees; experts; consultants; and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Board, when necessary to accomplish a Board function related to this system of records.
G. To an appropriate federal, state, tribal, local, international, or foreign agency, including law enforcement, or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order where a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the individual making the disclosure.
H. To a federal, state, territorial, tribal, local, international, or foreign agency or other entity for the purpose of consulting with that agency or entity:
1. To assist in making a determination regarding the disclosure of, access to, or amendment of information; or
2. To verify the identity of an individual or the accuracy of information submitted by an individual who has requested access to or amendment of information.
I. To a federal agency for the purpose of referring the request to that agency for processing or consulting with that agency regarding the appropriate handling of the request.
J. To the Office of Government Information Services (OGIS) for the purposes of resolving disputes between the Board and FOIA requesters or for OGIS' review of Board policies, procedures, and compliance in order to recommend policy changes to Congress and the President.
K. To the Office of Management and Budget or the Department of Justice when necessary to obtain advice regarding statutory or other requirements under the FOIA or PA.
No.
Records in this system are stored electronically and/or on paper in secure facilities. Electronic records may be stored on magnetic disc, tape, digital media, and CD–ROM.
Records may be retrieved by individual's name or by case tracking or control number.
Records in this system are safeguarded in accordance with applicable rules and policies, including automated systems security and access policies. Access to records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
FOIA and PA records are retained in accordance with National Archives and Records Administration's General Records Schedule 14.
Chief FOIA Officer and Chief Privacy Officer, Privacy and Civil Liberties Oversight Board, c/o General Services Administration, Agency Liaison Division, 1275 First Street NE., ATTN: 849C, Washington, DC 20417.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Privacy Officer
See “Notification procedure” above.
See “Notification procedure” above.
Records are obtained from individuals who submit FOIA and PA requests or appeals; the records searched and identified as responsive in the process of responding to such requests and appeals; Board personnel assigned to handle such requests and appeals; other agencies that have referred FOIA or PA requests to the Board for consultation or response; submitters or subjects of records or information that have provided assistance to the Board in making access or amendment determinations.
None.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 10b–10 requires broker-dealers to convey basic trade information to customers regarding their securities transactions. This information includes: the date and time of the transaction, the identity and number of shares bought or sold, and the trading capacity of the broker-dealer. Depending on the trading capacity of the broker-dealer, Rule 10b–10 requires the disclosure of commissions as well as mark-up and mark-down information. For transactions in debt securities, Rule 10b–10 requires the disclosure of redemption and yield information. Rule 10b–10 potentially applies to all of the approximately 5,178 firms registered with the Commission that effect transactions on behalf of customers.
Based on information provided by registered broker-dealers to the Commission in FOCUS Reports, the Commission staff estimates that on average, registered broker-dealers process approximately 1.4 billion order tickets per month for transactions on behalf of customers. Each order ticket representing a transaction effected on behalf of a customer results in one confirmation. Therefore, the Commission staff estimates that approximately 16.8 billion confirmations are sent to customers annually. The confirmations required by Rule 10b–10 are generally processed through automated systems. It takes approximately 30 seconds to generate and send a confirmation. Accordingly, the Commission estimates that broker-dealers spend 140 million hours per year complying with Rule 10b–10.
The amount of confirmations sent and the cost of sending each confirmation varies from firm to firm. Smaller firms generally send fewer confirmations than larger firms because they effect fewer transactions. The Commission staff estimates the costs of producing and sending a paper confirmation, including postage to be approximately 54 cents. The Commission staff also estimates that the cost of producing and sending a wholly electronic confirmation is approximately 39 cents. Based on informal discussions with industry participants as well as no-action positions taken in this area, the staff estimates that broker-dealers used electronic confirmations for approximately 35 percent of transactions. Based on these calculations, Commission staff estimates that 10,920,000,000 paper confirmations are mailed each year at a cost of $5,896,800,000. Commission staff also estimates that 5,880,000,000 wholly electronic confirmations are sent each year at a cost of $2,293,200,000. Accordingly, Commission staff estimates that total annual cost associated with generating and delivering to investors the information required under Rule 10b–10 would be $8,190,000,000.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information subject to the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following Web site:
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule
Elizabeth M. Murphy, Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants, c/o Huey P. Falgout, Jr., Chief Counsel, ING Funds, 7337 East Doubletree Ranch Road, Suite 100, Scottsdale, AZ 85255.
Laura L. Solomon, Senior Attorney, at (202) 551–6915, or Daniele Marchesani, Branch Chief, at (202) 551–6821 (Division of Investment Management, Exemptive Applications Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number or an applicant using the Company name box, at
1. Each ING Investment Company is organized as a Massachusetts business trust, a Delaware statutory trust, or a Maryland corporation and is registered with the Commission as an open-end management investment company under the Act. Each ING Investment Company may offer one or more series of shares (each a “Series” and collectively, “Series”) with its own distinct investment objectives, policies and restrictions.
2. An Adviser serves as the investment adviser to each Series that it manages pursuant to an investment advisory agreement with the applicable ING Investment Company (“Investment Management Agreement”). The Investment Management Agreement for each existing Series was approved by the board of trustees/directors of the applicable ING Investment Company (the “Board”), including a majority of the members of the Board who are not “interested persons”, as defined in section 2(a)(19) of the Act, of the Series or the Adviser (“Independent Board Members”) and by the shareholders of that Series as required by sections 15(a) and 15(c) of the Act and rule 18f–2 thereunder. The terms of these Investment Management Agreements comply with section 15(a) of the Act. Each Investment Management Agreement will comply with section 15(a) of the Act and will be similarly approved.
3. Under the terms of each Investment Management Agreement, the relevant Adviser, subject to the supervision of the Board, provides continuous investment management of the assets of the relevant Series. The Adviser periodically reviews a Series' investment policies and strategies and based on the need of a particular Series may recommend changes to the investment policies and strategies of the Series for consideration by the Board. For its services to each Series under the applicable Investment Management Agreement, the Adviser receives an investment management fee from that Series based on the average net assets of that Series. Certain Series of IIT operate under a “unified” fee arrangement as further described in the application. The terms of each Investment Management Agreement permit the Adviser, subject to the approval of the Board, including a majority of the Independent Board Members, and the shareholders of the applicable Sub-Advised Series (if required), to delegate portfolio management responsibilities of all or a portion of the assets of a Sub-Advised Series to one or more Sub-Advisers.
4. Applicants request an order to permit an Adviser, subject to the approval of the Board, including a majority of the Independent Board Members, to, without obtaining shareholder approval: (i) Select Sub-Advisers to manage all or a portion of the assets of a Series and enter into Sub-Advisory Agreements (as defined below) with the Sub-Advisers, and (ii) materially amend Sub-Advisory Agreements with the Sub-Advisers.
5. Pursuant to each Investment Management Agreement, the Adviser has overall responsibility for the management and investment of the assets of each Sub-Advised Series; these responsibilities include recommending the removal or replacement of Sub-Advisers, determining the portion of that Sub-Advised Series' assets to be managed by any given Sub-Adviser and reallocating those assets as necessary from time to time. In accordance with each Investment Management Agreement, the Adviser will supervise each Sub-Adviser in its performance of its duties with a view to preventing violations of the federal securities laws.
6. The Advisers have entered into sub-advisory agreements with Sub-Advisers (“Sub-Advisory Agreements”) to provide investment management services to the Subadvised Series.
7. Sub-Advised Series will inform shareholders of the hiring of a new Sub-Adviser pursuant to the following procedures (“Modified Notice and Access Procedures”): (a) Within 90 days after a new Sub-Adviser is hired for any Sub-Advised Series, that Sub-Advised Series will send its shareholders
A “Multi-Manager Information Statement” will meet the requirements of Regulation 14C, Schedule 14C and Item 22 of Schedule 14A under the Exchange Act for an information statement, except as modified by the order to permit Aggregate Fee Disclosure, as defined below. Multi-Manager Information Statements will be filed with the Commission via the EDGAR system.
8. Applicants also request an order exempting the Sub-Advised Series from certain disclosure obligations that may require the Applicants to disclose fees paid by the Adviser to each Sub-Adviser. Applicants seek relief to permit each Sub-Advised Series to disclose (as a dollar amount and a percentage of the Sub-Advised Series' net assets): (a) The aggregate fees paid to the Adviser and any Wholly-Owned Sub-Adviser; (b) the aggregate fees paid to Non-Affiliated Sub-Advisers; and (c) the fee paid to each Affiliated Sub-Adviser (collectively, the “Aggregate Fee Disclosure”).
1. Section 15(a) of the Act states, in part, that it is unlawful for any person to act as an investment adviser to a registered investment company “except pursuant to a written contract, which contract, whether with such registered company or with an investment adviser of such registered company, has been approved by the vote of a majority of the outstanding voting securities of such registered company.” Rule 18f–2 under the Act states that any “matter required to be submitted . . . to the holders of the outstanding voting securities of a series company shall not be deemed to have been effectively acted upon unless approved by the holders of a majority of the outstanding voting securities of each class or series of stock affected by such matter.” Further, rule 18(f)–2(c)(1) under the Act provides that a vote to approve an investment advisory contract required by section 15(a) of the Act “shall be deemed to be effectively acted upon with respect to any class or series of securities of such [registered investment] company if a majority of the outstanding voting securities of such class or series vote for the approval of such matter.”
2. Form N–1A is the registration statement used by open-end investment companies. Item 19(a)(3) of Form N–1A requires a registered investment company to disclose in its statement of additional information the method of computing the “advisory fee payable” by the investment company, including the total dollar amounts that the investment company “paid to the adviser (aggregated with amounts paid to affiliated advisers, if any), and any advisers who are not affiliated persons of the adviser, under the investment advisory contract for the last three fiscal years.”
3. Rule 20a–1 under the Act requires proxies solicited with respect to a registered investment company to
4. Regulation S–X sets forth the requirements for financial statements required to be included as part of a registered investment company's registration statement and shareholder reports filed with the Commission. Sections 6–07(2)(a), (b), and (c) of Regulation S–X require a registered investment company to include in its financial statement information about the investment advisory fees.
5. Section 6(c) of the Act provides that the Commission by order upon application may conditionally or unconditionally exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or from any rule thereunder, if such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Applicants state that their requested relief meets this standard for the reasons discussed below.
6. Applicants assert that the shareholders expect the Advisers, subject to review and approval of the Board, to select Sub-Advisers who the Advisers believe can achieve the Sub-Advised Series' investment objectives. Applicants assert that, from the perspective of the shareholder, the role of the Sub-Advisers is substantially equivalent to the role of the individual portfolio managers employed by an investment adviser to a traditional investment company. Applicants believe that permitting the Adviser to perform the duties for which the shareholders of the Sub-Advised Series are paying the Adviser—the selection, supervision and evaluation of the Sub-Advisers, including Wholly-Owned Sub-Advisers—without incurring unnecessary delays or expenses is appropriate in the interest of the Sub-Advised Series' shareholders and will allow such Sub-Advised Series to operate more efficiently. Applicants state that each Investment Management Agreement will continue to be fully subject to section 15(a) of the Act and rule 18f–2 under the Act and approved by the Board, including a majority of the Independent Board Members, in the manner required by sections 15(a) and 15(c) of the Act. Applicants are not seeking an exemption with respect to the Investment Management Agreements.
7. Applicants assert that disclosure of the individual fees that the Adviser would pay to the Sub-Advisers that operate under the multi-manager structure described in the application would not serve any meaningful purpose. Applicants contend that the primary reasons for requiring disclosure of individual fees paid to Sub-Advisers are to inform shareholders of expenses to be charged by a particular Sub-Advised Series and to enable shareholders to compare the fees to those of other comparable investment companies. Applicants believe that the requested relief satisfies these objectives because the advisory fee paid to the Adviser will be fully disclosed and, therefore, shareholders will know what the Sub-Advised Series' fees and expenses are and will be able to compare the advisory fees a Sub-Advised Series is charged to those of other investment companies. Applicants assert that the requested disclosure relief would benefit shareholders of the Sub-Advised Series because it would improve the Adviser's ability to negotiate the fees paid to Sub-Advisers. Applicants state that the Adviser may be able to negotiate rates that are below a Sub-Adviser's “posted” amounts if the Adviser is not required to disclose the Sub-Advisers' fees to the public. Applicants submit that the relief requested to use Aggregate Fee Disclosure will encourage Sub-Advisers to negotiate lower subadvisory fees with the Adviser if the lower fees are not required to be made public.
8. For the reasons discussed above, Applicants submit that the requested relief meets the standards for relief under section 6(c) of the Act. Applicants state that the operation of the Sub-Advised Series in the manner described in the application must be approved by shareholders of a Sub-Advised Series before that Sub-Advised Series may rely on the requested relief. In addition, Applicants state that the proposed conditions to the requested relief are designed to address any potential conflicts of interest, including any posed by the use of Wholly-Owned Sub-Advisers, and provide that shareholders are informed when new Sub-Advisers are hired. Applicants assert that conditions 6, 7, 10 and 11 are designed to provide the Board with sufficient independence and the resources and information it needs to monitor and address any conflicts of interest with affiliated person of the Adviser, including Wholly-Owned Sub-Advisers. Applicants state that, accordingly, they believe the requested relief is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
Applicants agree that any order granting the requested relief will be subject to the following conditions:
1. Before a Sub-Advised Series may rely on the order requested in the application, the operation of the Sub-Advised Series in the manner described in the application, including the hiring of Wholly-Owned Sub-Advisers, will be, or has been, approved by a majority of the Sub-Advised Series' outstanding voting securities (or if the Sub-Advised Series serves as a funding medium for any sub-account of a registered separate account, pursuant to voting instructions provided by the unitholders of the sub-account), as defined in the Act, which in the case of a new Sub-Advised Series whose public shareholders (or variable contract owners through a registered separate account) purchase shares on the basis of a prospectus containing the disclosure contemplated by condition 2 below, by the sole initial shareholder before offering the Sub-Advised Series' shares to the public (or the variable contract owners through a separate account).
2. The prospectus for each Sub-Advised Series, will disclose the existence, substance, and effect of any order granted pursuant to the application. Each Sub-Advised Series will hold itself out to the public as employing the multi-manager structure described in the application. A Sub-Advised Series' prospectus will prominently disclose that the Adviser has the ultimate responsibility, subject to oversight by the Board, to oversee the Sub-Advisers and recommend their hiring, termination and replacement.
3. The Adviser will provide general management services to a Sub-Advised Series, including overall supervisory responsibility for the general management and investment of the Sub-Advised Series' assets. Subject to review and approval of the Board, the Advisor will (a) set a Sub-Advised Series' overall investment strategies, (b) evaluate,
4. A Sub-Advised Series will not make any Ineligible Sub-Adviser Changes without the approval of the shareholders of the applicable Sub-Advised Series.
5. A Sub-Advised Series will inform shareholders (or, if the Sub-Advised Series serves as a funding medium for any sub-account of a registered separate account, the Adviser will inform the unitholders of the sub-account) of the hiring of a new Sub-Adviser within 90 days after the hiring of the new Sub-Adviser pursuant to the Modified Notice and Access Procedures.
6. At all times, at least a majority of the Board will be Independent Board Members, and the selection and nomination of new or additional Independent Board Members will be placed within the discretion of the then-existing Independent Board Members.
7. Independent Legal Counsel, as defined in rule 0–1(a)(6) under the Act, will be engaged to represent the Independent Board Members. The selection of such counsel will be within the discretion of the then-existing Independent Board Members.
8. The Adviser will provide the Board, no less frequently than quarterly, with information about the profitability of the Adviser on a per Sub-Advised Series basis. The information will reflect the impact on profitability of the hiring or termination of any sub-adviser during the applicable quarter.
9. Whenever a sub-adviser is hired or terminated, the Adviser will provide the Board with information showing the expected impact on the profitability of the Adviser.
10. Whenever a sub-adviser change is proposed for a Sub-Advised Series with an Affiliated Sub-Adviser or a Wholly-Owned Sub-Adviser, the Board, including a majority of the Independent Board Members, will make a separate finding, reflected in the Board minutes, that such change is in the best interests of the Sub-Advised Series and its shareholders and does not involve a conflict of interest from which the Adviser or the Affiliated Sub-Adviser or Wholly-Owned Sub-Adviser derives an inappropriate advantage.
11. No Board member or officer of a Sub-Advised Series, or director or officer of the Adviser, will own directly or indirectly (other than through a pooled investment vehicle that is not controlled by such person), any interest in a Sub-Adviser, except: (1) For ownership of interests in the Adviser or any entity, except a Wholly-Owned Sub-Adviser, that controls, is controlled by, or is under common control with the Adviser; or (2) for the ownership of less than 1% of the outstanding securities of any class of equity or debt of a publicly-traded company that is either a Sub-Adviser or an entity that controls, is controlled by, or is under common control with a Sub-Adviser.
12. Each Sub-Advised Series will disclose the Aggregate Fee Disclosure in its registration statement.
13. In the event the Commission adopts a rule under the Act providing substantially similar relief to that requested in the application, the requested order will expire on the effective date of that rule.
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a Closed Meeting on Tuesday, July 2, 2013 at 11:00 a.m.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the Closed Meeting. Certain staff members who have an interest in the matters also may be present.
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(5), (7), 9(B) and (10) and 17 CFR 200.402(a)(5), (7), 9(ii) and (10), permit consideration of the scheduled matters at the Closed Meeting.
Commissioner Paredes, as duty officer, voted to consider the items listed for the Closed Meeting in a closed session.
The subject matter of the Closed Meeting scheduled for Tuesday, July 2, 2013 will be:
Institution and settlement of injunctive actions;
institution and settlement of administrative proceedings;
adjudicatory matters; and
other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact the Office of the Secretary at (202) 551–5400.
On April 5, 2013, the Fixed Income Clearing Corporation (“FICC”) filed with the Securities and Exchange Commission (“Commission”) an amended application on Form CA–1
On December 13, 1986, the Mortgage-Backed Securities Clearing Corporation (“MBSCC”) filed with the Commission a Form CA–1
The temporary registrations granted to MBSCC and GSCC exempted them from certain requirements imposed by Section 17A of the Act.
The Commission extended FICC's temporary registration on several occasions,
FICC, a wholly owned subsidiary of the Depository Trust & Clearing Corporation (“DTCC”), is the sole clearing agency in the United States acting as a central counterparty and provider of significant clearance and settlement services for cash-settled U.S. Treasury and agency securities and the non-private label mortgage-backed securities markets.
As the sole central counterparty in the United States for cash-settled U.S. government and agency securities, FICC/GSD provides clearing, netting, settlement, risk management, and a guarantee of trade completion for the following securities: (i) U.S. Treasury bills, notes, bonds, Treasury inflation-protected securities (TIPS), and Separate Trading of Registered Interest and Principal Securities (STRIPS), and (ii) Federal agency notes, bonds and zero-coupon securities that are book-entry, Fedwire eligible, and non-mortgage backed. FICC/GSD accepts buy-sell transactions, repurchase and reverse repurchase agreement transactions, and Treasury auction purchases in several types of U.S. Government securities.
As the sole central counterparty in the United States for the non-private label mortgage-backed securities market, FICC/MBSD provides clearing, netting, settlement, risk management, pool notification, and a guarantee of trade completion for pass-through mortgage-backed securities issued by the Government National Mortgage Association (“Ginnie Mae”), the Federal Home Loan Mortgage Corporation (“Freddie Mac”), and the Federal National Mortgage Association (“Fannie Mae”).
Section 17A of the Act directs the Commission—having due regard for the public interest, the protection of investors, the safeguarding of securities and funds, and the maintenance of fair competition—to use its authority to facilitate the establishment of a national system for the prompt and accurate clearance and settlement of securities transactions.
In 1980, the Commission published a statement of the views and positions that the Division of Trading and Markets
Section 17A(b)(3)(B) of the Act enumerates the following categories of persons that a clearing agency's rules must make eligible for membership: Registered brokers or dealers, registered clearing agencies, registered investment companies, banks, and insurance companies. While the Act requires that these entities must be eligible for membership, clearing agencies are permitted to establish additional admission criteria.
Section 17A(b)(4)(B) of the Act contemplates that a registered clearing agency will have financial responsibility, operational capability, experience, and competency standards that are used to accept, deny, or condition participation of any member or any category of members enumerated in Section 17A(b)(3)(B), but it also provides that these criteria may not be used to unfairly discriminate among applicants.
FICC/GSD has established each of the membership categories required by Section 17A, and also offers membership to certain other types of entities.
FICC has established requirements for applicants' financial resources, operational capacity, creditworthiness, and business experience. The financial requirements vary depending upon the nature of the applicant's business, the types of clearing services the applicant uses, and the accounting principles the applicant follows in preparing its audited financial statements.
FICC routinely monitors its members to ensure they adhere to FICC's membership requirements on an ongoing basis. In this regard, FICC requires members to provide it with interim and annual financial statements and, periodically, certain regulatory reports (
FICC has the authority to take action with respect to members that fail to maintain FICC's membership standards. A member that no longer satisfies FICC's membership requirements is subject to enhanced monitoring, increased clearing fund requirements, limitations on its access to FICC's services, and possible loss of membership privileges.
At the time of GSCC's initial temporary registration, the Commission granted GSCC exemptions from compliance with the participation standards of Section 17A(b)(3)(B) and 17A(b)(4)(B) because the Commission determined that GSCC rules did not provide for all the statutory categories of membership required under the Act or the financial standards for membership as contemplated by the Act.
FICC's current rules provide for membership for those entities enumerated in the statute and provide for robust financial and operational competency standards. By clearly denoting ongoing compliance obligations and setting forth the consequences for failing to meet those obligations, FICC's rules are designed to sufficiently protect the clearing agency from risk associated with not meeting those competency standards. In addition, FICC's rules are not designed to permit unfair discrimination in the admission of members or among members in the use of the clearing agency, nor do they impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Therefore, the Commission reaffirms its 2002 and 2012 findings and finds that FICC's membership standards are in compliance with the Act.
Section 17A(b)(3)(C) of the Act requires that the rules of a clearing agency assure fair representation of the clearing agency's members in the selection of the clearing agency's directors and in the administration of the clearing agency's affairs.
With respect to the selection of directors and the administration of the affairs of FICC, individuals elected to the DTCC Board of Directors are also elected to and constitute the Board of Directors of FICC (collectively, “Board”). The Board consists of between fifteen and twenty-five directors, as determined by the Board periodically.
FICC's rules require FICC/GSD and FICC/MBSD to provide members with copies of audited annual financial statements and an annual report on internal accounting controls.
In approving the merger of GSCC and MBSCC in 2002, the Commission determined that FICC satisfied the fair representation requirements of Section 17A of the Act by (i) continuing to give the members the right to purchase shares of DTCC common stock on a basis that reflects their usage of FICC's services;
Section 17A(b)(3)(A) of the Act provides that a clearing agency must be organized and have the capacity to enforce compliance by its members with the rules of the clearing agency.
FICC rules require members to notify FICC if they fail to maintain the relevant standards and qualifications for admission to membership, including minimum capital standards, operations testing and related reporting requirements.
FICC rules also set forth the clearing agency's right to discipline members for violations of any rules or member agreements, and for any error, delay, or other conduct that either constitutes an abuse or misuse of FICC's procedures or is detrimental to the clearing agency.
The rules of FICC/GSD and FICC/MBSD specify the due process protections to which members are entitled. These rules permit members accused of violations to request a hearing and require FICC to establish a panel to conduct such hearings.
In approving GSCC's and MBSCC's initial request for registration, the Commission reviewed the clearing agencies' ability to enforce their rules and reviewed the processes by which the clearing agencies imposed fines, expulsions, suspensions, limitation of or restrictions on activities, functions and operations, or other sanctions. In so doing, the Commission was satisfied that GSCC and MBSCC rules met statutory requirements to have the capacity to enforce their rules and fairly discipline their members.
The Commission continues to find that FICC has procedures for enforcing rules and disciplining members that are consistent with the requirements of the Act. Specifically, the Commission finds that FICC's rules provide it with appropriate authority to discipline members for rules violations and to impose each of the sanctions enumerated in the Act. Moreover, the Commission finds that FICC has established procedures to ensure members accused of rules violations receive notice of the alleged violations, and are afforded an opportunity to contest the allegations, including by requesting a hearing at which the accused member may be represented by counsel. In the Commission's view, these procedural safeguards are consistent with the protections envisioned by the Act. The Commission therefore concludes that FICC's capacity to enforce its rules and discipline its members comports with Section 17A(b)(3)(A), (G) and (H).
Sections 17A(b)(3)(A) and (F) of the Act
The Standards Release also enumerated certain requirements that should be met to comply with the Act, including that a clearing agency should: (i) Be organized in a manner that effectively establishes operational and audit controls while fostering director independence; (ii) have an audit
FICC maintains separate clearing funds for FICC/GSD and FICC/MBSD.
FICC calculates clearing fund requirements for cash-settled transactions at both FICC/GSD and FICC/MBSD assuming a three-day liquidation period in normal market conditions. The clearing fund requirement is calculated to provide FICC/GSD and FICC/MBSD with adequate clearing fund resources to withstand a default of the largest member 99 percent of the time in normal market conditions. FICC uses routine back and stress testing to monitor the sufficiency of clearing fund levels vis-à-vis the risk represented by the 99th percentile of expected possible losses from member portfolios and to monitor tail risk exposure that falls beyond the 99th percentile. FICC's stress tests include events from the last 10 years, as well as special stress events outside that period and hypothetical scenarios. FICC back-tests its clearing fund model on a monthly basis and has outside experts validate the model periodically.
FICC's methodology for calculating members' clearing fund requirements includes two principal components: (i) A Value at Risk (“VaR”) charge, which is calculated using a historical simulation with full revaluation; and (ii) a risk-related charge, known as a “coverage charge.”
All securities and cash associated with FICC's settlement processes and clearing fund are held in FICC's accounts at its two clearing banks, the Bank of New York Mellon and JPMorgan Chase Bank. FICC generally invests its cash in securities issued or guaranteed as to principal and interest by the United States or agencies and instrumentalities of the United States or in repurchase agreements related to securities issued or guaranteed as to principal and interest by the United States or agencies and instrumentalities of the United States. FICC's investment policy also permits investments in certificates of deposit or deposits in FDIC-insured banks, but limited to the level of FDIC insurance protection, and with a time to maturity of not greater than one year. FICC's investment policy also permits it to earn money market rates in interest bearing accounts with creditworthy banks and other financial institutions deemed acceptable by FICC consistent with its investment policy.
The risk of loss of invested funds is minimized in a number of ways. Investments are placed with well-capitalized financial institutions acting as principal rather than as agent, and maturity is limited to the next business day. FICC vets its counterparties for creditworthiness. FICC ensures that its reverse repo investments are fully secured by requiring collateral to have a market value greater than or equal to 102% of the cash invested. A written confirmation of each security underlying the repo is also required to be provided by the custodian bank. In addition to these risk-minimizing measures, counterparty credit limits are established for each investment type.
The rules of FICC/GSD and FICC/MBSD set out a loss allocation procedure, which is invoked if a defaulting member's clearing fund deposit is insufficient to cover losses incurred in the liquidation of the member's positions. If a member becomes insolvent, FICC would first use
The rules of FICC/GSD and FICC/MBSD place limits on their ability to use clearing fund deposits and assets. Specifically, the Divisions may use the clearing fund only to satisfy FICC's losses or liabilities arising from the failure of a member to satisfy an obligation to FICC, the failure of a member that is party to one of FICC's cross-guaranty or cross-margin agreements to satisfy an obligation to a counterparty that is also party to those agreements, or from unexpected or unusual requirements for funds incident to FICC's clearance and settlement business, provided these requirements represent a small percentage of the clearing fund.
DTCC maintains perpetually active in-region and out-of-region data centers, each of which has sufficient capacity to process the entire production workload so that any data center can function as the sole site if one or more data centers experience an outage. Capacity plans are reviewed annually by DTCC's Infrastructure Department and the Board, and FICC performs a stress test annually to determine daily capacity. DTCC's Operations and Technology Committee oversees the operational and technology capabilities that support FICC's businesses, as well as management's operation and development of technology infrastructure capabilities, technology resources, processes, and controls necessary to fulfill service delivery requirements.
DTCC's Audit Committee and internal audit department oversee audit matters for all DTCC entities, including FICC. The Audit Committee's primary responsibilities include supervising the preparation of financial reports, establishing and maintaining adequate internal controls, arranging and supervising internal and external audits, and overseeing the management of legal, compliance, and regulatory risk. The Audit Committee is composed of not less than four members, none of whom are employed by DTCC, and at least one of whom is not affiliated with a member of DTCC. The Audit Committee meets at least four times per year and reports to the Board regularly on its activities, including an annual self-assessment of its performance. DTCC's internal audit department reports directly to DTCC's Audit Committee
FICC provides to members annual audited financial statements prepared in accordance with U.S. Generally Accepted Accounting Principles to members within sixty days after the close of the fiscal year.
FICC retains an independent public accountant to evaluate FICC's system of internal accounting control with respect to the safeguarding of members' assets, the clearance and settlement of securities transactions, and the reliability of FICC's records. The evaluation is conducted in accordance with standards established by the American Institute of Certified Public Accountants and is made available to all members within a reasonable time upon receipt from FICC's independent accountant.
DTCC has multiple data center locations, including in-region and out-of-region sites. In-region sites use synchronous data replication between them, maintaining multiple exact copies of all production data in separate locations. Production processing is spread across the in-region data centers. The out-of-region site contains additional asynchronously replicated copies of in-region production data.
All data centers have emergency monitoring and backup systems, backup generators, and redundant telecommunications from multiple carriers. All sites have sufficient capacity to process FICC's entire workload independently. To guarantee continuous operation from multiple sites, DTCC decentralized its information technology and key business operations staff among in-region and out-of-region sites.
DTCC's SMART (Securely Managed and Reliable Technology) Network provides connectivity between DTCC and its customers and trading platforms.
As discussed above, FICC maintains a clearing fund based on a formula applicable to all users with a requirement that the lesser of $5,000,000 or 10 percent of the total required amount, with a minimum of $100,000, must be made and maintained in cash.
DTCC has dedicated capacity planning staff and ensures that FICC has sufficient capacity to meet operational needs and adequate controls over the review of capacity plans and operational and technological capabilities of FICC. DTCC maintains an Audit Committee composed of non-management directors and an internal audit department that reports periodically to it. FICC provides financial reports and internal control reports to members on a timely basis, and DTCC has adequate controls around the prevention of a loss of securities, funds, or data and proper recovery mechanism in the event of a loss of securities, funds, or data. The Commission finds that FICC is adequately organized and that its rules are designed both to promote the prompt and accurate clearance and settlement of securities transactions for which it is responsible and to safeguard securities and funds in its custody or control or for which it is responsible, as required by the Act.
Section 17A(b)(3)(F) of the Act requires that the rules of a clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions.
The Division has interpreted section 17A(b)(3)(F) to require a clearing agency to maintain a uniform standard of care in its obligations to members, and specifically that a clearing agency is responsible for delivering securities in its custody to, or as directed by, the members for whom such securities are held.
FICC's standard of care states in pertinent part, that “[FICC] will not be liable for any action taken, or any delay or failure to take any action, hereunder or otherwise to fulfill [FICC's] obligation to its members, other than for losses caused directly by [FICC's] gross negligence, willful misconduct, or violation of Federal securities laws for which there is a private right of action,” and that FICC will not be held liable for third party actions or omissions unless FICC was grossly negligent, engaged in willful misconduct, or in violation of Federal securities laws for which there is a private right of action against the third party.
The Commission has previously approved a standard of care for FICC's predecessors, MBSCC and GSCC, that limits their liability to direct losses caused by their gross negligence, willful misconduct, or violation of Federal securities laws for which there is a private right of action.
Sections 17A(b)(3)(D) and (E) of the Act require a clearing agency's rules to provide for the equitable allocation of reasonable dues, fees, and other charges among its members, and prohibit the rules of a clearing agency from imposing any schedule of prices, or fixing rates or other fees, for services rendered by its members.
The fees charged by FICC are generally usage-based and apply equally to all members using the relevant service. FICC does not impose any schedule of prices or fix rates or other fees for services rendered by its customers. Accordingly, the Commission is satisfied that the method by which FICC provides for the equitable allocation of reasonable dues, fees, and other charges among its members and its prohibitions regarding the fixing of prices of its members meet the Act's requirements.
FICC is currently subject to examination
The Commission concludes that FICC's rules, policies and procedures, as set forth in its application for permanent registration as a clearing agency, meet the requirements for such registration, including those standards set forth under Section 17A of the Act.
It is therefore
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its listing standard for Reverse Merger Companies set forth in Section 101(e) of the Exchange's Company Guide to harmonize with requirements imposed by the Nasdaq Stock Market (“Nasdaq”) and modify in one respect the circumstances under which a reverse merger company may be eligible to list under the rule.
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.
NYSE MKT proposes to amend its listing standard for Reverse Merger Companies set forth in Section 101(e) of the Exchange's Company Guide to harmonize with requirements imposed by Nasdaq and modify in one respect the circumstances under which a Reverse Merger Company may be eligible to list under the rule.
Section 101(e) of the Company Guide defines a Reverse Merger Company and establishes initial listing standards for Reverse Merger Companies.
The Exchange believes that the proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition. The proposed amendment may potentially increase the competition for the listing of Reverse Merger Companies, as it will eliminate a discrepancy between the applicable listing requirements of the Exchange and those of Nasdaq and therefore enable the Exchange to list Reverse Merger Companies that are currently qualified to list on Nasdaq but not on the Exchange.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii)
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the
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.
All submissions should refer to File Number SR–NYSEMKT–2013–37 and should be submitted on or before July 19, 2013.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The MSRB is filing with the Commission a proposed rule change consisting of amendments to MSRB Rules G–8, G–11 and G–32, and conforming changes to Form G–32 (the “proposed rule change”).
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The proposed rule change amends Rules G–8, G–11 and G–32 to include provisions specifically tailored for retail order periods. These provisions will establish basic protections for issuers and customers and provide additional tools to assist with the administration and examinations of retail order period requirements, as further described below under “Summary of Proposed Rule Change” and under “Discussion of Comments.”
The MSRB previously issued guidance to dealers on the subject of retail order periods. In 2010, the MSRB stated that Rule G–17 requires an underwriter to follow an issuer's directions in any applicable retail order period.
The MSRB believes that the proposed rule change is necessary in consideration of its mandate to protect municipal entities and investors. The proposed rule change addresses
To address these concerns, the proposed rule change establishes specific obligations on the senior syndicate manager to disseminate to the syndicate and selling group members detailed information about the terms and conditions of any retail order period. The proposed rule change also requires dealers to capture certain additional information in connection with orders placed under a retail order period designed to ensure that such orders are from
The MSRB proposed, but thereafter reconsidered a decision to issue interpretive guidance related to Rules G–17 and G–30 in connection with the proposed rule change. The proposed interpretive guidance, among other things, emphasized that during a retail order period, an issuer may require underwriters to make a
The proposed guidance also addressed pricing differentials, including that large differences between institutional and individual prices that exceed the price/yield variance that normally applies to transactions of different sizes in the primary market provide evidence that the duty of fair pricing to individual clients may not have been met. This statement repeated guidance previously provided by the MSRB.
The MSRB proposes to establish two separate implementation dates for the proposed rule change. The amendments to Rules G–11 and G–8, the core of the proposal, would be implemented six months after the SEC approval date to allow dealers sufficient time to make necessary software or systems modifications. It also would allow time for the MSRB to create educational materials, host webinars and conduct outreach to the dealer and issuer communities, as appropriate, regarding the new rules.
The second implementation date would relate to the amendments to Rule G–32 that require syndicate managers or sole underwriters to designate to EMMA whether a retail order period was conducted. The implementation date would be not later than March 31, 2014, or such earlier date to be announced by the MSRB in a notice published on the MSRB Web site with at least a thirty day advance notification prior to the effective date. This time frame would allow for the MSRB to design an automated system for dealers to report to the EMMA system. It would include approximately six months of lead time for Rule G–32 submitters to design automated interfaces and allow time for both Rule G–32 submitters and FINRA to test all of these changes.
Certain proposed rule changes are intended to be clarifying changes only and are not related to retail order periods, as further described below under “Summary of Proposed Rule Change.”
MSRB Rule G–11 addresses syndicate practices and management of the syndicate, and among other things, requires syndicates to establish priorities for different categories of orders and requires certain disclosures to syndicate members, which are intended to assure that allocations are made in accordance with those priorities.
The proposed addition of provisions addressing retail order periods necessitates several new definitions in Rule G–11. First, the term “retail order period” is defined in subparagraph (a)(vii) to mean an order period during which solely going away orders will be solicited solely from customers that meet the issuer's designated eligibility criteria. Second, the term “going away order” is defined in subparagraph (a)(xii) to mean an order for which a customer is already conditionally committed. Third, the term “selling group” is defined in subparagraph (a)(xiii) to mean a group of brokers, dealers, or municipal securities dealers formed for the purpose of assisting in the distribution of a new issue of municipal securities for the issuer other than members of the syndicate. Selling groups are sometimes included by issuers in the distribution of new issues of municipal securities to expand the distribution channel beyond the customers of syndicate members.
Rule G–11(f) requires that the senior syndicate manager furnish in writing to the other members of the syndicate a written statement of all terms and conditions required by the issuer. The proposed rule change expands these requirements to require expressly that such written statement must be delivered to selling group members and that the statement must include all of
Rule G–11(f) also provides that if a senior syndicate manager prepares the statement of all of the terms and conditions required by the issuer (including those related to the issuer's retail order period requirements), the statement must be provided to the issuer. The proposed rule change adds the requirement to obtain the approval of the issuer of any statement prepared by the senior syndicate manager. This approval must be secured in all cases and is not solely limited to those instances when a retail order period is conducted. The MSRB believes that it is important to ensure that an issuer is aware of, and agrees with, any requirements imposed on the syndicate and selling group members in its name.
New paragraph (k) requires any dealer placing an order during a retail order period to provide certain information to assist in the determination that such order is a
Under Rule G–8(a)(viii)(A), for each primary offering for which a syndicate has been formed for the purchase of municipal securities, the syndicate manager shall maintain a variety of records which show: the description and aggregate par value of the securities; the name and percentage of participation of each member of the syndicate; the terms and conditions governing the formation and operation of the syndicate; a statement of all terms and conditions required by the issuer (including whether there was a retail order period and the issuer's definition of “retail,” if applicable); all orders received for the purchase of the securities from the syndicate;
Under Rule G–8(a)(viii)(B), for each primary offering for which a syndicate has not been formed for the purchase of municipal securities, the sole underwriter shall maintain a variety of records which show: the description and aggregate par value of the securities; all terms and conditions required by the issuer (including whether there was a retail order period and the issuer's definition of “retail,” if applicable); all orders received for the purchase of the securities from the underwriter; all allotments of the securities and the price at which sold; those instances in which the underwriter accorded equal or greater priority over other orders to orders for its own account or its related accounts and the specific reason for doing so; the date and amount of any good faith deposit made to the issuer; and the date of settlement with the issuer. The proposed rule change to Rule G–8(a)(viii)(B) would add to the documentation that must be maintained in the files of the sole underwriter the information required by Rule G–11(k).
Generally, Rule G–32(b) provides detailed requirements for underwriters submitting documents or disclosure-related information to EMMA. Rule G–32(b)(vi)(C)(1)(a) provides that an underwriter must submit data such as CUSIP numbers, initial offering prices or yields, if applicable, the expected closing date for the transaction and whether the issuer or other obligated persons have agreed to undertake to provide continuing disclosure information as contemplated by Securities Exchange Act Rule 15c2–12. The proposed rule change to Rule G–32(b)(vi)(C)(1)(a) adds to the data that must be submitted a requirement that the underwriter report to the EMMA system (for solely regulatory purposes) whether a primary offering of securities included a retail order period and each
Rule G–11(h)(i) provides that discretionary fees for clearance costs to be imposed by a syndicate manager and management fees shall be disclosed to the syndicate members prior to submission of a bid. The proposed rule change would require the syndicate manager specifically to disclose to each syndicate member the
Rule G–32(a) provides requirements for the disclosure to customers of certain information in connection with primary offerings of municipal securities. Rule G–32(a)(i) provides, among other requirements, that no broker, dealer or municipal securities dealer shall sell, whether as a principal or agent, any offered securities to a customer unless such dealer delivers to the customer a copy of the official statement. The proposed rule change amends Rule G–32(a)(i) to clarify that all dealers, not just underwriters, are subject to the official statement delivery requirement of the rule during the primary offering disclosure period. This proposed change codifies the MSRB's long-standing position and would promote consistent application and reduce the number of interpretive questions surrounding this requirement.
Rule G–32(b)(v) provides that in the event a syndicate or similar account has been formed for the underwriting of a primary offering, the managing underwriter shall take the actions required under the provisions of the rule and shall also comply with the recordkeeping requirements of Rule G–8(a)(xiii)(B). Subsection (B) of Rule G–8(a)(xiii) addresses the recordkeeping requirements in the case of a primary offering in which a syndicate has
The MSRB believes that the proposed rule change is consistent with Section 15B(b)(2)(C) of the Act,
The proposed rule change is consistent with Section 15B(b)(2)(C) of the Act. As summarized above, the proposed rule change protects, among others, investors and municipal entities by establishing certain basic regulatory standards to support the use of retail order periods. It would prevent fraudulent and manipulative acts and practices by requiring additional representations and disclosures to support whether the orders placed during a retail order period meet the eligibility criteria for retail orders established by issuers. It also provides enhanced recordkeeping to assist regulators in determining whether the requirements of Rule G–11 are being met. By ensuring that a syndicate manager must communicate an issuer's requirements for the retail order period and other syndicate information to all dealers, including selling group members, the proposed rule change should also foster cooperation and coordination among all dealers engaged in the marketing and sale of new issue municipal securities. In addition, the proposed rule change should minimize the opportunities for misrepresentation of orders as “retail orders” by requiring that certain information about each order is submitted in writing to the syndicate manager or sole underwriter in sufficient time so that the information can be examined by issuers and their financial advisors before bonds are allocated to dealers.
The MSRB does not believe that the proposed rule change would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The MSRB solicited comment on the potential burdens of the proposed rule change in the most recent request for comment.
• Would the Revised Draft Proposal effectively further the MSRB's objective of protecting issuers and retail investors?
• Would any aspects of the Revised Draft Proposal have a negative effect on the protection of issuers, retail investors or the public interest, or on the fair and efficient operation of the municipal securities market?
• What would be the incremental additional burden, if any, to dealers resulting from the Revised Draft Proposal beyond the existing burden of compliance with Rule G–11?
• Are there alternative methods the MSRB should consider to providing the protections sought under the Revised Draft Proposal that would be more effective and/or less burdensome?
The specific comments and responses thereto are discussed below under “Discussion of Comments.” The MSRB believes that the proposed rule change will benefit issuers, individual investors and the municipal market by improving the fairness and effectiveness of retail order periods. Specifically, the benefits of the proposed rule change should accrue to those issuers who have decided to conduct retail order periods by providing greater assurance that bonds will in fact be marketed to those “retail” investors that issuers have determined should have the opportunity to compete to buy their bonds in the primary market. Retail investors will benefit from the proposed rule change because they will have greater access to bonds sold in the primary market. Dealers will benefit through improved management of primary offerings and enhanced communication by and among syndicate members and selling group members. Also, improvements to the order taking process as a result of the proposed rule change will foster greater accuracy and fairness and limit opportunities for abuse. Finally, the proposed rule change will benefit the municipal market because it provides regulators with the necessary tools and information to ensure compliance with retail order period requirements.
The MSRB could, as an alternative to the proposed rule change, determine to “wait and see” if earlier rulemaking related to retail order periods issued in 2010 and 2012
The MSRB also considered whether education and training of issuers and dealers was a suitable regulatory alternative. However, the MSRB concluded that a significant and uniform regulatory response is needed to efficiently and effectively address widespread concerns involving retail order period practices.
The MSRB recognizes that there are costs of compliance associated with the proposed rule change. The MSRB notes that the requirement to submit additional information about each order would apply equally to all dealers that participate in primary offerings that include retail order periods. At the present time, dealers routinely submit a number of details related to each order. Many dealers have utilized software platforms which can be modified to capture the newly required disclosures. Details about orders are reflected in a report created by the platform. The customer specific information required under the proposed rule change is consistent with the type of information dealers normally must obtain in performing appropriate diligence on a customer's order. The proposed rule change attempts to minimize the potential burden on dealers by allowing the required information about each order to be submitted electronically. Moreover, any dealer that believes that gathering this additional information is an undue burden does not need to participate in collecting orders for an issuer's retail order period. The burden on dealers to capture additional information on each customer order in a retail order period is balanced against the need for issuers to have confidence that orders placed during a retail order period are
The MSRB addressed concerns regarding the potential burdens to syndicate managers of auditing potentially large numbers of orders submitted to it by other dealers by expressly stating that a senior syndicate manager may rely upon the information furnished by each broker, dealer, or municipal securities dealer unless the senior syndicate manager knows, or has reason to know, that the information is not true, accurate or complete. The proposed rule change does not require that a syndicate manager undertake an exhaustive investigation of the disclosures about each order. Thus, the proposed rule change does not impose additional requirements on the senior syndicate manager other than those that would normally be required under principles of fair dealing that currently apply.
The recordkeeping requirements in Rule G–8 would be expanded under the proposed rule change to require the syndicate manager or sole underwriter to maintain all of the new documentation required as a result of amendments to Rule G–11. The MSRB believes that the maintenance of this basic information is necessary to ensure the integrity of the primary offering process in general and the retail order period in particular. These burdens are incremental in that under current Rule G–8, these parties are already required to maintain comprehensive records relating to each primary offering including all of the terms and conditions required by the issuer and whether there was a retail order period. Any reports produced electronically can be easily printed or saved and included in the deal file for easy retrieval.
Lastly, the amendments to Rule G–32 in the proposed rule change requiring the syndicate manager or sole underwriter to notify the MSRB of the date and time of each retail order period conducted presents only a modest, incremental burden to the existing requirements of Rule G–32, but provides significant regulatory value. Without this reporting requirement, neither the MSRB nor the examination authorities will have any notification of whether an offering contained a retail order period. To minimize the costs to dealers associated with this requirement, the MSRB would undertake to design an automated system for dealers to report to the EMMA system. The MSRB believes that it is reasonable to delay the implementation date for this part of the proposed rule change until such time as the automated system has been tested by the dealer community.
The MSRB notes that one issuer
The proposed rule change was developed with input from a diverse group of market participants. On October 2, 2012, the MSRB requested comment on a revised proposal on retail order periods under Rules G–11, G–8 and G–32 and a draft interpretive notice concerning the application of Rules G–17 and G–30 to retail order periods.
Two commenters recommended that either the MSRB or the syndicate should fix the length of the retail order period. Dorsey said that the syndicate should specify a time reasonably sensible in length and should include the pricing structure. NAIPFA suggested that the MSRB establish a fixed timeframe for the retail order period.
Edward Jones recommended that “meaningful notice of the retail order period” would include 24-hour notice with preliminary pricing terms (
BDA found that revisions to the guidance provided a helpful discussion of how prices and yields may legitimately differ on sales of the same security. Wells Fargo suggested that retail and institutional orders should not receive different pricing and Full Life was supportive of guidance that would discourage differences in pricing as between retail and institutional investors in the new issue market. GFOA and NAIPFA were not supportive of the guidance as it related to fair pricing because of concerns that it would hurt issuers and, in the long-term, retail customers may be forced from the market.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
On May 7, 2013, NASDAQ OMX BX, Inc. (“Exchange” or “BX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
BX Rule 2140(a) prohibits the Exchange or any entity with which it is affiliated from, directly or indirectly, acquiring or maintaining an ownership interest in, or engaging in a business venture with, an Exchange member or an affiliate of an Exchange member in the absence of an effective filing under Section 19(b) of the Act.
On May 1, 2012, BX filed a proposed rule change to permit the Exchange to accept inbound orders that NOS routes in its capacity as a facility of NASDAQ and PHLX on a pilot basis subject to certain limitations and conditions.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national
Recognizing that the Commission has expressed concern regarding the potential for conflicts of interest in instances where a member firm is affiliated with an exchange to which it is routing orders, the Exchange previously implemented limitations and conditions to NOS's affiliation with the Exchange to permit the Exchange to accept inbound orders that NOS routes in its capacity as a facility of NASDAQ and PHLX on a pilot basis.
• First, the Exchange and the Financial Industry Regulatory Authority (“FINRA”) maintain a Regulatory Contract, as well as an agreement pursuant to Rule 17d–2 under the Act (“17d–2 Agreement”).
• Second, FINRA monitors NOS for compliance with the Exchange's trading rules, and collects and maintains certain related information.
• Third, FINRA provides a report to the Exchange's chief regulatory officer (“CRO”), on a quarterly basis, that: (i) quantifies all alerts (of which the Exchange or FINRA is aware) that identify NOS as a participant that has potentially violated Commission or Exchange rules, and (ii) lists all investigations that identify NOS as a participant that has potentially violated Commission or Exchange rules.
• Fourth, the Exchange has in place BX Rule 2140(c), which requires NASDAQ OMX, as the holding company owning both the Exchange and NOS, to establish and maintain procedures and internal controls reasonably designed to ensure that NOS does not develop or implement changes to its system, based on non-public information obtained regarding planned changes to the Exchange's systems as a result of its affiliation with the Exchange, until such information is available generally to similarly situated Exchange members, in connection with the provision of inbound order routing to the Exchange.
The Exchange stated that it has met all the above-listed conditions. By meeting such conditions, the Exchange believes that it has set up mechanisms that protect the independence of the Exchange's regulatory responsibility with respect to NOS, and has demonstrated that NOS cannot use any information advantage it may have because of its affiliation with the Exchange.
In the past, the Commission has expressed concern that the affiliation of an exchange with one of its members raises potential conflicts of interest, and the potential for unfair competitive advantage.
The Exchange has proposed four ongoing conditions applicable to NOS's routing activities, which are enumerated above. The Commission believes that these conditions will mitigate its concerns about potential conflicts of interest and unfair competitive advantage. In particular, the Commission believes that FINRA's
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 MSRB is filing with the Commission a proposed rule change consisting of new Rule G–45, on reporting of information on municipal fund securities, and Form G–45, and amendments to Rules G–8, on books and records, and G–9, on preservation of records (the “proposed rule change”). The MSRB will designate an implementation date for the proposed rule change that is not earlier than one year from the date of SEC approval.
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Today, the MSRB collects certain information regarding 529 plans from underwriters and issuers. Just as it does for municipal securities that are not municipal fund securities, the MSRB's Electronic Municipal Market Access (“EMMA®”)
The proposed rule change will require dealers acting in the capacity of underwriters to submit to the MSRB, for the 529 plans they underwrite, on a semi-annual or, in the case of performance data, annual basis, certain information. The information includes plan descriptive information, assets, asset allocation information (at the investment option level), contributions, withdrawals, fee and cost structure, performance data, and other information. While some of the information, such as fees and costs, may be contained in plan disclosure documents submitted to EMMA, the information is not submitted in a manner that allows for analysis or comparison, since it is imbedded in static documents submitted in portable document format. The proposed rule change requires the information to be submitted electronically through new Form G–45, which is discussed in more detail below. The MSRB, and other regulatory authorities that are charged by statute with examining dealers for compliance with, and enforcing, MSRB rules, including the SEC and the Financial Industry Regulatory Authority (“FINRA”), will be able to utilize this information to analyze 529 plans, monitor their growth rate, size and investment options, and compare plans based on fees and costs and performance. By collecting this information, the MSRB will enhance its
At present, there is no central, reliable source for this information. While information vendors and an issuer-related association collect information regarding 529 plans, even assuming it would be the same information needed by the MSRB, the information submitted to these entities is done so voluntarily by 529 plan program managers or their affiliates or contractors. Consequently, it is not possible to confirm that all 529 plans will continue to submit information to these organizations or that all information requested will be provided. Further, it is not possible to test or otherwise confirm the accuracy of the information provided to these organizations. In short, the voluntary collection of limited 529 plan information by private organizations is not a substitute for actual data submitted by regulated dealers.
Since the creation of the earliest 529 plans, the MSRB has issued interpretive guidance regarding dealer obligations in connection with transactions in interests in 529 plans. On March 31, 2006, the MSRB filed with the Commission an interpretation on customer protection obligations relating to the marketing of interests in 529 plans (the “2006 Notice”).
At that time, the MSRB urged market participants to develop a more comprehensive and user-friendly system of established industry sources for the 529 plan market. An established industry source is considered by the MSRB to be one which provides a broad variety of information that professionals can and do use to obtain material information about municipal securities.
Given the complexity of 529 plans and their unique characteristics, such as individual state tax treatment, the MSRB urged market professionals to develop more comprehensive Web sites with features that would assist the general public in understanding the key terms and features of 529 plans.
On June 1, 2009, the MSRB implemented an electronic system for free public access to primary market disclosure documents through EMMA.
The proposed rule change will assist the MSRB and other regulators that, pursuant to Section 15B of the Act, perform examinations and other oversight activities of dealers and municipal advisors, by providing them with important information regarding 529 plans underwritten by dealers. For example, the information will enable the MSRB or other regulators to, on a comprehensive basis, compare the asset allocation, fees and costs, and performance of similar investment options across plans and identify trends or changes. Such information also may be used to determine the nature or timing of risk-based dealer examinations.
The information will be submitted to EMMA and retained in a database for regulatory use and will not, at this time, be disseminated publicly, though the MSRB's goal is to disseminate through EMMA the information that would be of benefit to investors. For example, the MSRB may display fee and expense or performance information on EMMA. Prior to such a public dissemination, the MSRB will file a proposed change to the EMMA or other facility with the SEC, and provide market participants with an opportunity to comment publicly on the proposal.
The proposed rule change will require each underwriter of a primary offering of municipal fund securities that are not interests in local government investment pools to report to the MSRB the information relating to such offering required by Form G–45 by no later than 60 days following the end of each semi-annual reporting period ending on June 30 and December 31 each year and in the manner prescribed in the Form G–45 procedures and as set forth in the Form G–45 Manual.
Originally, the MSRB proposed that the information be submitted within 30 days of the end of the reporting period.
The proposed rule change includes amendments to the MSRB's books and records rules to require underwriters obligated to submit information to the MSRB under proposed Rule G–45 to maintain the information required to be reported on Form G–45 for six years.
The information required by Form G–45 will be submitted electronically by underwriters, either through automated upload or through a web portal, at the discretion of the underwriter. In order to minimize the burden on underwriters, once the information is initially submitted, future submissions will be pre-populated with certain basic information on the electronic form. Form G–45 requires the submission of the following information:
•
•
•
The MSRB believes that the proposed rule change is consistent with Section 15B(b)(2)(C) of the Act,
The statute requires the MSRB to protect both investors and municipal entities. In fulfilling its responsibility, the MSRB must understand the market and possess basic, reliable information regarding individual 529 plans and their investment options. The proposed rule change will provide the MSRB with such information. The information will allow the MSRB to assess the impact of each plan on the market, evaluate trends and differences, and gain an understanding of the aggregate risk taken by investors by the allocation of assets in each investment option. Having this information will better position the MSRB to protect investors and the public interest.
Additionally, the MSRB has a statutory obligation to prevent fraudulent and manipulative acts and practices and to promote just and equitable principles of trade. Typically, underwriters of 529 plans draft or participate in drafting the plan
Finally, while commenters have suggested that underlying investments in 529 plans are typically registered investment companies regulated by the SEC and therefore oversight by the MSRB would be duplicative, the investment options are unique to 529 plans and are not regulated as registered investment companies by the SEC. It is therefore important that the MSRB collect information about 529 plan investment options.
The MSRB does not believe that the proposed rule change would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, since it would provide information necessary for the MSRB to carry out its regulatory responsibilities under the Act and would apply equally to all dealers that serve as underwriters of 529 plans. Moreover, the MSRB believes that such underwriters collect and retain the information required by the proposed rule change and utilize it for a variety of purposes, including reporting to issuers and other market participants. The information that the proposed rule change requires underwriters to submit to EMMA will be required to be submitted on an equal and non-discriminatory basis. As described above, the MSRB will realize substantial benefits in obtaining reliable, accurate information about 529 plans, promoting greater regulatory oversight and investor protection. In addition, the proposed rule change will not impose any burden on dealers that sell interests in 529 plans, as the obligation to submit information semi-annually to the MSRB will only be imposed on underwriters. On balance, the MSRB believes that the benefits of the proposed rule change greatly exceed any potential increased burden it imposes on dealers.
In the November Notice requesting comment on the proposed rule change, the MSRB explained that, in order to ease the burden on dealers, the proposed rule change “eliminate[d] the requirement to submit information on underlying investments and the requirement to submit the percentage of plan contributions derived from automatic contributions, based on comments that some plans do not track such information.” The November Notice also provided that “in order to facilitate the submission of information, the MSRB will take steps to pre-populate certain data fields on Form G–45, subsequent to the initial filing by underwriters.” As explained earlier, the MSRB made other substantive changes to the proposal to ease the burden on dealers, such as changing the reporting period from quarterly to semi-annually (except for performance, which would be reported annually), extending the reporting deadline from 30 days after the end of the reporting period to 60 days after the end of the reporting period, and conforming the reporting format for fees and performance to the Disclosure Principles No. 5. The MSRB believes these changes, taken together, reduce the reporting burden significantly.
Among the suggested alternatives to the proposed rule change are (a) a manual review of information in plan disclosure documents submitted to EMMA or on plan Web sites; or (b) a review of data supplied by information vendors voluntarily. Neither of these alternatives will satisfy the regulatory needs of the MSRB. A manual review of information would be insufficient because some of the information sought by the MSRB is not disclosed in public documents. For example, plans may not publish information on their assets, contributions, distributions, performance or benchmark performance at the investment option level. Moreover, monitoring EMMA and other Web sites for the publication of new information would be time consuming and inefficient. While information supplied by dealers to information vendors may be of interest, it is unreliable from a regulatory standpoint. Additionally, the MSRB would be relying on such information vendors for important regulatory information. On balance, the MSRB believes that semi-annual reporting of limited information, which is readily available to underwriters, will not pose an unreasonable burden on dealers.
On November 23, 2012, the MSRB issued a request for comment on a draft rule requiring underwriters to submit 529 plan data to the MSRB.
In response to the November Notice, the MSRB received eight letters that comment on the proposed rule change.
In terms of the implementation period and lag time for reporting information, two commenters suggest that the one year implementation period is too short and that 18 to 24 months is needed.
FRC also suggests that, based on its experience as an information vendor, the 60 day reporting deadline should be extended to 120 days. Interestingly, FRC collects 529 plan information quarterly and requests that its survey participants submit information within 30 days from the end of the quarter. Based on input from underwriters and other commenters, the MSRB believes that a 60 day deadline is appropriate. For example, SIFMA and ICI support a 60 day reporting deadline, as does CSPM for performance data, although it believes 30 days is sufficient for assets, contributions and distributions, according to comment letters submitted in response to the August Notice. Moreover, the Commission requires registered investment companies to file portfolio holding information within 60 days of the end of the reporting period on Form N–Q. Consequently, the MSRB believes the 60 day deadline is appropriate.
FRC recommends that the MSRB not collect information at all, or at least not at the investment option level, because data is sent to the MSRB by the commenter and some of the information is contained in plan disclosure documents submitted by underwriters to EMMA. While the MSRB appreciates the cooperation of this commenter in producing its reports voluntarily to the MSRB, the reports are no substitute for data mandated by rule, which can be validated through regulatory examination. Further, the receipt of information in a disclosure document is not equivalent to its receipt in electronic data fields. Finally, FRC suggests that the proposed rule change would raise the expenses of 529 plans and burden investors unnecessarily. It comments that the requirement for underwriters to submit data will entail additional costs, which may be passed onto the 529 plans, and indirectly, investors. The MSRB believes that the additional burden on underwriters of submitting readily available information semi-annually will be modest, compared with the benefit of obtaining reliable, accurate information to assist with its regulatory activities.
FRC suggests that the MSRB only has authority over “advisor-sold” plans and should only collect information regarding these plans. The distinction between “advisor-sold” plans and “direct-sold” plans is a marketing distinction that has no bearing on the jurisdiction of the MSRB. The MSRB's jurisdiction extends to dealers or municipal advisors with respect to all their municipal fund securities and municipal advisory activities. Consequently, underwriters of “direct-sold” and “advisor-sold” plans must submit information required by the proposed rule change to the MSRB.
Commenters
CSF also requests that plans be able to report fees as of the most recent offering document, since most plans issue offering documents once per year and proposed Rule G–45 would require semi-annual reporting. As CSF correctly notes, the proposed rule change requires semi-annual reporting of the fee and cost table. If the fees and costs have not changed since the most recent offering document, underwriters can simply insert the information from that offering document. If the fees and costs have changed, however, underwriters would be required to update the table to reflect those changes. In order to make it as easy as possible to submit information, the MSRB intends to pre-populate the electronic Form G–45 with certain information submitted previously by underwriters. For example, basic plan descriptive information will be pre-populated. Additionally, the fee and cost tables will be pre-populated. If there are no changes to the fee and cost table from the prior filing, underwriters need not make changes to the table.
ICI also requests that the MSRB make clear that, to the extent a plan does not separately compute and disclose one or more fees listed in the fee and cost tables, it should not require underwriters to artificially create such fees solely for purposes of Form G–45. The proposed rule change would not require underwriters to calculate and artificially segment fees for purposes of completing Form G–45. Rather, underwriters would simply report fees and costs as they are calculated and reported to account holders.
Several commenters state that only the underwriter or primary distributor should be required to file proposed Form G–45.
ICI notes that 529 plans have only one underwriter, the primary distributor, and that many other entities are involved in operating and maintaining a plan, such as the plan's program manager, record-keeper, investment manager, custodian and state sponsor. ICI suggests that none of these entities would qualify as an underwriter under the proposed rule. MSRB disagrees. Under SEC Rule 15c2–12(f)(8),
CSPN also notes that underwriters may not have the legal right to information transmitted by selling dealers to a plan's record-keeper because they are not, in some instances, acting as the plan's record-keeper and therefore do not have access to or control such information. In essence, CSPN contends that these underwriters serve a very limited function and do not receive information from selling dealers about transactions in 529 plan accounts. The proposed rule change will only require underwriters to produce information that they possess or have a legal right to obtain, such as information in the possession of an underwriter's subcontractor. ICI acknowledges that it would be appropriate to require production of such information: “[ICI] concurs that it is appropriate to require a plan's underwriter to report information it owns or controls even if the underwriter has delegated responsibility for collecting or maintaining the information to another entity.” The MSRB believes that, in most cases, the record-keeper will be an underwriter or a subcontractor of an underwriter. Although selling dealers will have no obligation to submit information to the MSRB under the proposed rule change, those selling dealers that enter into omnibus accounting arrangements with program managers or others will transmit information to underwriters or their subcontractors that must be included in the information submitted to the MSRB. Depository Trust & Clearing Corporation (“DTCC”) and its affiliate, National Securities Clearing Corporation (“NSCC”) worked with an industry group to modify the 529 plan aggregation file produced by NSCC to include 529 plan daily activity and position changes, so that a nightly file may be transferred to the program manager or others showing all activity and positions in 529 plan accounts for which the selling dealer performs accounting services. In an omnibus accounting arrangement, the selling dealer places purchase and sale orders in an aggregated fashion on behalf of the dealer and maintains records of individual account holder purchases and sales through subaccounts. Through this arrangement, orders are placed in an omnibus manner and do not identify the underlying account owners or beneficiaries. Nevertheless, the MSRB believes that underwriters have possession or the legal right to the 529 aggregation files and, therefore, have information regarding all activity and positions in the 529 plans they underwrite. The MSRB further understands that DTCC/NSCC created the 529 aggregation files at the request of the program managers and state sponsors because they must have information regarding each customer subaccount in order to monitor the contributions and withdrawals so that no beneficiary accumulates more funds in an account than is permitted by the Internal Revenue Service under the Internal Revenue Code. Consequently, the MSRB understands that underwriters have information as to customer activity and positions, notwithstanding the omnibus accounting arrangements entered into by certain selling dealers.
Finally, commenters
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than August 27, 2013. Individuals can obtain copies of the collection instruments by writing to the above email address.
Sections 223(d)(5)(A) and 1631(e)(1) of the Social Security Act (Act) require Supplemental Security Income (SSI) claimants to furnish medical and other evidence proving they are disabled. SSA uses Form SSA–3820 to collect various types of information about a child's condition from treatment sources or other medical sources of evidence. State Disability Determination Services evaluators use the information Form SSA–3820 provides to develop medical and school evidence, and to assess the alleged disability. The information, together with medical evidence, forms the evidentiary basis upon which SSA makes its initial disability evaluation. The respondents are claimants seeking SSI childhood disability payments.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than July 29, 2013. Individuals can obtain copies of the OMB clearance packages by writing to
1. Report to United States Social Security Administration by Person Receiving Benefits for a Child or for an Adult Unable to Handle Funds; Report to United States Social Security Administration—0960–0049. Section 203(c) of the Act requires the Commissioner of SSA to make benefit deductions from the following categories: (1) Entitled individuals who engage in remunerative activity outside of the United States in excess of 45 hours a month, and (2) beneficiaries who fail to have in their care the specified entitled child beneficiaries. SSA uses the information Forms SSA–7161–OCR–SM and SSA–7162–OCR–SM provide to: (1) Determine continuing entitlement to Social Security benefits; (2) correct benefit amounts for beneficiaries outside the United States; and (3) monitor the performance of representative payees outside the United States. The respondents are
2. Cost Reimbursable Research Request—20 CFR 401.165—0960–0754. Qualified researchers need SSA administrative data for a variety of projects. To request SSA's program data for research, we require the researcher to submit a completed research application, Form SSA–9901 (How to Request SSA Program Data for Research) for SSA's evaluation. In the application, the requesting researcher provides basic project information and describes the way in which the proposed project will further SSA's mission to promote the economic security of the Nation's people through its administration of the Old Age, Survivors, and Disability Insurance programs, or the SSI program. SSA reviews the application, and once we approve it, the researcher signs Form SSA–9903, (SSA Agreement Regarding Conditions for Use of SSA Data), which outlines the conditions and safeguards for the research project data exchange. If the researcher uses the data for research and statistical purposes only, we require them to complete Form SSA–9902, (Confidentiality Agreement). SSA recovers all expenses incurred in providing this information as part of this reimbursable service. The respondents are Federal and State government agencies or their contractors, private entities, and colleges and universities.
3. Government-to-Government Services Online Web site Registration; Government-to-Government Services Online Web site Account Modification/Deletion Form—20 CFR 401.45—0960–0757. The Government-to-Government Services Online (GSO) Web site allows various external organizations to submit files to a variety of SSA systems and, in some cases, receive return files. The users include State and local government agencies, other Federal agencies, and some private sector business entities. The SSA systems that process data transferred via GSO include, but are not limited to, systems responsible for disability processing and benefit determination or termination. SSA uses the information on Form SSA–159 (GSO Web site Registration Form) to maintain the identity of the requestor within GSO. The organization can also modify its online account (e.g., address change) by completing Form SSA–160 (GSO Web site Account Modification/Deletion Form). Respondents are State and local government agencies, and private sector businesses.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or
SSA submitted the information collections below to OMB for clearance. Your comments regarding the information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than July 29, 2013. Individuals can obtain copies of the OMB clearance packages by writing to
1. Application for Lump Sum Death Payment—20 CFR 404.390–404.392—0960–0013. SSA uses Form SSA–8–F4 to collect information needed to authorize payment of the lump sum death payment (LSDP) to a widow, widower, or children as defined in section 202(i) of the Social Security Act (Act). Respondents complete the application for this one-time payment via paper form, telephone, or during an in-person interview with SSA employees. Respondents are applicants for the LSDP.
This is a correction notice: SSA published the incorrect burden information for this collection at 78 FR 21183, on 4/09/13. We are correcting this error here.
2. Request for Earnings and Benefit Estimate Statement—20 CFR 404.810—0960–0466. Section 205(c)(2)(A) of the Act allows the Commissioner of SSA to establish and maintain records of wages paid to, and amounts of self-employment income derived by, each individual as well as the periods in which such wages were paid and such income derived. An individual may complete and mail Form SSA–7004 to SSA to obtain a Statement of Earnings or Quarters of Coverage. SSA uses the information Form SSA–7004 collects to identify respondents' Social Security earnings records, extract posted earnings information, calculate potential benefit estimates, produce the resulting Social Security statements, and mail them to the requesters. The respondents are Social Security number holders requesting information about their Social Security earnings records and estimates of their potential benefits.
3. Questionnaire About Special Veterans Benefits—0960–0782. SSA regularly reviews individuals' claims for Special Veterans Benefits (SVB) to determine their continued eligibility and the correct payment amounts owed to them. Individuals living outside the United States receiving SVB must report to SSA any changes that affect their benefits, such as (1) a change in mailing address or residence; (2) an increase or decrease in a pension, annuity or other recurring benefit; (3) a return or visit to the United States for a calendar month or longer; and (4) an inability to manage benefits. SSA uses Form SSA–2010, Questionnaire About Special Veterans Benefits, to collect this information. Respondents are beneficiaries living outside the United States collecting SVB.
In accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended (“the Order”), I hereby determine that the individual known as Nayif Bin-Muhammad al-Qahtani, also known as Nayif Bin-Muhammad al-Qahtani, also known as Nayef Bin Muhammad al-Qahtani, also known as Nayif Muhammad al-Qahtani, also known as Nayf Mohammed al-Qahtani, also known as Mohammad Said al-Qahtani Alkodri, also known as Naif Mohammed Saeed al-Kodari al-Qahtani, also known as Nayef Bin Mohamed al-Khatani, also known as Mohammed Naif al-Khatani, also known as Nayef bin Mohamed al-Khatany, also known as Al-Qahtani Abohemem, also known as Abi Hamam, also known as Abu-Hamam, also known as Abu-Humam, also known as Abu-Hammam, also known as Abu Hammam al-Qahtani, no longer meets the criteria for designation under the Order, and therefore I hereby revoke the designation of the aforementioned individual as a Specially Designated Global Terrorist pursuant to section 1(b) of the Order.
This notice shall be published in the
In accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended (“the Order”), I hereby determine that the individual known as Eric Breininger, also known as Abdul-Gaffar, also known as Abdulgaffar el Almani, no longer meets the criteria for designation under the Order, and therefore I hereby revoke the designation of the aforementioned individual as a Specially Designated Global Terrorist pursuant to section 1(b) of the Order.
This notice shall be published in the
Federal Aviation Administration (FAA), DOT.
Notice of Availability.
The FAA is issuing this notice to advise the public that a Written Re-Evaluation and Record of Decision (ROD) for an Environmental Impact Statement has been prepared for Theodore Francis Green Airport in Warwick, Rhode Island.
Richard Doucette, Environmental Program Manager, Federal Aviation Administration New England, 12 New England Executive Park, Burlington, MA 01803, (781) 238–7613, or at
The FAA has issued a Written Re-Evaluation and Record of Decision, which evaluates an updated noise mitigation program at Theodore Francis Green Airport in Warwick, Rhode Island. The Re-Evaluation and ROD is available for review during normal business hours at the following locations:
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; granting of application for exemption.
FMCSA announces the granting of an exemption of 55 member-companies of the American Pyrotechnics Association (APA) from FMCSA's regulation prohibiting drivers of commercial motor vehicles (CMVs) from driving after the 14th hour after coming on duty. The FMCSA renews the exemption for 45 APA member-companies and grants 10 additional carriers coverage by the exemption, which is applicable during the periods June 28–July 8, 2013, and June 28–July 8, 2014, inclusive. The requested renewal of the exemption for one motor carrier is being denied. Additionally, the APA advised FMCSA of the removal from the original renewal application of two companies that are no longer in business or no longer members of the APA. The original application was for 58 carriers; two were removed by APA and one denied by FMCSA, leaving 55 carriers being granted the exemption. Drivers who operate these CMVs in conjunction with staging fireworks shows celebrating Independence Day will be allowed to exclude off-duty and sleeper-berth time of any length from the calculation of the 14 hours. These drivers will continue to be subject to a prohibition from driving after accumulating 14 hours on duty, the 11-hour driving time limit, and the 60- and 70-hour limits. FMCSA believes that with the terms and conditions in place, APA-member motor carriers will maintain a level of safety that is equivalent to, or greater than, the level of safety that would be obtained by complying with the regulation.
This exemption is effective during the periods of June 28 (12:01 a.m.) through July 8, 2013 (11:59 p.m.)
Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division, Office of Bus and Truck Standards and Operations, Telephone: 202–366–4325. Email:
The hours-of-service (HOS) rule in 49 CFR 395.3(a)(2) prohibits a property-carrying CMV driver from driving a CMV after the 14th hour after coming on duty following 10 consecutive hours off duty. Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption from the HOS requirements in 49 CFR 395.3(a)(2) for a 2-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The procedures for requesting an exemption (including renewals) are prescribed in 49 CFR part 381.
The APA, a trade association representing the domestic fireworks industry, applied for an exemption in 2004. Various APA members have held 2-year exemptions during Independence Day periods from 2005 through 2012. The last exemption, for 45 of its members, expired on July 9, 2012. The current application covers 45 members that previously held exemptions and 10 additional member-companies. The original application was for 58 carriers with two removed by APA and one denied by FMCSA; 55 carriers are being granted the exemption.
The initial APA exemption application for relief from the 14-hour rule was submitted in 2004; a copy of the application is in the docket. That application fully describes the nature of the pyrotechnic operations during a typical Independence Day period.
The CMV drivers employed by APA member-companies are trained pyrotechnicians who hold commercial driver's licenses (CDLs) with hazardous materials (HM) endorsements. They transport fireworks and related equipment by CMVs on a very demanding schedule during a brief Independence Day period, often to remote locations. After they arrive, the drivers are responsible for set-up and staging of the fireworks shows.
The APA states that it is seeking an HOS exemption for the 2013 and 2014 Independence Day periods because compliance with the current 14-hour rule in 49 CFR 395.3(a)(2) by its members would impose a substantial economic hardship on numerous cities, towns and municipalities, as well as its member-companies. To meet the demand for fireworks shows under the current HOS rules, APA member-companies state that they would be required to hire a second driver for most trips. The APA advises that the result would be a substantial increase in the cost of the fireworks shows—beyond the means of many of its members' customers—and that many Americans would be denied this important component of the celebration of Independence Day. The 55 APA member-companies within the scope of this exemption approval are listed in an appendix to this notice. A copy of the request for the exemption is included in the docket referenced at the beginning of this notice.
The APA believes that renewal of the exemption for previously exempt carriers and the granting of relief for new carriers will not adversely affect the safety of the fireworks transportation provided by these motor carriers. According to APA, its member-companies have operated under this exemption for eight previous Independence Day periods without a reported motor carrier safety incident. Moreover, it asserts, without the extra duty-period time provided by the exemption, safety would decline because APA drivers would be unable to return to their home base or other safe location after each show. They would be forced to park the CMVs carrying HM 1.1G, 1.3G and 1.4G products in areas less secure than the motor carrier's home base. As a condition of holding the exemption, each motor carrier would be required to notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5) involving the operation of any its CMVs while under this exemption. To date, FMCSA has received no accident notifications, nor is the Agency aware of any accidents reportable under terms of the prior APA exemptions.
In its exemption request, APA asserted that the operational demands of this unique industry minimize the risk of CMV crashes. In the last few days before the 4th of July, these drivers transport fireworks over relatively short routes from distribution points to the site of the fireworks display, and normally do so in the early morning when traffic is light. At the site, they spend considerable time installing, wiring, and safety-checking the fireworks displays, followed by several hours off duty in the late afternoon and early evening prior to the event. During this time, the drivers are able to rest and nap, thereby reducing or eliminating the fatigue accumulated during the day. Before beginning another duty day, these drivers must take 10 consecutive hours off duty, the same as other CMV drivers. FMCSA believes that these APA operations conducted under the terms and conditions of this limited exemption will provide a level of safety that, at a minimum, is equivalent to the level of safety achieved without the exemption.
On May 7, 2013, FMCSA published notice of this application, and asked for public comment (78 FR 26690). One set of comments was received. Advocates for Highway and Auto Safety (Advocates) opposed the exemption from the HOS regulations. Their comments are available for review in the docket for this notice.
Advocates objected to this exemption on various grounds: (1) Advocates opposes the issuance of
Prior to publishing the
Because each company is listed in the notice seeking public comment, and each company's safety performance record is reviewed by the Agency, there is no merit to Advocates' argument. FMCSA views Advocates' comments about blanket exemptions versus individual exemptions as a distinction without a substantive difference. Each carrier is listed and subject to the notice-and-comment process, and any individual carrier could be denied based on public comments and/or FMCSA's assessment. Therefore, the only entity potentially adversely affected by a lengthy process would be an applicant. FMCSA recognizes no potential harm to the public due to the current process. To the contrary, processing an application of this type too far in advance of the relevant event could result in the status of the applicants having changed between the time of the records review and the effective date of the exemption.
With regard to Advocates' suggestion that APA members should have developed alternative means to comply with the HOS regulations without an exemption, FMCSA does not believe reasonable alternatives are necessarily available in many locations. Such alternatives would include locating additional drivers with CDLs and HM endorsements. This is difficult for part-time, holiday-specific work. CDL holders with HM endorsements are likely to be in high demand, given the Transportation Security Administration requirements for a security threat analysis for such drivers. And, as indicated in this notice and APA's application, potential alternatives could drive the cost of the fireworks displays beyond the financial capabilities of many communities.
With regard to the security of alternative storage locations following a fireworks “shoot,” many sites do not provide security following a display and may require all vehicles to depart the area. Arrangements can be made for the next community at which a display is planned to begin their access and security upon the planned arrival of the fireworks team.
The FMCSA has evaluated APA's application, the safety records of the companies to which the exemption would apply, and the public comments. The Agency believes that APA member-companies will likely achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption [49 CFR 381.305(a)], and grants the requested exemption to the 55 APA member-companies listed in an appendix to this notice.
The exemption requested for one carrier is denied: Arthur Rozzi Pyrotechnics (Rozzi), Maineville, OH, USDOT 2008107. Rozzi is subject to an open investigation and enforcement action by PHMSA, involving violations of the Hazardous Materials Regulations. Under the circumstances, it would be inappropriate to grant Rozzi an exemption.
The requested exemption from the requirements of 49 CFR 395.3(a)(2) is effective during the periods of June 28 (12:01 a.m.) through July 8, 2013 (11:59 p.m.) and from June 28 (12:01 a.m.) through July 8, 2014 (11:59 p.m.). The exemption will expire on July 8, 2014, at 11:59 p.m. local time.
This exemption is restricted to the 55 motor carriers listed in the appendix to this notice and their CMV drivers. The drivers are provided a limited exemption from the requirements of 49 CFR 395.3(a)(2). This regulation prohibits a driver from driving a CMV after the 14th hour after coming on duty and does not permit off-duty periods to extend the 14-hour limit. Drivers covered by this exemption may exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour limit. This exemption is contingent on each driver driving no more than 11 hours in the 14-hour period after coming on duty as extended by any off-duty or sleeper-berth time in accordance with this exemption. The exemption is further contingent on each driver having a minimum of 10 consecutive hours off duty prior to beginning a new duty period. The carriers and drivers must comply with all other applicable requirements of the Federal Motor Carrier Safety Regulations (49 CFR parts 350–399) and Hazardous Materials Regulations (49 CFR parts 105–180).
This exemption is contingent upon each carrier maintaining USDOT registration, a Hazardous Materials Safety Permit (if required), minimum levels of public liability insurance, and not being subject to any “imminent hazard” or other out-of-service (OOS) order issued by FMCSA. Each driver covered by the exemption must maintain a valid CDL with required endorsements, not be subject to any OOS order or suspension of driving privileges, and meet all physical qualifications required by 49 CFR part 391.
During the periods the exemption is in effect, no State may enforce any law or regulation that conflicts with or is inconsistent with this exemption with respect to a person or entity operating under the exemption (49 U.S.C. 31315(d)).
Exempt motor carriers must notify FMCSA within 5 business days of any accidents (as defined by 49 CFR 390.5) involving the operation of any of its CMVs while under this exemption. The notification must include the following information:
a. Date of the accident,
b. City or town, and State, in which the accident occurred, or which is closest to the scene of the accident,
c. Driver's name and driver's license number,
d. Vehicle number and State license number,
e. Number of individuals suffering physical injury,
f. Number of fatalities,
g. The police-reported cause of the accident,
h. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations, and
i. The total driving time and the total on-duty time of the CMV driver at the time of the accident.
The FMCSA does not believe the motor carriers and drivers covered by this exemption will experience any deterioration of their safety record. However, should this occur, FMCSA will take all steps necessary to protect the public interest, including revocation of the exemption. The FMCSA will immediately revoke the exemption for failure to comply with its terms and conditions.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 29, 2013.
Comments should refer to docket number MARAD–2013–0076. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel MISTRESS MALLIKA is:
The complete application is given in DOT docket MARAD–2013–0076 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 29, 2013.
Comments should refer to docket number MARAD–2013–0078. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel OLIVIA is:
The complete application is given in DOT docket MARAD–2013–0078 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Notice.
As authorized by 46 U.S.C. 12121, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before July 29, 2013.
Comments should refer to docket number MARAD–2013–0079. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Linda Williams, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–0903, Email
As described by the applicant the intended service of the vessel SEA BREEZE 27 is:
Geographic Region: “Ohio”.
The complete application is given in DOT docket MARAD–2013–0079 at
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By Order of the Maritime Administrator.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of modification of a temporary exemption from a provision of Federal Motor Vehicle Safety Standard (FMVSS) No. 208,
This notice modifies the temporary exemption granted to Group Lotus plc (Lotus) on March 8, 2013. The agency granted Lotus an exemption from the higher maximum speed (56 km/h (35 mph)) belted test requirement using 5th percentile adult female dummies for the front passenger position of its Evora model for the period from March 8, 2013 to March 8, 2014. The agency is modifying the dates of the exemption to account for vehicles Lotus manufactured before the exemption went into effect.
NHTSA Temporary Exemption No. EX–13–01 granted to Lotus is modified to include vehicles imported on or after November 7, 2012. The termination date of the exemption is modified to be November 7, 2013.
David Jasinski, Office of the Chief Counsel, NCC–112, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., West Building 4th Floor, Room W41–326, Washington, DC 20590. Telephone: (202) 366–2992; Fax: (202) 366–3820.
On March 8, 2013, NHTSA published in the
After publication of Lotus's exemption, Lotus informed the agency of the existence of 51 vehicles that were
For the purpose of FMVSS No. 208 compliance, these vehicles are identical to those manufactured prior to September 1, 2012 and after March 8, 2013. However, the vehicles are not certified to be compliant with the standards in effect as of the date they were actually manufactured, which include the higher speed belted test requirement using the 5th percentile adult female dummy. Moreover, the exemption that NHTSA granted to Lotus would not apply to these vehicles because they were manufactured before March 8, 2013.
Lotus has agreed to pay a civil penalty for alleged violations of 49 USC 30112(a).
Having found that Lotus's exemption was based on incorrect information, the agency has the authority to modify or terminate Lotus's temporary exemption.
The 50 vehicles will count toward the 450 vehicle limit under the exemption. Because these 50 vehicles are now covered by an exemption, Lotus must ensure that they are labeled with the correct date of manufacture and statements required by 49 CFR 555.9 for exempted vehicles.
The agency's determination that a one-year exemption is appropriate under the circumstances has not changed. Thus, in addition to applying the exemption retroactively to 50 vehicles, the agency has also modified the termination date of the exemption so that the exemption granted is not longer than one year. The exemption will now apply to vehicles manufactured through November 7, 2013.
Based on the foregoing and pursuant to 49 CFR 555.8(d), the Administrator finds that NHTSA Temporary Exemption No. EX 13–01, granted to Lotus from S14.7 of 49 CFR 571.208 for the front passenger seat of its Evora model was based on incorrect information. Accordingly, the exemption is modified to include vehicles imported on or after November 7, 2012. The exemption is also modified to terminate on November 7, 2013.
49 U.S.C. 30113; 49 CFR 1.95, 555.8.
Bureau of the Fiscal Service, Treasury.
Notice.
For the period beginning July 1, 2013, and ending on December 31, 2013, the prompt payment interest rate is 1
Comments or inquiries may be mailed to Sam Doak, Reporting Team Leader, Federal Borrowings Branch, Division of Accounting Operations, Office of Public Debt Accounting, Bureau of the Fiscal Service, Parkersburg, West Virginia, 26106–1328. A copy of this Notice is available at
Effective July 1, 2013, to December 31, 2013.
Adam Charlton, Manager, Federal Borrowings Branch, Office of Public Debt Accounting, Bureau of the Fiscal Service, Parkersburg, West Virginia 26106–1328, (304) 480–5248; Sam Doak, Reporting Team Leader, Federal Borrowings Branch, Division of Accounting Operations, Office of Public Debt Accounting, Bureau of the Fiscal Service, Parkersburg, West Virginia 26106–1328, (304) 480–5117; or Elisha S. Garvey, Attorney-Advisor, Office of the Chief Counsel, Bureau of the Fiscal Service, (202) 504–3715.
An agency that has acquired property or service from a business concern and has failed to pay for the complete delivery of property or service by the required payment date shall pay the business concern an interest penalty. 31 U.S.C. 3902(a). The Contract Disputes Act of 1978, Sec. 12, Public Law 95–563, 92 Stat. 2389, and the Prompt Payment Act, 31 U.S.C. 3902(a), provide for the calculation of interest due on claims at the rate established by the Secretary of the Treasury.
The Secretary of the Treasury has the authority to specify the rate by which the interest shall be computed for interest payments under section 12 of the Contract Disputes Act of 1978 and under the Prompt Payment Act. Under the Prompt Payment Act, if an interest penalty is owed to a business concern, the penalty shall be paid regardless of whether the business concern requested payment of such penalty. 31 U.S.C. 3902(c)(1). Agencies must pay the interest penalty calculated with the interest rate, which is in effect at the
Therefore, notice is given that the Secretary of the Treasury has determined that the rate of interest applicable for the period beginning July 1, 2013, and ending on December 31, 2013, is 1
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (“OFAC”) is publishing the name of one (1) individual newly-designated as a person whose property and interests in property are blocked pursuant to Executive Order 13553 of September 28, 2010, “Blocking Property of Certain Persons With Respect to Serious Human Rights Abuses by the Government of Iran and Taking Certain Other Actions.”
The designation by the Director of OFAC of the individual identified in this notice, pursuant to Executive Order 13553 of September 28, 2010, is effective May 30, 2013.
Assistant Director, Sanctions Compliance and Evaluation, Office of Foreign Assets Control, Department of the Treasury, Washington, DC 20220, Tel.: 202/622–2490.
This document and additional information concerning OFAC are available from OFAC's Web site (
On September 28, 2010, the President issued Executive Order 13553, “Blocking Property of Certain Persons With Respect to Serious Human Rights Abuses by the Government of Iran and Taking Certain Other Actions” (the “Order”) pursuant to,
Section 1 of the Order blocks, with certain exceptions, all property and interests in property that are in the United States, that come within the United States, or that are or come within the possession or control of any United States person, of persons listed in the Annex to the Order and of persons determined by the Secretary of the Treasury, in consultation with or at the recommendation of the Secretary of State, to meet any of the criteria set forth in the Order.
The Annex to the Order listed eight individuals whose property and interests in property are blocked pursuant to the Order.
On May 30, 2013, the Director of OFAC, in consultation with or at the recommendation of the Secretary of State, designated, pursuant to one or more of the criteria set forth in subparagraphs (a)(ii)(A) through (a)(ii)(C) of Section 1 of the Order, one (1) individual whose property and interests in property are blocked, pursuant to the Order.
The listing for this individual is as follows:
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, 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, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning, (TD 7533, Disc Rules on Procedure and Administration; Rules on Export Trade Corporations), and (TD 7896, Income From Trade Shows).
Written comments should be received on or before August 27, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Martha R. Brinson, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–3869, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, 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, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning, General Asset Accounts under the Accelerated Cost Recovery System.
Written comments should be received on or before August 27, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the regulations should be directed to Martha R. Brinson, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or at (202) 622–3869, or through the Internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, 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, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning Form 8655, Reporting Agent Authorization.
Written comments should be received on or before August 27, 2013 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, (202) 622–3869, or at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington DC 20224, or through the Internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Food and Nutrition Service, USDA.
Interim final rule.
This interim final rule amends the National School Lunch Program and School Breakfast Program regulations to establish nutrition standards for all foods sold in schools, other than food sold under the lunch and breakfast programs. Amendments made by Section 208 of the Healthy, Hunger-Free Kids Act of 2010 (HHFKA) require the Secretary to establish nutrition standards for such foods, consistent with the most recent Dietary Guidelines for Americans, and directs the Secretary to consider authoritative scientific recommendations for nutrition standards; existing school nutrition standards, including voluntary standards for beverages and snack foods; current State and local standards; the practical application of the nutrition standards; and special exemptions for infrequent school-sponsored fundraisers (other than fundraising through vending machines, school stores, snack bars, à la carte sales and any other exclusions determined by the Secretary). In addition, this interim final rule requires schools participating in the National School Lunch Program and School Breakfast Program to make potable water available to children at no charge in the place where lunches are served during the meal service, consistent with amendments made by section 203 of the HHFKA, and in the cafeteria during breakfast meal service. This interim final rule is expected to improve the health and well-being of the Nation's children, increase consumption of healthful foods during the school day, and create an environment that reinforces the development of healthy eating habits.
1. The
2. All other provisions of this interim final rule must be implemented beginning on July 1, 2014.
The Food and Nutrition Service (FNS), United States Department of Agriculture (USDA or Department), invites interested persons to submit written comments on this interim final rule. To be considered for this rulemaking, written comments must be submitted by one of the following methods:
•
•
All submissions received in response to this interim final rule will be included in the record and will be available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting comments will be subject to public disclosure. FNS will also make the comments publicly available by posting a copy of all comments on
William Wagoner, Section Chief, Policy and Program Development Branch, Child Nutrition Division, Food and Nutrition Service, 3101 Park Center Drive, Alexandria, Virginia 22302, or by telephone at (703) 305–2590.
This interim final rule sets forth provisions to implement amendments made by sections 203 and 208 of Public Law 111–296, the Healthy, Hunger-Free Kids Act of 2010 (HHFKA), to the Child Nutrition Act of 1966 (CNA) and the Richard B. Russell National School Lunch Act (NSLA) for schools that participate in the National School Lunch Program (NSLP) and the School Breakfast Program (SBP). This rule amends the NSLP and SBP regulations consistent with amendments made in the HHFKA. The HHFKA requires that the Secretary promulgate regulations to establish nutrition standards for foods sold in schools other than those foods provided under the CNA and the NSLA. The amendments made by the HHFKA specify that such nutrition standards apply to all foods sold (a) outside the school meal programs; (b) on the school campus; and (c) at any time during the school day. In addition, the amendments made by the HHFKA require that such standards be consistent with the most recent Dietary Guidelines for Americans and that the Secretary consider authoritative scientific recommendations for nutrition standards; existing school nutrition standards, including voluntary standards for beverages and snack foods; current State and local standards; the practical application of the nutrition standards; and special exemptions for infrequent school-sponsored fundraisers (other than fundraising through vending machines, school stores, snack bars, à la carte sales and any other exclusions determined by the Secretary). These changes are intended to improve the health and well-being of the Nation's children, increase consumption of healthful foods during the school day and create an environment that reinforces the development of healthy eating habits.
The standards for food and beverages in this interim final rule represent minimum standards that local educational agencies, school food authorities and schools are required to meet. Should they wish to do so, State agencies and/or local school districts have the discretion to establish their own standards for non-program foods sold to children, as long as such standards are consistent with the Federal standards. This interim final rule also requires, per the amendments made by the HHFKA, that schools participating in the NSLP make free potable water available to children in the place lunches are served during
Competitive foods and beverages must meet the nutrition standards specified in the interim final rule, beginning July 1, 2014. A special exemption to the standards is allowed for foods and beverages that do not meet competitive food standards but which are sold for the purpose of conducting infrequent school-sponsored fundraisers. Such exempt fundraisers must not occur more often than the frequency specified by the State agency. Exempted fundraiser foods or beverages may not be sold in competition with school meals in the food serving area during the meal service. In addition, NSLP and SBP entrées sold à la carte are exempt from the interim final rule's nutrient standards if sold on the day that they are offered as part of a reimbursable meal, or sold on the following school day.
To be allowable, a competitive food must meet all of the competitive food nutrient standards
• Be a grain product that contains 50 percent or more whole grains by weight or have as the first ingredient a whole grain;
• Have as the first ingredient one of the non-grain major food groups: fruits, vegetables, dairy or protein foods (meat, beans, poultry, seafood, eggs, nuts, seeds, etc.);
• Be a combination food that contains
• For the period through June 30, 2016, contain 10 percent of the Daily Value of a nutrient of public health concern based on the most recent Dietary Guidelines for Americans (i.e., calcium, potassium, vitamin D or dietary fiber). Effective July 1, 2016, this criterion is obsolete and may not be used to qualify as a competitive food; and
• If water is the first ingredient, the second ingredient must be one of the food items above.
Fresh, canned, and frozen fruits or vegetables with no added ingredients except water, or in the case of fruit, packed in 100 percent juice, extra light, or light syrup are exempt from the interim final rule's nutrient standards. Canned vegetables that contain a small amount of sugar for processing purposes are also exempt.
Competitive foods must contain 35 percent or less of total calories from fat per item as packaged or served. Exemptions to the total fat standard are granted for reduced fat cheese and part-skim mozzarella cheese, nuts, seeds, nut or seed butters, products consisting of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat, and seafood with no added fat.
Competitive foods must contain no more than 10 percent of total calories from saturated fat per item as packaged or served. Exemptions to the saturated fat standard are granted for reduced fat cheese and part-skim mozzarella cheese, nuts, seeds, nut or seed butters, and products consisting of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat.
Competitive foods must have 0 g of trans fat per item as packaged or served.
Sodium content in snacks is limited to 230 mg per item as packaged or served. On July 1, 2016, the sodium standard will move to 200 mg per item as packaged or served. Entrée items must have no more than 480 mg of sodium per item as packaged or served, unless they meet the exemption for NSLP/SBP entrée items.
Total sugar must be no more than 35 percent by weight. Exemptions to the sugar standard are provided for dried whole fruits or vegetables; dried whole fruit or vegetable pieces; dehydrated fruits or vegetables with no added nutritive sweeteners; and dried fruits with nutritive sweeteners that are required for processing and/or palatability purposes.
Snack items and side dishes served à la carte must have no more than 200 calories per item as packaged or served, including accompaniments such as butter, cream cheese, salad dressing, etc. Entrée items sold à la carte must contain no more than 350 calories including accompaniments, unless they meet the exemption for NSLP/SBP entrée items.
Accompaniments must be included in the nutrient profile as a part of the item served.
Allowable beverages for elementary students are limited to plain water (carbonated or uncarbonated), lowfat milk (unflavored) and nonfat milk (including flavored), nutritionally equivalent milk alternatives (as permitted by the school meal requirements), and full strength fruit or vegetable juices and full strength fruit and vegetable juice diluted with water or carbonated water. All beverages must be no more than eight ounces with the exception of water, which is unlimited.
Allowable beverages for middle school students are limited to plain water (carbonated or uncarbonated), lowfat milk (unflavored) and nonfat milk (including flavored), nutritionally equivalent milk alternatives (as permitted by the school meal requirements), and full strength fruit or vegetable juice and full strength fruit or vegetable juice diluted with water or carbonated water. All beverages must be no more than 12 ounces, with the exception of water, which is unlimited.
Elementary and middle school foods and beverages must be caffeine free with the exception of naturally occurring trace amounts.
Allowable beverages for high school students are limited to plain water (carbonated or uncarbonated), lowfat milk (unflavored) and nonfat milk (including flavored), nutritionally equivalent milk alternatives (as permitted by the school meal requirements), and full strength fruit or vegetable juice and full strength fruit and vegetable juice diluted with water or carbonated water. Milk and milk equivalent alternatives and fruit or vegetable juice must be no more than 12 ounces.
Also allowed in high schools are calorie-free, flavored and/or carbonated water and other calorie-free beverages that comply with the FDA requirement of less than five calories per 8 ounce serving (or less than or equal to 10 calories per 20 fluid ounces), in no more than 20 ounce servings. Beverages of up to 40 calories per eight fluid ounce (or 60 calories per 12 fluid ounce) in no more than 12 ounce servings are also allowed. There is no ounce restriction on plain water (carbonated or uncarbonated). Beverages containing caffeine are also permitted. Allowable beverages are available in the food service area and elsewhere without restriction.
This interim final rule requires schools to improve the nutritional quality of foods offered for sale to students outside of the Federal school lunch and school breakfast programs. The new standards apply to foods sold à la carte, in school stores, snack bars, or vending machines. The principal benefit of such a rule is improvement in public health. The primary purpose of the rule is to ensure that foods sold in competition with school meals (competitive foods) are consistent with the most recent Dietary Guidelines, effectively holding competitive foods to the same standards as other foods sold at school during the school day. The link between poor diet and health problems (such as childhood obesity) is a matter of policy concern because the associated health problems produce significant social costs; imposing nutrition standards on competitive foods is one way to ensure that children
The Department anticipates the rule will result in significant changes to the nutritional quality of competitive foods available in schools, although it is not possible to quantify those benefits on overall diets or student health. Excess body weight has long been demonstrated to have adverse health, social, psychological, and economic consequences for affected adults, and recent research has also demonstrated that excess body weight has negative impacts for obese and overweight children. Ancillary benefits, although also not quantifiable, may be realized by the nutrition standards in the rule, e.g., improving the nutritional value of competitive foods will support the efforts of parents to promote healthy choices at home and at school, reinforce school-based nutrition education and promotion efforts, and contribute significantly to the overall effectiveness of the school nutrition environment in promoting healthful food and physical activity choices.
Upon implementation of the rule, students will have new food choices which will meet standards for calories, fats, sugar, and sodium, and have whole grains, lowfat dairy, fruits, vegetables, or protein foods as their main ingredients. Our regulatory impact analysis examines a range of possible behavioral responses of students and schools to these changes. To estimate the effects on school revenue, we look to the experience of school districts that have adopted or piloted competitive food reforms in recent years. While no State standard aligns to all of the provisions of the rule, these State standards offer the closest “real-world” analogue to the rule.
The available information indicates that many schools have successfully introduced competitive food reforms with little or no loss of revenue. In some of those schools, losses from reduced sales of competitive foods were fully offset by increases in reimbursable meal revenue. In other schools, students responded favorably to the healthier options and competitive food revenue increased or remained at previous levels.
But not all schools that adopted or piloted competitive food standards fared as well. Some of the same studies and reports that highlight school success stories note that other schools sustained losses after implementing similar standards. The competitive food revenue lost by those schools was not offset (at least not fully) by revenue gains from the reimbursable meal programs.
We present a series of possible school revenue effects in the regulatory impact analysis that reflect the variation in outcomes across these case studies, differences in the adopted nutrition standards and implementation strategies, and differences in the schools' economic circumstances. This discussion illustrates a range of potential outcomes; the limited nature of available data and the substantial variation in school experiences to date prevent any assessment of the most likely outcome. The analysis examines the possible effects of the rule on school revenues from competitive foods, the administrative costs of complying with the rule, and the benefits to school children. The magnitude of these effects is subject to considerable uncertainty; the ultimate impact of the rule will be determined by the manner in which schools implement the new standards and how students respond. That said, the most current and comprehensive research available does indicate that nutritional standards for competitive foods can be successfully implemented with no revenue loss or even revenue gains by schools.
The NSLP served an average of 31.6 million children per day in Fiscal Year (FY) 2012. In that same FY, the SBP served an average of 12.9 million children daily.
The Richard B. Russell National School Lunch Act (NSLA) (42 U.S.C. 1751 et seq.) and the Child Nutrition Act of 1966 (CNA) (42 U.S.C. 1771 et seq.) require the Secretary to establish nutrition standards for meals served under the NSLP and SBP, respectively. Prior to the enactment of the Healthy, Hunger-Free Kids Act of 2010 (HHFKA), section 10 of the CNA limited the Secretary's authority to regulate competitive foods, i.e., foods sold in competition with the school lunch and breakfast programs, to those foods sold in the food service area during meal periods. The Secretary did not have authority to establish regulatory requirements for food sold in other areas of the school campus or at other times in the school day.
The HHFKA, enacted December 13, 2010, directed the Secretary to promulgate regulations to establish science-based nutrition standards for foods sold in schools other than those foods provided under the NSLP and SBP. Section 208 of the HHFKA amended section 10 of the CNA (42 U.S.C. 1779) to require that such nutrition standards apply to all foods sold:
• Outside the school meal programs;
• On the school campus; and
• At any time during the school day.
Section 208 requires that such standards be consistent with the most recent Dietary Guidelines for Americans (DGA) and that the Secretary consider authoritative scientific recommendations for nutrition standards; existing school nutrition standards, including voluntary standards for beverages and snack foods; current State and local standards; the practical application of the nutrition standards; and special exemptions for infrequent school-sponsored fundraisers (other than fundraising through vending machines, school stores, snack bars, à la carte sales and any other exclusions determined by the Secretary).
In addition, the amendments made by section 203 of the HHFKA amended section 9(a) of the NSLA (42 U.S.C. 1758(a)) to require that schools participating in the NSLP make potable water available to children at no charge in the place where meals are served during the meal service. This is a nondiscretionary requirement of the HHFKA that became effective October 1, 2010.
The Department published a proposed rule in the
As previously indicated, the nutrition standards established by the Secretary must be consistent with the most recent DGA, which are the 2010 DGA released on January 31, 2011. The guidelines are available at
The Department also conducted a broad review of nutrition standards developed by other entities, including USDA's HealthierUS School Challenge (HUSSC) standards, existing State and local school nutrition standards for foods and beverages sold in competition with school meals, and existing voluntary standards and recommendations developed by various organizations such as the National Alliance for Nutrition and Activity and the Alliance for a Healthier Generation. In addition, the Department solicited input from Federal child nutrition program stakeholders, including nutrition and health professionals, academia, industry, interest groups and the public through a variety of channels. The practical application of the competitive food nutrition standards in school settings was a key consideration for the standards.
USDA received a total of 247,871 public comments during the 60-day comment period from February 8, 2013, through April 9, 2013. This total included several single submissions with thousands of identical comments. Approximately 245,665 of these were form letters, nearly all of which were related to 104 different mass mail campaigns. The remaining comments—over 2,200—were unique comments rather than form letters. Comments represented a diversity of interests, including advocacy organizations; health care organizations; industry and trade associations; farm and industry groups; schools, school boards and school nutrition and education associations; State departments of education; consumer groups; and others. Comments were analyzed using computer software that facilitated the identification of the key issues addressed by the commenters.
In general, there was support for the proposed rule. Approximately 17,827 submissions, including a mass mail campaign, expressed general overall support for the proposed rule in its entirety without commenting on specific provisions. Approximately 426 submissions expressed general opposition to the proposed rule in its entirety without commenting on specific provisions. USDA considered all comments in the development of this interim final rule. Given the unprecedented volume and complexity of comments on the proposed rule, USDA prepared a comprehensive comment summary and analysis which includes detailed information on the comments, including the source of the comments. The description and analysis of comments in this preamble focus on general comment themes, most frequent comments, and those that influenced revisions to the proposed rule. The preamble also discusses modifications made to the proposed rule in response to public input. To view all public comments on the proposed rule, go to
USDA greatly appreciates the public comments as they have been essential in developing an interim final rule that is expected to improve the quality of foods sold in schools participating in the NSLP and SBP.
The amendments made by the HHFKA stipulate that the nutrition standards for competitive food apply to all foods and beverages sold: (a) Outside the school meals programs; (b) on the school campus; and (c) at any time during the school day. The proposed rule at § 210.11(a) included definitions of
Another term,
In addition, an
• A combination food of meat or meat alternate and whole grain rich bread;
• A combination food of vegetable or fruit and meat or meat alternate; or
• A meat or meat alternate alone, with the exception of yogurt, low-fat or reduced fat cheese, nuts, seeds and nut or seed butters.
The preamble provided several examples for each part of the entrée definition.
Almost 6,000 commenters provided input on the proposed definition of
Per amendments by section 208 of the HHFKA, the CNA requires that the competitive food standards apply to foods sold at any time during the school day, which does not include afterschool programs, events and activities. The timeframe for the school day definition starting the “midnight before” was proposed to ensure that the competitive food standards would apply during the School Breakfast Program meal service, in recognition of the variety of school schedules and methods of serving breakfast to students.
Almost 3,000 commenters provided input on the proposed definition of
Approximately 850 commenters provided input on the proposed definition of
A few commenters recommended that meat snack items, such as beef jerky and meat sticks, be excluded similar to yogurt, cheese, nuts, seeds and nut butters, as these are typically not considered main dishes but rather snacks. USDA agrees and will add an exclusion for meat snack items to the definition.
Accordingly, this interim final rule codifies the proposed definitions of
Under § 210.11(b)(1) of the proposed rule, State and/or local educational agencies would have the discretion to establish additional restrictions on competitive food, as long as they are consistent with the provisions set forth in program regulations.
Approximately 10,280 commenters addressed the discretion of States and local school districts to establish more rigorous competitive food standards. Numerous commenters expressly supported the proposed provision. However, a few commenters expressed concern about additional competitive food restrictions created by States and/or individual school districts, arguing that the standards should be as consistent as possible across States. The commenters asserted that having one set of standards would facilitate the development of nutritious formulations by manufacturers which could potentially lower the overall cost.
The ability of State agencies and school districts to establish additional standards that do not conflict with the Federal competitive food requirements is consistent with the intent of section 208 of the HHFKA, and with the operation of the Federal school meal programs in general. That discretion also provides an appropriate level of flexibility to States and school districts to set or maintain additional requirements that reflect their particular circumstances consistent with the development of their local school wellness policies. Any additional restrictions on competitive food established by school districts must be consistent with both the Federal requirements as well as any State requirements.
Accordingly, this interim final rule codifies in § 210.11(b)(1), as proposed, the provision allowing States and local educational agencies to establish additional restrictions on competitive food that are not inconsistent with the Federal requirements.
In response to section 208 of the HHFKA, the proposed rule at § 210.11(c) included general nutrition standards for foods sold in schools outside of the Federal school meal programs. At a minimum, all competitive food sold to students on the school campus during the school day would be required to meet these competitive food nutrition standards.
Under § 210.11(c)(1) and (c)(2) of the proposal, an allowable competitive food item would be required to meet all of the proposed competitive food nutrient standards and:
• Be a grain product that contains 50 percent or more whole grains by weight or have whole grains as the first ingredient; or
• Have as a first ingredient one of the non-grain major food groups as defined by the 2010 DGA: fruits, vegetables, dairy products, protein foods (meat, beans, poultry, seafood, eggs, nuts, seeds, etc.); or
• Contain 10 percent of the Daily Value of a naturally occurring nutrient of public health concern from the DGA (i.e., calcium, potassium, vitamin D or dietary fiber); or
• Be a combination food that contains at least
If water is the first ingredient listed for a food item, the second ingredient must be one of the food items above.
Approximately 209,400 commenters expressed general support for the food requirements in the proposed rule, while approximately 20 commenters expressed general opposition to the food requirements.
Some commenters recommended that USDA remove the general standards for food and only require competitive food to meet the nutrient standards. The Department does not agree. The general standards for competitive food, as proposed, are consistent with the IOM recommendations, and are intended to promote and encourage the consumption of foods in their whole forms as much as possible, as recommended by the DGA. Removing the general standards and requiring that foods meet only the nutrient standards would not support this goal.
Some commenters recommended that USDA require a proportionate increase in, and/or recommended amounts of, food group contributions for entrée-type competitive food items, since entrées are larger and should contribute more to dietary needs than snacks or side dishes. We acknowledge that due to their larger size and composition, entrée items generally contribute more to diets than other items. However, the Department does not agree that a separate, higher general standard for entrées is necessary, since an entrée's portion size and overall nutrient content will be controlled by the standards for calories, fats, sodium and sugar. A separate general standard for entrées
More than 1,100 commenters recommended that combination foods be required to contain only
One commenter suggested specifying that “dairy products” include non-standard products such as cultured dairy snacks and frozen dairy desserts. In drafting the proposed rule, the Department did not intend to exclude non-standard dairy products such as those mentioned by the commenter. We will ensure that guidance and technical assistance materials in support of this interim final rule will include that clarification.
Based on these comments, this interim final rule does not make any change to these proposed general standards for competitive food, except to correct technical errors with references in the proposed regulatory text regarding the applicability of water as the first ingredient in a product, and to clarify that fruit “and/or” vegetable may be present in a combination food. Additional discussion of the general standards related to whole grains and naturally occurring nutrients of concern follows.
As mentioned above, one of the general standards for competitive food, proposed at paragraphs (c)(2)(ii) and (e) in § 210.11, would require that grain products contain 50 percent or more whole grains by weight, or have whole grains as the first ingredient.
Approximately 25 commenters expressed support for the proposed whole grain standard, stating that this standard would align with the DGA as well as the school meal standard. Other commenters urged amendment of the standard by allowing FDA whole grain health claims to ensure consistency with the standards for school meals. Approximately 40 commenters supported making the standard more stringent, suggesting that 100 percent of grains should be whole grain, not whole grain rich.
Approximately 980 commenters supported making the proposed standard less stringent. Some of these commenters suggested that USDA expand the whole grain rich grain product standard to allow products that contain at least 8 grams of whole grains per serving.
As indicated in the preamble to the proposed rule, this standard is consistent with the DGA recommendations, the whole grain rich requirements for school meals, including FDA health claims, and the HUSSC whole grain rich requirement. The whole grain criteria for competitive food is used as a criterion for determining product allowability, while school meals' whole grain rich criteria determine crediting of the grain portion of menu items toward the grain component of the meal. Allowing the additional measures for grain suggested by some commenters such as ≥ 8 grams of whole grain would not ensure that grain products contain at least 50 percent whole grain and would be inconsistent with the DGA. Therefore, this interim final rule adopts the standard as proposed.
One of the general standards for competitive food, proposed at § 210.11(c)(2)(iv), would require an allowable competitive food to contain 10 percent of the Daily Value of a naturally occurring nutrient of public health concern (i.e., calcium, potassium, vitamin D, or dietary fiber). The proposed rule requested comments on whether or not food items that contain only naturally occurring nutrients should be allowed, or whether food items to which specific nutrients of concern have been added should also be allowable.
Approximately 450 commenters expressed support for the proposal to limit non-DGA food group competitive food to only those with “naturally occurring” 10 percent Daily Value of nutrients of concern. Numerous commenters reasoned that limiting nutrients to those that are naturally occurring would promote the intake of foods closer to their whole, natural state, which is recommended in the 2010 DGA, and is consistent with the IOM recommendations. Several commenters expressed concern that if the competitive food requirements permitted fortification, unhealthy or less healthy foods would be fortified and made available in schools. Some commenters also argued that crediting nutrients added through fortification could lead food manufacturers to add nutrients to foods that would not usually be sources of a particular nutrient and could lead to the potential for nutrient imbalances. Some commenters suggested that school food service personnel would require training to identify which food items contain naturally occurring nutrients of concern versus those that have been fortified. Several commenters suggested that the regulation specify that the nutrients of concern are based on the most recent DGA so that if future versions of the DGA include different nutrients of concern, USDA would have the authority to update them for competitive food.
A few commenters urged USDA to broaden the list of “nutrients of concern” to include vitamins A and C, iron, folic acid, and protein, referencing the FDA definition of “healthy” (21 CFR 101.65(d)(2)) and the current Nutrition Facts label.
Approximately 1,240 commenters opposed the proposed restriction to only “naturally occurring” nutrients. Several commenters argued that allowing competitive foods to qualify because of fortified nutrients would provide greater flexibility in menu planning and increase the variety of items that schools can offer as competitive foods. Several commenters stated that the current nutrition information on food labels does not distinguish between fortified and naturally occurring nutrients and that there is no standardized labeling for nutrients of concern. These commenters argued that the requirement for nutrients should be aligned with the information that is currently present on food nutrition labels. These same commenters concluded that it would be challenging or impossible for food service staff to determine from food labels what nutrients are naturally occurring and which are added through fortification.
This is a particularly challenging issue. The Department recognizes some of the current difficulties and limitations with determining whether products contain naturally occurring nutrients. We also appreciate the complexity this would create for local educational agencies and schools in identifying allowable competitive food, as well as the challenges for State agencies in monitoring compliance with these standards. In addition, there are existing voluntary standards that have no restriction on adding nutrients to qualify, and therefore some product manufacturers may not be prepared to support a naturally occurring nutrient standard.
However, as indicated in the preamble to the proposed rule, the Department also supports recognizing only naturally occurring nutrient sources as more consistent with the recommendation of the DGA that “nutrients should come primarily from foods.” The nutrients of concern referenced in the proposed rule—calcium, potassium, vitamin D, and dietary fiber—are explicitly identified in the 2010 DGA. It is not appropriate for the Department to add other nutrients at this time, but it would be the Department's intent to update the nutrients as future changes occur. As commenters noted, the proposed criterion is also consistent with the recommendations from IOM, which indicated that this approach “reinforces the importance of improving the overall quality of food intake rather than nutrient-specific strategies such as fortification and supplementation.”
Therefore, in recognition of the current marketplace and implementation limitations but also mindful of important national nutrition goals, this interim final rule implements a phased-in approach to identifying allowable competitive food under the general standard. For the initial implementation period in School Year 2014–15, through June 30, 2016, the general food standard will include a criterion that an allowable competitive food may contain 10 percent of the Daily Value of a nutrient of public health concern (i.e., calcium, potassium, vitamin D, or dietary fiber). The specified nutrient may be naturally occurring, which is encouraged, or may be added to the product. Effective July 1, 2016, the criterion for 10 percent of the Daily Value of a nutrient of public health concern will be removed as a general criterion. At that time, competitive food must qualify on the basis of being whole grain rich, having one of the non-grain main food groups as the first ingredient (or second if water if the first ingredient), or a combination food with at least
Accordingly, this interim final rule modifies the proposed general standards for competitive food to require that an allowable competitive food item must meet all of the competitive food nutrient standards
• Be a grain product that contains 50 percent or more whole grains by weight or have whole grains as the first ingredient;
• Have as a first ingredient one of the non-grain major food groups: Fruits, vegetables, dairy, protein foods (meat, beans, poultry, seafood, eggs, nuts, seeds, etc.);
• Be a combination food that contains at least
• Through June 30, 2016, contain 10 percent of the Daily Value of a nutrient of public health concern from the DGA (i.e., calcium, potassium, vitamin D or dietary fiber).
If water is the first ingredient listed for a food item, the second ingredient must be one of the food items listed above. These provisions are found in paragraphs (c)(1) and (c)(2) in § 210.11 of this interim final rule.
The proposed rule at § 210.11(c)(3) identified two alternatives by which any menu item (both entrées and side dishes) provided as part of the NSLP and/or SBP school meal would be exempt from all or some of the proposed competitive food nutrition standards. Under both proposed alternatives, grain based dessert products would be required to meet all competitive food standards, and all menu items would be required to be served in the same or smaller portion sizes as the NSLP and SBP.
Under proposed Alternative A1, all menu items provided as part of the NSLP or SBP reimbursable meal would be exempt from all of the proposed competitive food standards
Under proposed Alternative A2, all menu items provided as part of the NSLP or SBP reimbursable meal would be exempt from all of the proposed competitive food standards,
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The Department received a wide variety of comments on the proposed exemptions for NSLP/SBP menu items.
More than 209,000 commenters suggested that NSLP/SBP menu items should not receive any exemption from the competitive food standards. Many suggested that allowing exemptions would introduce “loopholes” for items sold in the à la carte lines. Others asserted that the nutritional benefits of the school meal are diminished when items from the meal are sold individually. Several of these commenters warned that the exemptions would undermine the integrity of the competitive food standards.
Approximately 740 commenters suggested that NSLP/SBP menu items should be exempted from all competitive food standards. Some of these commenters specifically opposed restrictions on fat, sugar, sodium and the frequency of allowable sale of NSLP/SBP menu items, which they asserted would decrease flexibility and increase food costs for schools. Some commenters supported the idea that because foods in reimbursable meals have already been determined to be a nutritious part of a school meal, they should not be subjected to a second set of nutrition standards in order to be served as a competitive food.
Approximately 25 commenters expressed support for proposed Alternative A1 (NSLP/SBP menu items sold à la carte exempt from all competitive food standards except the fat and sugar standards). Several commenters recommended that if NSLP/SBP menu items are exempted, Alternative A1 should be chosen over Alternative A2 because students could purchase those foods à la carte at any time but Alternative A1 would promote limited fat and sugar intake.
Approximately 935 commenters expressed support for proposed Alternative A2 (NSLP/SBP menu items sold à la carte exempt from all competitive food standards). These commenters cited reasons for their support including flexibility in menu planning for school food authorities, positive messaging to students about
Approximately 40 commenters expressed support for proposed Alternative B1 (allowing an exemption to the nutrient standards for NSLP/SBP menu items on the day of service). Several commenters suggested that this alternative would offer consistency between the à la carte offering and the school meal offerings. Other commenters suggested that schools be allowed to serve NSLP/SBP menu items on the day the items are offered as well as the day after.
Approximately 80 commenters expressed support for proposed Alternative B2 (allowing an exemption to the nutrient standard for NSLP/SBP menu items served within four operating days of their service in the meal). Commenters suggested that proposed Alternative B2 would provide the most flexibility for menu planners and would reduce food waste.
Approximately 960 commenters expressed the view that there should be no frequency restrictions on the service of NSLP/SBP menu items, citing implementation difficulties such inventory control and tracking and maintaining student participation. Other commenters suggested that compliance with the meal pattern would ensure that students are consuming nutritious foods.
The Department appreciates the diverse public comment on this provision. Any exemption to the competitive food standards for NSLP/SBP menu items must ensure that improvements from updated school meal standards are not undermined and also take into account implementation by program operators and messaging to students. This interim final rule adopts an exemption for NSLP/SBP entrée items only. Side dishes served à la carte would be required to meet all applicable competitive food standards. The exemption for the entrée items is available on the day the entrée item is served in NSLP/SBP, and the following school day. Entrée items are provided an exemption, but side dishes are not, in an attempt to balance significant commenter opposition to any exemptions for NSLP/SBP menu items and needed menu planning flexibilities. The approach adopted in this interim final rule supports the concept of school meals as being healthful, and provides flexibility to program operators in planning à la carte sales and handling leftovers. The “day after” exemption is provided primarily to accommodate leftovers. We anticipate that this approach, along with the recent changes to school meal standards will result in healthier menu items in meals than in the past, including entrées.
Additionally, providing flexibility for schools to sell à la carte those entrée items that are served as part of the reimbursable meal on the day of service greatly mitigates potential operational disruption in the cafeteria that may occur from students being confused about whether particular foods being served to other students can be purchased individually. This approach also mitigates potential confusion among parents, students and schools that a particular entrée item is healthful when sold as part of the reimbursable meal but not when the same entrée item is sold separately. That said, USDA will closely monitor this exemption during implementation to determine the overall nutrient profile of products being offered under the exemption, as well as any food safety impacts related to leftovers served à la carte. Should the exemption undermine the overall goal of the competitive food standards for healthier products for sale in schools, we will consider a stricter standard.
Accordingly, this interim final rule, in § 210.11(c)(3)(i), provides an exemption to the competitive food standards for NSLP and SBP entrée items that are offered on the same day or the school day after they are offered in the NSLP or SBP. Exempt entrées that are sold as competitive food must be offered in the same or smaller portion sizes as the NSLP and SBP, and with the same accompaniments.
Consistent with the DGA and IOM recommendations, the proposed rule at § 210.11(d) would exempt from the competitive food nutrition standards fresh, frozen and canned fruits and vegetables with no added ingredients except water or, in the case of fruit, packed in 100 percent fruit juice or extra light syrup.
Over 900 commenters asserted that the proposed exemption for fruits and vegetables should be expanded, including a recommendation that USDA expand the exemption to include fruit packed in light syrup. These commenters and others also recommended expanding the exemption to allow certain canned vegetables to which a small amount of sugar has been added to maintain the structural integrity of the vegetable. A few commenters supported the allowance of frozen fruit with added sugar. Some commenters expressed the need to include dried fruit with no added ingredients in the proposed nutrient standard exemption.
USDA agrees that the fruit and vegetable nutrient exemption should be expanded to include fruit packed in light syrup, consistent with what is allowed in school meals. The Department also agrees that this exemption should include canned vegetables to which a small amount of sugars has been added to maintain the structural integrity of the vegetable, e.g., corn and peas, as is allowed in USDA's Special Supplemental Nutrition Program for Women, Infants and Children (WIC). We would like to clarify that frozen fruit with added sugar is also exempt, if it can be considered to be packed in extra light syrup or light syrup. The Department prefers to address an exemption for dried fruit under the sugar standard, since including dried fruit under the general nutrient exemption for fruits and vegetables may result in servings that are high in calories due to the nature of dried fruit.
Accordingly, this interim final rule codifies in § 210.11(d) an exemption to the nutrient standards for fresh, frozen and canned fruits and vegetables with no added ingredients except water or, in the case of fruit, packed in 100 percent fruit juice, extra light syrup, or light syrup; and for canned vegetables that contain a small amount of sugar for processing purposes, to maintain the quality and structure of the vegetable.
The proposed rule included standards for total fat, saturated fat, trans fat, total sugars, calories, and sodium. These standards were proposed to apply to the competitive food “per portion as packaged” or “per portion.” Over 206,000 commenters expressed support for the proposed nutrient standards for competitive food, while approximately 1,050 expressed general opposition. A few commenters suggested that the phrase “per portion as packaged” needs clarification because there is a difference between a “portion” and a “serving.” One commenter stated that per portion as packaged means the
The intent of the proposed language “per portion as packaged” and “per portion” was to apply the competitive food standards to the item sold to the student, as noted by the commenter, and not to each “serving” in a package. Some packaged items may include more than one “serving”, as indicated on the Nutrition Facts label. We also understand that some items provided as a competitive food are not “packaged” by a manufacturer but rather are scratch prepared in the school and served to the student. For clarity, we are modifying the regulatory text for the nutrient standards to use the term “per item as packaged or served” instead of “per portion as packaged” or “per portion.” This language more effectively reflects how the standards must be applied.
To qualify as an allowable competitive food, the proposal at § 210.11(f)(1) would require that not more than 35 percent of the total calories per portion as packaged be derived from fat. Exemptions to the total fat requirement, in proposed § 210.11(f)(2), would include:
• Reduced fat cheese; and
• Nuts and seeds and nut/seed butters (excluding combination products that contain nuts, nut butters or seeds or seed butters with other ingredients such as peanut butter and crackers, trail mix, chocolate covered peanuts, etc.); and
• Products that consist of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat; and
• Seafood
For saturated fat, the proposal at § 210.11(g)(1) would require that less than 10 percent of the total calories per portion of a food be derived from saturated fat. The proposal included an exemption to the saturated fat standard, in paragraph (g)(2), for reduced fat cheese.
Under proposed § 210.11(h), the trans fat content of a competitive food must be zero grams trans fat per portion as packaged (not more than 0.5 g per portion).
Several thousand commenters expressed support for the proposed limits on total fat, saturated fat, and trans fat; many also expressed specific support for the proposed exemptions from the fat standards. Approximately 130 commenters were opposed to the proposed restriction on total fat; approximately 70 commenters were opposed to the proposed restriction on saturated fat; and a few commenters opposed the proposed trans fat restriction. These commenters argued in favor of making the restrictions less stringent or eliminating the standards entirely.
Some commenters wanted USDA to consider adding an exemption for nuts and seeds and nut/seed butters to the saturated fat standard, in addition to the proposed total fat standard exemption. The Department agrees with providing a saturated fat exemption for nuts and seeds and nut/seed butters, given the healthy fat profile and positive nutrition benefits of these products.
Numerous commenters urged USDA to expand the exemption for reduced fat cheeses to include all cheeses, citing the importance of increasing children's access to dairy products. Many of the commenters in support of the exemption for reduced fat cheese asked USDA not to extend the exemption to combination products that include reduced-fat cheese (e.g., cheese and crackers). A few commenters recommended that USDA extend the fat exemptions to part-skim cheese (mozzarella), which is lower in fat than full fat cheese but may not necessarily meet the FDA criteria for the reduced fat claim.
In response, USDA looked closely at the fat content of cheeses, including part-skim cheeses, to determine if additional exemptions to the fat standards are warranted. Based on our examination, we agree that extending an exemption to the total fat and saturated fat standards for part-skim mozzarella cheese is appropriate, as there is an FDA standard of identity for part-skim mozzarella cheese. In addition, there is a similar fat profile for part-skim mozzarella compared to many reduced fat cheeses. Other part-skim cheese may be exempt if it also meets the FDA requirement as a reduced fat cheese. The reduced-fat cheese (and now part-skim mozzarella) exemptions do not apply to combination foods.
Another commenter recommended that protein foods which supply at least 10 percent Daily Value for protein be exempt from the total fat and saturated fat limits. The Department does not agree that such an exemption from the fat standards is appropriate. To support the DGA, meat and poultry should be consumed in lean forms to decrease the intake of solid fat. Nuts and seeds and nut/seed butters and seafood, which have been exempted, contain oils rather than solid fats.
Accordingly, this interim final rule codifies in § 210.11(f) the total fat and saturated fat standards and exemptions as proposed, with additional exemptions to the total fat and saturated fat standards for part-skim mozzarella cheese, an additional exemption to the saturated fat standard for nuts and seeds and nut/seed butters, and clarification that the standards apply to the item as packaged or served. This language also clarifies that the exemptions for cheese and nuts and seeds and nut/seed butters do not apply to combination foods. The trans fat standard is adopted in this interim final rule as proposed, in § 210.11(g).
The proposed rule at § 210.11(i)(1) provided two alternatives for comment regarding total sugars in foods. Under proposed Alternative C1, total sugars contained in a competitive food could not be more than 35 percent of
Regardless of which measure (total sugars by calories or weight) is utilized, the proposed rule at § 210.11(i)(2) would provide the following exemptions to the total sugar standard:
• Dried whole fruits or vegetables; dried whole fruit or vegetable pieces; and dehydrated fruits or vegetables with no added nutritive sweeteners;
• Products that consist of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat; and
• Flavored and unflavored nonfat and low-fat yogurt with no more than 30 grams of total sugars per 8 ounce serving.
More than 2,500 commenters expressed general support for a sugar restriction for competitive food. Approximately 70 commenters supported proposed Alternative C1 (total sugar by calories), citing consistency with IOM and other public health recommendations. Some commenters stated that Alternative C1 would be easier to implement because the calculation is simpler to perform. A number of commenters argued that a standard based on calories would be better than limiting sugars to 35 percent by weight, which would allow a number of sugary foods to be sold that would otherwise be excluded by a limit based on percent of calories, e.g., those with high water content such as ice pops, fruit snacks, ice cream, pudding, granola bars, and snack cakes.
More than 1,100 commenters expressed support for proposed Alternative C2 (total sugars by weight). These commenters argued that this is the standard many schools and food manufacturers have been using, and that it is consistent with other standards such as USDA's HUSSC and the Alliance for a Healthier Generation, which many schools have already
Many commenters suggested USDA should set the sugar standard based on added sugars, rather than total sugars. These commenters argued that added sugars are what science shows should be limited in children's diets. However, these commenters acknowledged that added sugars are not specified on the Nutrition Facts label, which would make it difficult for local schools to determine. Consequently, some of these commenters urged USDA to work with FDA to ensure that added sugars are listed on the revised Nutrition Facts label.
In response, USDA agrees with these commenters that a sugar standard based on added sugars is preferable but that it would be very difficult for local program operators to implement and State agencies to monitor since the current Nutrition Facts label does not differentiate between naturally occurring and added sugars. If added sugars information is required on the Nutrition Facts label in the future, USDA would anticipate updating the standards for competitive food to incorporate that standard.
The interim final rule adopts Alternative C2, which requires that 35 percent or less of the weight of the food come from total sugars. We acknowledge that this standard generally allows more products to qualify, but the portion sizes of these and all foods would be limited by the calorie and fat standards. Sugar by weight is also a standard used by some voluntary standards. State agencies and school districts could choose to implement a sugar standard based on calories, as long as it is at least as restrictive as the regulatory standard (i.e., no allowable product under the calorie measure could exceed 35 percent sugar by weight). As mentioned earlier, any additional restrictions on competitive food established by school districts must be consistent with both the Federal requirements as well as any State requirements.
Approximately 350 commenters provided input on the proposed exemptions to the sugar standard. Many of these commenters expressed support for the sugar exemptions as proposed. Approximately 130 commenters addressed the exemption for dried fruits/vegetables. Numerous commenters expressed general support for the exemption for dried fruits/vegetables with no added nutritive sweeteners. Many commenters suggested expanding the sugar exemptions to allow certain dried fruits with added nutritive sweeteners where it is required for processing and palatability. However, many other commenters did not support an expansion of the exemption for dried fruits with added caloric sweeteners. A few commenters requested that processed fruit and vegetable snacks (e.g., fruit strips or fruit drops) be included under the proposed exemption for dried fruit, as many are processed with fruit juice concentrate.
USDA supports an additional limited exemption for dried fruit with added nutritive sweeteners only when the added sweeteners are required for processing and/or palatability of the product, such as dried cranberries, tart cherries and blueberries. The portion sizes of these dried fruits would be limited by the calorie standards. The Department, however, does not agree that processed fruit and vegetable snacks should be included under either dried fruit exemption. Since these snack type products are not whole dried fruit pieces, the fruit concentrate (added sugar) used to make these products is often the primary ingredient. These products could still qualify without the exemption as a competitive food if they meet all of the standards, including a fruit or vegetable as the first ingredient.
Approximately 360 commenters addressed the proposed exemption of flavored and unflavored non-fat and low-fat yogurts from the sugar limit. Most of these commenters expressed support for the proposed exemption, based on a desire to increase the availability of popular dairy products that children are likely to eat. Several commenters recommended that the 30 grams per 8 ounce limit for total sugars in yogurt be scaled proportionately by serving size (e.g., 22 grams total sugar for a 6 ounce portion). Several commenters proposed more restrictive standards for yogurt products to receive an exemption from the sugar limit, while a few commenters proposed less restrictive standards.
The intention of the proposed exemption for yogurt was that the total sugars limit be scaled according to serving size. Since this interim final rule adopts a sugar standard based on the weight of the product, as discussed above, an exemption for yogurt is unnecessary and is removed in this interim final rule. However, USDA encourages local program operators to select yogurt with lower amounts of sugar whenever possible. Ingredient lists reveal that many popular drinkable yogurts have significant levels of added sugars instead of sugars conveyed naturally from fruit or dairy. USDA will gather additional information as competitive food standards are implemented and may address standards for drinkable yogurt in a future rulemaking.
Accordingly, this interim final rule requires, in § 210.11(h)(1), that the total sugar content of a competitive food must be not more than 35 percent of
Under the proposed rule at § 210.11(j), snack items and side dishes sold à la carte could contain no more than 200 calories and 200 mg of sodium per portion as served, including the calories and sodium in any accompaniments, and must meet all other nutrient standards for non-entrée items.
Under proposed § 210.11(k), entrée items sold à la carte could contain no more than 350 calories and 480 mg sodium per portion as served, including any accompaniments, and meet all other nutrient standards.
As indicated in the
Almost 2,600 commenters expressed general support for calorie restrictions for competitive food, while approximately 30 commenters generally opposed the proposed calorie restrictions.
Approximately 200,000 commenters suggested separate calorie limits by grade, similar to the structure of the school meal program, reasoning that
More than 1,000 commenters opposed the proposed calorie limits for entrees, while approximately 165 opposed the proposed limits for snack items. Commenters said the proposed limits were too stringent and would limit student access to many food products. Some of these commenters stated that the calorie limit for entrée items is inconsistent with USDA's HUSSC criteria, and is not required for entrees served as part of the NSLP. Other commenters expressed concern that manufacturers would have to expend resources to repackage or reformulate products to meet a 200 calorie limit for snack items, stating that many manufacturers' current packaging for school districts is just slightly over 200 calories. Some commenters provided specific suggestions for alternative calorie limits for snacks, ranging from 240 to 300 calories, and for entrées, ranging from 400 to 500 calories.
This interim final rule retains the proposed calorie limits for snacks/side dishes (200 calories per item as packaged or served), and entrée items (350 calories per item as packaged or served), which are consistent with IOM recommendations and some voluntary standards. The Department does not agree that higher limits are appropriate, as suggested by some commenters. In addition, we appreciate that separate calorie limits by grade levels for snacks would align with existing voluntary standards that many schools have adopted, and would be more tailored to the nutritional needs of children of different ages. However, separate calorie limits for different grade levels would also add complexity for local program operators with schools of varying grade levels. State agencies or school districts could choose to implement varying calorie limits based on grades, provided the maximum level does not exceed the limit in this interim final rule. Please note that the calorie limit for entrée items would apply to all entrées that do not meet the exemption for NSLP/SBP entrée items.
Over 2,600 commenters expressed support for the proposed limits on sodium of 200 mg per portion as served for snacks/side dishes and 480 mg per portion as served for entrée items. Some of these commenters cited studies that they asserted show a growing prevalence of high blood pressure in American children linked to obesity rates, high sodium level intakes, and high calorie diets.
More than 900 commenters generally opposed the proposed sodium restrictions. Approximately 80 commenters specifically opposed the proposed sodium limit for entrées, while approximately 90 opposed the proposed limits for snack items. Many suggested the sodium limits be raised and made consistent with the NSLP/SBP standards or with USDA's HUSSC standards, citing difficulty for manufacturers to reduce sodium levels while maintaining palatability and low food costs. Several commenters recommended that the sodium reductions should be phased in gradually to allow taste preferences and manufacturers time to adjust. A few commenters suggested that additional assessments of health and student acceptance be conducted or reviewed prior to setting sodium requirements. Some commenters provided suggestions for higher sodium limits, ranging from 230 mg to 360 mg for snacks and 550 mg to 650 mg for entrées. One commenter, a manufacturer, wanted USDA to add an exemption to the sodium limit for natural reduced fat cheese and reduced fat, reduced sodium pasteurized processed cheese.
The Department's proposed standards for sodium were based on the IOM recommendations. The proposed “per portion as served” standards for competitive food were considered in the context of overall sodium limits for school meals, the first of which take effect in School Year 2014–15, the same school year these competitive food standards are implemented. USDA acknowledges that sodium reduction is an issue that impacts the broader marketplace, not just schools, and understands that sodium reduction is a process that will take time. However, it is an important health issue that must be addressed. We also understand that there are existing voluntary standards for competitive food that have a higher sodium limit of 230 mg for snacks/side dishes, which means there are existing products that have been formulated to meet the higher standard available to schools. Therefore, we are setting an initial limit for sodium for snacks and side dishes of 230 mg per item as packaged or served, for the first two years of implementation of these standards. As of July 1, 2016, the sodium limit for snacks and side dishes will be reduced to 200 mg per item as packaged or served. This phased in approach will ensure product availability for schools for initial implementation and provide ample time for manufacturers to adjust to meet the lower limit. We are not changing the proposed entrée limit of 480 mg per item as packaged and served, as entrées served in school meals will be covered under the NSLP/SBP entrée item exemption, in § 210.11(c)(3)(i). We are also not providing an exemption to the sodium standard for cheese, as we are concerned given the nutrient profile of cheese that this would result in high sodium products as competitive food.
Accordingly, this interim final rule in § 210.11(i) requires that snack items and side dishes sold à la carte must have not more than 200 calories and 230 mg of sodium per item as packaged or served, including accompaniments, and must meet all other nutrient standards. Effective July 1, 2016, these snack items and side dishes must have not more than 200 calories and 200 mg of sodium per item as packaged or served. Section 210.11(j) requires that entrée items sold à la carte, other than those that meet the exemption for NSLP/SBP entrée items, must have not more than 350 calories and 480 mg of sodium per item as packaged or served, including accompaniments, and must meet all other nutrient standards.
The proposed rule at § 210.11(n) limited the use of accompaniments to competitive food, such as cream cheese, jelly, butter, salad dressing, etc., by requiring that all accompaniments to a competitive food item be pre-portioned and included in the nutrient profile as part of the food item served.
More than 1,000 commenters opposed the requirement that accompaniments be pre-portioned as being costly and impractical.
About 20 commenters supported requiring accompaniments to be included in the nutrient profile as part of the food item served. Some of these commenters urged USDA to amend the proposed requirement to include an average serving size of the appropriate accompaniments when evaluating the nutrient profile for an item. Other commenters urged USDA to provide technical assistance to schools on strategies to limit accompaniments that are high in sodium, fats, and sugars.
About 470 commenters did not support pre-portioning or inclusion of accompaniments in the nutrient profile of the competitive food.
In response to these comments, USDA acknowledges that pre-portioning of
Accordingly, this interim final rule requires, in § 210.11(l) that the accompaniments to a competitive food item must be included in the nutrient profile as a part of the food item served in determining if an item meets the nutrition standards for competitive food. The contribution of the accompaniments may be based on the average serving size of the accompaniment used per item.
The proposed rule did not address chewing gum. Several commenters recommended that USDA provide an exemption from the competitive food standards for sugar-free chewing gum, claiming it has a proven impact on dental and oral health. Some of these commenters also suggested that States should retain the authority to establish more restrictive standards governing the sale of sugar-free gum in their schools should they chose to do so for reasons unrelated to health or nutrition.
USDA agrees that sugar-free chewing gum should be provided an exemption from the competitive food standards. Clinical studies have shown that chewing sugarless gum for 20 minutes following meals can help prevent tooth decay. State agencies and school districts may choose not to allow the sale of sugar-free gum, for a variety of reasons.
Accordingly, this interim final rule includes in § 210.11(c)(3)(ii) an exemption to the competitive food standards for sugar-free chewing gum.
The proposed rule at paragraphs (b)(2) and (m) of § 210.11 established standards for allowable beverage types for elementary, middle and high school students. At all grade levels, water, low fat and nonfat milk, and 100 percent juice would be allowed, in specified maximum container sizes which varied by grade level. The proposed rule would also allow additional beverages for high school students, specifically calorie-free and low-calorie (less than 40 or 50 calories per 8 ounces) beverages, with and without carbonation. These additional beverages for high school students would not be allowed in the meal service area during meal service. This approach was designed to recognize the wide range of beverages available to high school students in the broader marketplace and the increased independence such students have, relative to younger students, in making consumer choices. The proposed beverage requirements in § 210.11(m) included:
• Plain water (no size limit);
• Low fat milk, plain (not more than 8 fluid ounces);
• Non fat milk, plain or flavored (not more than 8 fluid ounces);
• Nutritionally equivalent milk alternatives as permitted by the school meal requirements (not more than 8 fluid ounces); and
• 100% fruit/vegetable juice (not more than 8 fluid ounces).
• Plain water (no size limit);
• Low fat milk, plain (not more than 12 fluid ounces);
• Non fat milk, plain or flavored (not more than 12 fluid ounces);
• Nutritionally equivalent milk alternatives as permitted by the school meal requirements (not more than 12 fluid ounces); and
• 100% fruit/vegetable juice (not more than 12 fluid ounces).
• Plain water (no size limit);
• Low fat milk, plain (not more than 12 fluid ounces);
• Non fat milk, plain or flavored (not more than 12 fluid ounces);
• Nutritionally equivalent milk alternatives as permitted by the school meal standards (not more than 12 fluid ounces); and
• 100% fruit/vegetable juice (not more than 12 fluid ounces);
Additional beverages proposed to be allowed for sale in high school, but not in the meal service area during the meal service:
• Calorie-free, flavored and/or carbonated water (not more than 20 fluid ounces);
• Other beverages (not more than 20 fluid ounces) that comply with the FDA requirement for bearing a “calorie free” claim of less than 5 kcals/serving; and
• Other beverages in ≤ 12 oz servings. Two “other beverage” alternatives were proposed:
• Allow beverages with not more than 40 calories per 8 fluid ounce serving or 60 calories per 12 fluid ounce serving. (proposed Alternative D1)
• Allow beverages with not more than 50 calories per 8 fluid ounce serving or 75 calories per 12 ounce fluid serving. (proposed Alternative D2)
Over 10,000 commenters expressed general support for the proposed beverage requirements, while only approximately 55 commenters expressed general opposition. Many commenters provided specific suggestions related to the proposed beverage requirements. Discussion of these comments and USDA's response follows.
A few commenters suggested that USDA use only two grade groups for the beverage standards—elementary and secondary—to ease implementation. Some commenters stated that it would be difficult and/or costly to administer the proposed beverage requirements in combined grade campuses, such as 7–12 or K–12. In response, USDA appreciates that implementation could be more difficult in schools with overlapping grade groups, but considers it important to maintain the three grade groupings proposed. These groupings reflect IOM's recommendations and appropriately provide additional choices to high school students, based on their increased level of independence. USDA will provide technical assistance and facilitate the sharing of best practices during implementation.
Some commenters encouraged USDA to change “plain water” to “water with no additives.” Several commenters urged USDA to allow carbonated water without additives at all grade levels with no portion size limit. One commenter recommended that the standards allow for water with carbonation and/or natural flavors but not sweeteners (whether caloric or non-caloric) at all grade levels. Some commenters, including advocacy organizations, asked USDA to clarify that water could include added fluoride.
In response, the nutritional differences between carbonated water without additives and water are insignificant. Therefore, USDA agrees that this rule should not restrict access on portion size at any grade levels. However, we are not allowing natural
Some commenters suggested replacing the term “plain milk” with “unflavored milk.” USDA agrees that unflavored milk (e.g., milk with no sweeteners) is a more accurate term than plain milk, and it is also consistent with terminology used in the school meal patterns. Therefore, we will modify the regulatory text to use the term “unflavored milk.”
Several commenters provided input on flavored milk. A few commenters requested that USDA allow low fat flavored milk, in addition to nonfat flavored milk. To address the sugar content in flavored milk, commenters made several suggestions. One suggestion would establish a sugar maximum of no more than 28 grams of sugar per 8 fluid ounces of milk. Another suggestion would have USDA provide schools with information on how to select flavored milk that contains minimum levels of added sugars. USDA was also encouraged to provide a calorie limit for flavored milk (no more than 130 calories per 8 fluid ounces) to help limit calories and added sugar intake.
USDA does not support allowing low fat flavored milk. It is not an allowable milk type under the school meal patterns, based on IOM's school meal recommendations to help control calories. USDA recognizes that some flavored milk (even nonfat versions) can be high in calories and added sugars, but we are not supportive of requiring a calorie or sugar limit for flavored milk at this time. Nonfat flavored milk is allowed in the school meal patterns without any sugar or calorie caps. In general, schools that wish to offer nonfat flavored milk must select products that are lower in calories and added sugars, in order to stay within the school meal calorie ranges. The milk offered with the school meal is usually the same milk that is offered for sale to students à la carte. In addition, over time many manufacturers have reformulated flavored milk to be lower in calories and added sugar. We will continue to monitor this issue as the competitive food standards are being implemented to determine if a future calorie cap and/or sugar limit for flavored milk is warranted. We will also provide technical assistance as necessary to assist schools in selecting flavored milk with lower sugar levels.
Many commenters supported the proposal to require 100 percent juice, as well as the proposed portion size limits. Several of these commenters recommended allowing diluted juices, with and without carbonation, at all grade levels. Some commenters encouraged USDA to allow juice diluted with water, but only in high schools. Some commenters suggested a calorie cap for all juices that are sold, and similarly other commenters suggested smaller maximum serving sizes for 100 percent juice.
Beverages combining full-strength juice and water or carbonated water are increasingly popular in the marketplace. Allowing these blends with juice results in a product with fewer calories and less sugar than a comparable amount of natural unsweetened 100 percent juice, and provides additional options for schools. Therefore, this interim final rule allows 100 percent fruit and/or vegetable juice diluted with water, with or without carbonation and with no added sweeteners, at all grade levels. The portion size limit for each grade level would be the same as the maximum juice portion size—i.e., 8 fluid ounces for elementary schools, and 12 fluid ounces for middle and high schools. We do not agree that is it necessary to add a calorie cap for full-strength juice, as calories are controlled by the portion size limit.
USDA received a significant number of comments on the proposed standards for other beverages allowed in high school.
A few commenters wanted low-calorie beverages to be available in elementary and middle schools as well as high schools, while others opposed these beverages at any grade level.
A few commenters also requested that USDA modify the proposed language regarding FDA's “calorie free” claim, to avoid inconsistent treatment of very low calorie beverages based on labeling decisions made by manufacturers and allowed by FDA. The suggested modification would specify beverages could contain less than 5 calories per 8 fluid ounces, or less than or equal to 10 calories per 20 fluid ounces.
Several commenters expressed support for establishing a more stringent calorie restriction for low-calorie beverages in high schools. A few commenters expressed opposition to sports drinks in schools, stating these beverages contribute to excess calorie consumption and are not needed for hydration. Approximately 30 commenters supported proposed Alternative D1 (allowing no more than 40 calories per 8 fluid ounces and no more than 60 calories per 12 fluid ounces), 12 ounces maximum. A few commenters requested technical changes to the proposed language for clarity and consistency. Several commenters suggested a limit of 40 calories “per container,” instead of the standards that were proposed. These commenters reasoned that the FDA defines low-calorie beverages as those with fewer than or equal to 40 calories per Reference Amount Customarily Consumed (RACC).
More than 500 commenters supported proposed Alternative D2 (allowing no more than 50 calories in 8 fluid ounces and no more than 75 calories in 12 fluid ounces), 12 ounces maximum. Several commenters recommended that USDA adopt a modified version of Alternative D2 that would reflect the fact that FDA rounding rules require a beverage with 75 calories in a 12 ounce portion to be labeled as having 80 calories per 12 fluid ounces.
In response, USDA appreciates the input provided by commenters on the proposed standards for other beverages allowed in high school. In this interim final rule, we are allowing calorie-free beverages with a maximum container size of 20 fluid ounces, as proposed but with the technical changes requested by commenters. We are also adopting proposed Alternative D1 for lower-calorie beverages, which allows up to 40 calories per 8 ounces and 60 calories per 12 ounces, with the maximum proposed 12 ounce limit. This standard allows a great variety of popular beverage choices to be available for sale in high schools, while also limiting the calories these beverages could provide. Limiting the maximum container size to 12 ounces for these lower calories beverages also reinforces the important concept of appropriate serving sizes for items with calories.
Approximately 1,300 commenters addressed proposed “time and place” restrictions for the sale of other beverages in high school. Numerous commenters opposed the distinction in the proposed rule between beverages allowed to be sold during meal times in meal service areas (i.e., water, milk and
USDA agrees with commenters that the distinction on when and where beverages can be sold in high schools during the school day may be unnecessary. The beverage standards adopted in this interim final rule allow a variety of beverage choices in high school, while limiting their calories. Therefore, we are removing the “time and place” restrictions for “other” beverages in high schools, as set forth in the proposed rule. Therefore, this rule does not restrict the sale of any allowable beverage, at any grade level, throughout the school day anywhere on the school campus. However, USDA will monitor this provision to ensure that the sale of such competitive beverages in the food service area does not negatively impact consumption of milk, an excellent source of calcium. USDA will continue monitoring milk sales and consumption in schools in periodic studies. State agencies or school districts could choose to prohibit sale of these other beverages in food service areas.
Accordingly, this interim final rule codifies, in § 210.11(m)(1) and (m)(2), the proposed nutrition standards for beverages for elementary schools and middle schools, with the addition of plain carbonated water with no size limit; 100 percent juice diluted with water (with or without carbonation and with no added sweeteners) in the proposed size limit for juice for each grade group; and a change in terminology from plain milk to unflavored milk.
Section 210.11(m)(3) of this interim final rule adopts the proposed nutrition standards for water, milk and juice in high schools, with the addition of plain carbonated water with no size limit; 100 percent juice diluted with water (with or without carbonation and with no added sweeteners) in no more than 12 ounces; and a change in terminology from plain milk to unflavored milk.
In addition, § 210.11(m)(3) allows, in high schools, calorie-free, flavored water, with or without carbonation (no more than 20 fluid ounces); other beverages that are labeled to contain less than 5 calories per 8 fluid ounces, or less than or equal to 10 calories per 20 fluid ounces (no more than 20 fluid ounces); and other beverages that are labeled to contain no more than 40 calories per 8 fluid ounces or 60 calories per 12 fluid ounces (no more than 12 fluid ounces).
The proposed rule at § 210.11(l) would require foods and beverages available in elementary and middle schools to be caffeine free, with the exception of trace amounts of naturally occurring caffeine substances. This is consistent with IOM recommendations. However, the proposed nutrition standards for beverages would permit caffeine for high school students, and the proposed rule requested commenter input on this issue.
Over 350 commenters supported the proposed caffeine restrictions for elementary and middle schools. Approximately 120 commenters thought the standard for these lower grade levels should be less restrictive. Some commenters requested guidance on what constitutes “trace amounts of naturally occurring” caffeine. More than 400 commenters supported allowing caffeine in high schools, while 75 commenters opposed allowing caffeine for high school students at all, citing that it is not consistent with IOM's recommendation. A number of commenters, including advocacy organizations, also highlighted their particular concern over the growing popularity and consumption of energy drinks because these often have very high levels of caffeine. One of these commenters cited potential adverse health and safety effects of energy drinks on students.
USDA is concerned, as are some commenters, that some foods and beverages with very high levels of caffeine may not be appropriate to be sold in schools, even at the high school level. Although the American Academy of Pediatrics discourages the consumption of caffeine and other stimulants by children and adolescents, the FDA has not set a daily caffeine limit for children. However, FDA recently announced that it will investigate the safety of caffeine in food products, particularly its effects on children and adolescents. The FDA announcement cites a proliferation of products with caffeine that are being aggressively marketed to children, including “energy drinks.” FDA is working with the IOM to convene a public workshop in the near future to explore these issues, including determining a safe level for caffeine consumption and the potential consequences to children of caffeinated products in the food supply.
Given the lack of authoritative recommendations at this time, this interim final rule will not prohibit caffeine for high school students. However, USDA acknowledges commenters' concerns and encourages schools to be mindful of the level of caffeine in food and beverages when selecting products for sale in schools, especially when considering the sale of high caffeine products such as energy drinks. USDA will continue to monitor research and recommendations on caffeine in children as we develop a final rule. We will also provide guidance to program operators on what constitutes trace amounts of naturally occurring caffeine, for use at the elementary and middle school levels.
Accordingly, this interim final rule codifies the caffeine provisions, as proposed, in § 210.11(k).
The proposal did not explicitly address the issue of non-nutritive sweeteners; however, the proposal would allow calorie-free and low-calorie beverages in high schools, which implicitly would allow beverages including non-nutritive sweeteners.
Approximately 40 commenters addressed the use of non-nutritive sweeteners in food products. Some commenters opposed allowing artificially sweetened beverages. For example, some commenters opposed the sale of diet sodas, whereas others stated that there is little evidence regarding the advisability of intake of sugar-sweetened beverages versus intake of non-nutritive sweeteners in beverages. In contrast, some commenters supported the use of non-nutritive sweeteners. USDA appreciates commenter input but is not explicitly addressing in the regulatory text of this interim final rule the use of non-nutritive sweeteners. Local program operators can decide whether to offer items for sale with non-nutritive sweeteners.
Proposed § 210.11(b)(5) would require that food and beverage items sold
• By the State agency during such periods that schools are in session (proposed Alternative E1); or
• By the State agency and approved by USDA during such periods that schools are in session (proposed Alternative E2).
In either case, the proposed rule required that no specially exempted fundraiser foods or beverages would be sold in competition with school meals in the food service area during meal service.
As stated in the preamble to the proposed rule, the proposal would not limit the sale of food items that meet the proposed nutrition requirements (as well as the sale of non-food items) at fundraisers. In addition, the proposed standards would not apply to food sold during non-school hours, weekends and off-campus fundraising events such as concessions during after-school sporting events.
Approximately 85 commenters supported proposed Alternative E1 allowing State agencies the discretion to determine the allowed frequency of exempted fundraisers. Commenters argued that State agencies possess the necessary knowledge, understanding or resources to make decisions about what “limited number” of fundraisers is appropriate for their communities. Several commenters requested clarifying that if a State agency does not specify an acceptable exempted fundraiser frequency, it would be implied that no exemptions are granted.
Approximately 800 commenters expressed support for proposed Alternative E2 which would allow State agencies to set the frequency of exempted fundraisers, with USDA approval, citing that this would better ensure consistent application of nutrient standards across all fundraisers. Some commenters suggested that USDA should set the number or standards for exempt fundraisers per year for purposes of consistency. A few commenters provided more specific recommendations for the frequency of fundraisers.
More than 600 commenters suggested that there should be no exemptions for fundraisers from the competitive food standards because fundraiser foods compete with school meals and providing exemptions would blur the message of good nutrition practices.
Approximately 550 commenters provided comments regarding the place and/or time that specially exempted fundraisers could be sold. Numerous commenters suggested that USDA prohibit sales by exempt fundraisers across the entire school campus instead of only food service areas during meal service.
Several commenters expressed concern over the potential loss of revenue if fundraisers are limited; other commenters were concerned about the effects of the proposed fundraiser limitations on schools, clubs and student organizations that rely on revenue from fundraising.
Some commenters requested clarification that the competitive food standards did not apply to fundraisers in which the food was not intended to be consumed on the school campus (e.g., catalog sales or frozen pizzas and cookie dough).
In response, USDA believes that the most appropriate approach to specifying the standards for exempt fundraisers is to allow State agencies to set the allowed frequency (proposed Alternative E1). If a State agency does not specify the exemption frequency, no fundraiser exemptions may be granted. As noted in the preamble to the proposed rule, USDA's expectation is that State agencies will ensure that the frequency of such exempt fundraisers on school grounds during the school day does not reach a level to impair the effectiveness of the competitive food requirements in this rule. It is not USDA's intent that the competitive food standards in this interim final rule apply to fundraisers in which the food sold is clearly not for consumption on the school campus during the school day. It is important to note that school districts may implement more restrictive competitive food standards, including those related to the frequency with which exempt fundraisers may be held in their schools, and further restrictions on the areas and times when exempt fundraisers may occur.
Accordingly, § 210.11(b)(4) of this interim final rule specifies that competitive food and beverage items sold during the school day must meet the nutrition standards for competitive food, and that a special exemption is allowed for the sale of food and/or beverages that do not meet the competitive food standards for the purpose of conducting an infrequent school-sponsored fundraiser. Such specially exempted fundraisers must not take place more than the frequency specified by the State agency during such periods that schools are in session. Finally, no specially exempted fundraiser foods or beverages may be sold in competition with school meals in the food service area during the meal service.
The proposed rule at § 210.10(a)(1) would require schools to make potable water available to children at no charge in the place where lunches and afterschool snacks are served during the meal service. The proposed rule encouraged, but did not require potable water to be served in the SBP. The proposal responded to amendments made to Section 9(a)(5) of the NSLA, 42 U.S.C. 1758(a)(5), by section 203 of the HHFKA which requires schools participating in the school lunch program to make available to children free of charge, potable water for consumption in the place where meals are served during meal service and which was effective as of October 1, 2010.
Approximately 490 commenters addressed implementation issues related to this provision. Approximately 7,000 commenters addressed other issues. Many of these commenters expressed support for the requirement for schools to make potable water readily accessible to children at no charge during the school meal service. Many commenters urged USDA to strengthen the proposed water requirements to include breakfast food service. Several commenters opposed requiring that potable water be available in schools in the afterschool snack service, citing concern that some groups outside of school food service may have logistical difficulty complying. Many commenters suggested that USDA specify that schools must make potable water available “readily accessible without restriction” in addition to being “available” (e.g., if only one water source is available, cups should be provided).
USDA agrees with many commenters that the potable water requirement be added to the breakfast meal service. We acknowledge, however, the variety of models of serving school breakfast including kiosks and breakfast in the classroom. In recognition of these alternative approaches to serving breakfast, we are only requiring the availability of free potable water during the SBP breakfast meal service when breakfast is served in the cafeteria. We encourage schools to provide water in other settings to the extent possible. In addition, we understand that afterschool
USDA issued an implementation memorandum entitled
Please note that this provision, as revised, will become effective 60 days after publication of this interim final rule, as the HHFKA potable water provision was effective as of October 1, 2010, and program operators have been implementing the requirement for lunch meal service since that time.
Accordingly, this interim final rule, in § 210.10(a)(1), requires that schools make potable water available and accessible without restriction to children at no charge in the place where lunches are served during the meal service. In addition, § 220.8(a)(1) requires that when breakfast is served in the cafeteria, schools must make potable water available and accessible without restriction to children at no charge.
Under proposed § 210.11(b)(3), local educational agencies and school food authorities would be required to maintain records documenting compliance with the proposed requirements. Local educational agencies would be responsible for maintaining records documenting compliance with the competitive food nutrition standards for food sold in areas that are outside of the control of the school food service operation. Local educational agencies also would be responsible for ensuring any organization designated as responsible for food service at the various venues in the school (other than the school food service) maintains records documenting compliance with the competitive food nutrition standards. The school food authority would be responsible for maintaining records documenting compliance with the competitive food nutrition standards for foods sold in meal service areas during meal service periods. Required records would include, at a minimum, receipts, nutrition labels and/or product specifications for the items available for sale.
Many commenters expressed concerns about these recordkeeping requirements. Some suggested recordkeeping is an unfunded mandate; others considered it costly, unrealistic and/or not necessary. Yet others recommended minimizing the recordkeeping on non-school groups. A number of commenters representing school food service were concerned that the local educational agency would require school food service to be responsible for recordkeeping on behalf of school food service as well as other entities/organizations within the local educational agency. These commenters were particularly concerned that additional recordkeeping responsibilities would compromise their efforts to implement the updated school meal pattern requirements. Additionally, they were concerned that school food service could not affect the requirements throughout the local educational agency since they have no authority over other school organizations. Some commenters suggested the responsibility should be at the local educational agency, not at individual schools. Finally, some commenters suggested a delayed implementation of the recordkeeping requirements, including an opportunity to study the impact of the requirements.
The Department appreciates that this regulation will create some new challenges initially, as schools seek to improve the school nutrition environment. However, evaluating records is essential to the integrity of the competitive food standards. To determine whether a food item is an allowable competitive food, the local educational agency designee(s) must assess the nutritional profile of the food item. Absent an evaluation of the nutritional profile, the local educational agency has no way of knowing whether a food item meets the nutrition standards set forth in this interim final rule. The recordkeeping requirement simply requires the local educational agency to retain the reviewed documentation (e.g., the nutrition labels, receipts, and/or product specifications).
Perhaps the larger issue raised by commenters is who is responsible for this activity. The Department does not necessarily expect the responsibility to rest solely with the nonprofit school food service. School food service personnel are expected to have a clear understanding of the nutrition profile of foods purchased using nonprofit school food service funds for reimbursable meals, à la carte offerings, etc. Retaining receipts, nutrition labels or product specifications for foods purchased with nonprofit school food service funds is a part of doing business. Yet their authority and responsibilities are typically limited to the nonprofit school food service. Local educational agencies are responsible for ensuring that all entities involved in food sales within a school understand that the local educational agency as a whole must comply with these requirements.
The Department appreciates that sorting through who is responsible will initially require planning and cooperation which could be facilitated by the local school wellness policy designee(s). Section 204 of the HHFKA amended the NSLA by adding section 9A (42 U.S.C. 1758b) which requires each local educational agency to (a) establish a local school wellness policy which includes nutrition standards for all foods available on each school campus, and (b) designate one or more local educational agency officials or school officials, to ensure that each school complies with the local school wellness policy. State agencies were advised of the section 204 requirements in FNS Memorandum,
The Department acknowledges the first year of implementation may be challenging as groups work together to establish a healthy school nutrition environment; however, if the local school wellness designee(s), school food service and other entities and groups work together to share information on allowable foods, we believe that implementation in future years will be greatly streamlined. As always, State agencies and the Department will provide technical assistance to facilitate implementation of the competitive food nutrition standards. Further, since implementation is not required until July 1, 2014, local educational agencies have time to sort out implementation issues and ensure all parties are well trained. Delayed implementation combined with the opportunities for public comment provided by this
Finally, the Department would like to address the comment suggesting this requirement is an unfunded mandate. The Department provides cash and donated food assistance to States and schools participating in the NSLP and SBP to strengthen and expand food service programs for children. In exchange, State agencies and participating local educational agencies/school food authorities agree to comply with the regulations set forth in 7 CFR 210 and 220.
Accordingly, the interim final rule at 210.11(b)(2), codifies the provision, as proposed, with one minor technical change. The proposed rule stated the school food authority is responsible for maintaining records documenting compliance with these standards in meal service areas during meal service periods. The interim final rule modifies this language to state that the school food authority is responsible for maintaining records for foods served under the auspices of the nonprofit school food service. This change acknowledges that nonprofit school food service activity may extend beyond meal service areas.
Proposed § 210.18(h)(7) would require State agencies to ensure that local educational agencies comply with the nutrition standards for competitive food and retain documentation demonstrating compliance with the competitive food service and standards.
A number of commenters, largely school food service personnel, expressed concerns about how monitoring would occur for foods sold by groups outside of the school food service. Some commenters believed technical assistance would be insufficient and raised questions about means to effect compliance, e.g., some sort of fiscal action. Other commenters expressed concerns about the need to train and educate non-school food service personnel as to how to comply with the regulations.
The Department agrees that training will be needed to ensure compliance with the nutrition standards. As mentioned under
School food service operations are routinely monitored by State agencies. State agencies conduct administrative reviews of school nutrition program operations once every three years. However, the HHFKA expanded the scope of the Department's responsibilities to include the school nutrition environment, not just school nutrition program operations. The Department now has responsibilities regarding the development and implementation of local school wellness policies, as required by the amendments made to the NSLA by section 204 of the HHFKA. In addition, the Department now has oversight and authority of foods sold outside of the school nutrition programs on the school campus during the school day, as required by the amendments made to the NSLA by section 208 of the HHFKA.
The Department will be addressing the scope of these extended monitoring responsibilities in a forthcoming proposed rule addressing administrative review requirements. Interested parties will have an opportunity to comment on the Department's approach to monitoring during the public comment period following publication of the proposed administrative review rule. The Department would like to assure commenters that we see technical assistance and training as the first approach to non-compliance, however, we recognize that egregious, repeated cases of non-compliance may require a more aggressive approach. In this regard, section 303 of the HHFKA amended section 22 of the NSLA (42 U.S.C. 1769c) to provide the Department with the authority to impose fines against any school or school food authority failing to comply with program regulations. This authority will be addressed in a forthcoming proposed rule addressing a number of integrity issues related to local educational agencies administering the Child Nutrition Programs. As with the proposed administrative rule, interested parties will have an opportunity to address these issues during a public comment period following publication of that proposed integrity rule.
Accordingly, § 210.18(h) is adopted as proposed.
The proposed rule would have required all local educational agencies and schools participating in the NSLP and SBP to meet the competitive food nutrition standards.
Several commenters noted the competitive food nutrition standards may be difficult for small schools, residential child care institutions (RCCIs) and culinary programs to administer. Commenters noted small or medium-sized schools may not have sufficient resources to carry out the required calculations or comply with the proposed recordkeeping requirements. In the case of RCCIs, one commenter noted that existing State regulations for juvenile detention centers may obviate the need for USDA nutrition standards for competitive foods. Several commenters recommended that foods made and sold by career centers and culinary arts programs be exempted from the competitive food standards, as the foods made in these programs may not meet the new standards and, therefore, could not be sold at student-run cafes. Alternatively, the proposed standards could limit the skills development necessary for careers in the food industry because the foods prepared would exceed the proposed standards. Yet other commenters argued there should be no difference between standards applying to the nonprofit school food service and other food service operations in the schools, such as school stores, culinary arts programs and vending machines. The competitive food standards should “level the playing field” between the nonprofit school food service and other school food sellers, including culinary arts programs.
Regarding small schools and RCCIs, the Department firmly believes the overall health and well-being of students in small entities is just as important as that of students in large entities. For this reason, the interim final rule continues to apply to all schools participating in the NSLP and SBP, including small schools and RCCIs. However, we do appreciate that these entities may have staffing limitations that make implementation more challenging. We look to the State agency to provide guidance to these entities, possibly sharing observations on allowable products and practices employed by other school districts in the State to meet the requirements. Schools with limited resources are likely to offer a limited number of competitive foods for sale which may facilitate meeting the requirements in these situations.
Career centers and culinary arts programs present a more challenging issue. These programs often make and sell foods to students. These programs are providing vocational training for culinary art careers. Students are
State agencies and local educational agencies must implement the competitive food provisions of this interim final rule beginning on July 1, 2014, as specified in the DATES section of this preamble. Amendments made by section 208 of the HHFKA made it clear that the Department must allow State and local educational agencies at least one full school year from the date of publication of this interim final rule to implement the competitive food provisions. For this reason, the interim final rule retains the existing competitive food requirements which included a prohibition on the sale of foods of minimal nutritional value in the food service areas during the meal periods (hereafter termed “foods of minimal nutritional value regulation”). Prior to August 27, 2013, these requirements were found at 7 CFR 210.11.
State and local educational agencies may begin implementing the competitive food provisions of this interim final rule prior to July 1, 2014; provided that those provisions complement and do not conflict with the foods of minimal nutritional value regulation which remains in effect through June 30, 2014.
To effect these changes, the foods of minimal nutritional value regulation (entitled
USDA, under the provisions of the Administrative Procedure Act at 5 U.S.C. 553(b)(B), finds for good cause that it is impracticable to issue a final rule at this time and thus is issuing an interim final rule, as authorized by section 208 of the Healthy, Hunger-Free Kids Act of 2010, Public Law 111–296, enacted on December 13, 2010. On February 8, 2013, USDA published a proposed rule to implement section 208 of the Healthy, Hunger-Free Kids Act of 2010 (78 FR 9530). The rule provided for a 60-day comment period, which ended on April 9, 2013. This interim final rule reflects comments received during that period. Section 208 requires that implementation of this statutory provision shall take effect at the beginning of the school year that is not earlier than one year and not later than two years following the date of the publication of an interim final or final rule. USDA recognizes that the significant, statutorily established, implementation delay will provide federal and state partners a lengthy period in which to provide technical assistance and administrative support to SFAs working toward compliance. At this time, as provided for in the
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
This interim final rule has been designated an “economically significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.
This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601–612). The interim final rule directly regulates the 54 State education agencies and 3 State Departments of Agriculture that operate the NSLP pursuant to agreements with USDA's Food and Nutrition Service. While State agencies are not considered small entities as State populations exceed the 50,000 threshold for a small government jurisdiction, many of the service-providing institutions that work with them to implement the program do meet definitions of small entities.
The requirements established by this interim final rule will apply to school districts, which meet the definitions of “small governmental jurisdiction” and other establishments that meet the definition of “small entity” in the Regulatory Flexibility Act. An Initial Regulatory Flexibility Act analysis is included as an Appendix to this rule.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule. Because data is not available to meaningfully estimate the quantitative impacts of this rule on school food authority revenues, we are not certain that this rule is subject to the requirements of sections 202 and 205 of the UMRA. That said, it is possible that the rule's requirements could impose costs on State, local, or Tribal governments or to the private sector of $100 million or more in any one year. FNS therefore conducted a regulatory impact analysis that includes a cost/benefit analysis and describes and explains six alternatives to the interim final rule, substantially meeting the
The NSLP is listed in the Catalog of Federal Domestic Assistance under No. 10.555. The SBP is listed in the Catalog of Federal Domestic Assistance under No. 10.553. For the reasons set forth in the final rule in 7 CFR part 3015, Subpart V and related notice (48 FR 29115, June 24, 1983), these programs are included in the scope of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. USDA has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. This rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under Section 6(b) of the Executive Order, a federalism summary impact statement is not required.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless specified in the
FNS has reviewed this rule in accordance with Departmental Regulations 4300–4, “Civil Rights Impact Analysis,” and 1512–1, “Regulatory Decision Making Requirements.” After a careful review of the rule's intent and provisions, FNS has determined that this rule is not intended to limit or reduce in any way the ability of protected classes of individuals to receive benefits on the basis of their race, color, national origin, sex, age or disability nor is it intended to have a differential impact on minority owned or operated business establishments and woman-owned or operated business establishments that participate in the Child Nutrition Programs.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320), requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current, valid OMB control number. This rule does contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995.
A 60-day notice was embedded into the proposed rule, “
FNS is requesting 927,634 burden hours for recordkeeping to document compliance with the new nutrition standards. The estimated average number of respondents for this rule is 122,662 (57 State agencies, 20,858 school food authorities, and 101,747 schools). The following table reflects the estimated burden associated with the new information collection requirements.
The Food and Nutrition Service is committed to complying with the E-Government Act of 2002, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services and for other purposes.
Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the federal government and Indian Tribes. In Spring 2011, FNS offered opportunities for consultation with Tribal officials or their designees to discuss the impact of the Healthy, Hunger-Free Kids Act of 2010 on tribes or Indian Tribal governments. The consultation sessions were coordinated by FNS and held on the following dates and locations:
1. HHFKA Webinar & Conference Call—April 12, 2011
2. Mountain Plains—HHFKA Consultation, Rapid City, SD—March 23, 2011
3. HHFKA Webinar & Conference Call—June, 22, 2011
4. Tribal Self-Governance Annual Conference in Palm Springs, CA—May 2, 2011
5. National Congress of American Indians Mid-Year Conference, Milwaukee, WI—June 14, 2011
The five consultation sessions in total provided the opportunity to address Tribal concerns related to school meals. There were no comments about this regulation during any of the aforementioned Tribal consultation sessions.
Currently, FNS provides regularly scheduled quarterly consultation sessions as a venue for collaborative conversations with Tribal officials or their designees. The most recent specific discussion of the Nutrition Standards for Foods Sold in Schools proposed rule was included in the consultation conducted on February 13, 2013. No questions or comments were raised specific to this rulemaking at that time.
Reports from these consultations are part of the USDA annual reporting on Tribal consultation and collaboration. FNS will respond in a timely and meaningful manner to Tribal government requests for consultation concerning this rule.
A Regulatory Impact Analysis (RIA) was developed for this proposal, which is summarized below. The full RIA is included as an Appendix to this rule.
The interim final rule responds to two provisions of the Healthy, Hunger-Free Kids Act of 2010. Section 208 of HHFKA amended Section 10 of the Child Nutrition Act of 1966 to require the Secretary to establish science-based nutrition standards for all foods sold in schools during the school day.
The full Regulatory Impact Analysis, which appears as an Appendix, includes a brief discussion of comments on the costs and benefits of the proposed rule submitted by school officials, public health organizations, industry representatives, parents, students, and other interested parties. The analysis also contains a discussion of how USDA modified the interim final rule in response, and the effect of those modifications on the costs and benefits of the rule.
The primary purpose of the rule is to ensure that nutrition standards for competitive foods are consistent with the most recent DGA recommendations, effectively holding competitive foods to the same standards as the rest of the foods sold at school during the school day. These standards, combined with recent improvements in school meals, will help promote diets that contribute to students' long-term health and well-being. And they will support parents' efforts to promote healthy choices for children at home and at school.
Obesity has become a major public health concern in the U.S., with one-third of U.S. children and adolescents now considered overweight or obese (Beydoun and Wang 2011
Because the factors that contribute both to overall food consumption and to obesity are so complex, it is not possible to define a level of disease or cost reduction expected to result from implementation of the rule. There is some evidence, however, that competitive food standards can improve children's dietary quality.
• Taber, Chriqui, and Chaloupka (2012
• Schwartz, Novak, and Fiore, (2009
• Researchers at Healthy Eating Research and Bridging the Gap found that “[t]he best evidence available indicates that policies on snack foods and beverages sold in school impact children's diets and their risk for obesity. Strong policies that prohibit or restrict the sale of unhealthy competitive foods and drinks in schools are associated with lower proportions of
A recent, comprehensive, and groundbreaking assessment of the evidence on the importance of competitive food standards conducted by the Pew Health Group concluded that a national competitive foods policy would increase student exposure to healthier foods, decrease exposure to less healthy foods, and would also likely improve the mix of foods that students purchase and consume at school. Researchers concluded that these kinds of changes in food exposure and consumption at school are important influences on the overall quality of children's diets.
Although nutrition standards for foods sold at school alone may not be a determining factor in children's overall diets, they are critical to providing children with healthy food options throughout the entire school day. Thus, these standards will help to ensure that the school nutrition environment does all that it can to promote healthy choices, and help to prevent diet-related health problems. Ancillary benefits could derive from the fact that improving the nutritional value of competitive foods may reinforce school-based nutrition education and promotion efforts and contribute significantly to the overall effectiveness of the school nutrition environment in promoting healthful food and physical activity choices.
Any rule-induced benefit of healthier eating by school children would be accompanied by costs, at least in the short term. Healthier food may be more expensive than unhealthy food—either in raw materials, preparation, or both—and this greater expense would be distributed among students, schools, and the food industry. Moreover, students who switch to less-preferred foods and beverages could experience a utility loss. If students do not switch to healthier foods, they may incur travel or other costs related to obtaining their preferred choices from a location less convenient than school. Regardless of student response, the proposed rule would also impose administrative costs on schools and their food authorities.
The rule requires schools to improve the nutritional quality of foods offered for sale to students outside of the Federal school lunch and school breakfast programs. The new standards apply to foods sold à la carte, in school stores or vending machines, and, with limited exceptions, through in-school fundraisers sponsored by students, parents, or other school-affiliated groups. Upon implementation of the rule, students will face new food choices from these sources. The new choices will meet standards for fat, saturated fat, sugar, and sodium, and have whole grains, low fat dairy, fruits, vegetables, or protein foods as their main ingredients. Our analysis examines a range of possible behavioral responses of students and schools to these changes. To estimate potential effects on school revenue, we look to the experience of school districts that have adopted or piloted competitive food reforms in recent years.
The practice of selling foods in competition with federally reimbursable program meals and snacks is widespread. In SY 2004–2005, 82 percent of all schools—and 92 percent of middle and high schools—offered à la carte foods at lunch. Vending machines were available in 39 percent of all schools, including 13 percent of elementary schools, 72 percent of middle schools, and 87 percent of high schools (Fox, et al., 2012; Volume 1, p. 3–42).
The limited information available indicates that many schools have successfully introduced competitive food reforms with little or no loss of revenue and in a few cases, revenues from competitive foods increased after introducing healthier foods. In some of the schools that showed declines in competitive food revenues, losses from reduced sales were fully offset by increases in reimbursable meal revenue. In other schools, students responded favorably to the healthier options and competitive food revenue declined little or not at all.
But not all schools that adopted or piloted competitive food standards fared as well. Some of the same studies and reports that highlight school success stories note that other schools sustained some loss after implementing similar standards. While in some cases these were short-term losses, even in the long-term the competitive food revenue lost by those schools was not offset (at least not fully) by revenue gains from the reimbursable meal programs.
Our analysis examines the possible effects of the rule on school revenues from competitive foods and the administrative costs of complying with the rule's competitive foods provisions. The analysis uses available data to construct model-based scenarios that different schools may experience in implementing the rule. While these vary in their impact on overall school food revenue, each scenario's estimated impact is relatively small (+0.5 percent to −1.3 percent). In comparison, the regulations implementing the school food service revenue provisions of HHFKA would increase average overall school food revenue by roughly six percent. That said, the data behind the scenarios are insufficient to assess the frequency or probability of schools experiencing the impacts shown in each.
Grant programs-education; Grant programs-health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs; Surplus agricultural commodities.
Grant programs-education; Grant programs-health; Infants and children; Nutrition; Reporting and recordkeeping requirements; School breakfast and lunch programs.
Accordingly, 7 CFR parts 210 and 220 are amended as follows:
42 U.S.C. 1751–1760, 1779.
(b) * * * It specifies Program responsibilities of State and local officials in the areas of program administration, preparation and service of nutritious lunches, the sale of competitive foods, payment of funds, use of program funds, program monitoring, and reporting and recordkeeping requirements.
(a) * * *
(1) * * *
(i) * * * Schools must make potable water available and accessible without restriction to children at no charge in the place(s) where lunches are served during the meal service.
(a)
(1)
(2)
(3)
(i) A combination food of meat or meat alternate and whole grain rich food; or
(ii) A combination food of vegetable or fruit and meat or meat alternate; or
(iii) A meat or meat alternate alone with the exception of yogurt, low-fat or reduced fat cheese, nuts, seeds and nut or seed butters, and meat snacks (such as dried beef jerky).
(4)
(5)
(b)
(2)
(3)
(4)
(c)
(2)
(i) Meet all of the competitive food nutrient standards as outlined in this section; and
(ii) Be a grain product that contains 50 percent or more whole grains by weight or have as the first ingredient a whole grain; or
(iii) Have as the first ingredient one of the non-grain major food groups: fruits, vegetables, dairy or protein foods (meat, beans, poultry, seafood, eggs, nuts, seeds, etc.); or
(iv) Be a combination food that contains
(v) For the period through June 30, 2016, contain 10 percent of the Daily Value of a nutrient of public health concern based on the most recent Dietary Guidelines for Americans (i.e., calcium, potassium, vitamin D or dietary fiber). Effective July 1, 2016, the criterion in this paragraph is obsolete and may not be used to qualify as a competitive food; and
(vi) If water is the first ingredient, the second ingredient must be one of the food items in paragraphs (c)(2)(ii), (iii) or (iv) of this section.
(3)
(ii)
(d)
(2) Canned vegetables that contain a small amount of sugar for processing purposes, to maintain the quality and structure of the vegetable, are also exempt from the nutrient standards included in this section.
(e)
(f)
(ii) The saturated fat content of a competitive food must be less than 10 percent of total calories per item as packaged or served, except as specified in paragraph (f)(3) of this section.
(2)
(3)
(ii) Nuts and Seeds and Nut/Seed Butters are exempt from the total fat and saturated fat standards, but subject to the trans fat, sugar, calorie and sodium standards. This exemption does not apply to combination products that contain nuts, nut butters or seeds or seed butters with other ingredients such as peanut butter and crackers, trail mix, chocolate covered peanuts, etc.
(iii) Products that consist of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat are exempt from the total fat, saturated fat and sugar standards, but subject to the trans fat, calorie and sodium standards.
(g)
(h)
(2)
(ii) Products that consist of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat are exempt from the total fat, saturated fat, and sugar standards, but subject to the calorie, trans fat, and sodium standards; and
(i)
(j)
(k)
(l)
(m)
(i) Plain water or plain carbonated water (no size limit);
(ii) Low fat milk, unflavored (no more than 8 fluid ounces);
(iii) Non fat milk, flavored or unflavored (no more than 8 fluid ounces);
(iv) Nutritionally equivalent milk alternatives as permitted in § 210.10 and § 220.8 of this chapter (no more than 8 fluid ounces); and
(v) 100 percent fruit/vegetable juice, and 100 percent fruit and/or vegetable juice diluted with water (with or without carbonation and with no added sweeteners) (no more than 8 fluid ounces).
(2)
(i) Plain water or plain carbonated water (no size limit);
(ii) Low fat milk, unflavored (no more than 12 fluid ounces);
(iii) Non fat milk, flavored or unflavored (no more than 12 fluid ounces);
(iv) Nutritionally equivalent milk alternatives as permitted in § 210.10 and § 220.8 of this chapter (no more than 12 fluid ounces); and
(v) 100 percent fruit/vegetable juice, and 100 percent fruit and/or vegetable juice diluted with water (with or without carbonation and with no added sweeteners) (no more than 12 fluid ounces).
(3)
(i) Plain water or plain carbonated water (no size limit);
(ii) Low fat milk, unflavored (no more than 12 fluid ounces);
(iii) Non fat milk, flavored or unflavored (no more than 12 fluid ounces);
(iv) Nutritionally equivalent milk alternatives as permitted in § 210.10 and § 220.8 of this chapter (no more than 12 fluid ounces);
(v) 100 percent fruit/vegetable juice, and 100 percent fruit and/or vegetable juice diluted with water (with or without carbonation and with no added sweeteners) (no more than 12 fluid ounces);
(vi) Calorie-free, flavored water, with or without carbonation (no more than 20 fluid ounces);
(vii) Other beverages that are labeled to contain less than 5 calories per 8 fluid ounces, or less than or equal to 10 calories per 20 fluid ounces (no more than 20 fluid ounces); and
(viii) Other beverages that are labeled to contain no more than 40 calories per 8 fluid ounces or 60 calories per 12 fluid ounces (no more than 12 fluid ounces).
(n)
(c)
(h) * * *
(6)
(c) Appendix B remains in effect through June 30, 2014.
42 U.S.C. 1773, 1779, unless otherwise noted.
(a) * * *
(1) * * * When breakfast is served in the cafeteria, schools must make potable water available and accessible without restriction to children at no charge.
School food authorities must comply with the competitive food service and standards requirements specified in § 210.11 of this chapter.
(c)
(1)
(2)
(i) In the case of artificially sweetened foods, a food which provides less than five percent of the Reference Daily Intake (RDI) for each of eight specified nutrients per serving; and
(ii) In the case of all other foods, a food that provides less than five percent of the RDI for each of eight specified nutrients per 100 calories and less than five percent of the RDI for each of eight specified nutrients per serving. The eight nutrients to be assessed for this purpose are protein, vitamin A, vitamin C, niacin, riboflavin, thiamin, calcium and iron. Categories of foods of minimal nutritional value are listed in appendix B of this part.
(d)
13. Appendix B to Part 220 is amended by adding paragraph (c) to read as follows:
(c) Appendix B remains in effect through June 30, 2014.
The following appendices will not appear in the Code of Federal Regulations.
The RFA does not require that agencies necessarily minimize a rule's impact on small entities if there are significant, legal, policy, factual, or other reasons for the rule's impacts. The RFA requires only that agencies determine, to the extent feasible, the rule's economic impact on small entities, explore regulatory alternatives for reducing any significant economic impact on a substantial number of such entities, and explain the reasons for their regulatory choices.
This interim final rule sets forth provisions to implement section 208 of Public Law 111–296, the Healthy, Hunger-Free Kids Act of 2010 (HHFKA). Section 208 amends Section 10 of the Child Nutrition Act of 1966 (42 U.S.C. 1779) (CNA) to give the Secretary of Agriculture new authority to establish science-based nutrition standards for all foods sold outside of the Federal child nutrition programs on the school campus during the school day. The Act also specifies that the nutrition standards shall apply to all foods sold (a) outside the school meal programs; (b) on the school campus; and (c) at any time during the school day.
As stated above, the legal basis for the interim final rule are the amendments made to the CNA by HHFKA. The objectives of this rule are to establish nutrition standards for all foods and beverages sold to students in schools other than meals served through child nutrition programs authorized under the NSLA or the CNA and to improve the health and well being of the Nation's school-aged children.
Small entities include independently owned and operated small businesses
The interim final rule directly regulates the 54 State education agencies and 3 State Departments of Agriculture that operate the NSLP pursuant to agreements with USDA's Food and Nutrition Service. In turn, its provisions apply to school food authorities (SFAs) and non-SFA school groups that sell competitive foods and beverages to students during the school day. While State agencies are not considered small entities as State populations exceed the 50,000 threshold for a small government jurisdiction, many of the service-providing institutions that work with them to implement the program do meet definitions of small entities:
• More than 20,000 SFAs, consisting of about 100,000 schools and residential child care institutions (RCCIs) participate in the NSLP. Many schools provide competitive foods through à la carte menus, vending machines, school stores, snack bars, fundraisers, or some combination of these sources. Within individual schools, a variety of school groups (e.g., student clubs, parent teacher organizations, or parent “booster” organizations supporting activities such as sports, music, and enrichment activities) earn revenue from competitive foods. Census data indicate that 90 percent of U.S. school districts had populations under 50,000 in 2010.
• Vending machine operators are not regulated by the rule but are indirectly affected. Most of these businesses are likely small entities. Vending machine operators with annual receipts below $10 million are presumed not to be dominant in their field.
• Like vending machine operators, food manufacturers are not directly regulated. Food manufacturers are a diverse group, consisting of large national firms as well as regional and even local food producers. The rule does not define a set of products that can be sold in schools. Instead, it sets standards that may be satisfied by a wide variety of snack items, beverages, entrees, and side dishes. SFAs will turn to the food industry for pre-packaged items that are ready for sale to students, as well as for ingredients that will be used in foods prepared in schools. These foods and ingredients will be provided by establishments in nearly all subsectors of the food manufacturing industry. Without data on the relative share of the school market served by establishments in these subsectors, USDA cannot say very much about the impact on small entities. SBA size standards for the food manufacturing industry range from 500 to 1,000 employees per establishment, depending on industry subsector.
• Beverage manufacturers are indirectly affected in the same way as food manufacturers. The rule establishes standards that can and will be met by a variety of products from many manufacturers, some that market their products nationally, and others with a more limited regional or local presence. The SBA's size standard for beverage manufacturers is 500 employees.
• Food service management companies (FSMCs) that prepare or serve reimbursable school meals under contract to SFAs are indirectly affected by the rule to the extent that they also provide schools with à la carte or other competitive foods. Nineteen percent of public school SFAs contracted with FSMCs in school year (SY) 2009–2010 for all or part of their food service operations.
An estimated 95 percent of competitive school food sales accrue to SFAs; the remaining five percent accrues to other school groups such as student clubs, parent teacher organizations, or parent “booster” organizations. If SFAs, other school groups, and the food industry are able to satisfy current student demand for competitive foods with new options that meet the interim final rule standards, then there may be no change in competitive food sales or competitive food revenue. Although the evidence base is limited, it demonstrates that competitive food reforms can be implemented by SFAs with little or no loss of revenue. In some cases, revenues from competitive food sales have increased after introducing healthier foods. In some cases, decreases in competitive food sales have been offset by increases in school meal participation. In other cases, schools have experienced a decline in overall school food revenue.
The available data do not allow us to estimate the potential school revenue effect with any certainty. Instead, we have prepared a series of estimates that represent a range of plausible outcomes given the variety of experiences observed in several case studies.
Case studies that consider the impacts of competitive food nutrition standards on SFA revenues find that reductions in competitive food revenue are often fully offset by increases in reimbursable meal revenue as students redirect their demand for competitive foods to the reimbursable school meal programs. In other instances, the lost competitive food revenue was not offset (at least not fully) by revenue gains from the reimbursable meal programs.
Most SFAs have a number of options and some flexibility within available revenue streams and operations that can help minimize lost revenue. For example, about half of all SFA revenues are from Federal payments for reimbursable meals. SFAs can increase revenues to the extent that schools successfully encourage greater meal participation. In addition, the revenue impacts presented here are from a baseline that increased substantially at the start of SY 2011–2012, on implementation of interim regulations for Sections 205 and 206 of HHFKA. Section 206 is intended to ensure that the revenue from competitive food sales is aligned with competitive food costs.
Unlike SFAs, other school groups cannot make up lost revenues through school meal sales. The interim final rule mitigates the impact on such groups by providing an exception for infrequent fundraisers that do not meet the rule's competitive food standards. Alternatively, these groups may explore fundraising options that include foods that do meet the interim final rule standards or find other modes of fundraising that do not include competitive foods.
Manufacturers, wholesalers, foodservice management companies, and distributors, including vending machine operators, are not directly regulated under the rule but may be affected indirectly to the extent that schools will need to purchase a different mix of foods to satisfy the requirements of the rule.
Vending machine operators served an estimated 18,000 primary and secondary schools in the U.S. in 2009.
Although industry will incur some costs to produce and deliver products to schools that meet the interim final rule standards, some of that cost has already been incurred. Many States and school districts have already adopted their own competitive food standards, some aligned with guidelines developed by the Alliance for a Healthier Generation (Alliance). The food industry has responded to these State and local standards by changing their product mix, and by producing a variety of new or reformulated products. One recent study found that between 2004 and 2009, the beverage industry reduced calories shipped to schools by 90 percent, with a total volume reduction in full-calorie soft drinks of over 95 percent.
The interim final rule requires that State agencies ensure that all schools, SFAs, and other food groups comply with its competitive food standards. State agencies must also retain documentation demonstrating compliance. Schools, SFAs, and other food groups are responsible for maintaining records documenting compliance with competitive food standards. It is anticipated that the administrative cost to 57 State agencies, 102,000 schools, and 21,000 SFAs and local educational agencies will total $126 million over five years (or about $247 per school per year on average).
A key characteristic associated with a school's dependence on competitive food revenue is grade level. High schools are more likely to offer competitive foods than are elementary schools. This is true of à la carte foods, foods sold through vending machines, and foods sold in school stores or snack bars.
The most important source of competitive food revenue is à la carte sales. Sales from vending machines are less common, accounting for only about five percent of all competitive food sales. In general, small schools are less likely than larger schools to have vending machines accessible to students: just 36 percent of schools with fewer than 500 students had vending machines in SY 2004–2005. That increases to 48 percent of schools with 500 to 1,000 students and 78 percent of schools with more than 1,000 students.
In order to maximize stakeholder input in the comment process, USDA developed and presented two or more alternatives for several of the key provisions of the proposed rule. USDA anticipated that commenters would help clarify the relative merits of each of the alternatives, as well as identify critical concerns. USDA used this input from commenters to help guide the development of the interim final rule. The ultimate goal was to develop an interim final rule that adheres to the requirements of the statutory mandate while limiting adverse impacts on affected groups and facilitating implementation of the new standards.
USDA received more than 247,000 comments on the proposed rule from school and school food authority officials, industry representatives, parents, students, child health advocates, and other interested parties. Although very few comments mentioned the Initial Regulatory Flexibility Analysis by name, many comments addressed the economic impact of the rule on directly and indirectly regulated individuals or businesses. This section of the analysis describes the issues raised by the commenters, USDA's response to those comments, and changes made to the rule that limit its impact on small entities.
Given that almost all SFAs and schools, and many or most industry establishments that serve the school market are small entities, USDA's response to these concerns is appropriate for discussion in this analysis. However, because the industry groups affected by the rule are not directly regulated by it, our analysis of the effects of the rule on industry, and USDA action taken in response to those comments, is not required by the Regulatory Flexibility Act. Nevertheless, we include a discussion of the comments raised by industry, and USDA action in response to those comments, as recommended by the SBA.
SFA and school officials, non-SFA school groups, and representatives of food manufacturing, vending, and food service management industries expressed concern that Federal competitive food standards would reduce the sale of competitive foods in schools and the impact the revenue generated by those sales. Commenters raised several points in this regard. Among the most common were:
• The rule would reduce the number and variety of compliant competitive food products available for sale,
• Students will replace their competitive school food purchases with food brought from home or purchased off campus, and revenue lost from competitive food sales will not be offset by increased participation in the reimbursable meal programs, and
• Compliance with the new standards will be administratively costly.
We discuss each of these separately below.
Commenters indicated that many popular competitive food items will not meet the new standards and will no longer be allowed for sale in à la carte lines, vending machines, or school stores. Both school and industry officials are concerned that the availability, variety, and appeal of compliant products is insufficient to meet student demand. These officials fear that students, especially older students, will respond by purchasing fewer competitive foods and beverages at school.
Comments from some industry representatives and school officials focused on the investments that they have already made to meet State or local competitive food standards, or to meet USDA's HUSSC standards. As we discuss in Section III of the Regulatory Impact Analysis (RIA) prepared for the interim final rule, USDA recognizes the value in aligning the rule's competitive food requirements with existing or emerging standards to the extent that those standards are consistent with the statutory mandate behind the rulemaking. USDA made several changes to the proposed rule standards that more closely align the interim final rule with existing NSLP standards, guidelines developed by the Alliance for a Healthier Generation, and USDA's HUSSC requirements. These include:
• Increasing the proposed rule's sodium limit on snacks and non-program side dishes from 200 mg per portion as packaged to 230 mg (through June 2016),
• Exempting nuts/seeds and nut/seed butters from the rule's total and saturated fat standards,
• Exempting part skim mozzarella cheese from the total and saturated fat standards,
• Allowing full strength juice diluted with added water (or carbonated water), and
• Allowing fruit packed in light syrup.
In addition, the interim final rule adopts the proposed rule's 35 percent by weight standard for sugar over the alternate 35 percent of calories standard.
Each of these changes further aligns the interim final rule with existing NSLP requirements, voluntary HUSSC standards, and Alliance for a Healthier Generation guidelines. The effect of these changes is to increase the number of already available healthy products, many already for sale in schools that meet interim regulations. This will tend to reduce the risk that SFAs will lose revenue due to the lack of readily available, market-tested products that meet interim final rule standards.
For food manufacturers, greater alignment of the interim final rule with existing standards will ensure a continued market for existing products that they may have developed specifically to meet those standards. Similarly, for distributors such as vending machine operators, greater alignment with existing standards will eliminate some of the cost associated with adjusting to a different set of product specifications (such as finding new products to carry, and developing relationships with new producers).
In comments submitted to USDA on the proposed rule, the National Automatic Merchandising Association (NAMA) urged USDA to adopt standards that consistent with the vending industry's voluntary Fit Pick® program. That program promotes vending machine snack items that meet certain nutritional standards. One of the industry's two Fit Pick® packages promotes foods whose calories from fat, calories from saturated fat, percent of sugar by weight, total calories per serving, and sodium per serving match the guidelines developed by the Alliance for a Healthier Generation. NAMA notes that the vending industry's Fit Pick program is “popular and successful” within the industry. With regard to the Alliance standards, NAMA notes that
“These standards are already widely used in schools and provide more flexibility while assuring that the items that are sold on school campuses meet established nutritional guidelines. Fit Pick® would provide the USDA with an option that provides flexibility for the industry and lessens the impact on small business on both the revenue and expense sides. This would provide a program that the industry and schools are familiar with, therefore creating a simpler and more cost-effective implementation process.”
By moving closer to the Alliance standards, USDA's interim final rule responds directly to concerns about the cost of implementation faced by vending machine operators, particularly small businesses.
Other school groups that rely on competitive food sales as fundraisers benefit along with SFAs to the extent that they can choose from a wider variety of foods to sell.
A reduction in competitive food sales following the implementation of Federal standards is a concern of both schools and industry that rely on that revenue. The changes discussed above that better align several of the rule's nutrient and food standards with existing standards and guidelines helps to guarantee that a wide variety of market-tested products will be available on implementation. Along with school-based strategies to win student acceptance of healthier competitive foods,
USDA also modified the proposed rule's provision regarding the sale of beverages other than milk, plain water, and 100 percent fruit and vegetable juice in the cafeteria during meal service periods. Although the proposed and interim final rules allow the sale of a wider selection of beverages to high school students, the proposed rule would have kept those beverages out of meal service areas during a meal service. Commenters were concerned about the effect of that “time and place” restriction on SFA revenues. The proposed rule restriction had the potential to discourage some high school students from even entering the cafeteria at meal time and considering a reimbursable meal or à la carte foods as an option to food brought from home or purchased off campus. The interim final rule's elimination of that restriction removes a potential barrier to SFA efforts to maintain existing levels of competitive food revenue, or to replace lost competitive food revenue with revenue from reimbursable meals. Higher in-school sales of competitive foods or program meals also benefits the food service industries that sell food to schools.
As we note in the RIA, the proposed and the interim final rules impose some new recordkeeping requirements on school officials. These recordkeeping requirements are necessary to document compliance and ensure that the benefits of the rule are fully realized, and they are retained in the interim final rule with only one small technical change. However, the changes that USDA made to the interim final rule to align several provisions with existing NSLP standards, HUSSC requirements, or Alliance for a Healthier Generation guidelines will help reduce transition and compliance costs for many schools.
Each of the following alternatives is discussed more fully in the RIA. What follows is a summary of that broader discussion with particular focus on the economic and administrative impact on the small entities directly regulated or indirectly affected by the rule.
The proposed rule presented two basic alternatives for the treatment of entrées and side dishes that are served as part of a reimbursable meal. Under the first alternative, these items could be served à la carte as long as they met the rule's fat and sugar standards that apply to all other competitive foods. Under the second alternative, NSLP entrées and sides (except grain-based desserts) would be exempt from all of the rule's competitive food requirements if served à la carte on same day that they are part of a reimbursable meal (alternative B1) or within four days of service as part of a reimbursable meal (alternative B2).
The interim final rule adopts a variation on the second alternative. Entrées (but not side dishes) served as part of a reimbursable meal will be exempt from the rule's competitive food requirements on the day they are served as part of the meal and the following day. USDA recognizes that being able to serve leftover entrées the next day is an important tool for menu planning and cost control. The
The interim final rule provision offers somewhat greater administrative simplicity compared to the other alternative considered by USDA. That alternative would have required a nutrient analysis of reimbursable meal items before they could be sold à la carte in order to measure their compliance with the rule's fat and sugar standards.
The proposed rule offered two alternatives for establishing limits on the frequency of exempt fundraisers. One would have allowed States to set limits subject to USDA approval. The other would grant full discretion to the States.
After consideration of comments from interest groups and school officials, USDA opted to allow States to set their own limits on the frequency of exempt fundraisers without USDA review.
The proposed rule solicited public comment on two alternate sugar standards for competitive foods. These would have limited total sugar content to either 35 percent of calories or 35 percent of weight. Both standards would have placed a meaningful check on the amount of sugar allowed in competitive foods while providing exceptions for certain fruit and vegetable snacks and yogurt. After considering arguments in favor of each of these standards, USDA adopted the sugar by weight standard for the interim final rule.
Administrative burden and product availability were among the factors that weighed most heavily in this decision. Commenters who favored the 35 percent by weight standard argued that
• It was consistent with standards already in place through voluntary programs such HUSSC and the Alliance for a Healthier Generation,
• Sugar is commonly reported by weight by industry and others,
• Calculators for sugar by weight already exist to aid school food service professionals in their calculations,
• The sugar as a percent of calories standard would negatively affect food service revenues; and
• Sugar by weight allows greater flexibility in the products available to students.
The first four of these points suggest that the sugar by weight standard will be less costly to implement for both the schools and industry that have already invested in that standard. Schools that are new to competitive food reform will also benefit from the sugar by weight standard to the extent that industry has already developed products designed to meet the demand of HUSSC schools and schools that follow Alliance guidelines.
The alternate percent of calories standard, by contrast, would have added to some schools' cost of compliance with the rule. It would have been most disruptive and potentially costly to schools that have already established relationships with suppliers and distributors who provide the schools with products intended to meet the sugar by weight standard.
The net effect on industry of choosing the weight standard over the calorie standard is unclear. Manufacturers and distributors that have already invested in supplying schools with products that meet the sugar by weight standard may realize the greatest immediate benefit. Comments from representatives of the vending industry point to that industry's voluntary efforts to support schools that follow Alliance guidelines on competitive foods, and urged USDA to adopt standards consistent with those guidelines. The interim final rule's sugar standard, in combination with some of the other changes to the rule, aligns the rule with more of the existing products that meet the sugar by weight and other Alliance guidelines. Manufacturers as well as distributors of such products may see additional demand once all schools implement the rule.
Not all sectors of the food industry favored the sugar by weight standard. Compared to the alternate sugar as a percent of calories standard, the weight standard may be more difficult to meet for sugar-sweetened products with low moisture content, where the ratio of fat to sugar may mean the difference between compliance and non-compliance. Because a gram of fat has more than twice as many calories as a gram of sugar, snack products and desserts with a relatively high fat content (from nuts or chocolate, for example) may be less likely to meet the interim final rule's weight-based sugar standard although they might have met the alternative calorie-based standard.
Competitive foods that do not satisfy one of the interim final rule's food group requirements may be sold in school if they contain at least 10 percent of the daily value of one of several nutrients of concern (i.e., calcium, potassium, vitamin D, and fiber), but only through June 2016. Beginning July 1, 2016 this criterion will be obsolete and may not be used to qualify an item as an allowable competitive food.
The primary alternative considered by USDA was the proposed rule's handling of nutrients of concern. The proposed rule would have allowed products that met the 10 percent threshold, but only through the use of naturally occurring ingredients. In addition, the proposed rule would have made this option permanent.
USDA's decision to modify the proposed rule provision was driven primarily by concerns other than cost or administrative burden. However, in the critical early months of implementation, the interim final rule offers one administrative cost advantage relative to the proposed rule. Because the 10 percent threshold need not be met with only naturally occurring ingredients, the interim final rule potentially allows a number of existing fortified foods to be sold as competitive foods. This may reduce costs and positively impact SFA competitive food revenues by ensuring the widest availability of compliant products during a 24-month transition to an entirely food-based set of standards.
The proposed rule offered two alternatives for public comment on lower-calorie beverages for high school students. The first would have permitted up to 40 calories per 8 fl oz serving (and 60 calories per 12 fl oz). The second would have allowed up to 50 calories per 8 fl oz serving (and 75 calories per 12 fl oz). The higher 50 calorie limit would have permitted the sale of national brand sports drinks in their standard formulas. The lower 40 calorie limit would have allowed only reduced-calorie versions of those drinks. The interim final rule adopts the lower 40 calorie limit as the better alternative to limit the consumption of added sugar in beverages sold in school, and to further advance the public health goals of the rule.
This decision was driven by the health benefits of the lower calorie standard. Although the 40 calorie standard in the interim final rule does not go as far as recommended by some public health groups, it will have a substantial effect on the types of sweetened beverages offered in high schools.
Food and foodservice industry representatives, as well as some school administrators, favored the higher calorie
Consistent with IOM recommendations, the proposed rule required that beverages served to elementary and middle school students be caffeine free or include only small amounts of naturally occurring caffeine. The proposed rule, however, did not put caffeine restrictions on products for high school students; a departure from the IOM guidelines. Many of the comments from health professionals and school officials expressed concern about the effects of large amounts of caffeine on adolescents and suggested that the Department either disallow caffeinated beverages at the high school level entirely, or at least provide some guidelines for caffeine limits. After considering these comments, and because of the lack of an accepted standard for caffeine consumption by high school-aged students, USDA retains the proposed rule standard. The interim final rule retains maximum flexibility for high schools, allowing the continued sale of beverages containing caffeine. At the same time, in response to concerns expressed by health professionals, USDA encourages schools to consider the high caffeine content of beverages such as energy drinks before considering their sale. To the extent that caffeinated products generate revenue for schools, the interim final rule will have a lesser economic impact on SFAs and other school groups than the primary alternative considered by USDA.
There has been increasing public interest in the rising prevalence of overweight and obesity in the United States, particularly among children. The school nutrition environment is a significant influence on children's health and well-being. Recent studies have shown that children typically consume between 26 and 35 percent of their total daily calories at school, and as much as 50 percent for children who participate in both school lunch and breakfast programs (Fox 2010; Guthrie, et al., 2009).
In response to these concerns, the Healthy Hunger-Free Kids Act (HHFKA) of 2010 required USDA to establish science-based nutrition standards for all foods sold in schools during the school day. The standards are intended to complement the Department's efforts to ensure that
The interim competitive food standards will work in concert with recent improvements in school meals to support and promote diets that contribute to students' long-term health and well-being. Congress highlighted the relationship between school meal improvements and standards for other school foods, noting that the prevalence of “unhealthy [competitive] foods in our schools not only undermines children's health but also undermines annual taxpayer investments of over $15.5 billion in the National School Lunch and School Breakfast Programs” (Senate Report 111–178, p. 8).
The benefits sought through this rulemaking focus on improving the food choices that children make during the school day. A growing body of evidence tells us that giving school children healthful food options will help improve these choices. A recent, comprehensive, and groundbreaking assessment of the evidence by the Pew Health Group and Robert Wood Johnson Foundation (2012) concluded that:
• A national competitive foods policy would increase student exposure to healthier foods and decrease exposure to less healthy foods, and
• Increased access to a mix of healthier food options is likely to improve the mix of
Researchers for Healthy Eating Research and Bridging the Gap, Robert Wood Johnson Foundation-sponsored research programs examining environmental influences on youth diets and obesity, concluded that strong policies that prohibit or restrict the sale of unhealthy competitive foods and drinks in schools improve children's diets and reduce their risk for obesity (Healthy Eating Research and Bridging the Gap, 2012, p. 3).
Because setting national standards will change the range of food products sold in schools, they may affect the revenues schools earn from these foods, as well as participation in school meals. The evidence on the overall impact of competitive food standards on school revenues is mixed. However, a number of schools implementing such standards have reported little change, and some increases, in net revenues.
Children generally have two options for school food purchases: (1) Foods provided under the National School Lunch Program (NSLP), the School Breakfast Program (SBP), or other child nutrition programs authorized under the National School Lunch Act or the Child Nutrition Act, and (2) competitive foods purchased à la carte in school cafeterias or from vending machines at school. NSLP is available to over 50 million children each school day; an average of 31.6 million children per day ate a reimbursable lunch in fiscal year (FY) 2012.
The sale of food in competition with Federal reimbursable program meals and snacks is widespread. In school year (SY) 2009–2010, 86 percent of all schools—and 90 percent or more of middle and high schools—offered à la carte foods at lunch. Vending machines were available in 37 percent of all schools, including 13 percent of elementary schools, 67 percent of middle schools, and 85 percent of high schools (Fox, et al., 2012, Volume 1, p 3–32).
Many observers, including parents and military leaders, have expressed concerns about the competitive foods available to children at school (Gordon, et al., 2007; Christeson, Taggart, and Messner-Zidell, 2010; Christeson, et al., 2012). In response, a number of States have implemented competitive food standards. In 2004, GAO reported that 21 States had created standards that went beyond existing Federal standards. In 2010, the School Nutrition Association reported that the number of States with competitive food policies had increased to 36.
The Pew Health Group and Robert Wood Johnson Foundation recently reviewed data on the types of snack foods and beverages sold in secondary schools via vending machines, school stores, and snack bars.
• The availability of snack foods in secondary schools varies tremendously from state to state, and this variation is likely the result of a disparate patchwork of policies at the state and local levels. Fewer than five percent of school districts have food and beverage policies that meet or exceed the 2010 Dietary Guidelines for Americans.
• “Under this patchwork of policies, the majority of our nation's children live in states where less healthy snack food choices are readily available (p. 3).”
Overall, the availability of healthy snacks such as fruits and vegetables is limited. The vast majority of secondary schools in 49 states
As shown in Table 1, we estimate that overall revenue in SFAs will be about $35 billion to $37 billion each fiscal year between 2015 and 2018.
USDA's most recent budget projections forecast a total of $16.8 billion in Federal meal reimbursements in FY 2014. We use
Our estimate of competitive food revenues under current policies and practices also uses SLBCS–II
To estimate the proportions of these revenues generated by à la carte sales and vending machines, we use SNDA–III data to show that about 98.3 percent of SFA competitive food revenue was generated by sales of à la carte foods; virtually all of the rest, 1.7 percent, was generated by vending machine sales.
Data from SNDA–III indicate that 95 percent of competitive food revenue accrues to SFA accounts; just five percent of competitive food revenue accrues to non-SFA student, parent and other school group accounts.
We inflate these figures for 2015 through 2018 based on the assumptions in the President's Budget. Because the rule will take effect in July 2014, the start of SY 2014–2015, we reduce the FY 2014 figures in Table 1 to include only the last three months of the fiscal year—about 14 percent of the full-year figures.
Other school groups generate their competitive food revenue from periodic fundraisers, vending machines, snack bars, and school stores. These groups include student clubs, parent teacher organizations, or parent organizations supporting sports, music, and other enrichment activities. Much of the non-SFA competitive food revenue is controlled by school principals for special school events, sports, or general fundraising.
Given the implementation of Section 206 and significant State and local school food initiatives adopted since SY 2004–2005, our baseline estimate of competitive food revenue generated by other school groups is uncertain.
Although HHFKA established Federal authority for comprehensive nutrition standards for all foods in school, efforts to define and implement such standards have been underway for a number of years. Our analysis briefly describes these activities to provide additional context for the interim final rule.
In 2005, Congress directed CDC to commission the Institute of Medicine (IOM) to develop a set of nutrition standards for competitive school foods (House Report 108–792).
The committee set out its recommendations, first arguing that Federal nutrition programs be the primary source of foods and beverages at school and second, that nutrition standards based on the Dietary Guidelines for Americans (DGA) be implemented for all foods and beverages offered to all school-age children (IOM, 2007a). These recommendations were followed by a discussion of a two-tier system consisting of foods and beverages to be encouraged (Tier 1) and a second tier consisting of snack foods that do not meet Tier 1 criteria but still meet the recommendations for fats, sugars, and sodium set forth in the DGA. Following the IOM recommendations, à la carte entrées would be required to be on the NSLP menu and meet Tier 1 criteria with two exceptions: the amount of allowed sodium would increase from 200 milligrams (mg) to no more than 480 mg, and the 200 calorie limit imposed on Tier 1 foods would not apply; à la carte entrées would have to meet the calorie content of comparable NSLP entrée items.
USDA's
HUSSC began in 2004 as a way to promote healthier school environments through nutrition and physical activity, with four award levels: bronze, silver, gold, and gold of distinction. HUSSC includes standards for competitive foods that are similar to the standards in the proposed rule. At all award levels, competitive foods and beverages must meet the following standards:
• No more than 35 percent of calories from total fat (excluding nuts, seeds, nut butters and reduced-fat cheese),
• Less than 0.5 grams (g) trans fats per serving,
• No more than 10 percent saturated fat (reduced-fat cheese is exempt),
• Total sugar at or below 35 percent by weight (includes naturally occurring and added sugars. Fruits, vegetables, and milk are exempt),
• Portion sizes may not exceed the serving size of the food served in school meals and no other competitive foods may exceed 200 calories (as packaged).
• Only lowfat or nonfat milk and USDA approved alternative dairy beverages may be offered,
• Milk serving size is limited to 8-fluid ounces,
• 100 percent fruit and vegetable juices with no sweeteners or non-nutritive sweeteners, and
• Water that is non-flavored, non-sweetened, non-carbonated, non-caffeinated, without non-nutritive sweeteners is allowed.
Variable standards, depending on award level, include:
• For bronze and silver awards, competitive food standards apply to foods sold in the meal service area during meal periods.
• For gold and gold of distinction awards, competitive food standards apply anywhere in the school and at any time during the school day.
• For bronze, silver, and gold awards, sodium cannot exceed 480 mg for snack foods or 600 mg for entrées.
• For gold of distinction awards, sodium cannot exceed 200 mg for snack foods or 480 mg for entrées.
By May 2013, over 6,500 schools in 49 States and the District of Columbia had become certified HUSSC schools, and all of these schools, regardless of award level, have already moved at least part way to the interim competitive food standards.
Similar to HUSSC, the Alliance for a Healthier Generation's Healthy Schools Program is comprised of schools that voluntarily adopt Alliance competitive food standards. According to an Alliance fact sheet,
• No more than 35 percent of calories from total fat,
• No more than 10 percent of calories from saturated fat,
• 0 g trans fat,
• No more than 35 percent sugar by weight,
• No more than 230 mg sodium for snacks and no more than 480 mg sodium for dairy products, soups, and vegetables with dips, and
• Graduated calories for elementary, middle and high schools (150, 180, and 200 calories, for elementary, middle, and high schools respectively).
The Alliance for a Healthier Generation also recommends schools serve whole grain products; fresh, canned, or frozen fruit (in fruit juice or light syrup); and non-fried vegetables. As with the HUSSC schools, the more than 15,000 schools currently participating in the Alliance for a Healthier Generation program have also moved their competitive food standards towards those in the interim final rule.
The five States with the largest numbers of students enrolled in NSLP-participating schools are California, Florida, Illinois, New York, and Texas. These States account for 37 percent of all students enrolled nationally in NSLP participating schools (18.9 million students). All five of these States have had some level of school competitive food policies in place since 2004 or earlier. Thus, school districts in these States have already confronted some of the challenges of transitioning students toward improved competitive foods and have dealt with the consequences of changes in overall revenues.
In
Secondary school children may purchase water, milk (2% or less), soy, rice, and other nondairy milk, fruit and vegetable drinks that are at least 50 percent juice, and electrolyte replacement beverages with no more than 42 g of added sweetener per twenty fluid ounces. Snack items must be no more than 250 calories per item and à la carte foods may have no more than 400 calories per entrée and no more than four g of fat per 100 calories. Entrées from NSLP meals are also allowed. These standards are in place from 30 minutes before the school day through 30 minutes after the school day (California Education Code sections 49430–49436).
Foods that are allowed to be sold outside food service areas or within food service areas other than during meal service must have no more than 35 percent of calories from fat and 10 percent of calories from saturated fat, no more than 35 percent sugar by weight, and may not contain more than 200 calories per serving. Nuts, seeds, nut butters, eggs, cheese packaged for individual sale, fruits or non-fried vegetables, or lowfat yogurt products are also allowed (Illinois Administrative Code Title 23 section 305.15).
Competitive food sales standards within New York City schools apply to food sales from the beginning of the school day through 6 p.m. weekdays. Students can sell New York State Department of Education approved foods in schools any time during the day, as long as the sale occurs outside of the school cafeteria. PTAs can hold a monthly fundraiser during the day with non-approved food items as long as the sale occurs outside the cafeteria and complies with standards set in the Chancellor's Regulations. Allowed beverages include water or low-calorie drinks without artificial flavors or colors with 10 calories per eight ounces for elementary and middle schools and 25 calories per eight ounces in high schools. Lowfat and nonfat milk are also allowed (New York Education Code section 915).
New York City has also implemented nutrition standards for all foods sold in vending machines in city facilities, including schools. Accordingly, New York City requires that all foods in vending machines meet the following per-package requirements: ≤ 200 calories, ≤ 7 g fat, ≤ 2 g saturated fat, ≤ 200 mg sodium, ≤ 10 g sugar, and ≥ 2 g fiber for grain or potato-based items (Kessler, Walcott, and Farley, 2013). In addition, snack vending machines are not permitted in schools with students in pre-kindergarten through fifth grade. For students above grade five, competitive foods (from other than vending machines) must have no more than 35 percent of calories from fat (nuts and nut butters are exempt), less than 10 percent of calories from saturated fat, and 0.5 g or less of trans fat; no more than 35 percent of calories from sugar (fruit products with no added sugar are exempt), less than 200 total calories, may not exceed 200 mg sodium, and grain-based products must contain at least two grams of fiber per serving (New York City, 2010).
Individual food items may not contain more than 23 g of fat per serving, with the exception that once per week one food with 28 g (1 ounce) of fat per serving is allowed. Schools must eliminate deep-fat frying as a method of on-site preparation for foods served as part of reimbursable school meals, à la carte, snack lines, and competitive foods. Servings of potatoes may not exceed three ounces, may be offered no more than once per week, and students may only purchase one serving at a time. Baked potato products (wedges, slices, whole, new potatoes) that are produced from raw potatoes and have not been pre-fried, flash-fried or par-fried in any way may be served without restriction.
All schools must offer two percent, lowfat, or nonfat milk at all points where milk is served. Elementary schools must serve only milk, unflavored water and 100 percent fruit and or vegetable juice. In secondary schools, beverages must contain no more than 30 g sugar per eight fluid ounces (Texas Administrative Code Title 4 sections 26.1–26.9).
While none of these States have policies that match all of the standards in the interim final rule, California, Illinois, and New York City meet several. California meets the interim standards for total, saturated, and trans fats and sugar. Illinois meets interim standards for calories, total and saturated fat, and sugar. New York City meets interim standards for total, saturated, and trans fats, sodium, and sugar. On the other end of the spectrum, Texas only provides a standard for total fat (though it is more restrictive than the interim final rule), and Florida does not set specific nutrient standards.
Table 2 provides a summary description of a number of existing sets of nutrition standards that are already in place. These include the two voluntary programs discussed previously: the
Section 208 of the HHFKA requires USDA to establish science-based nutrition standards for all foods and beverages sold on school campuses during the school day, which are identified in this interim final rule. These standards must be consistent with the most recent DGA and authoritative scientific recommendations (Pub. L. 111–296). At the same time, in developing the rule FNS reviewed existing, currently implemented State and local school nutrition and voluntary standards to promote practicality and ease of implementation and considered comments from the public on the proposed rule.
The interim final rule improves the competitive food options available to students by replacing less healthy items with appropriately sized entrées, side dishes, and snacks that emphasize foods from the food groups that are the basis of a healthy diet, consistent with the DGA. In this way, the rule is designed to help ensure the success of school meal standards introduced in July 2012. However, the rule does not prescribe a specific set of competitive foods, nor does it establish targets for particular food groups. Instead, the rule puts students in a position to make their own healthy choices, and encourages the development of healthy habits for life.
The rule establishes guidelines for all foods sold outside of school meal programs on the school campus at any time during the school day. The school day for purposes of this rule extends from midnight to 30 minutes past the end of the official school day. Although some organizations and individuals who submitted comments on the proposed rule suggested we extend this definition of the school day to capture additional after school events, the interim final rule maintains the proposed rule definition. The school campus includes all areas under jurisdiction of the school that are accessible to students.
The preamble to the interim final rule describes how its provisions differ from those of the proposed rule. The preamble also describes the reason for changes relative to the proposed rule. What follows is a brief summary of the interim final rule provisions without further discussion of those changes.
• Competitive foods and beverages must meet the nutrition standards specified in the interim final rule. A special exemption is allowed for foods and beverages that do not meet competitive food standards for the purpose of conducting infrequent school-sponsored fundraisers. Such exempt fundraisers must not take place more than the frequency specified by the State agency. Exempted fundraiser foods or beverages may not be sold in competition with school meals in the food serving area during the meal service.
• NSLP/SBP entrées sold à la carte are exempt from the rule's nutrient standards if sold on the day that they are offered as part of a reimbursable meal or the following school day.
• To be allowable, a competitive food must
○ Meet all of the competitive food nutrient standards; and
○ Be a grain product that contains 50 percent or more whole grains by weight or have as the first ingredient a whole grain; or
○ Have as the first ingredient one of the non-grain major food groups: fruits, vegetables, dairy products, or protein foods (meat, beans, poultry, seafood, eggs, nuts, seeds, etc.); or
○ Be a combination food that contains
○ For the period through June 30, 2016, contain 10 percent of the Daily Value of a nutrient of public health concern based on the most recent Dietary Guidelines for Americans (i.e., calcium, potassium, vitamin D or dietary fiber). Effective July 1, 2016, the criterion in this paragraph is obsolete and may not be used to qualify as a competitive food; and
○ If water is the first ingredient, the second ingredient must be one of the food items above.
• Fresh, canned, and frozen fruits or vegetables with no added ingredients except water, or in the case of fruit, packed in 100 percent juice, extra light, or light syrup are exempt from the interim final rule's nutrient standards. Canned vegetables that contain a small amount of sugar for processing purposes are also exempt.
• Competitive foods must contain 35 percent or less of total calories from fat per item as packaged or served. Exemptions to the total fat standard are granted for reduced fat cheese and part-skim mozzarella cheese, nuts, seeds, nut or seed butters, products consisting of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat, and seafood with no added fat.
• Competitive foods must contain no more than 10 percent of total calories from saturated fat per item as packaged or served. Exemptions to the saturated fat standard are granted for reduced fat cheese and part skim mozzarella cheese, nuts, seeds, nut or seed butters, and products consisting of only dried fruit with nuts and/or seeds with no added nutritive sweeteners or fat.
• Competitive foods must have 0 g of trans fat per portion as packaged.
• Sodium content in snacks is limited to 230 mg per item as packaged or served. In July 2016, the sodium standard will move to 200 mg per portion. Entrée items must have no more than 480 mg of sodium per item as packaged or served, unless they meet the exemption for NSLP/SBP entrée items.
• Total sugar must be no more than 35 percent of weight. Exemptions are provided for dried whole fruits or vegetables; dried whole fruit or vegetable pieces; dried dehydrated fruits or vegetables with no added nutritive sweeteners; and dried fruits with nutritive sweeteners that are required for processing and/or palatability purposes.
• Snack items and side dishes served à la carte must have no more than 200 calories per item as packaged or served, including accompaniments such as butter, cream cheese, salad dressing, etc. Entrée items sold à la carte must contain no more than 350 calories unless they meet the exemption for NSLP/SBP entrée items.
• Accompaniments must be included in the nutrient profile as a part of the item served (technical assistance will be provided).
• Elementary and middle school foods and beverages must be caffeine free with the exception of naturally occurring trace amounts.
• Allowable beverages for elementary students are limited to plain water (carbonated or uncarbonated), lowfat milk (unflavored) and nonfat milk (including flavored), nutritionally equivalent milk alternatives (as permitted by the school meal requirements), and full strength fruit or vegetable juices and full strength fruit and vegetable juice diluted with water or carbonated water. All beverages must be no more than eight ounces with the exception of water, which is unlimited.
• Allowable beverages for middle school students are limited to plain water (carbonated or uncarbonated), lowfat milk (unflavored) and nonfat milk (including flavored), nutritionally equivalent milk alternatives (as permitted by the school meal requirements), and full strength fruit or vegetable juice and full strength fruit or vegetable juice diluted with water or carbonated water. All beverages must be no more than 12 ounces, with the exception of water (which is unlimited).
• Allowable beverages for high school students are limited to plain water (carbonated or uncarbonated), lowfat milk (unflavored) and nonfat milk (including flavored), nutritionally equivalent milk alternatives (as permitted by the school meal requirements), and full strength fruit or vegetable juice and full strength fruit and vegetable juice diluted with water or carbonated water. Milk and milk equivalent alternatives and fruit or vegetable juice must be no more than 12 ounces. Calorie-free, flavored water, with or without carbonation, and other calorie free beverages that comply with the FDA requirement of less than five calories per 8 ounce serving (or less than or equal to 10 calories per 20 fluid ounces) in no more than 20 ounce servings. Beverages of up to 40 calories per eight fluid ounce (or 60 calories per 12 fluid ounce) in no more than 12 ounce servings are also allowed. There is no ounce restriction on water. Beverages containing caffeine are also permitted. Allowable beverages are available in the food service area and elsewhere without restriction.
The proposed rule generated more than 247,000 comments. While most of these were focused primarily on the rule itself, a significant portion touched on issues addressed in the Regulatory Impact Analysis. Many addressed the implications for SFA and other school group revenues, some focused on the effects on industry, and others discussed the impacts on students. Many commenters, regardless of their concern for the revenue impacts of the rule, expressed sentiments that were captured in recent research conducted by the University of Illinois Institute for Health Research and Policy. Specifically, SFA and industry officials as well as organizations devoted to
The majority of the commenters that addressed SFA finances were concerned that the rule's competitive food standards will reduce school revenue. Generally, the commenters focused on popular existing products that do not meet the proposed standards and will no longer be allowed for sale in à la carte lines, vending machines, or school stores. Both SFA and industry officials expressed concern that the new standards will reduce variety and limit choices. These officials fear that students, especially older students, will respond by purchasing fewer competitive foods and beverages at school.
While representatives from some food industry groups indicated that relatively few of the snack foods now marketed to schools meet the proposed rule standards, other food industry commenters highlighted the work they have done in recent years, in cooperation with schools and non-school interest groups, to provide healthier school food alternatives. One major manufacturer noted that it has introduced more than 50 new products and is continuing to work on new product formulations and packaging. This manufacturer contributed to efforts by schools to earn HUSSC “Gold of Distinction” designations; schools that have earned Gold of Distinction status have competitive food standards that meet or exceed the standards in the interim final rule.
USDA acknowledges these efforts by schools and the food industry and recognizes the value in adopting existing or emerging standards to the extent that they facilitate the success of Federal regulations in making school food offerings more consistent with the DGA. To that end, USDA made several changes to the proposed rule which:
• Increase sodium limit on snacks and non-program side dishes from 200 mg per portion as packaged to 230 mg (through June 2016),
• Exempt nuts and nut butters from the rule's total and saturated fat standards,
• Exempt part skim mozzarella cheese from the total and saturated fat standards,
• Allow full strength juice with added water (or carbonated water), and
• Allow fruit packed in light syrup
In addition, the interim final rule adopts the proposed rule's 35 percent by weight standard for sugar over the alternate 35 percent of calories standard.
Each of these changes further aligns the interim final rule with existing NSLP requirements, voluntary HUSSC standards, Alliance for a Healthier Generation, and IOM guidelines. The effect of these changes is to increase the number of already available healthy products, many already for sale in schools that meet interim regulations. This will tend to reduce the risk that SFAs will lose revenue due to the lack of readily available, market-tested products that meet interim final rule standards.
The proposed rule would have prohibited the sale of beverages other than milk, plain water, and 100 percent fruit and vegetable juice in the cafeteria during meal service periods. Many SFA professionals commented on this restriction, noting that allowing these beverages to be sold in other parts of the school campus would disadvantage SFAs relative to other school groups who raise revenue from the sale of these beverages at meal times. These commenters strongly supported removing the “time and place” restriction. Restricting the sale of these beverages in the meal service area, while allowing them elsewhere on campus, had the potential to discourage some high school students from even entering the cafeteria at lunch time and considering a reimbursable meal as an option. Other commenters expressed concern with the mixed message sent by the proposed rule which identifies a group of beverages as healthy options for older students, but prohibits students from purchasing them in the cafeteria at meal times. As a direct response to these comments, the interim final rule removes the proposed rule's time and place restriction.
Other commenters argued that the competitive food standards will reduce SFA revenues as students replace in-school purchases with food from home or food purchased off campus. USDA recognizes both of these risks to SFA revenue. In the case of revenue lost to off-campus purchases, however, the risk is limited to relatively few, mostly upper-grade schools. SNDA–III found that 11 percent of all schools and 25 percent of high schools in SY 2004–2005, had open campus policies (Gordon, et al., 2007, vol. 1, pp. 77–79, pp. 96–100). SNDA–IV, conducted in SY 2009–2010, found that only five percent of all schools and 19 percent of high schools had an open campus policy (Fox, et al., 2012; Volume 1, p. 3–29). To the extent that the changes mentioned above increase the variety of snacks and side dishes that meet Federal standards, schools should be able to retain more of their existing competitive food sales, and lose fewer sales to food brought from home or purchased off campus.
A third outcome mentioned by commenters is that some students will turn to reimbursable school meals. The American Public Health Association (APHA) made this point, citing a study that found that students in schools with beverage vending machines were 3.5 times more likely to buy lunch from vending machines than to purchase a school lunch. The APHA concluded that as a result, “fewer children consume meals at school that meet nutrition standards and have proven health benefits, and schools receive less cash and commodity support through the federal school meal programs” (APHA comment, April 9, 2013, p. 4).
Peer-reviewed studies offer additional support for this conclusion. Researchers routinely find that competitive food revenue losses following adoption of State or local nutrition standards are at least partially offset by increases in reimbursable meal revenue (see, for example, Wharton, Long, and Schwartz, 2008; Guthrie, Newman, Ralston, Prell, and Ollinger, 2012; Healthy Eating Research and Bridging the Gap, 2012; Bassler, et al., 2013).
The impact analysis for the proposed rule noted that SFAs received 16 percent of their revenue from competitive food sales on average. This figure is from USDA's school year 2005–2006 School Lunch and Breakfast Cost Study—II (USDA 2008). Comments from representatives of school districts with relatively few free or reduced-price eligible students argued that competitive food revenue accounts for a far bigger share of such districts' food service budgets, and that many rely on competitive food revenue to break even. Other comments indicated that competitive food sales subsidize reimbursable meals in their districts. And several commenters indicated that implementation of the proposed rule would prompt their districts to leave the Federal school meal programs.
We recognize that 16 percent is the average share of SFA revenue from competitive foods and that there is considerable variation across school districts. Some schools, especially those that serve few free or reduced-price meals, may see substantial reductions in competitive food revenue after implementation of Federal standards, at least in the short term. But even districts in this category tend to generate a significant share of their revenue from reimbursable meals. For example, data from the SLBCS–II shows that SFAs whose share of revenue from competitive foods puts them in the top quartile of all districts generated nearly as much from USDA subsidies
These figures are not meant to understate the potential revenue challenge of
Elsewhere in this subsection we describe steps taken by FNS, in response to public comments, that better align the rule with standards already embraced by schools through their own competitive food policies, and by the industry groups that make and market those foods to schools. But it is also important to recognize, as a number of commenters observed, that the certainty of national standards has its own independent value. Uniform and definite standards are likely to encourage industry to invest additional resources in new product development.
Commenters representing various sectors of the food industry expressed concern that the proposed rule would reduce their sales to schools. Much of this concern was expressed by or on behalf of small vendors, distributors, and manufacturers. The National Automatic Merchandising Association (NAMA) noted that some small vending machine operators generate most or all of their revenue from sales to schools. NAMA expressed support for the goals behind USDA's proposed rule, but urged USDA to modify its proposal by adopting standards already embraced by the vending machine industry through one of its voluntary healthy snack programs. NAMA indicated that adoption of competitive food standards aligned with the industry's “Fit Pick” program would reduce the impact on small businesses “on both the revenue and expense sides.” NAMA's “Fit Pick” standards for calories from fat, calories from saturated fat, percent of sugar by weight, total calories per serving, and sodium per serving match the guidelines developed by the Alliance for a Healthier Generation. NAMA urged USDA to adopt the Alliance guidelines for those nutrients, guidelines that both “the industry and schools are familiar with,” in order to create “a simpler and more cost-effective implementation process.” USDA recognizes that substantive competitive food standards present the vending industry with new challenges. USDA also recognizes that small vending machine operators may have fewer resources available than large firms to manage the transition to the new standards. In response to concerns expressed by several of these small businesses, by industry groups such as NAMA, and by school foodservice administrators, USDA modified its proposed rule standards on sugar and sodium per serving to match the Alliance guidelines.
Other food industry commenters, primarily food producers and trade associations, urged delay in the implementation of new standards to allow time for costly product development and reformulation. Some commenters also pointed to the need to allow time for student acceptance of reformulated products, particularly those with reduced sodium levels. Commenters from industry associations recommended delays of 18–36 months-between issuance of final standards and implementation. In response, we note that the standards contained in the interim final rule will take effect in July 2014, a full year after publication. USDA expects that the year between issuance of final standards and implementation will lessen the risk of revenue loss by industry and SFAs due to limited availability or variety of appealing foods that meet the new standards. At the same time, USDA's decision to more closely align some of the rule's nutrient standards with Alliance guidelines ensures that a long list of familiar products already marketed to schools will be available for sale on implementation. Finally, comments from some producer groups recognize the rule's emphasis on fruits, vegetables, whole grains, and lowfat dairy as an opportunity to expand their presence in schools with their existing product lines. This further reduces the risk that schools will be unable to offer a sufficient variety of products that meet the interim final rule requirements.
Other school groups, i.e., school bands, parent teacher groups, and school clubs, earn revenue through the sale of competitive foods in vending machines, school stores, and fundraisers. Some commenters expressed concern that those organizations rely heavily on the sale of foods that do not meet the proposed requirements. Other commenters wrote that the rule would eliminate funding for student organizations. Other commenters noted the importance of lunchtime food sales outside the cafeteria by student groups. In all of these cases, the commenters were concerned with the continued viability of these organizations without revenues from competitive foods.
The National Confectioner's Association pointed out that their products are often sold in fundraisers conducted outside of the school day and off school grounds. School group revenues from those sales are not impacted by the rule, as it places no restrictions on sales that occur away from school or more than 30 minutes after the school day. Sales through vending machines and school stores, or non-exempt fundraisers held on the school campus are, however, required to meet the same standards as other competitive foods.
Some commenters suggested that food sales may not be the best option for raising funds. A comment from the State Director of Child Nutrition Programs for North Carolina pointed out that while school groups rely on fundraisers for important revenue, there are many non-food alternatives that can generate revenue without incurring the potential risk of “food-borne illness by well-intended groups that may not be sufficiently trained to prepare and serve potentially hazardous foods” (Harvey, 2013, p. 2). The National PTA, Nemours, a children's health organization, and others also discussed alternative ways for school groups to generate revenue, e.g., walk-a-thons; no-bake bake sales; selling school logo items such as clothing, pens, pencils, and book covers; custom-labeled bottles of water; and book fairs.
Another line of comments expressed support for the proposed rule's general requirement that non-exempt fundraisers comply with the same standards that apply to SFAs. These commenters are concerned that even a limited exemption for occasional fundraisers establishes a loophole that threatens the rule's public health goals and student participation in the reimbursable meals program. Some suggested that exempt
The proposed rule offered two options for infrequent school-sponsored fundraisers that do not have to meet the rule's competitive food standards. The first would allow State agencies to set limits on the number of exempt fundraisers allowed during the year. The second option would require USDA approval of those State agency plans. USDA adopted the less restrictive option, allowing States to set limits on frequency without USDA review. This option reduces the estimated administrative burden of the rule. It also allows individual States, not USDA, to determine how best to balance the interests of SFA officials and child nutrition advocates, who tend to favor more restrictive rules for exempt fundraisers, against the interests of student organizations and industry groups that depend on the revenue from those sales.
School foodservice directors, foodservice staff, State officials, and foodservice management companies expressed concern about the administrative burden that the proposed rule would place on SFAs. Some commenters were particularly concerned that implementation of competitive food standards would occur before schools have fully adjusted to the administrative challenges of the new lunch and breakfast meal patterns. Others pointed to the burden of identifying whether foods meet the rule standards and noted that that burden would impose ongoing costs as new products are introduced and as kitchen staff develop new recipes. Recordkeeping and monitoring of compliance by non-SFA groups engaged in fundraising also raised concern among foodservice administrators over their need to train and potentially oversee non-SFA staff. USDA acknowledges that the rule imposes new administrative costs on SFA and LEA staff. However, the administrative burden of establishing and documenting compliance with the new standards is necessary to ensure that students realize the benefits of a healthier school food environment. In addition, some of the comments indicated a preference for additional time to implement the standards. USDA does commit to providing the necessary guidance to SFAs and LEAs to clarify their respective documentation and recordkeeping responsibilities.
Some commenters questioned the potential health benefits of the proposed rule, suggesting that school children will not buy healthy snacks but will instead bring food from home or go off campus to buy the foods they want. While some students may refuse to buy healthy snacks that comply with Federal standards, others may respond positively to newly available healthy snacks. The immediate goals of the interim final rule are to encourage healthy eating habits by students who might respond to such encouragement, make healthy snacks an option for students who desire it, reinforce parents' efforts to encourage healthy eating, and support the investment that schools are making in a healthier meals program. The longer-term benefits of achieving these goals are “improved dietary intake[s] and the long-term health of millions of children across the country” (Lavizzo-Mourey, 2013, p. 4).
The National Education Association Health Information Network summed up the need for standards, writing, “[g]iven the high childhood obesity rates in the United States and the important role foods and beverages available for sale in school play in children's diet, it is imperative that competitive foods are held to high standards, as are school meals” (Howley, 2013, p. 2). The American Heart Association discussed hypertension and the benefits of restricting sodium in diets and noted that children are at risk for developing “heart disease and elevated blood pressure at an earlier age now because an estimated 97% of them currently consume too much salt” (Arnett, 2013).
Some of the students who submitted comments expressed interest in making healthy food choices a part of their lifestyles, and that requires healthy options in school. The rule's competitive food standards will contribute to a school environment that supports these students' efforts to eat healthier. Other commenters criticized USDA for substituting government rules for lessons that ought to be learned at home. A number of parents expressed approval that the healthy environments they were creating in their homes, especially with regard to healthy eating behaviors, would be “supported and encouraged” at school.
Although some commenters expressed skepticism that the rule could deliver on its promised health benefits, and others criticized the rule as too intrusive on student and school decision-making, few commenters, if any, took issue with the goal of improving the health of American schoolchildren. USDA modified the proposed rule in response to comments that expressed concerns about cost, revenue impacts, and administrative practicality, in order to facilitate successful implementation of the rule and realize its full potential health benefits.
The rule requires schools to improve the nutritional quality of foods offered for sale to students outside of the Federal school lunch and school breakfast programs.
The key benefit sought through this interim final rule is to improve the food choices that children make during the school day. By helping to ensure that
Although the complexity of factors that influence overall food consumption and obesity prevent us from defining a level of dietary change or disease or cost reduction that is attributable to the rule, there is evidence that standards like those in the rule will positively influence—and perhaps directly improve—food choices and consumption patterns that contribute to students' long-term health and well-being, and reduce their risk for obesity.
Any rule-induced benefit of healthier eating by school children would be accompanied by costs, at least in the short term. Healthier food may be more expensive than unhealthy food—either in raw materials, preparation, or both—and this greater expense would be distributed among students, schools, and the food industry. Moreover, students who switch to less-preferred foods and beverages could experience a utility loss. If students do not switch to healthier foods, they may incur travel or other costs related to obtaining their preferred choices from a location less convenient than school. Regardless of student response, the proposed rule would also impose administrative costs on schools and their food authorities.
Additional effects of the rule may include transfers of food sales revenue to or from school food authorities. Such effects would be correlated with health outcomes.
Changing the mix of competitive foods offered by schools will likely change student expenditures on those foods, with potential implications for school food service revenues. It may also change the extent to which students purchase reimbursable school meals, resulting in changes in amounts transferred from USDA to schools (via SFAs) and from students to SFAs for reduced price and paid meals.
This analysis examines a range of possible responses of students and schools, and resulting changes in school revenue, based on the experience of States, school districts, and schools with similar standards. The analysis incorporates research findings published since publication of the proposed rule and it reflects input provided by school foodservice administrators and other interested parties who submitted comments. While evidence on the overall impact of competitive food standards on school revenues is mixed, a number of schools implementing such standards have reported little change, and some have seen increases in revenues.
Students who currently purchase competitive foods will adjust their behaviors in a number of ways in response to Federal standards. Some students will accept the new competitive food offerings. Some will not and will turn instead to the Federal reimbursable meals programs. Other students will replace school food purchases with food from home. And, where the option exists, students may spend their competitive food dollars off campus. Student responses, in turn, will depend on the ability of schools, food manufacturers, and the foodservice industry to offer appealing choices.
It is instructive to begin with a review of studies and evaluations of existing State and local standards. While none of the existing standards are fully aligned with the provisions of the interim final rule, they offer the best available insight into the likely consequences of the rule on school revenues and costs.
A number of studies have looked at the effects of implementation of nutrition standards on school food service revenues in a handful of States:
• A series of studies examined California's Linking Education, Activity and Food (LEAF) pilot program (Woodward-Lopez et al 2005a; Vargas et al 2005). Among 16 high schools that received LEAF grants to implement competitive food standards adopted by California, 13 reported increases in total food service revenues, usually through increased reimbursable meal sales that offset a concurrent decrease in à la carte sales. Net income increased in three of the five sites that provided data on expenditures, and fell at the other two sites. It is not clear how much of the observed effects are solely due to the changes in competitive food standards because the pilot schools received grants ranging from about $200,000 to $740,000 for a 21 month implementation period
• A related assessment of the impact of California's legislated nutrition standards reports that 10 of 11 schools that reported financial data experienced increases of more than five percent in total food and beverage revenue after implementation (Woodward-Lopez et al. 2010). Among the five schools that provided data for non food service sales of competitive foods and beverages (primarily from vending machines), four experienced a decrease in revenue of more than five percent and one experienced a modest increase.
• An estimated 80 percent of surveyed principals in West Virginia reported little or no change in revenues after implementation of a state policy requiring schools to offer healthier beverages and restrict low nutrient dense foods and soda (West Virginia University, 2009).
• Pilot projects in Connecticut and Arizona report, in some cases, increased food sales, increased meal participation, and no significant change or loss in food service revenue (Long, Henderson, and Schwartz, 2010; Arizona Healthy School Model Policy Implementation Pilot Study, 2005).
• Green Bay, Wisconsin officials reported that “[w]hen low-nutrient foods were removed from à la carte lines and replaced with healthful alternatives, daily à la carte revenue decreased by an average of 18 percent. However, the decreased emphasis on à la carte sales prompted a 15 percent increase in school meal participation! The revenue generated by the additional school meals more than doubled the lost à la carte revenue. Therefore, bottom-line dollars for school foodservice have increased overall” (USDA, et al., 2005, p. 98).
• South Carolina's Richland One District “reported losing approximately $300,000 in annual à la carte revenue after implementing [competitive food] changes, [but] school lunch participation and subsequent federal reimbursements increased by approximately $400,000 in the same year” (GAO 2005, p. 43).
• Wharton, Long, and Schwartz (2008) reviewed “the few available” revenue-related articles and studies focused on healthier competitive food standards and determined that the “. . . data suggest that most schools do not experience any overall losses in revenue” after implementing healthier standards (p. 249).
• Most studies have assessed the impact of nutrition policies in the immediate post-implementation period. A recent effort examined longer-term impacts. Comparing revenue data over three years from 42 middle schools in five States, half of which adopted healthier competitive food standards, Treviño et al. (2012) found no difference and concluded that providing healthier food options is affordable and does not compromise school food service finances.
The Pew Health Group addressed the issue of revenue changes due to healthier competitive foods in its recent Health Impact Assessment (HIA). After analyzing the relationship between State policies and school-related finances, Pew researchers concluded that:
When schools and districts adopted strong nutrition standards for snack and à la carte foods and beverages, they generally did not experience a decrease in revenue overall. In most instances, school food service revenues increased due to higher participation in school meal programs. However, in some cases, school districts experienced initial declines in revenue when strengthening nutrition standards. The HIA concluded that, over time, the negative impact on revenue could be minimized—and in some cases reversed—by implementing a range of strategies (Pew, RWJF, 2012, p. 4).
Similarly, after reviewing the evidence, the National Center for Chronic Disease Prevention and Health Promotion at CDC concluded that “[w]hile some schools report an initial decrease in revenue after implementing nutrition standards, a growing body of evidence suggest that schools can have strong nutrition standards and maintain financial stability” (CDC,
A 2013 report by the Illinois Public Health Institute studied the experience of eight U.S. school districts that implemented “strong” competitive food standards without negative financial consequences.
While the existing research suggests that the national impact of competitive food standards is likely to be relatively modest, there is substantial variation in the experience and results to date. The information available indicates that many schools have successfully introduced competitive food reforms with little or no loss of revenue. In some of those schools, losses from reduced sales of competitive foods were fully offset by increases in reimbursable meal revenue. In other schools, students responded favorably to the healthier options and competitive food revenue increased or remained at previous levels.
But not all schools that adopted or piloted competitive food standards fared as well. A number of SFA and school officials who submitted comments on the proposed rule indicated that they suffered significant reductions in competitive food revenue following adoption of local or State imposed standards. Others noted that their schools depend on competitive food revenue to balance their foodservice budgets, and that even a moderate decrease in competitive food revenue will be difficult to absorb. Some officials, particularly those with relatively few free or reduced-price eligible students, noted that USDA's analysis of possible revenue effects from the proposed rule did not adequately address their situation. These
The updated impact analysis presented below attempts to capture wider variation in potential SFA revenue outcomes than the proposed rule analysis, and give greater attention to the downside risk of significant revenue losses. At the same time, the analysis incorporates data that has been made available since preparation of the proposed rule analysis that offers additional support for the conclusion that revenue effects are likely to be modest over the long term in most SFAs.
To assess the impacts of the interim final rule on school revenue, we reviewed the evidence summarized above, identified three scenarios for student behavior, and estimated the revenue changes that could result. Each of these scenarios is meant to illustrate one reasonable response to competitive food nutrition standards. The actual response of students, and the impact on SFAs, will likely include some mix of all three. In addition, the experience of States and SFAs that have already imposed their own competitive food standards makes clear that each of these scenarios can result in revenue impacts of varying size.
• Scenario 1: Relatively high student acceptance of new competitive foods, thereby allowing schools to maintain existing competitive food sales.
• Scenario 2: Lower competitive food sales with fully offsetting increases in school meal participation.
• Scenario 3: Lower competitive food sales with partially offsetting increases in school meal participation.
We assume that the percentage change in NSLP participation (
The value of comparing changes in competitive food revenue to changes in NSLP revenue is limited to the extent that costs per dollar of gross revenue from the two sources differ. Although we do not have the data necessary to estimate profit margins on competitive foods, we expect that margins on NSLP meals and à la carte items, the most important subgroup of competitive foods, are similar.
For this scenario, we look to the experience of schools and school districts that have maintained or increased competitive food sales after introduction of healthier standards. With relatively modest efforts to engage students in developing standards and to promote healthier choices, these schools have demonstrated that student demand for healthier competitive foods can be maintained or increased.
Most competitive food revenue is generated by sales of à la carte foods. If competitive food revenue continues to be driven largely by à la carte sales, and the transition to healthier school meals (and, by extension, healthier à la carte items) is well under way prior to the implementation of competitive food standards, then the incremental effect of those standards on competitive food revenue in the short term could be relatively small.
Under this scenario, we assume a modest five percent increase (beginning in SY 2016–2017 following no change in the first full school year after implementation) in competitive food revenue after the initial transition to healthier competitive foods. We choose five percent to match the minimum competitive food revenue increase recorded by three of ten schools in the California Healthy Eating Active Communities study (Woodward-Lopez, et al., 2010).
Given that many schools have already adopted competitive food standards, we then adjust our five percent assumption to account for the effects already experienced by those schools. While we cannot precisely quantify these costs and revenue impacts, our review of the standards in place in the four largest States and the nation's largest school district provides a basis for adjusting the assumption: We reduce all of our estimates by 20 percent. After the 20 percent adjustment, we estimate an increase in competitive food revenues of four percent (Δ
These case studies confirm the general NSLP participation effect described in SNDA–III, suggesting that an increase in competitive food purchases after implementation of the proposed rule may come at the expense of NSLP participation. Because this scenario assumes a small increase in competitive food revenues, we estimate that SFAs will experience a slight (0.3 percent) decrease in school meal participation (Δ
We attribute 36 percent of the 0.3 percent change in the lunch participation to students who are eligible for free and reduced-price meals, and the other 64 percent to students who pay full price,
Our estimated reduction in SFA revenue from free lunches is equal to the projected Federal subsidy for free lunches multiplied by our estimated reduction in free lunches served. The projected Federal per-meal subsidy is from the President's Budget. The reduction in free lunches is equal to 0.3 percent of the Budget's baseline number of all reimbursable lunches multiplied by our estimated share of free lunches (60 percent of 36 percent, from above).
We use similar logic to estimate the reduction in SFA revenue from reduced-price and paid lunches, except that we also include the lost value of student payments for those meals. For reduced-price lunches we use the 40 cent maximum charge allowed by the NSLA.
Federal reimbursements are necessarily lower than SFA revenues for the same meals since the SFA revenue includes student payments for meals served at reduced or full price. Our estimated reduction in Federal costs is the product of the estimated decrease in NSLP meals multiplied by projections of the value of the reimbursements for free, reduced price, and paid meals.
School districts that have implemented strong competitive food standards without lasting adverse financial effects commonly report that increases in reimbursable meal participation and revenue offset reductions in revenue from competitive food sales. A 2013 compilation of case studies by the Illinois Public Health Institute reported offsetting reimbursable meal revenue in large and small districts, both urban and rural, in all regions of the country (Bassler, et al., 2013).
“In spite of a perceived decline in competitive food profits, none of the food service directors [interviewed for the study] reported significant on-going financial concerns. In fact, when considering all food service accounts, as opposed to just competitive food revenues, profits either increased or stayed the same after implementation of stronger nutrition standards, with increases to food services accounts largely attributed to increased participation in the school meal program” (Bassler, et al., 2013, p. 18).
As discussed in Section IV.A. above, these districts were selected for study by the Illinois researchers precisely
Although overall food service profits remained stable, profits from competitive foods decreased on implementation of strong standards in all but one of the eight case study districts. Food service directors in five of the seven districts that reported decreases indicated that the initial drop in competitive food profits ranged from five to 20 percent. Two reported initial decreases in profits greater than 20 percent. In all but one district, initial decreases in competitive food profits were followed by substantial though not complete recovery within a couple of years. For purposes of this scenario, we model a sustained 10 percent decrease in competitive food revenue for both SFAs and non-SFA school groups.
To adjust for States and school districts that have already adopted competitive food standards, we assume that 20 percent of the revenue impact has already been realized nationwide. That reduces the estimated 10 percent competitive food revenue loss to 8 percent (Δ
As students reduce their competitive food consumption in search of alternatives, many turn to reimbursable meals. After implementation of changes to competitive food and school meal standards, many of the items offered à la carte (the largest component of SFA competitive food sales) will be identical to components offered in reimbursable meals. In this scenario, those most likely to turn away from competitive foods are also those who recognize that they may be able to get the same foods at lower price in an NSLP meal.
It is possible that students' economic circumstances will play a role in their decision to replace competitive foods with reimbursable meals. Once reimbursable meals and competitive foods are subject to comparable nutrition standards, and the difference between competitive foods and a reimbursable meal is reduced largely to price, increased participation in the reimbursable meals program may be particularly attractive to students who qualify for free or reduced-price benefits.
Districts with relatively few low-income students may have to rely more heavily on marketing and nutrition education to maintain or increase participation in the meal programs. In at least one of the higher-income districts in the Bassler study, these strategies were coupled with modest increases in full-price lunches.
For SFAs with a mix of competitive food and program revenue equal to the U.S. average, an eight percent reduction in competitive food revenue would be fully offset with a three percent increase in reimbursable meal revenue.
For other school groups, net revenues are driven by a different set of rules and opportunities. School group sales that are held off campus or after school hours are not subject to the interim final rule standards. In addition, the interim final rule provides for infrequent in-school fundraisers that permit the sale of foods that would not otherwise meet the new standards. And unlike SFAs, school groups need not depend on food sales to raise revenue; they may turn instead to non-food sales to compensate for reduced sales from competitive foods.
Overall, the net impact on overall school food revenue (SFA and other school group revenue) under Scenario 2 is estimated at −0.04 percent. The estimated increase in Federal payments is roughly 2 percent of NSLP reimbursements.
The Illinois Public Health Institute case studies confirm what earlier researchers identified as strategies for successful implementation of competitive food reform (Bassler, et al., 2013). Successful districts commonly adopt a comprehensive strategy to maintain overall food service revenue, a strategy that focuses on reimbursable meals as well as competitive foods, rather than an approach designed to maintain each component's pre-reform share of revenue.
Like earlier studies, the Illinois study found that student engagement, involvement of cafeteria staff, cooperation from vendors, and leadership from food service directors, school boards, and district administrators were all important contributors to success. Specific strategies include ensuring a variety of healthy food options for students, introducing new foods gradually, marketing and packaging, nutrition education, appropriate pricing of competitive foods and reimbursable meals, and encouraging selection of healthy foods with small changes in cafeteria layout or displays.
These strategies, in various combinations, have proven successful in districts regardless of size, urban or rural status, and the percent of student enrollment certified for free and reduced-price meals. Because the same strategies will be available to districts whose implementation of the interim final rule will be their first step toward competitive food reform, we expect that most will implement the new standards without significant financial impact.
Nevertheless, some food service managers and at least one management company who submitted comments on the proposed rule analysis indicated that their own adoption of competitive food reforms coincided with decreases in competitive food sales without offsetting increases in reimbursable meal revenue. At least one commenter even pointed to
There are reasons to expect that the experience of these districts is not a good predictor of how other districts will fare when they implement the interim final rule standards. One key difference is that the interim final rule will take effect in July 2014, two years after the effective date of revised NSLP meal patterns. This implementation lag means that students will have had time to adjust to a variety of healthier school foods before the introduction of competitive food standards.
Even though we expect that implementing interim final rule standards in 2014 will prove less challenging than had we adopted comprehensive school meal and competitive food reforms in SY 2012–2013, we recognize that some districts will see a reduction in competitive food revenue that is not fully offset by increases in revenue from reimbursable meals.
As suggested by some commenters, this risk is perhaps greatest for districts with relatively few students certified for free or reduced-price meals. Two of the districts studied by the Illinois Health Institute reported relatively few free or reduced-price eligible students (just 22 percent and 35 percent of enrollment). One of these reported an initial 20 percent reduction in competitive food profit after implementation of new standards with some recovery over time.
For purposes of Scenario 3, a 20 percent reduction in competitive food revenue is an extreme outcome. This case study district has an open campus policy in its high schools, a policy shared by just 19 percent of U.S. high schools in SY 2009–2010 (Fox, et al., 2012; Volume 1, p. 3–4). Also, the study reported some recovery in competitive food revenue over time. Scenario 3 models an outcome where only a small fraction of the loss in competitive food revenue is offset with revenue from within the food service account. Since students have finite options for meals during the school day, a reduction in competitive food revenue near the extreme end of the case study findings (where reductions in competitive food profits were fully offset by profits on other food service sales) is unlikely. We assume the more reasonable, but still substantial 10 percent reduction in SFA revenue that we used in Scenario 2. We also assume here, as we do in Scenario 2, that other school group revenue decreases by 5 percent.
Applying the same adjustment we used in the previous two scenarios for competitive food policies already implemented around the country, we assume a reduction in SFA competitive food revenue of 8 percent (Δ
Overall, Scenario 3 suggests a net decrease in school food revenue of roughly 1.3 percent, and an increase in Federal NSLP reimbursements of 0.4 percent.
Beyond revenue impacts to SFAs and other school groups, changes in food purchasing choices caused by the interim final rule will also have an economic effect on children and their families. The projected decreases in competitive food revenues represent reductions in spending by school children and their families on school-provided competitive foods. We do not have sufficient information to estimate increases or decreases in overall spending by students who find alternatives to school-provided competitive foods. Some students will spend less overall by replacing competitive foods consumption with free or reduced price school meals. A decrease in competitive food sales may also increase foods brought from home and/or foods purchased outside of schools. These imply revenue increases for food industries that sell foods brought from home and purchased outside the school setting.
The rule will not impact all students in the same way. For example, price and availability of competitive foods may differ by region of the country, constraining choices for some but not all students. For some students, choices will be limited by their incomes. For other students, alternatives to competitive foods will be limited by school policy. For example, students at schools with open campuses may have more available competitive food options than students on closed campuses. However, taking advantage of that option has some cost in terms of time and perhaps money, resources that are not equally available to all students.
Under the interim final rule, LEAs and SFAs will be required to maintain records such as receipts, nutrition labels, and/or product specifications for food items that will be available to students on the school campus during the school day. The purpose of this documentation is to ensure that those foods comply with the competitive food standards. Thus, there will be recordkeeping costs associated with the interim final rule and these costs will occur at the State agency level, the SFA and LEA level, and at the school level. The estimated additional annual burden for recordkeeping under the proposed rule is 927,633 hours, divided among the State agencies (1,739 hours), LEAs and SFAs (417,160 hours), and schools (508,735) hours.
It is also possible that some schools and LEAs may have additional costs due to the rule. For example, some schools may require new equipment such as vending machines to accommodate new products and package sizes. Additionally, schools and/or LEAs may
Although they are not directly regulated by the proposed rule, food manufacturers and distributors will face changes in demand by schools and SFAs in response to the rule.
Manufacturers will face reduced school demand for some products and increased demand for others. Some food manufacturers may not have existing product lines that meet the interim final rule's requirements and may lose market share to other manufacturers. The impact of tightening the nutritional standards for food and beverages sold at public schools in the United States on food vendors is difficult to know ex-ante. It is likely that the elasticity of demand for food at schools is quite steep, implying that absent available alternatives, most consumption behavior will change aggregate sales by a small amount.
U.S. SFAs that participate in the NSLP purchased roughly $8.5 billion in food in SY 2009–2010, including the value of USDA foods.
According to the 2007 Economic Census, about 23.4 percent of food manufacturing sales are by firms with 100 or fewer employees.
Implementing nutrition standards for competitive foods will result in a more nutritious, and potentially more expensive, mix of foods offered. If we assume that the cost of these foods is, on average, seven percent higher under the new standards—comparable to the estimated cost increase for school meals under updated nutrition standards—and that this increase will reduce demand for these foods comparably to school meals,
While data is not available to estimate the possible distributional effects across the food industry overall, research indicates that some of the marketplace changes that would be required under the interim standards are already taking place. Wescott et al. (2012), for example, found that between 2004 and 2009 the beverage industry reduced the number of calories shipped to schools by 90 percent, with a total volume reduction in full-calorie soft drinks of over 95 percent. In addition, in comments submitted in response to the proposed rule, representatives of the vending industry pointed to their own efforts to identify and market items to schools that comply with Alliance for a Healthier Generation guidelines. NAMA indicated that its members would incur lower costs if the proposed rule were aligned more closely with Alliance guidelines. On several items, USDA did align the interim final rule more closely with Alliance guidelines. Therefore, at least with respect to some products, many of the changes required by the rule have already taken place under existing self-regulation and State and local standards. And for other products, industry has positioned itself well to meet new demand from schools as they implement the new Federal standards.
Local vending machine operators may also face some changes to their current business model. Although the effect of the interim final rule on individual operators will vary, available industry and school data suggest that the effect on this industry group as a whole will be small. Vending machine sales made up a small percentage of total competitive food revenue in SY 2004–2005. We estimate that à la carte sales accounted for 93 percent of total competitive food revenue. The remaining seven percent is generated by a variety of alternate sources. Although vending machines are the most common of these alternate sources of competitive food revenue (they were found in 39 percent of schools in SY 2009–2010 (Fox, et al., 2012, vol. 1, p. 3–42)) they are not the only alternate source. Based on principals' reports, 13 percent of all schools had a school store that sold food and/or beverages (including snack foods) and 4 percent had a snack bar (Fox, et al., 2012, vol. 1, pp. 3–51–52).
Vending and manual foodservice operators served 18,000 primary and secondary schools in 2009, which was down about 17 percent from 2007 (VendingTimes.com, p. 4).
These data suggest that the impact of the interim final rule on the vending machine industry as a whole will be limited. Just a small share of vending industry revenue is generated in primary and secondary schools. And, importantly, some of that revenue is generated from sales of foods that are already compliant with the proposed rule standards, such as 100 percent juice and bottled water. Other products found in school vending machines in SY 2009–2010 were also likely compliant or near-compliant with the proposed rule.
Both industry and Census Bureau data indicate that most vending machine operations are small businesses. The majority of vending machine operators that operated for the entire year in 2007 (76 percent) employed fewer than ten individuals according to the U.S. Economic Census.
Limited data from California suggests that the transition to healthier competitive foods can be managed, that healthier foods can be marketed successfully in schools, and that competitive food sales outside of the à la carte line need not decline. In the first year healthier competitive food policies under California Senate Bill 19 (2001), seven of ten pilot sites that were able to report such data saw per capita decreases in non-foodservice competitive food sales (Center for Weight and Health, UC Berkeley, 2005, p. 12). However, vending machine and/or school store revenue increased in two other sites (both high schools) which led researchers to conclude that “SB 19 compliant foods and beverages can be marketed successfully at the high school level” (Center for Weight and Health, UC Berkeley, 2005, p. 12).
As we discuss elsewhere in this document, the interim final rule provisions take effect one year after publication, giving industry time to modify their product lines. In addition, USDA has chosen to implement an interim final rule rather than a final rule, to
Competitive food purchases and revenues are not equally distributed across schools. Elementary schools derive much less revenue from competitive foods than do secondary schools. They are typically smaller, much less likely to have vending machines, and usually serve a smaller assortment of à la carte items. According to SNDA–IV, middle and high schools obtain almost three times as much revenue from à la carte foods (the biggest source of school competitive food revenue) as do elementary schools (Fox, et al., 2012, Volume 1, p. 3–4); therefore, changes in competitive food standards will have a greater impact at the middle- and high-school levels than they will in elementary schools.
Differences in competitive food revenues by free and reduced-price meal participation, one indicator of whether schools serve primarily lower-income students, are even more dramatic. According to SNDA–III, schools serving at least one-third of their meals at full price to higher income students obtain more than seven times as much revenue from competitive food sales as schools serving a larger percentage of free and reduced-price (and hence lower-income) students.
Given these purchasing patterns, revenue losses would be substantial if students who previously bought competitive foods and beverages not allowed under the Federal standards simply stopped buying any foods. The revenue losses would be concentrated in secondary schools and schools serving higher proportions of non-poor students, i.e., students not eligible for free or reduced-price meals. However, case studies based on experience with established State- or district-level nutrition standards indicate that many students will substitute other competitive food and beverage purchases, or switch to purchasing USDA school meals. This would likely result in reducing revenue losses substantially. In predominantly low-income schools, students may be even more inclined to turn to reimbursable meals if not satisfied with competitive food options. For those students, a free or reduced price meal may become the most attractive option.
Some of the greatest concern among school and SFA officials who commented on the proposed rule was expressed by those from districts with relatively
Finally, there is some suggestion that access to healthy foods in schools varies by the socio-economic standing of the school and its neighborhood (Tipler, 2010). Improved nutrition standards for competitive foods could lessen the nutrition gap among schools.
The interim final rule is intended to help ensure that
A growing body of evidence tells us that giving school children healthful food options will help them make healthier choices during the school day. In 2012, the Pew Health Group and the Robert Wood Johnson Foundation conducted an extensive Health Impact Assessment to evaluate potential benefits that could result from national standards for competitive foods sold in schools during the school day. They concluded that:
• A national competitive foods policy would increase student exposure to healthier foods and decrease exposure to less healthy foods, and
• Increased access to a mix of healthier food options is likely to change the mix of foods that students purchase and consume at school, for the better.
These kinds of changes in food exposure and consumption at school are important influences on the overall quality of children's diets. While nutrition standards for foods sold at school may not on their own be a determining factor in children's overall diets, they are a critical strategy to provide children with healthy food options throughout the entire school day, effectively holding competitive foods to the same standards as the rest of the foods sold at school during the school day. This, in turn, helps to ensure that the school nutrition environment does all that it can to promote healthy choices, and help to prevent diet-related health problems. Ancillary benefits could derive from the fact that improving the nutritional value of competitive foods may reinforce school-based nutrition education and promotion efforts and contribute significantly to the overall effectiveness of the school nutrition environment in promoting healthful food and physical activity choices.
The link between poor diets and health problems such as childhood obesity are a matter of particular policy concern given their significant social and economic costs. Obesity has become a major public health concern in the U.S., second only to physical activity among the top 10 leading health indicators in the United States Healthy People 2020 goals.
Excess body weight has long been demonstrated to have health, social, psychological, and economic consequences for affected adults (Guthrie, Newman, and Ralston, 2009; Wang, et al., 2008). Recent research has also demonstrated that excess body weight has negative impacts for obese and overweight children. Research focused specifically on the effects of obesity in children indicates that obese children feel they are less capable, both socially and athletically, less attractive, and less worthwhile than their non-obese counterparts (Riazi, et al., 2010). Further, there are direct economic costs due to childhood obesity; $237.6 million (in 2005 dollars) in inpatient costs (Trasande, et al., 2009)
Childhood obesity has also been linked to cardiovascular disease in children as well as in adults. Freeman, Dietz, Srinivasan, and Berenson (1999) found that “compared with other children, overweight children were 9.7 times as likely to have 2 [cardiovascular] risk factors and 43.5 times as likely to have 3 risk factors” (p. 1179) and concluded that “[b]ecause overweight is associated with various risk factors even among young children, it is possible that the successful prevention and treatment of obesity in childhood could reduce the adult incidence of cardiovascular disease” (p. 1175). In comments, the American Heart Association also discussed the fact that childhood obesity has resulted in problems of hypertension for people at younger ages and noted that America's children are at higher risk for heart problems and blood pressure problems due to the amounts of sodium in their diets.
It is known that overweight children have a 70 percent chance of being obese or overweight as adults. However, the actual causes of obesity have proven elusive (ASPE, no date). While the relationship between obesity and poor dietary choices cannot be explained by any one cause, there is general agreement that reducing total calorie intake is helpful in preventing or delaying the onset of excess weight gain.
There is some recent evidence that competitive food standards can improve children's dietary quality:
• Taber, Chriqui, and Chaloupka (2012) compared calorie and nutrient intakes for California high school students—with competitive food standards in place—to calorie and nutrient intakes for high school students in 14 States with no competitive food standards. They concluded that California high school students consumed fewer calories, less fat, and less sugar at school than students in other States. Their analysis “suggested that California students did not compensate for consuming less within school by consuming more elsewhere” (p. 455). The consumption of fewer calories in school “suggests that competitive food standards may be a method of reducing adolescent weight gain” (p. 456).
• A study of competitive food policies in Connecticut concluded that “removing low nutrition items from schools decreased students' consumption with no compensatory increase at home” (Schwartz, Novak, and Fiore, 2009, p. 999).
• Similarly, researchers for Healthy Eating Research and Bridging the Gap found that “[t]he best evidence available indicates that policies on snack foods and beverages sold in school impact children's diets and their risk for obesity. Strong policies that prohibit or restrict the sale of unhealthy competitive foods and drinks in schools are associated with lower proportions of overweight or obese students, or lower rates of increase in student BMI” (Healthy Eating Research, 2012, p. 3).
Pew Health Group and Robert Wood Johnson Foundation researchers noted that the prevalence of children who are overweight or obese has more than tripled in the past three decades, which is of particular concern because of the health problems associated with obesity. In particular, researchers found an increasing number of children are being diagnosed with type 2 diabetes, high cholesterol, and high blood pressure. These researchers further observed that children with low socioeconomic status and black and Hispanic children are at a higher risk of experiencing one or more of these illnesses (pp. 39–40, 56).
Their analysis also noted that:
There is a strong data link between diet and the risk for these chronic diseases. Given the relationship between childhood obesity, calorie consumption, and the development of chronic disease risk factors at a young age, this report proposes that a national [competitive food] policy could alter childhood and future chronic disease risk factors by reducing access to energy-dense snack foods in schools.
To the extent that the national policy results in increases in students' total dietary intake of healthy foods and reductions in the intake of low-nutrient, energy-dense snack foods, it is likely to have a beneficial effect on the risk of these diseases. However, the magnitude of this effect would be proportional to the degree of change in students' total dietary intake, and this factor is uncertain (p. 68).
In summary, the most current, comprehensive, and systematic review of existing scientific research concluded that competitive foods standards can have a positive impact on reducing the risk for obesity-related chronic diseases.
Because the factors that contribute both to overall food consumption and to obesity are so complex, it is not possible to define a level of disease or cost reduction that is attributable to the changes in competitive foods expected to result from implementation of the rule. USDA is unaware of any comprehensive data allowing accurate predictions of the effect of the interim requirements on consumer choice, especially among children. But to illustrate the magnitude of the potential benefits of a reduction in childhood obesity, based on $237.6 million in inpatient costs and $14.1 billion in outpatient costs, a one percent reduction in childhood obesity implies a $143 million reduction in health care costs.
Some researchers have suggested possible negative consequences of regulating nutrition content in competitive foods. They argue that not allowing access to low nutrient, high calorie snack foods in schools may result in overconsumption of those same foods outside the school setting (although as noted earlier, the Taber et al. study concluded overcompensation was not evident among the California high school students in their sample). Some groups have expressed concerns that the focus on competitive foods is less on nutrition than obesity, thus regulating competitive foods may contribute to bodyweight and/or appearance issues and result in increasing body insecurity feelings among children. The focus on obesity may also increase the stigmatization of children who are perceived as being obese.
We conducted this analysis using available data; due to the limitations of these data, there are some important qualifications to our analysis that should be noted. We discuss a few of these below.
Available research generally supports the notion that school food revenues will not necessarily be adversely affected by the implementation of healthier competitive food standards. Some schools or school districts, however, have seen revenue losses. Cullen and Watson (2009, p. 709) note that smaller districts might “have more barriers associated with the bidding and food contract process and availability of alternative products” relative to large districts. In addition, a five-month pilot program in North Carolina elementary schools saw decreases in competitive food sales with no offsetting increase in school meal participation (North Carolina General Assembly 2011). North Carolina's State Superintendent commented on the lack of available foods that met the pilot standards and although she stated that increases in the availability of appropriate replacements would likely improve the economic impact of the healthier food standards, she still had concerns that healthier products may never generate the revenue necessary to meet North Carolina school needs (NCGA 2011, p. 2 Atkinson letter).
Commenters also expressed two primary concerns in this regard. The first set of comments noted, as we have throughout this analysis, that the case study data are not generalizable, that is, those studies do not necessarily reflect the experiences of their schools. Some commenters requested that the standards not be implemented until broader studies could be conducted.
We are mindful of the comments that are concerned with the limitations of our data. We used the data available to us with the understanding that there would be a wide variation in impacts, and considerable uncertainty about which impacts would be most likely or frequent. We have also updated the scenarios based on experiences from more current case studies.
Finally, we are mindful that instituting competitive food standards and the effects on revenue will vary. It is possible that older students who are more accustomed to having less healthy options available will be less receptive to the changes than younger students. This combined with the increasing availability of products that do meet the standards and the increasing acceptance of a more healthful environment overall, will help to mitigate revenue losses in the long run.
We do not have actual prices paid for specific competitive food and beverage items. While we assume that competitive items meeting and not meeting the interim final rule standards contribute equally to revenues, this is uncertain. It is likely that reformulated versions of existing competitive foods will cost at least as much as foods currently available. However, to meet calorie or fat standards, manufacturers may simply reduce package sizes, e.g., replacing 16 ounce containers of full strength juice with eight or 12 ounce bottles. In those cases, there is little
Information on State and local payments in support of USDA school meals is not available. Some States and localities make payments that are tied to USDA school meal participation. If combined Federal, State, and local payments are greater (or less) than the costs of producing meals, SFAs would likely make lunch pricing decisions with a view toward optimizing their levels of Federal, State, and local subsidizes.
Only a few limited case studies assess possible behavior change that may occur in response to the interim final rule. Even these limited studies are based on standards that are not exactly the same as the interim final rule. The local conditions in which they take place may not match national conditions. Implementation of State standards may have been accompanied by other factors, such as nutrition education or promotion of school meals, which may have influenced outcomes. While we believe that the evidence we examined is generally consistent with the suggestion that new standards will be associated with purchases of healthier competitive foods and increased school meal participation, data limitations create considerable uncertainty about the size of these changes. We also lack information on changes in purchasing behavior over time. As students adjust to the new range of competitive options, their purchasing behavior could adapt, altering revenue patterns.
This analysis assumes that food manufacturers and vendors, SFAs, and other school groups that sell competitive foods and beverages will adapt their behaviors in response to the interim final rule. Studies of State and local changes in competitive food and beverage policies indicate that these behavioral changes will occur (Cullen and Watson, 2009; Wharton, Long, and Schwartz, 2008; Woodward-Lopez, et al., 2010; USDA 2005; Bassler, et al., 2013). We draw on this literature to estimate the possible effects of behavioral changes on competitive food and beverage revenues.
This literature indicates that to a large extent, lost revenues from products that can no longer be sold in schools because of the interim final rule may be offset by increased purchases of products that are already widely available and purchased as competitive items (for example, bottled water) or by purchases of newly available, healthier products. In some cases changes are relatively simple. For example juices currently sold in 16-oz containers could be sold in 12-oz or 8-oz containers, as appropriate for grade level. In other cases, reformulations of existing products are already underway. Actions by State agencies and voluntary groups such as Alliance for a Healthier Generation have already encouraged food manufacturers to develop new products for competitive food sales: 4-oz fruit bowls; nonfat, no-sugar added frozen yogurt; 4-oz frozen fruit bars; and reduced-fat and sodium pizza with whole grain crust (Alliance for a Healthier Generation, 2010). In a 2013 compilation of case studies, researchers note that some
Establishment of Federal standards is likely to spur further product development and increased sales volume that may help to bring prices in line with those of less-nutritious competitive items. Comments from one beverage manufacturer noted that existing competitive food standards have already resulted in the company developing or reformulating products that meet or exceed the standards in the interim final rule. Because State and local experience to date has preceded the establishment of Federal standards, their results may overstate the challenges that schools will face in implementing the interim final rule. The pressures on school revenue from high costs and limited availability could ease in the 12-month period between publication of the interim final rule and its effective date.
Early studies on competitive food revenues indicate that not all schools have complied with existing State competitive food standards.
It is possible that some schools could choose to leave NSLP and SBP to avoid the new competitive food standards, and this possibility was reflected in some of the comments received on the proposed rule. Although some schools may realize significant losses in revenue from competitive foods, especially in the short term, we believe it is unlikely that many schools will choose to leave the Federal meals program. As noted previously, on average SFAs receive 16 percent of their total revenue from competitive foods; 84 percent of revenue is derived from Federal reimbursements for NSLP and SBP meals, student payments, and State and local contributions tied to those meals (USDA, 2008). But even in SFAs with competitive food revenues that are greater than the average, e.g., SFAs in the 90th percentile for competitive food revenues, USDA subsidies and student payments for program meals still account for more than half of SFA revenue while competitive food sales amounted to less than half.
This analysis focuses on revenues in SFAs and other school groups. It does not address food and labor costs directly because few of the research reports and case studies report detailed cost information. One study (Treviño et al., 2012) that did report expenses and labor costs in addition to revenues found no statistically significant difference between intervention and control schools after the intervention schools implemented stronger competitive food standards. Although the differences were not statistically different, intervention schools were found to have higher excess revenue over expenses than the control schools ($3.5 million versus $2.4 million) (pg. 421).
Although we do not address costs directly, we expect that cost will have a limited effect on the net revenue of SFAs and other school groups. SFA competitive food revenue is derived primarily from à la carte sales. Under the interim final rule, à la carte items that are available as part of a reimbursable meal are deemed to meet the new standards and those items will be subject to new school meal standards under regulations that took effect July 1, 2012.
This does not apply, of course, to à la carte items that are not components of a reimbursable meal or to items sold in vending machines or through other outlets; schools may incur higher costs to replace those items with items that meet this rule's standards. However, even for those foods, industry and schools will have had some time after implementation of new school meals standards to prepare. Some of the fixed costs of product development, contracting with new suppliers, developing recipes, and training kitchen staff will have already been incurred by industry and schools as they implement Federal school meal standards, easing pressure, perhaps, on prices and the administrative costs of complying with this competitive foods rule.
A number of SFA professionals commented that requiring accompaniments (e.g., salad dressings, catsups, etc.) to be pre-portioned would potentially add large additional costs (purchasing individual
The proposed rule presented two basic alternatives for the treatment of entrées and side dishes that are served as part of a reimbursable meal. Under the first alternative, these items could be served à la carte as long as they met the rule's fat and sugar standards that apply to all other competitive foods. Under the second alternative, NSLP entrées and sides (except grain-based desserts) would be exempt from all of the rule's competitive food requirements if served à la carte on same day that they are part of a reimbursable meal (alternative B1) or within four days of service as part of a reimbursable meal (alternative B2).
The interim final rule adopts a variation on the second alternative. Entrées (but not side dishes) served as part of a reimbursable meal will be exempt from the rule's competitive food requirements on the day they are served as part of the meal and the following day. Exempt entrées that are sold as competitive food must be offered in the same or smaller portion sizes as the NSLP and SBP, and with the same accompaniments.
The primary benefit of an exemption that is limited strictly to foods on the current day's menu is that those items could be offered à la carte no more often than they could be served in reimbursable meals without exceeding weekly NSLP or SBP restrictions on average calories, fat, or sodium. Such an exemption would also encourage students to consume a greater variety of foods, even if they choose foods consistently from the à la carte line. The interim final rule achieves these same goals while offering SFAs the ability to serve leftover entrées the next day, an important tool for menu planning and cost control.
The interim final rule provision offers somewhat greater administrative simplicity compared to the other alternative considered by USDA. That alternative would have required a nutrient analysis of reimbursable meal items before they could be sold à la carte in order to measure their compliance with the rule's fat and sugar standards.
The proposed rule offered two alternatives for establishing limits on the frequency of exempt fundraisers. One would have allowed States to set limits subject to USDA approval. The other would grant full discretion to the States.
After consideration of comments from interest groups and school officials, USDA opted to allow States to set their own limits on the frequency of exempt fundraisers without USDA review.
The alternative considered by USDA would have given Federal administrators the opportunity to review State plans prior to implementation. Although Federal review would have entailed some cost, it may have resulted in little difference in the policies ultimately adopted. Nevertheless, State discretion entails some small risk that one or more States or school districts (if States use their discretion to leave the decision to local districts) will adopt standards that impose little or no restriction on the frequency of exempt fundraisers. At least some commenters expressed concern that State discretion will lessen the consistency that might have been achieved with USDA review. Ultimately, however, State administrators are, like USDA, committed to the success of competitive food reform. Whether success is measured by student well-being or the financial health of SFAs, it is in the interest of the States to set fairly narrow exemptions for infrequent fundraisers.
The proposed rule solicited public comment on two alternate sugar standards for competitive foods. These would have limited total sugar content to either 35 percent of calories or 35 percent of weight. Both standards would have placed a meaningful check on the amount of sugar allowed in competitive foods while providing exceptions for certain fruit and vegetable snacks and yogurt. After considering arguments in favor of each of these standards, USDA adopted the sugar by weight standard for the interim final rule.
Administrative burden and product availability were among the factors that weighed most heavily in this decision. Commenters who favored the 35 percent by weight standard argued that
• It was consistent with standards already in place through voluntary programs such HUSSC and the Alliance for a Healthier Generation,
• Sugar is commonly reported by weight by industry and others,
• Calculators for sugar by weight already exist to aid school food service professionals in their calculations,
• The sugar as a percent of calories standard would negatively affect food service revenues, and
• Sugar by weight allows greater flexibility in the products available to students.
The first four of these points suggest that the sugar by weight standard will be less costly to implement for both the schools and industry that have already invested in that standard. Schools that are new to competitive food reform will also benefit from the sugar by weight standard to the extent that industry has already developed products designed to meet the demand of HUSSC schools and schools that follow Alliance guidelines.
The alternate percent of calories standard, by contrast, would have added to some schools' cost of compliance with the rule. It would have been most disruptive and potentially costly to schools that have already established relationships with suppliers and distributors who provide the schools with products intended to meet the sugar by weight standard.
The net effect on industry of choosing the weight standard over the calorie standard is unclear. Manufacturers and distributors that have already invested in supplying schools with products that meet the sugar by weight standard may realize the greatest immediate benefit. Comments from representatives of the vending industry point to that industry's voluntary efforts to support schools that follow Alliance guidelines on competitive foods, and urged USDA to adopt standards consistent with those guidelines. The interim final rule's sugar standard, in combination with some of the other changes to the rule, aligns the rule with more of these existing products. Manufacturers as well as distributors of such products may see additional demand once all schools implement the rule.
Not all sectors of the food industry favored the sugar by weight standard. Compared to the alternate sugar as a percent of calories standard, the weight standard may be more difficult to meet for sugar-sweetened products with low moisture content, where the ratio of fat to sugar may mean the difference between compliance and non-compliance. Because a gram of fat has more than twice as many calories as a gram of sugar, snack products and desserts with a relatively high fat content (from nuts or chocolate, for example) may be less likely to meet the proposed rule's weight-based sugar standard although they might have met the alternative calorie-based standard.
Competitive foods that do not satisfy one of the interim final rule's food group requirements may be sold in school if they contain at least 10 percent of the daily value of one of several nutrients of concern (i.e., calcium, potassium, vitamin D, and fiber), but only through June 2016. Beginning July 1, 2016 this criterion will be obsolete and may not be used to qualify an item as an allowable competitive food.
The primary alternative considered by USDA was the proposed rule's handling of nutrients of concern. The proposed rule would have allowed products that met the 10 percent threshold, but only through the use of naturally occurring ingredients. In addition, the proposed rule would have made this option permanent.
USDA's decision to modify the proposed rule provision was driven primarily by concerns other than cost or administrative burden. The interim final rule's long-term focus on foods that satisfy the rule's food group requirements is better aligned with IOM recommendations. IOM cited “[e]merging evidence for the health benefits of fruits, vegetables, and whole grains” that “reinforces the importance of improving the overall quality of food intake rather than nutrient-specific strategies such as fortification and supplementation” (IOM, 2007a, p. 41).
The proposed rule's requirement that only naturally occurring nutrients could satisfy its 10 percent of daily value threshold was viewed by commenters as impractical. It would be difficult for food service professionals to distinguish products that satisfied the naturally occurring requirement from products that did not. At present, the contribution of food-based and non-food sources to nutrient values are not shown separately on processed food nutrition labels. For that reason, the proposed rule's naturally occurring nutrient criterion offered only limited flexibility for schools.
In the critical early months of implementation, the interim final rule offers a more meaningful administrative cost advantage relative to the proposed rule. The interim final rule provision is intended to reduce costs by ensuring the widest availability of compliant products during a 24-month transition to an entirely food-based set of standards.
The proposed rule offered two alternatives for public comment on lower-calorie beverages for high school students. The first would have permitted up to 40 calories per 8 fl oz serving (and 60 calories per 12 fl oz). The second would have allowed up to 50 calories per 8 fl oz serving (and 75 calories per 12 fl oz). The higher 50 calorie limit would have permitted the sale of national brand sports drinks in their standard formulas. The lower 40 calorie limit would have allowed only reduced-calorie versions of those drinks. The interim final rule adopts the lower 40 calorie limit as the better alternative to limit the consumption of added sugar in beverages sold in school, and to further advance the public health goals of the rule.
Leading public health organizations that submitted comments on the proposed rule tended to prefer the interim final rule standard to the proposed rule's higher calorie alternative. Many of the same organizations, however, would have preferred even stricter limits on sugar-sweetened beverages, a major source of discretionary calories in competitive school foods.
Schools, with strong support from the beverage industry, have largely eliminated full-calorie carbonated drinks from school vending machines. But representatives from some public health groups point out that sports drinks remain widely available in schools, and they note that these products are an important contributor to excess added sugar intake by children. Data from USDA's SNDA studies indicate a modest reduction in the percent of high schools that offered sports drinks in vending machines from SY 2004–2005 to SY 2009–2010, although percentages remain high
Food and foodservice industry representatives, as well as some school administrators, favored the higher calorie limit. The beverage industry has invested in developing and marketing products that meet the Alliance for a Healthier Generation's 66 calorie per 8 fl oz guideline, and may have been better positioned to meet a 50 calorie standard than the interim final rule's 40 calorie standard. There may be fewer products currently available that meet or can be reformulated to meet the interim final rule standard. If so, then the immediate transition to the interim final rule may be more challenging for manufacturers, distributors, and vending machine operators, as well as SFAs, student organizations, and other non-SFA school groups that rely on the sale of such beverages. However, while some businesses may face a reduced market for their products, at least in the short term, manufacturers and distributors of competing lower calorie products have an opportunity to increase sales.
The interim final rule drops the proposed rule restriction on the sale of lower calorie beverages in the meal service area during a meal service. As discussed more fully in Section III.A., the proposed rule's time and place restriction would have put some SFA revenue at risk, and might have depressed the sale of reimbursable meals. The proposed rule restriction would also have sent a mixed message on the acceptability of the excluded beverages. For these reasons, the interim final rule eliminates the restriction. Although the interim final rule provides greater flexibility to SFAs, greater choice to students, and reduces the risk to SFA revenue, the interim final rule provision has the potential to reduce the amount of milk consumed by high school students during meal times. USDA will monitor this after implementation and take those preliminary observations into consideration in the development of a final rule.
Consistent with IOM recommendations, the proposed rule required that beverages served to elementary and middle school students be caffeine free or include only small amounts of naturally occurring caffeine. The proposed rule, however, did not put caffeine restrictions on products for high school students; a departure from the IOM guidelines. Many of the comments from health professionals and school officials expressed concern about the effects of large amounts of caffeine on adolescents and suggested that the Department either disallow caffeinated beverages at the high school level entirely, or at least provide some guidelines for caffeine limits. After considering these comments, and because of the lack of an accepted standard for caffeine consumption by high school-aged students, USDA retains the proposed rule standard. The interim final rule retains maximum flexibility for high schools, allowing the continued sale of beverages containing caffeine. At the same time, USDA urges schools not to allow the sale of energy drinks, in response to concerns expressed by health professionals. To the extent that caffeinated products generate revenue for schools, the interim final rule will have a lesser economic impact on SFAs and other school groups than the primary alternative considered by USDA.
As required by OMB Circular A–4, we have prepared an accounting statement showing the annualized estimates of benefits, costs and transfers associated with the provisions of this proposed rule.
The accounting statement's cost figures are equal to the annualized, discounted sum of the estimated cost stream from Table 3:
Applying 7 and 3 percent discount rates to this nominal cost stream gives present values (in 2013 dollars):
The annualized values in FY 2013 dollars of these discounted cost streams are computed with the following formula, where PV is the discounted present value of the cost stream ($102.6 in the illustration),
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes regulations that would implement a catch sharing plan for the guided sport (charter) and commercial fisheries for Pacific halibut in waters of International Pacific Halibut Commission (IPHC) Regulatory Areas 2C (Southeast Alaska) and 3A (Central Gulf of Alaska). If approved, this catch sharing plan will replace the Guideline Harvest Level program, define an annual process for allocating halibut between the charter and commercial fisheries in Area 2C and Area 3A, and establish allocations for each fishery. The commercial fishery will continue to be managed under the Individual Fishing Quota system. To allow flexibility for individual commercial and charter fishery participants, the proposed catch sharing plan also will authorize annual transfers of commercial halibut quota to charter halibut permit holders for harvest in the charter fishery. This action is necessary to achieve the halibut fishery management goals of the North Pacific Fishery Management Council.
Written comments must be received by August 12, 2013.
You may submit comments, identified by FDMS Docket Number NOAA–NMFS–2011–0180, by any of the following methods:
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Electronic copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action are available from
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted to NMFS at the above address and by email to
Julie Scheurer, 907–586–7228.
The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (
The Halibut Act, at sections 773c(a) and (b), provides the Secretary of Commerce with general responsibility to carry out the Convention and the Halibut Act. In adopting regulations that may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act, the Secretary of Commerce is directed to consult with the Secretary of the department in which the U.S. Coast Guard is operating, currently the Department of Homeland Security.
The Halibut Act, at section 773c(c), also provides the North Pacific Fishery Management Council (Council) with authority to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations. Regulations developed by the Council may be implemented by NMFS only after approval by the Secretary of Commerce. The Council has exercised this authority in the development of subsistence halibut fishery management measures, codified at 50 CFR 300.65, and the guideline harvest level program and limited access program for charter operators in the charter fishery, codified at 50 CFR 300.67. The Council also developed the Individual Fishing Quota (IFQ) Program for the commercial halibut and sablefish fisheries, codified at 50 CFR part 679, under the authority of section 773 of the Halibut Act and section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
The harvest of halibut in Alaska occurs in three fisheries—the commercial, sport, and subsistence fisheries. The commercial halibut fishery is a fixed gear fishery managed under an Individual Fishing Quota program. The sport fishery includes unguided and guided anglers. Guided anglers are commonly called “charter” anglers because they fish from chartered vessels. The subsistence fishery allows rural residents and members of an Alaska Native tribe to retain halibut for personal use or customary trade.
The IPHC annually determines the amount of halibut that may be removed from the resource by regulatory area in all Convention waters. The IPHC estimates the exploitable biomass of halibut using a combination of harvest data from the commercial, sport, and subsistence fisheries, and information collected during scientific surveys and sampling of bycatch in other fisheries. The IPHC calculates a range of total allowable removals of halibut from all sources in an IPHC regulatory area based on the annual stock assessment and apportionment process conducted by the IPHC. The range of total allowable removals is referred to as the Total Constant Exploitation Yield (CEY) and represents the total removals for that area in the coming year at varying levels of harvest and risk. The Total CEY is expressed in net pounds, which is defined as the weight of halibut from which the gills, entrails, head, and ice and slime have been removed. The Fishery CEY represents the difference between the Total CEY and all other removals, including sport, subsistence, bycatch, and waste. The Fishery CEY is the basis for the IPHC's determination of catch limits for the directed commercial fixed gear halibut fishery. The IPHC considers staff recommendations, harvest policy, and stakeholder input when it determines commercial catch limits.
Pursuant to Article III of the Convention, the IPHC must develop and maintain halibut stocks to levels that will permit the optimum yield for the halibut fisheries. The IPHC addresses this objective through a harvest strategy that is designed to balance the benefits of yield with the risk of spawning biomass dropping below a minimum level. To the extent possible, the IPHC accounts for all sources of fishing mortality within the Total CEY and establishes the commercial fixed gear catch limits only after subtracting waste in the commercial halibut fishery and halibut removals from other non-halibut commercial fisheries and non-commercial uses. Because the IPHC subtracts non-commercial halibut fishery removals (including charter harvest or the guideline harvest level) from the Total CEY, and because the charter fishery harvest increased during the 1990s and early 2000s, the amount of halibut available for the commercial halibut fishery decreased relative to the long-term historic proportion of the fishery available to the commercial fishery. The commercial IFQ halibut fishery therefore views charter harvests in excess of established policies or goals as uncompensated reallocations of fishing privileges.
This section provides an overview of management policies applicable to charter halibut fishing in Areas 2C and 3A. Additional details on the management measures specific to each regulatory area are addressed later in this preamble. Until 2007, harvest restrictions for the charter halibut fisheries were developed by the IPHC. In 1973, the IPHC first adopted halibut sport fishing regulations to provide consistent and uniform halibut sport fishing regulations in all regulatory areas. At that time, the IPHC established that the sport fishing season for halibut would occur from March 1 through October 31, and limited the number of halibut that anglers could retain by imposing a daily three-fish bag limit. From 1984 through 1997, the IPHC required charter vessels to have IPHC licenses. Since the initial three-fish bag limit was established in 1973, the IPHC has adjusted the bag limit to vary among one, two, and three fish per angler per day. The current bag limit under IPHC regulations is two fish of any size per day unless a more restrictive bag limit applies in Federal regulations. There is not a more restrictive limit currently in effect in Federal regulations for Area 3A, but NMFS has established a more restrictive one-fish bag limit for charter vessels for Area 2C as described in the following section of this preamble.
In 1997, the Council adopted separate guideline harvest levels (GHLs) for the Area 2C and Area 3A charter halibut fisheries. The proposed and final rules implementing the current GHLs were published in the
The GHLs represent pre-season specifications of acceptable annual harvests in the charter halibut fisheries in Areas 2C and 3A. To accommodate some growth in the charter halibut fishery, while approximating historical levels, the Council recommended the GHLs were to be based on 125 percent of the average charter halibut fishery harvest from 1995 through 1999 in each area. For Area 2C the maximum GHL was set at 1,432,000 pounds (lb), or 649.5 metric tons (mt), net weight, and in Area 3A the maximum GHL was set at 3,650,000 lb (1,655.6 mt) net weight. The Council recommended a system of step-wise adjustments to the GHLs to accommodate decreases and subsequent increases in halibut abundance. The Council recommended this system of GHL adjustments to provide a relatively predictable and stable harvest target for the charter halibut fishery. Although the Council had a policy that charter halibut fisheries should not exceed the GHL, the 2003 GHL regulations did not actually limit charter halibut fishery harvests. Rather, the GHL regulations set benchmarks for use in future regulations, and harvest restrictions could be adopted in the year following a year that the GHL was exceeded.
In response to concerns that growth in the charter halibut fishery was resulting in overcrowding in productive halibut grounds, the Council recommended, and the Secretary of Commerce adopted, a limited access program to provide stability for the charter halibut fishery and decrease the need for regulatory adjustments affecting charter vessel anglers. NMFS published a final rule on
Under the CHLAP, NMFS initially issued permits to those businesses that historically and recently participated in the charter halibut fishery. The CHLAP also issues a limited number of permits to non-profit corporations representing specified rural communities and to U.S. military morale programs for service members. Beginning February 1, 2011, all vessel operators in Areas 2C and 3A with charter anglers on board were required to have an original, valid permit on board during every charter halibut vessel fishing trip. Charter Halibut Permits (CHPs) are endorsed for the appropriate regulatory area and, except for military CHPs, the number of anglers catching and retaining halibut on a trip. In October 2012, NMFS published an implementation report for the CHLAP after all interim permits had been adjudicated and resolved. This report is available at
The Area 2C charter halibut harvest exceeded its GHL every year during 2004 through 2010, despite management measures designed to control charter halibut harvest in this area (Table 1).
To ensure that the halibut stocks would continue to develop to a level that would allow optimum yield in the halibut fisheries, beginning in 2007 the IPHC and Council have recommended, and the Secretary of Commerce has adopted, a number of regulatory measures in Area 2C to limit charter halibut harvest to the Area 2C GHL. In 2007, NMFS implemented regulations to require that under the two-fish daily bag limit, one of the harvested halibut could not exceed 32 inches head-on length (81.3 cm) (72 FR 30714, June 4, 2007). These regulations were in effect for 2007 and 2008. In 2008, the GHL dropped to 931,000 lb (422.3 mt) in Area 2C and charter halibut harvest was more than double the GHL.
In 2009, the GHL dropped again to 788,000 lb (357.4 mt), prompting NMFS to implement additional restrictions on Area 2C charter anglers: A one-fish daily bag limit superseded the two-fish with maximum size rule, harvest by the charter vessel guide and crew was prohibited, and a line limit equal to the number of charter vessel anglers on board, but not to exceed six lines was implemented (74 FR 21194, May 6, 2009). This rule was challenged by participants in the charter halibut fishery, and the U.S. District Court for the District of Columbia granted summary judgment in favor of the Secretary of Commerce on November 23, 2009 (
Because NMFS imposed no additional charter restrictions in 2011, the IPHC believed that charter halibut harvest was likely to exceed the 788,000 lb GHL again. As such, the IPHC recommended and the Secretary of State accepted, with the concurrence of the Secretary of Commerce, a daily bag limit for charter vessel anglers in Area 2C of one halibut with a maximum length of 37 inches (94.0 cm) per day (76 FR 14300, March 16, 2011). The 2011 Area 2C charter halibut harvest under the 37-inch maximum length rule was estimated at 344,000 lb, significantly below the GHL of 788,000 lb. The Council determined that it would be appropriate for IPHC to consider alternative management measures to limit charter halibut harvest to the GHL, and requested an analysis of two options in addition to a maximum size limit for management measures for the 2012 Area 2C charter halibut fishery to limit charter halibut harvest to the 2012 GHL. One alternative management measure was a reverse slot limit, in which anglers may retain fish that are smaller or larger than a specified range of lengths, but must release fish within that range. Another alternative considered was charter halibut fishery closures on selected days of the week.
In December 2011, the Council reviewed the analysis of the range of management measures to limit Area 2C charter halibut harvest to its 2012 GHL (available at
In November 2012, the preliminary estimate of charter halibut harvest for 2012 was 645,000 lb (292.6 mt), which was below the GHL of 931,000 lb (422.3 mt). In December 2012, the Council undertook the same process it used in December 2011 to consider options for the appropriate Area 2C charter halibut management measures for implementation in 2013. Based on an analysis of charter halibut management options and advice from its advisory committees and the public, the Council recommended a continuation of the status quo charter management measures in Area 2C for the 2013 season. At its annual meeting in January 2013, the IPHC reviewed the Council analysis for 2013 charter halibut management measure options (available at
Since the GHL was implemented in 2004, charter anglers in Area 3A have been managed by the same harvest restrictions as unguided anglers, i.e., a two-fish daily bag limit with no size restrictions. Charter halibut harvest in 2004 through 2007 was at or slightly above the GHL of 3,650,000 lb (1,655.6 mt) in Area 3A (Table 2). Each year from 2007 to 2009, the Alaska Department of Fish and Game (ADF&G) issued an Emergency Order that prohibited charter skipper and crew harvest of all species for the major portion of the season under ADF&G's general authorities to regulate state-licensed sport fishing vessels. From 2010 until 2012, the charter halibut fishery had a two-fish of any size bag limit with no prohibition on skipper and crew harvest. Charter halibut harvest in Area 3A has remained below the GHL since 2008, even after the GHL dropped in 2012 from 3,650,000 lb (1,655.6 mt) to 3,103,000 lb (1,407.5 mt). Table 2 summarizes GHLs and charter halibut harvest in Area 3A since 2004. The IPHC adopted commercial halibut fishery catch limits based on a Total CEY which resulted in a 2013 GHL of 2,734,000 lb (1,240.1 mt) and approved status quo management measures for Area 3A for 2013 (78 FR 16423, March 15, 2013), following the Council's recommendation.
In October 2008, the Council adopted a motion to recommend a CSP for the charter and commercial halibut fisheries in Areas 2C and 3A to NMFS. The 2008 Council motion is available at
Consistent with the intent of the first proposed CSP in 2011, the Council intends this proposed CSP to address ongoing allocation conflicts between the charter and commercial halibut fisheries. The commercial halibut fishery is subject to defined allocations of individual harvest shares that generally rise and fall with halibut abundance, and the charter halibut fishery, which experienced many years of sustained annual growth, is not
The CSP allocations would replace the GHL with a percentage allocation to the charter halibut fishery of the annual combined catch limit. The Council also intends to follow the process it used in 2011 and 2012 to specify annual management measures for the charter halibut fishery prior to the upcoming fishing season based on projected harvests and charter catch limits (i.e., currently the GHL). Prior to 2012, restrictions to limit charter halibut harvests to the respective GHLs were implemented either by IPHC regulation in the annual management measures without input from the Council, or by separate NMFS rulemaking after the GHL was exceeded. The pre-season harvest restriction specification process recommended in this proposed rule is intended to limit charter halibut harvest to the target level before an overage occurs, as opposed to an approach that implements management measures several years after the target harvest level has been exceeded.
The pre-season specification of harvest restrictions for charter anglers is consistent with the Council's objective to maintain the charter halibut fishery season length in effect (February 1 through December 31) with no inseason changes to harvest restrictions, even if it appears that the regulatory measures may result in an overage. The Council developed this objective based on committee recommendations and public testimony from charter vessel operators indicating that inseason changes to harvest restrictions would be disruptive to charter operators and anglers. Many charter vessel anglers book fishing trips with operators well in advance of the trip date with an expectation that the harvest restrictions that are effective at the beginning of the fishing season will be in place throughout that season. Management changes to bag or size limits for charter vessel anglers within a fishing season may cause considerable inconvenience for charter anglers and adverse economic impacts to charter operators if anglers decide to postpone or cancel their charter fishing trip due to a mid-season change in regulations. The potential for inseason management changes also could result in fewer anglers planning charter fishing trips in Alaska, which could have significant long-term adverse economic impacts on charter vessel operators by reducing revenue.
The Council recommended, and NMFS agrees, that the annual CSP catch limits for the commercial and charter halibut fisheries should be determined by a predictable and standardized process utilizing the IPHC's annual management measures. This proposed rule would establish a procedure for determining the commercial and charter halibut fisheries' catch limits for each area. If this proposed rule for a CSP is implemented, the IPHC's annual combined catch limits for 2C and 3A would be apportioned between the annual charter catch limits and annual commercial catch limits in those areas. At its annual meeting, the IPHC would consider the Council's recommendations designed to constrain the charter halibut fisheries in 2C and 3A to their allocated annual catch limits, and would consider the advice of IPHC staff, advisors, and the public. The IPHC would be expected to adopt the catch limits and appropriate management measures as part of the annual IPHC halibut fishery conservation and management regulations. Should the Secretary of State accept the IPHC regulations, with concurrence of the Secretary of Commerce, the approved IPHC regulations would be published in the
In recent years, this implementation schedule for IPHC annual management measures has occurred after the February 1 season opening date for halibut sport fisheries in Alaska. In most years, the effective date of the IPHC annual management measures has been around March 15. Thus, the period between the February 1 opening of the sport season and the mid-March effective date of the superseding annual management measures has been subject to the previous year's IPHC regulations. This schedule will continue under the proposed CSP unless the IPHC recommends a change to the February 1 opening for the sport fishing season. However, implementation of the annual management measures in March likely does not impact the charter halibut fishery because there has historically been little or no charter halibut harvest during February 1 through mid-March.
As part of this proposed action, the Council also recommended that ADF&G Saltwater Charter Logbooks be used as the primary data source to estimate the number of halibut harvested in the charter halibut fishery following each charter halibut fishing season and to project the number of halibut harvested in the charter fishery in the following year. Since the mid-1990s, the primary data source to estimate the numbers of halibut harvested in the charter fishery provided to the IPHC and the Council has been the Alaska Statewide Harvest Survey (SWHS). The SWHS is a mail survey that employs stratified random sampling of households containing at least one licensed angler. Survey respondents are asked to report the numbers of fish caught and kept by all members of the entire household, and the data are expanded to cover all households.
The ADF&G Saltwater Charter Logbook is the primary reporting requirement for operators in the charter fisheries for all species harvested in saltwater in Areas 2C and 3A. ADF&G developed the saltwater charter logbook program in 1998 to provide information on participation and harvest by individual vessels and businesses in charter fisheries for halibut as well as other state-managed species. Saltwater charter logbook data are compiled to show where fishing occurs, the extent of participation, and the species and the numbers of fish caught and retained by individual anglers. This information is essential to estimate harvest for regulation and management of the charter halibut fisheries in Area 2C and Area 3A. Since 1998, the saltwater charter logbook design has undergone annual revision, driven primarily by changes or improvements in the collection of fisheries data. In recent years, ADF&G has added saltwater charter logbook reporting requirements to accommodate information required to implement and enforce Federal charter halibut fishing regulations, such as the Area 2C one-halibut per day bag limit and the charter halibut limited access program.
In 2006, ADF&G adopted a number of new measures to improve the quality of saltwater charter logbook data including requiring charter operators to report angler license numbers and the numbers of fish caught per angler, and increasing staff resources to verify the data collected. Following these changes, ADF&G sought to determine whether the quality of logbook data had in fact improved, and whether logbook data
In order to provide flexibility for individual commercial and charter halibut fishery participants, the Council also recommended that the CSP authorize annual transfers of commercial halibut IFQ as guided angler fish (GAF) to charter halibut permit holders for harvest in the charter halibut fishery. Under the commercial IFQ Program, commercial halibut operators hold quota share (QS) that yields a specific amount of an annual harvest privilege, or IFQ. GAF would offer charter halibut permit holders in Area 2C or Area 3A an opportunity to lease a limited amount of IFQ from commercial QS holders to allow charter clients to harvest halibut in addition to, or instead of, the halibut harvested under the daily bag limit for charter anglers. Charter anglers using GAF would be subject to the harvest limits in place for unguided sport anglers in that area, currently a two-fish of any size limit in Areas 2C and 3A. GAF harvested in the charter halibut fishery would be accounted for as commercial halibut IFQ harvest.
Except for authorizing commercial halibut QS holders to transfer IFQ as GAF to charter halibut permit holders, the Council did not intend for the CSP to change the management of the commercial halibut fisheries in Area 2C and Area 3A. The directed commercial halibut fisheries in Area 2C and Area 3A are managed under the IFQ Program pursuant to regulations at 50 CFR part 679 subparts A through E. The proposed rule would amend only those sections of the IFQ Program's regulations to authorize transfers between IFQ and GAF and establish the requirements for using GAF.
The CSP would change the current process for specifying annual catch limits for the commercial halibut fisheries in Area 2C and Area 3A, and establish a process for specifying annual charter halibut fishery catch limits in Area 2C and Area 3A. The process for specifying annual guided sport catch limits under the CSP would replace the GHL for the charter halibut fisheries in Area 2C and Area 3A. The IPHC currently only specifies annual catch limits for the directed commercial halibut fisheries, and Federal regulations determine the GHL for charter halibut fisheries based on the Total CEY in Area 2C and Area 3A as determined by the IPHC. Under the proposed CSP, the IPHC would specify an annual combined catch limit for Area 2C and for Area 3A at its annual meeting in January. Each area's annual combined catch limit in net pounds would be the total allowable halibut harvest for the directed commercial halibut fishery plus the total allowable halibut harvest for the charter halibut fishery under the CSP.
NMFS anticipates that the IPHC process for determining the annual combined catch limit would be similar to the process it has typically used in the past for determining annual commercial catch limits. A notable exception is how each fishery's wastage would be deducted from the combined catch limit, as described in the “Calculation of Annual Fishery Catch Limits” section of this preamble. The IPHC would continue to estimate the exploitable biomass of halibut using a combination of harvest data from the commercial, sport, and subsistence fisheries, and information collected during scientific surveys and sampling of bycatch in other fisheries. The IPHC would calculate the Total CEY, or the target level for total removals (in net pounds) for that area in the coming year, by multiplying the estimate of exploitable biomass by the harvest rate in that area. The IPHC would subtract estimates of other removals from the Total CEY. Other removals would include unguided sport harvest, subsistence harvest, and bycatch of halibut in non-target commercial fisheries. The remaining CEY, after the other removals are subtracted, would be the Fishery CEY which would be the basis for the IPHC's determination of the annual combined catch limit for Areas 2C and 3A. The IPHC would continue to consider the combined commercial and charter halibut Fishery CEY, staff analysis, harvest policy, and stakeholder input when it specifies the Area 2C and Area 3A annual combined catch limits in net pounds.
The IPHC process for determining annual combined catch limits and commercial and charter allocations and catch limits under the proposed CSP is presented in Figure 1 and described further in subsequent sections of this preamble.
Under the CSP, the IPHC would divide the annual combined catch limits into separate annual catch limits for the commercial and charter halibut fisheries. A fixed percentage of the annual combined catch limit would be allocated to each fishery at most levels of the combined catch limit. The fixed percentage allocation to each fishery would vary with halibut abundance, with higher allocations to the charter halibut fishery at lower levels of abundance. The charter halibut fishery would receive a fixed poundage allocation at intermediate abundances to
The CSP allocation method is a significant change from the current guidelines established under the GHL. At moderate to low levels of halibut abundance, the CSP would provide the charter halibut fishery with a smaller poundage allocation than the guideline limits established under the GHL program. Conversely, at higher levels of abundance, the CSP would provide the charter halibut fishery with a larger poundage allocation than the guideline limits established under the GHL program. The Council intended the CSP fishery allocations to balance the needs of the charter and commercial halibut fisheries at all levels of halibut abundance. The Council believes, and NMFS agrees, that the allocation under the CSP provides a more equitable management response to changes in Total CEY, compared to the GHL program.
One of the primary disadvantages of the GHL program is that it is not responsive or adaptable to changes in halibut abundance and fishing effort. For example, the Area 2C GHL was 788,000 lb in 2009. The Area 2C Total CEY declined by approximately 10 percent from 2009 to 2010, but this decline did not trigger a change in the GHL, which remained at 788,000 lb in 2010. Therefore, the commercial halibut fishery IFQ allocations were reduced, but there was no change in the charter halibut fishery GHLs. Conversely, when halibut exploitable biomass increases, the GHL does not allow the charter halibut fishery to fully benefit from this increase. For example, the Area 3A Total CEY increased by approximately 11 percent from 2006 to 2007, but this increase did not trigger a change in the GHL, which was limited to the maximum level of 3,650,000 lb in those years.
Among other options, the Council considered establishing fixed poundage allocations to the charter halibut fishery similar to the guidelines established under the GHL program. However, the Council determined that use of a fixed percentage allocation of the combined catch limit to each fishery under the CSP would result in both the commercial and charter halibut fishery allocations adjusting directly with changes in halibut exploitable biomass. In contrast, in this proposed rule, both fisheries would share in the benefits and costs of managing the resource for long-term sustainability.
The allocation under the proposed CSP provides a more transparent and equitable management response than the GHL program because unlike the current allocation system, it would use the same method to establish commercial and charter halibut fishery allocations. Under the current management structure, the GHL is calculated directly from the IPHC's determination of Total CEY, or total allowable removals of halibut from all sources. The commercial halibut catch limit is based on the Total CEY and is also affected by other halibut removals from sport harvest, subsistence harvest, bycatch of halibut in commercial fisheries targeting other species, and wastage in the commercial halibut fishery. As described above in the “Background on the Halibut Fishery” section, the IPHC currently establishes the commercial fishery catch limits only after subtracting these other halibut removals from the Total CEY. Therefore, an increase in other removals directly reduces the amount of halibut available for the commercial halibut fishery. The GHL for the charter halibut fishery is not affected by changes in other halibut removals.
Section 2.5.10 of the EA/RIR/IRFA (see
The Council considered historical and recent catch information when determining the recommended CSP allocation percentages for the commercial and charter halibut fisheries. The Council reviewed average charter halibut harvest estimates for individual years and for different combinations of years ranging from 1999 through 2005. The Council recommended multiple CSP allocation percentages for the commercial and charter halibut fisheries in Area 2C and in Area 3A depending on the combined catch limit set for that area. Combined catch limits would be divided into tiers based on abundance. As described above, at lower levels of abundance the CSP would allocate a higher percentage of the combined catch limit to the charter halibut fishery than it would receive under higher combined catch limits. The Council recommended, and NMFS proposes, higher charter allocation percentages at relatively low abundance levels of halibut to ameliorate the effects of replacing the GHL stair-step benchmark in pounds with a CSP allocation percentage that varies directly with the annual combined catch limit. A higher percentage allocation at lower abundance levels is also intended to keep charter businesses from being severely restricted at times of low halibut abundance.
Section 2.5 of the EA/RIR/IRFA (see
The proposed allocations differ for Area 2C and Area 3A. The Council considered that Area 2C and Area 3A are distinct from each other in terms of halibut abundance trends and charter fishing effort when it selected its preferred alternative. In Area 2C, the main indices of halibut abundance have shown a steady decline in exploitable biomass from high levels in the mid-1990s. While it appears that the rate of decline in the Total CEY in Area 2C has slowed or stopped, halibut abundance continues to remain at historically low levels. From 2004 through 2008, Area 2C charter halibut harvests increased by 41.5 percent, which demonstrated the ability of participants in that fishery to increase capacity to meet angler demand. This rapid growth in the charter halibut industry in Area 2C, combined with the delay in setting harvest restrictions, made it difficult for managers to set harvest restrictions to avoid exceeding the GHL, while meeting the Council's objectives of avoiding in-season changes to harvest restrictions and maintaining a traditional season length. Until 2011, no mechanism was in place to implement new charter halibut harvest restrictions in a timely fashion in response to harvests exceeding the GHL. As a result, the charter halibut fishery in Area 2C exceeded its GHL each year 2004 through 2010. After considering these factors, the Council recommended, and NMFS proposes, more conservative CSP charter halibut fishery allocations in Area 2C, particularly at low levels of abundance, to accommodate imprecision in managing harvest in a fishery that depends on inseason regulatory stability but that also has exhibited the ability to undertake rapid growth, particularly at current low levels of halibut abundance. The Council also noted that a more conservative charter halibut fishery allocation was appropriate under the CSP because participants in the Area 2C commercial halibut fishery have experienced significant economic losses in revenue from reductions in catch limits since 2007. While ex-vessel prices for halibut have increased in recent years, the increases have not compensated all revenue losses experienced by the Area 2C commercial halibut fishery (see section 2.3.2 and 2.6 of the EA/RIR/IRFA).
In contrast, while declines in Total CEY in Area 3A have occurred over the last several years, the Total CEY remains the largest of any of the regulatory areas. In addition, following implementation of the GHL, charter halibut fishery removals in this area did not increase at the rate seen in Area 2C, increasing by just 9 percent from 2004 through 2007. The following sections provide additional details on the proposed CSP allocations for Area 2C and Area 3A.
In Area 2C, the proposed charter halibut fishery allocation percentages were based on Alternative 3 of the EA/RIR/IRFA (see
When the IPHC sets an annual combined catch limit of less than 5,000,000 lb (2,268 mt) in Area 2C, the commercial halibut fishery allocation would be 81.7 percent and the charter halibut fishery allocation would be 18.3 percent of the annual combined catch limit. This percentage allocation was calculated as 125 percent of the average charter halibut harvest in Area 2C from 2001 through 2005 divided by the annual average combined charter and commercial halibut harvests in Area 2C from 2001 through 2005 (17.3 percent) and then adjusted to account for the Council's recommendation to use saltwater charter logbooks as the primary mechanism to estimate charter halibut harvest.
The Council considered smaller percentage allocations to the charter halibut fishery, including an allocation based on the current GHL formula, which uses a calculation of 125 percent of the average 1995 through 1999 charter halibut harvest divided by the 1995 through 1999 combined charter and commercial halibut harvests in Area 2C. However, the Council received testimony from Area 2C charter halibut fishery participants that the GHL had been overly restrictive since it was implemented in 2004, particularly during times of low halibut abundance. These participants requested that the Council base the CSP allocation on higher levels of historical charter halibut harvest to accommodate growth in the fishery since implementation of the GHL. The Council considered this testimony and the effects on participants in the commercial and charter halibut fisheries, and determined that using 2001 through 2005 average charter halibut harvests for the charter fishery allocation provided an equitable balance for both fisheries. Using these years would provide the charter halibut fishery with an increase in the proportion of the combined charter and commercial halibut harvests allocated to the charter fishery relative to the GHL formula. However, in consideration of the effects of an increased charter fishery allocation on commercial halibut fishery participants at low halibut abundance levels, NMFS proposes to base the CSP allocation on 2001 through 2005 charter halibut harvest levels rather than on more recent years in which charter halibut harvests reached historically high levels.
As discussed in Section 1.7.3 of the EA/RIR/IRFA (see
For the first allocation tier in Area 2C (i.e., a combined catch limit of less than 5,000,000 lb), the adjustment factor was applied to the allocation using the following equation:
When the IPHC sets the annual combined catch limits at the second tier, between 5,000,000 lb and 5,755,000 lb (2,610.4 mt), the allocation to the charter halibut fishery would be a fixed 915,000 lb (405 mt), to smooth the vertical drop in the poundage allocation that would occur without this adjustment (Figure 2). Without this adjustment, a 1 lb increase in combined catch limit from 4,999,999 lb to 5,000,000 lb would trigger a 2.4 percent drop in the charter allocation, resulting in a significant drop in the poundage allocated to the charter halibut fishery. For example, without the adjustment, if the combined catch limit were set at 4,999,999 lb, the charter allocation would be 18.3 percent or 915,000 lb. However, if the combined catch limit increased to 5,000,000 lb, the charter allocation percentage would be 15.9 percent, or 795,000 lb (360.6 mt). By adding this fixed poundage allocation tier for Area 2C to the proposed CSP, the vertical drop in the allocation is removed. The charter halibut fishery allocation would be fixed at 915,000 lb until the combined catch limit increased to the point where the charter allocation percentage at higher abundance levels would not result in a decrease in poundage allocated to the charter halibut fishery. With the proposed allocation percentages, the poundage allocated to the charter halibut fishery would increase as a fixed percentage at combined catch limits above 5,755,000 lb.
When the CCL is between 0 and 4,999,999 lb, the charter halibut fishery receives 18.3 percent of the CCL. Above 5,755,000 lb, the charter halibut fishery receives 15.9 percent of the CCL. When the CCL is between 5,000,000 and 5,755,000 lb, the charter halibut fishery would receive a fixed poundage allocation of 915,000 lb. The dashed line represents the vertical drop in allocation that would occur without the fixed poundage adjustment. The
When the IPHC sets the annual combined catch limit at the third tier, greater than 5,755,000 lb (2,610.4 mt), in Area 2C, the commercial halibut fishery allocation would be 84.1 percent and the charter halibut fishery allocation would be 15.9 percent of the Area 2C annual combined catch limit. This proposed charter halibut CSP allocation percentage was calculated as the 2005 charter halibut harvest estimates divided by the combined 2005 charter and commercial halibut harvests in Area 2C and adjusted to account for the Council's recommendation to use saltwater charter logbooks as the primary mechanism to estimate charter halibut harvest. For the third allocation tier in Area 2C, the adjustment factor was applied to the allocation using the same equation as for the first tier:
Although the Council considered smaller percentage allocations to the charter halibut fishery, the Council determined, and NMFS agrees, that 2005 charter halibut harvest would be a more appropriate basis at higher levels of halibut abundance for determining the charter halibut allocation percentages under the CSP. The charter halibut harvest in 2005 was the second highest halibut harvest estimated since 1999. The Council determined that at higher levels of abundance, the CSP would provide an allocation to the charter halibut fishery based on a relatively high historical level of harvest and would allow participants to benefit from higher halibut abundance. NMFS agrees that 2005 is an appropriate basis for the charter halibut fishery allocation because it represents a year in which halibut abundance was relatively high in Area 2C. Halibut abundance began to decline in the years following 2005, and as a result, charter halibut fishery harvests increased in proportion to commercial halibut fishery harvests. NMFS agrees with the Council's recommendation for a charter halibut fishery allocation at the highest combined catch limit tier that balances the needs of participants in the commercial and charter halibut fisheries.
In Area 3A, the proposed charter halibut fishery allocation percentages were based on the methodology presented in Section 1.6 of the EA/RIR/IRFA. The Council recommended three different percentages of allocations depending on the level of the combined catch limit, with smaller percentage allocations to the charter halibut fishery as the combined catch limit increases. Consistent with the methodology used in Area 2C to avoid the vertical drops in allocations to the charter halibut fishery as the combined catch limit increases from one percentage allocation to another, NMFS also would establish fixed allocations to the charter halibut fishery for Area 3A. Because there would be two transitions between the three combined catch limit percentage allocations in this area, this proposed rule would add two tiers with fixed poundage allocations to remove the vertical drops. The proposed Area 3A allocation therefore contains 5 tiers (Table 4 and Figure 3).
For Area 3A, when the IPHC sets the annual combined catch limits at the first tier, less than 10,000,000 lb (4,535.9 mt), the commercial halibut fishery allocation would be 81.1 percent and the charter halibut fishery allocation would be 18.9 percent of the Area 3A annual combined catch limit. These allocation percentages were calculated using the same formula as for Area 2C, i.e., as 125 percent of the average charter halibut harvest in Area 3A from 2001 through 2005 divided by the annual average combined charter halibut and commercial halibut harvests in Area 3A from 2001 through 2005 (15.4 percent). Additionally, the Council recommended that this allocation be increased by 3.5 percent to establish the CSP allocation at the upper end of the target range around the allocation originally proposed in the 2011 CSP (18.9 percent).
The Council determined that this allocation would be appropriate for Area 3A because it provided for a limited increase in allocation relative to the years used as the basis for the GHL by including two (2004 and 2005) of the four (2004 through 2007) years in which charter halibut fishery harvests reached historically high levels. In determining its recommendation for the Area 3A charter halibut fishery allocation, the Council also considered public testimony that the lower poundage allocation under the CSP relative to the GHL at lower levels of abundance would negatively impact angler demand and reduce charter operator revenues (see sections 2.5.8 and 2.5.10 of the EA/RIR/IRFA). The Council considered this information and recommended increasing the Area 3A charter halibut fishery allocation by an additional 3.5 percent at lower levels of abundance. In developing the CSP, the Council considered including a buffer of 3.5 percent around the charter allocations to account for the imprecision of managing charter halibut fisheries using pre-season specifications of harvest restrictions without in-season adjustments or an early season closure (section 1.6.2 of the EA/RIR/IRFA). While the Council ultimately did not recommend a 3.5 percent buffer for all charter halibut fishery allocations under the proposed CSP, it did determine that it would be appropriate to increase the Area 3A charter halibut fishery allocation by 3.5 percent at lower levels of abundance in order to increase the poundage allocation to levels more consistent with the GHL. This adjustment was recommended because the charter fishery in Area 3A does not have a history of excessive overages and also because the abundance of halibut is
For Area 3A annual combined catch limits between 10,000,000 lb and 10,800,000 lb (4,898.8 mt), the allocation to the charter halibut fishery would be 1,890,000 lb (857.3 mt). The commercial halibut fishery would be allocated the Area 3A combined catch limit minus the 1,890,000 lb fixed allocation to the charter halibut fishery. This allocation tier would ensure that charter halibut fishery allocations would not decrease as the combined catch limit (and commercial catch limit) increased.
At abundances greater than 10,800,000 lb and less than 20,000,000 lb (9,071.9 mt), the allocations in Area 3A would be based on the same methods used to calculate the GHL, i.e., the charter allocation would be 125 percent of the average charter halibut harvest between 1995 and 1999 divided by the annual average combined charter halibut and commercial halibut harvests in Area 3A from 1995 through 1999. The Council and NMFS determined that this allocation to the charter halibut fishery was appropriate because harvest by the Area 3A charter GHL was not overly restrictive at comparable halibut abundance levels. This allocation tier would also include the 3.5 percent upward adjustment from the allocations proposed in the 2011 CSP in order to mitigate the negative impact on charter halibut fishery participants of the lower CSP allocation (in pounds of halibut) relative to the GHL. The resulting allocations would be 82.5 percent of the combined catch limit to the commercial halibut fishery and 17.5 percent to the charter halibut fishery.
When the combined catch limit for Area 3A is set at greater than 20,000,000 lb and less than or equal to 25,000,000 lb (11,339.8 mt), the charter halibut fishery would receive a fixed 3,500,000 lb allocation. This fixed poundage allocation would ensure that charter fishery allocations would not decrease as the combined catch limit (and commercial catch limit) increased. The commercial halibut fishery allocation would equal the combined catch limit minus 3,500,000 lb.
At combined catch limits greater than 25,000,000 lb, the commercial halibut fishery allocation would be 86 percent and the charter halibut fishery allocation would be 14 percent of the Area 3A annual combined catch limit. The Council determined that allocating a larger percentage to the charter halibut fishery would give more to the charter halibut fishery than they could harvest based on available historic harvest data and information on charter business operations received during the development of the CSP (see Section 1.6.7 of the EA/RIR/IRFA for additional detail).
When the CCL is less than 10 million pounds (Mlb), the charter halibut fishery receives 18.9 percent of the CCL. Between 10.8 Mlb and 20 Mlb, the charter halibut fishery receives 17.5 percent of the CCL. When the CCL is greater than 25 Mlb, the charter halibut fishery receives 14.0 percent of the CCL. Two adjustments for vertical drops in allocation are made at intermediate abundance levels as shown.
NMFS would publish the combined catch limits and associated allocations for the charter and commercial halibut fisheries in the
Under the proposed CSP, the commercial and charter halibut fisheries would have separate accountability for their discard mortality or “wastage,” such that each fishery's wastage would be deducted from its respective allocation to obtain its catch limit. Wastage is currently only estimated for the commercial fishery and includes undersized halibut (regulatory discards) that die after release and halibut of all sizes that die on lost or abandoned gear. Under the current process for setting commercial catch limits, commercial wastage is deducted with other removals from the Total CEY. Through 2012, discard mortality in the recreational fishery has not been included in the other removals for calculating the Fishery CEY for any IPHC regulatory area, because estimates of recreational fishery discards have not been available. Under the proposed CSP, separate fishery accountability for wastage would not change the allocation percentages for each fishery. Instead, each fishery's allocation would be reduced by an estimate of its wastage to obtain the fishery's catch limits. The processes for estimating wastage by fishery are described below.
Each year the IPHC estimates wastage, or the discard mortality of halibut captured in the commercial fishery that are under the minimum legal size of 32 inches, based on data collected from the IPHC's annual stock assessment survey (available at
Wastage occurs in the charter fishery as a result of stress or injuries sustained from hooking, hook removal, and handling. Although recreational harvest is routinely estimated, the additional removals of halibut due to catch-and-release mortality are not currently estimated. Discard mortality rates vary with the type of gear used, handling and release methods, water temperature, hook type, and size of the fish, among other factors. NMFS anticipates that ADF&G would generate annual estimates of charter wastage in each area that could then be deducted by the IPHC from the charter allocation to obtain the charter catch limit in each area under this proposed rule.
NMFS proposes that the deduction of wastage from each fishery's allocation to calculate its catch limit promotes the Council's objective for the CSP to determine catch limits for the commercial and charter halibut fisheries using a predictable and standardized methodology for separate accountability. As shown in Figure 1, the basis for the catch limit recommendations, the Fishery CEY, would no longer be reduced only by commercial halibut fishery wastage. Instead, the commercial fishery allocation would be reduced by the commercial halibut fishery's estimated wastage, and the charter fishery allocation would be reduced by the charter halibut fishery's estimated wastage. NMFS proposes that the deduction of wastage from each fishery's allocation promotes conservation because it would encourage better handling of discarded fish to reduce the discard mortality rates and thus increase fishery catch limits.
Prior to 2012, charter management measures were recommended by the Council and implemented by NMFS through proposed and final rulemaking, or implemented by IPHC regulations without specific recommendations by the Council. The Council recommended a different approach under the CSP because it sought a more timely and responsive process to address harvest overages or underages, or changes in halibut exploitable biomass. The Scientific and Statistical Committee (SSC), the Council's primary scientific advisory body, reviewed and endorsed this process for analyzing and recommending charter management measures at its December 2012 meeting.
In 2012 and 2013, charter management measures were implemented to limit the charter halibut fishery to its GHL using the process outlined below. The Council and IPHC have endorsed this same process for setting charter halibut management measures in Area 2C and 3A up to and following implementation of the CSP to limit the charter halibut fishery to its allocation and catch limit under the CSP. The steps in the annual process would continue as follows until modified by the Council or IPHC:
1. In October, the Council's Charter Halibut Management Implementation Committee makes preliminary recommendations of proposed annual management measures for the next year for Area 2C and Area 3A for analysis.
2. In December, the Council's advisory bodies and the public review the analysis of proposed management measures and make final recommendations to the Council.
3. At its December Council meeting, the Council selects the charter halibut management measures to recommend to the IPHC that would most likely constrain charter halibut harvest for each area within its allocation, while considering the economic impacts on charter operations.
4. In January of the next year at its annual meeting, the IPHC considers the Council recommendations and input from its stakeholders and staff. The IPHC then may adopt the Council's recommendation or alternative charter halibut management measures for Area 2C and Area 3A. The IPHC recommends these measures to the Secretaries of State and Commerce consistent with the provisions of the Convention.
5. In March, NMFS publishes in the
This approach is an improvement over the previous method of setting charter management measures though Federal proposed and final rulemaking often years after an overage had occurred. The current process reduces the delay in implementing regulations to address overages and allows the most recent halibut stock status and charter fishery data to be used to implement the appropriate measures for the next halibut fishing season. This method for setting charter harvest management measures is likely to limit the charter halibut fishery to its catch limit over time because adjustments to management measures could change in response to harvest overages and underages before the next season begins.
The Council, SSC, IPHC, and NMFS would continue to assess effectiveness of this method of recommending and implementing charter management measures after the CSP is implemented. The SSC provides the Council, NMFS, and the public with scientific and technical reviews of regulatory amendment analyses, stock assessments, and research and data needs for fisheries management in Alaska. The Council expects that any modifications to the process for setting charter harvest restrictions would be reviewed by these entities.
NMFS recognizes that, because the CSP would not change management measures during a sport fishing season, the management measures implemented prior to the start of a sport fishing season may result in harvests that are greater or less than the catch limit. However, the Council anticipates, and NMFS agrees, that over time, halibut harvests by the charter halibut fishery under the CSP would stabilize around the charter halibut catch limits, thereby promoting conservation and management objectives over the long term. The IPHC would continue to account for all removals when determining the annual combined catch limit under the CSP, and IPHC stock assessments would continue to account for charter halibut harvests that unintentionally exceed the fishery's catch limit. Operationally, overages may contribute to a corresponding decrease in the combined charter and commercial catch limit in the following year. Underages would accrue to the benefit of the halibut biomass and all user groups and could result in an increase in the combined catch limit in the following year. The Council determined, and NMFS agrees, that halibut fishery management under the CSP is more responsive to changes in halibut abundance than the GHL program.
Because management measures would be determined annually under the CSP, and implemented as IPHC annual management measures, the Council recommended and NMFS proposes to remove two restrictions from Federal regulations: the one-fish daily bag limit for Area 2C at § 300.65(d)(2)(i); and the line limit at (d)(2)(iii). NMFS anticipates
The Council recommended two additional restrictions as part of the proposed CSP. NMFS would implement a prohibition on retention of halibut by skipper and crew on a charter vessel fishing trip. Previously, NMFS published a final rule (74 FR 21194, May 6, 2009) to implement, along with other restrictions, a prohibition on operator, guide, and crew retention of halibut in Area 2C. The proposed CSP would not modify this prohibition in Area 2C, but would implement the same prohibition in Area 3A. As noted in Section 2.3.2 of the EA/RIR/IRFA prepared for the CSP (see
The Council also recommended, and NMFS proposes, to prohibit individuals who hold both a charter halibut permit and commercial halibut IFQ from fishing for commercial and charter halibut on the same vessel during the same day in Area 2C and Area 3A. This provision would facilitate enforcement, as different regulations apply to charter-caught and commercially caught halibut. This provision would not prevent an individual who holds both a charter halibut permit and commercial halibut IFQ from conducting charter operations and commercial operations on separate vessels on the same day.
NMFS proposes several additional restrictions to facilitate monitoring and enforcement of the CSP. To be consistent with the Council's recommendation to prohibit individuals who hold both a charter halibut permit and commercial halibut IFQ from fishing for commercial and charter halibut on the same vessel during the same day, this proposed rule also would prohibit individuals who hold both a charter halibut permit and a Subsistence Halibut Registration Certificate from using both permits to harvest halibut on the same vessel during the same day in Area 2C and Area 3A. This prohibition would allow enforcement officials and samplers to classify harvest among the charter, subsistence, and commercial halibut fisheries. Allowing multiple types of trips on a vessel in the same day could create uncertainty regarding how to classify and properly account for retained halibut.
To enforce prohibitions on individuals fishing for commercial and charter halibut or for subsistence and charter halibut on the same vessel during the same day in Area 2C and Area 3A, NMFS would require charter vessel operators to indicate the date of a charter vessel fishing trip in the saltwater charter logbook and to complete all of the required fields in the logbook before the halibut are offloaded. These requirements would enable enforcement agents to determine whether that vessel was used on a charter vessel fishing trip that day. Beginning in 2009, charter anglers in Area 2C were required to sign the saltwater charter logbook to verify the accuracy of the reported catch. This signature requirement was intended to improve the accuracy of charter halibut harvest estimates, and improve the enforceability of a one-fish bag limit (74 FR 21194, May 6, 2009). NMFS proposes to extend the signature requirement to include charter anglers in Area 3A as part of the CSP in the event that additional harvest restrictions are implemented in that area.
The proposed CSP would authorize supplemental individual transfers of commercial halibut IFQ as guided angler fish (GAF) to qualified charter halibut permit holders for harvest by charter vessel anglers in Areas 2C and 3A. Through the GAF program, qualified charter halibut permit holders may offer charter vessel anglers the opportunity to retain halibut up to the limit for unguided anglers when the charter management measure in place would limit charter vessel anglers to a more restrictive harvest limit. In other words, a charter vessel angler may retain a halibut as GAF that exceeds the daily bag limit and length restrictions in place for charter anglers only to the extent that the angler's halibut retained under the charter halibut management measure plus halibut retained as GAF do not exceed daily bag limit and length restrictions imposed on unguided anglers. For example, the daily halibut retention limit for unguided sport anglers in Area 2C and Area 3A is currently two halibut of any size per calendar day. Assuming this same unguided sport angler retention limit, charter vessel anglers would retain GAF only when the charter halibut management measure for that area limits charter halibut anglers to retaining fewer than two fish of any size per calendar day. The Council recommended this restriction on GAF use to maintain parity between guided and unguided sport halibut retention limits.
Table 5 presents examples of the potential uses of GAF by charter vessel anglers in Area 2C and Area 3A under various potential annual management measures, assuming that unguided sport anglers are subject to the current regulations limiting retention to two halibut of any size per calendar day.
The Council recommended including GAF in the Area 2C and Area 3A CSP to increase operating flexibility for participants in the commercial and charter halibut fisheries. The Council determined, and NMFS agrees, that the GAF program could increase fishing opportunities in the charter fishery for those anglers desiring such an opportunity. The GAF program also would give commercial halibut quota share holders greater flexibility when developing their annual harvest strategies. A person holding halibut QS for an area has harvesting privileges for an amount of halibut (IFQ) that is derived annually from his or her QS holdings in that area and authorized on his or her IFQ permit. The opportunity for annual transfers of IFQ to GAF could benefit some halibut IFQ holders if they receive more revenue from transferring IFQ to GAF than they would receive from harvesting the IFQ themselves. In recommending the CSP preferred alternative, the Council stated its intent to annually review GAF use following implementation. NMFS and the Council intend that the GAF program would allow the charter halibut fishery to increase halibut harvest beyond area annual catch limits specified in the annual management measures up to guided sport catch limits. In addition the GAF program creates a system wherein the charter halibut fishery compensates the commercial halibut fishery for decreases in commercial halibut IFQ harvest.
In this proposed rule, NMFS proposes eligibility criteria, a transfer process, transfer restrictions, and additional reporting requirements to implement the GAF transfer program. These elements are described in the following sections, B through F, respectively.
An IFQ holder is eligible to transfer halibut IFQ as GAF if he or she holds at least one unit of halibut QS and has received an annual IFQ permit authorizing harvest of IFQ in either the Area 2C and Area 3A commercial halibut fishery. A charter halibut permit holder is eligible to receive IFQ as GAF if he or she holds one or more charter halibut permits in the management area that corresponds to the IFQ permit area from which the IFQ would be transferred.
Holders of military charter halibut permits would also be eligible to receive IFQ as GAF. Military charter halibut permits are issued to U.S. Military Morale, Welfare, and Recreation programs in Alaska that offer charter halibut fishing to service members harvesting in Area 2C or Area 3A. To operate a charter vessel, the U.S. Military Morale, Welfare, and Recreation program would need to obtain a military charter halibut permit by application to NMFS or could purchase a charter halibut permit on the commercial market (see regulations at § 300.67 for additional detail).
Community Quota Entities (CQEs) holding community charter halibut permits are also eligible to receive IFQ as GAF. Regulations at § 300.67(k)(2) list the communities that are eligible to receive community charter halibut permits from NMFS. In addition to community charter halibut permits, a CQE may acquire non-community charter halibut permits by transfer. The final rule implementing the charter halibut limited access program describes community charter halibut permits and the application and eligibility requirements for CQEs to receive community charter halibut permits (75 FR 554, January 5, 2010).
There are several ways in which a CQE in Area 2C or Area 3A that is eligible to receive community charter halibut permits and holds charter halibut permits could be a party to a GAF transaction. CQEs could receive a transfer of GAF for use on a community charter halibut permit or regular charter halibut permit that it holds. Community Quota Entities that are eligible to hold charter halibut permits also are authorized to hold IFQ under the IFQ Program under regulations established by Amendment 66 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (69 FR 23681, April 30, 2004). Amendment 66 defined CQEs in the Gulf of Alaska, including in Areas 2C and 3A, and authorized those CQEs to receive transferred halibut or sablefish QS on behalf of the community it represents and to lease the resulting IFQ to fishermen who are residents of that community. Thus, a CQE holding IFQ would be eligible to transfer the IFQ as GAF to a holder of a charter halibut permit, community charter halibut permit, or military charter halibut permit if it meets all other proposed GAF transfer requirements at § 300.65(c)(5).
As proposed in regulations at § 300.65(c)(5)(ii)(D), NMFS would approve an application for transfer of IFQ and GAF between an eligible IFQ holder and an eligible holder of a charter halibut permit, community charter halibut permit, or military charter halibut permit if NMFS determines that (1) the transfer would not cause the GAF holder to exceed use limits specified (see “GAF Transfer Restrictions” section below); (2) there are no fines, civil penalties, sanctions, or other payments due and owing, or outstanding permit sanctions, resulting from Federal fishery violations involving either person or permit; and (3) other pertinent information requested on the application has been supplied. Additionally, in cases where the applicant is both an IFQ and a GAF holder, to approve an application for transfer, NMFS would need to determine that the transfer would not cause the applicant to exceed use limits specified for GAF holders or those for halibut IFQ holders at § 679.42. NMFS would need to make additional determinations to approve a transfer between IFQ and GAF for a CQE. In
See the “GAF Transfer Restrictions” section for further discussion on the proposed regulations governing transfers between IFQ and GAF for Community Quota Entities.
For transfers between IFQ and GAF, the IFQ holder and charter halibut permit holder receiving GAF would be required to complete, sign, and submit an application to NMFS to transfer halibut in numbers of fish between IFQ and GAF. NMFS would approve the transfer provided that application is complete, both parties are eligible to transfer, and there are no other administrative reasons to disapprove the transfer.
The same application form would be used for transfers of IFQ to GAF and returns of GAF to IFQ. Application forms would be available on the NMFS Alaska Region Web site at
NMFS would issue GAF in numbers of halibut. NMFS would post the conversion from IFQ pounds to a GAF for Area 2C and Area 3A for each fishing year on the NMFS Alaska Region Web site at
NMFS would require that for each GAF transferred from an IFQ holder to a charter halibut permit holder's GAF account, the equivalent number of net pounds of halibut rounded up to the nearest whole net pound would be removed from an IFQ holder's IFQ account. Conversely, CSP regulations would require that for each GAF returned from a charter halibut permit holder's GAF account, the equivalent number of net pounds of halibut IFQ rounded up to the nearest whole net pound would be returned to the IFQ holder's account. The same average net weight would be used for all conversions of IFQ to GAF and returns of GAF to IFQ within a calendar year.
A request for transfer from IFQ to GAF would be made in numbers of fish, or the number of GAF to be transferred to the GAF permit holder. For example, if a charter permit holder requested, and NMFS approved, a transfer of 5 GAF and the conversion factor for that area was 20.7 lb (9.4 kg), then 104 lb (47.2 kg) of IFQ would be debited from the IFQ holder's account for that area as follows: 5 GAF × 20.7 lb = 103.5 lb (46.9 kg) and rounded up to 104 lb (47.2 kg). In current regulations, NMFS accounts for IFQ in whole net pounds and proposes to continue accounting in whole net pounds for transfers between IFQ and GAF. This method of rounding up to the nearest whole pound results in the fewest conversion errors when GAF are converted back to IFQ, as demonstrated below.
Voluntary and automatic returns of GAF to IFQ would require NMFS to convert unharvested GAF back to net pounds of IFQ. To calculate the number of net pounds of halibut IFQ returned to the IFQ holder, NMFS would multiply the unharvested number of GAF by the conversion factor and round up to the nearest pound. In the example used above, if the parties agreed to a voluntary return of 2 GAF to the IFQ holder, NMFS would return 42 lb (19.1 kg) to the IFQ holder's account (2 GAF × 20.7 lb = 41.4 lb (18.8 kg) and rounded to 42 lb).
The conversion from IFQ pounds to number of fish for GAF would be based on the average weight of GAF from the previous year as estimated from GAF length data reported to NMFS through the proposed electronic GAF reporting system (see “GAF Reporting Requirements” section of this preamble for additional detail). NMFS anticipates that the average weight of GAF would likely be higher than non-GAF halibut harvested in the charter halibut fishery, particularly if charter halibut fishery management measures include a size restriction. Therefore, NMFS proposes to use average weight estimates for GAF to accurately account for GAF removals. Because average GAF lengths would not be available for the first year of the proposed CSP, NMFS would use the average net weight of a halibut landed in the charter fishery in each area (2C or 3A) during the previous year, if no size limits were in effect, or from the most recent year without a size limit in effect. These average net weights would be based on data collected during ADF&G creel surveys. If no GAF were harvested in a year, the conversion factor would be calculated using this same method as for the first year of the program (i.e., NMFS would use the most recent average weight of charter fish harvested in an area based on ADF&G creel surveys).
Upon completion of the transfer between IFQ and GAF, NMFS would issue a GAF permit to the holder of a charter halibut permit, community charter halibut permit, or military charter halibut permit. The GAF permit would be assigned to the charter halibut permit specified by the GAF permit holder at the time of application. The GAF permit holder could offer GAF for harvest by charter vessel anglers on board the vessel on which the operator's GAF permit and the assigned charter halibut permit are used.
GAF permit holders would be required to hold a sufficient number of GAF for charter vessel anglers to retain halibut in excess of the charter angler limit and up to limits in place for the unguided sport halibut fishery for that area. In other words, charter operators would be required to already possess the GAF prior to the fish being caught, i.e., GAF could not be obtained after harvesting of the fish. The GAF permit holder also would be required to have the GAF permit and the assigned charter halibut permit on board the vessel on which charter vessel anglers retain GAF,
At the end of a charter halibut fishing trip in which GAF were retained, the GAF permit holder would be required to electronically report the total number of GAF retained under his or her GAF permit. The GAF permit holder would be required to report on the last day of a multi-day charter halibut fishing trip. NMFS would deduct this number of GAF from the GAF permit holder's account of unused GAF. NMFS proposes to require the GAF permit holder to complete a GAF electronic report by 11:59 p.m. (Alaska local time) upon completion of a charter halibut fishing trip in which GAF were retained to maintain as close to real-time accounting of GAF balances as possible.
On approval of an application for transfer between IFQ and GAF, NMFS would issue a GAF permit to the charter halibut permit holder receiving GAF. A GAF permit would authorize the GAF permit holder to offer GAF to charter vessel anglers and allow charter vessel anglers to retain halibut in excess of the charter halibut harvest restriction, up to the limits on GAF use that are in the proposed regulations at § 300.65(c). GAF could be retained under a GAF permit only if, at the time the GAF are retained, the GAF permit holder's account contained at least the number of retained GAF. All GAF permits would expire at 11:59 p.m. (Alaska local time) on the day prior to the automatic GAF return date. GAF could not be retained by charter vessel anglers after the expiration of GAF permits.
NMFS would issue a revised GAF permit to the GAF permit holder each time during the year that it approved a transfer between IFQ and GAF for that GAF permit. Each GAF permit would be assigned to only one charter halibut permit, community charter halibut permit, or military charter halibut permit in Area 2C or Area 3A. Charter halibut permit holders requesting GAF would be required to specify the charter halibut permit to which the GAF permit would be assigned on the application for transfer between IFQ and GAF. The assignment between a charter halibut permit holder's GAF permit and their specified charter halibut permit, community charter halibut permit, or military charter halibut permit could not be changed during that year. If charter vessel anglers retain GAF, the GAF permit and the assigned charter halibut permit, community charter halibut permit, or military charter halibut permit would need to be on board the vessel on which the GAF halibut are retained, and available for inspection by an authorized enforcement officer.
The proposed rule also would prohibit GAF, once transferred to a charter halibut permit holder and assigned to their specified charter halibut permit, from being transferred to another charter halibut permit, community charter halibut permit, or military charter halibut permit holder. This prohibition would prevent a charter halibut permit holder from receiving GAF by transfer with the intention of transferring the GAF to another charter halibut permit holder for compensation. The Council and NMFS generally recommend management provisions that encourage holders of harvest privileges to actively participate in the fishery for which they hold the privilege, rather than receiving financial benefits from another person who pays to use those harvest privileges. The Council's recommendation and NMFS' proposal to prohibit GAF permit holders from transferring GAF to another charter halibut permit holder is consistent with this policy objective to require a charter halibut permit holder who receives GAF by transfer to utilize GAF in conjunction with his or her charter halibut permit. In addition, these limitations would ensure that GAF could be accurately debited and tracked, and that GAF is being used only by authorized transferees.
Returns of unused GAF to the IFQ holder would be authorized using two methods: A voluntary return that could be requested from August 1 through August 31 and that would be completed on or after September 1, and an automatic return 15 days before the end of the commercial halibut fishing season. Based on testimony from commercial and charter fishery participants, the Council recommended a voluntary return of GAF around September 1 to allow the IFQ holder sufficient time to harvest that IFQ before the end of the season (usually in mid-November). NMFS would accept applications for voluntary returns of unused GAF from August 1 through August 31 and NMFS would complete GAF returns on or after September 1. The earliest that NMFS would return GAF to IFQ is September 1. NMFS would process transfers and returns of IFQ and GAF as soon as possible after the dates stated in Federal regulations. Barring unforeseen circumstances (e.g., computer failure, weather closures, furlough, etc.), NMFS would conduct the transfer on the first business day after the stated transfer date. For example, if September 1 occurred on the Sunday of Labor Day weekend, the transfers would occur the following Tuesday, at the earliest. For this reason, the regulatory text states that transfers would occur “on or after” September 1. This preamble uses the term “return” rather than “transfer” to be consistent with the terminology commonly used by the public during the development of GAF transfer provisions to describe the transfer of GAF to IFQ. Regulations at § 300.65(b)(5) use the term transfer to describe the voluntary and automatic returns of GAF to IFQ. These terms are synonymous.
There would also be an automatic mandatory return of unused GAF 15 days prior to the end of the commercial halibut fishing season. The end of the commercial halibut fishing season is specified in the IPHC annual management measures published by NMFS in the
Through the GAF program, the Council intended to provide IFQ holders some flexibility in how they use their IFQ, with limitations. The Council recommended and NMFS proposes restrictions on the amount of IFQ that an IFQ holder could transfer as GAF and on the number of GAF that could be assigned to one GAF permit. The restrictions on transfers of GAF are intended to prevent a particular individual, corporation, or other entity from acquiring an excessive share of halibut fishing privileges as GAF. The restrictions on the amount of IFQ that an IFQ holder may transfer are intended to further the goals of the Council and IFQ program for an owner-onboard fishery. The proposed rule would implement the Council's recommendations for three GAF transfer restrictions.
First, IFQ holders in Area 2C would be limited to transferring up to 1,500 lb (680.4 kg) or 10 percent, whichever is greater, of their initially issued annual halibut IFQ for use as GAF. In Area 3A, IFQ holders could transfer up to 1,500 lb or 15 percent, whichever is greater, of their initially issued annual halibut IFQ for use as GAF. NMFS proposes that IFQ holders in Area 3A would be able to transfer up to 15 percent of the IFQ as GAF because IFQ holdings are generally larger in Area 3A than in Area 2C, and restricting Area 3A IFQ holders to leasing up to 10 percent of their IFQ holdings could limit the amount of IFQ available for lease as GAF (section 2.5.12.2 of the EA/RIR/IRFA). Allowing Area 3A IFQ holders to lease 15 percent of their IFQ holdings as GAF would provide Area 3A IFQ holders more flexibility in determining whether to lease IFQ as GAF and could provide more GAF to the Area 3A charter halibut fishery.
The percentage of an IFQ holder's IFQ that is available for transfer would be based on fishable pounds at the start of the fishing year before any other transfers of IFQ had occurred. Using the start-of-year balance would provide a fixed value on which to base the transfer limits that would allow NMFS and IFQ holders to accurately track the maximum amount of GAF that could be transferred. Second, under this proposed rule, no more than a total of 400 GAF would be assigned during one year to a GAF permit assigned to a charter halibut permit that is endorsed for six or fewer anglers. And third, no more than a total of 600 GAF would be assigned during one year to a GAF permit assigned to a charter halibut permit endorsed for more than six anglers. A person who holds both halibut IFQ and a CHP and would like to transfer that IFQ to GAF would be subject to the same transfer restrictions. The Council recommended different GAF limits for charter halibut permits to balance the GAF needs of different types of charter operations with its objective to maximize the opportunity for all charter operators to acquire GAF. Because holders of charter halibut permits endorsed for more than six anglers are likely to be larger charter operations, the Council was concerned these larger charter operations would have more financial resources to acquire GAF than smaller operations unless a limit was placed on the number of GAF that could be assigned to a charter halibut permit. NMFS agrees that the proposed limit for assigning GAF to charter halibut permits accommodates the GAF needs of different charter operation types and promotes the Council's objective to offer all charter businesses the opportunity to lease IFQ as GAF.
Commercial halibut IFQ regulations at § 679.42(f)(1)(i) and (ii) also include QS use limits that are intended to prevent a particular individual, corporation, or other entity from acquiring an excessive share of commercial halibut fishing privileges. NMFS determines individual and collective interest in halibut fishing privileges by summing QS used by that person and a portion of any QS used by an entity in which that person has an interest. NMFS considers the person's portion of the QS used by the entity equal to the share of interest the person has in that entity. For example, if an individual uses 50,000 units of Area 2C halibut QS and has a 5 percent interest in a company that uses 750,000 units of Area 2C halibut QS, the amount of Area 2C halibut QS that person would be considered to use for purposes of the limits at § 679.42(f)(1)(i) and (ii) is 50,000 units (his personal holdings) plus 37,500 units (5 percent interest for the 750,000 units in the company using Area 2C halibut QS). This individual's use of 87,500 units would not exceed the Area 2C QS use limit of 599,799 units.
For purposes of administering the QS use limits at § 679.42(f)(1)(i) and (ii), NMFS proposes to include the QS equivalent of IFQ transferred to GAF in the calculation of a person's QS use. Using the example above, if the QS holder transferred the equivalent of 100 lb (45.4 kg) of IFQ as GAF to a charter halibut permit holder, NMFS would continue to include the QS equivalent of the IFQ transferred to GAF in the calculation of that person's QS use for purposes of the QS use limits at § 679.42(f)(1)(i) and (ii). NMFS proposes this approach because it considers a transfer of IFQ to GAF a use of halibut QS. A transfer of IFQ to GAF would be voluntary, and the halibut QS holder likely would receive a benefit from the transfer according to the terms of the transfer agreement with the charter halibut permit holder receiving GAF. Furthermore, it is possible under the proposed CSP for a person to still use halibut IFQ that was transferred as GAF in the commercial halibut fishery before the end of the commercial fishing season if the GAF were not harvested in the charter fishery, and the IFQ was returned to the QS holder through a voluntary or automatic return as described in the preceding section.
Under existing regulations at § 679.41, Community Quota Entities in Areas 2C and 3A may receive quota share by transfer and lease the resulting IFQ to eligible community residents for use in the commercial fishery. This proposed rule would not modify existing regulations on the use of IFQ by CQEs in the commercial fishery. This proposed rule would allow CQEs to transfer the IFQ derived from QS held by the CQE to be used as GAF. This proposed rule would place limitations on how much IFQ could be transferred as GAF depending on whether the GAF was used by a CQE, an eligible community resident, or by a non-resident. In addition, this proposed rule would allow a CQE to receive GAF by transfer.
Under the proposed rule, a CQE holding halibut IFQ in Area 2C or Area 3A would be authorized to transfer that IFQ as GAF. However, the Council recommended that transfers between IFQ and GAF for CQEs be exempt from the limit on the amount of GAF that can be transferred in certain circumstances. NMFS proposes and the Council recommends that any amount of IFQ
If the CQE is transferring IFQ as GAF and assigning that GAF to an individual that is not an eligible community resident, the CQE would be subject to the same limitations as other halibut quota share holders (i.e., up to 10 percent or 1,500 lb of his or her annual Area 2C IFQ, whichever is greater; and up to 15 percent or 1,500 lb of his or her annual Area 3A IFQ, whichever is greater).
NMFS agrees that CQE transfers between IFQ and GAF should be exempt from GAF transfer restrictions in the instances described in the Regulatory Impact Review (see
NMFS proposes to apply the same requirement for using community charter halibut permits currently applicable to CQEs to the definition of eligible community resident for purposes of IFQ to GAF transfers involving CQEs. The proposed rule would revise the definition of eligible community resident for purposes of IFQ to GAF transfers under the Area 2C and Area 3A CSP. A person (either an individual or a non-individual entity) holding a charter halibut permit would need to either begin or end a charter vessel fishing trip authorized by their charter halibut permit within the boundaries of the community represented by the CQE to qualify as an eligible community resident of that CQE for purposes of IFQ to GAF transfers.
This proposed rule would also allow a CQE to receive GAF directly by transfer from either a CQE or other persons holding GAF. Although any GAF a CQE receives by transfer would be exempt from limits on the amount of IFQ that can be transferred as GAF in the circumstances described above, all transfers of IFQ to GAF in which the IFQ is held by a CQE would be limited by an existing halibut IFQ regulation at § 679.42(f)(6). This regulation specifies that “[n]o individual that receives IFQ derived from halibut QS held by a Community Quota Entity may hold, individually or collectively, more than 50,000 lb (22.7 mt) of IFQ halibut derived from any halibut QS source.” As described above, NMFS determines individual and collective ownership interest by summing IFQ held or used by that person and a portion of any IFQ held or used by an entity in which that person has an interest. NMFS considers the person's portion of the IFQ held or used by the entity equal to the share of interest the person has in that entity. For example, if an individual holds or uses 100 lb (45.4 kg) of IFQ and has a 5 percent interest in a company that holds or uses 100 lb of IFQ that was derived from halibut QS held by a CQE, the amount of IFQ that person would be considered to hold for the IFQ limit calculation at § 679.42(f)(6) is 100 lb (his personal holdings) plus 5 lb (2.3 kg) (5 percent interest for the 100 lb in the company holding IFQ). In this example, this individual's holdings of 105 lb (47.6 kg) would not exceed the IFQ limit of 50,000 lb for purposes of § 679.42(f)(6).
The Council recommended, and this rule proposes, to include GAF derived from halibut IFQ held by a CQE in this individual and collective IFQ holding limit. Hence, the proposed rule would limit an individual receiving either IFQ or GAF derived from IFQ held by a CQE to holding individually or collectively, no more than 50,000 lb (22.7 mt) of halibut IFQ and GAF derived from the IFQ, combined. This proposed rule does not modify existing regulations at § 679.42(f)(6), but this discussion provides notice to the public on how the use caps applicable in this regulation would be calculated. Thus, for an individual that holds GAF derived from IFQ held by a CQE, IFQ derived from QS held by a Community Quota Entity, or both, NMFS would calculate that individual's total halibut IFQ and GAF holdings by (1) multiplying the total number of GAF held individually and collectively by the conversion factor for that year (see “Conversion between IFQ and GAF” section above) to determine the equivalent number of halibut net pounds held, and (2) adding the equivalent number of halibut net pounds held to the total number of IFQ equivalent pounds held individually and collectively by that person.
The proposed rule would implement new recordkeeping and reporting requirements for GAF in the ADF&G saltwater charter logbooks, in addition to saltwater charter logbook reporting requirements currently specified at § 300.65(d). It also would require GAF permit holders to record information on the GAF permit; separately report retained GAF by 11:59 p.m. (Alaska local time) on the last day of the fishing trip in which GAF were retained using a NMFS-approved electronic reporting system; and retain the GAF permits for two years.
The ADF&G Statewide Sport Fishing Charter Trip Logbook is the primary reporting requirement for operators in the charter fisheries for all species harvested in saltwater in Areas 2C and 3A. The ADF&G developed the saltwater charter logbook program in 1998 to provide information on actual participation and harvest by individual vessels and businesses in charter
This proposed rule would continue to require the ADF&G saltwater charter logbook as the primary reporting method for operators in the charter halibut fishery. The CSP would require the person to whom ADF&G issued a saltwater charter logbook to retain and make available for inspection by authorized enforcement personnel the completed original logbooks for two years following the charter vessel fishing trip. This requirement would be necessary to enforce annual management measures and GAF reporting requirements.
Charter guides would be required to mark retained GAF by removing the tips of the upper and lower lobes of the caudal (tail) fin. Additionally, the charter vessel guide would be required to retain the carcass showing caudal fin clips until the halibut fillets were offloaded so that enforcement could verify the length and that the fish was retained as GAF. These measures would aid in the monitoring and enforcement of GAF provisions.
For each charter vessel fishing trip on which charter vessel anglers retain GAF, charter vessel guides would be required to report on an ADF&G saltwater charter logbook (1) the GAF permit number under which the GAF were retained, and (2) the number of GAF retained by each charter vessel angler during the trip. For charter vessel fishing trips completed on a single day, charter vessel guides would be required by Federal regulations to complete these fields in the saltwater charter logbook before any halibut are offloaded or charter vessel anglers disembark from the vessel. For multi-day charter vessel fishing trips, charter vessel guides would be required to complete the GAF reporting requirements in a saltwater charter logbook on board the vessel by the end of each day of the trip. These saltwater charter logbook reporting requirements would facilitate GAF recordkeeping and enforcement of charter vessel angler daily bag and possession limits. NMFS also would use the GAF reporting fields in the saltwater charter logbook to verify information reported in the electronic GAF reporting system.
NMFS proposes that for each halibut retained as GAF, charter vessel guides would immediately record on the GAF permit the date and total halibut length in inches. This requirement would facilitate on-the-water enforcement and improve the accuracy of the GAF lengths reported electronically to NMFS.
NMFS would use an electronic GAF reporting system to manage GAF accounts and report GAF lengths. Near real-time reporting of GAF landings, and other GAF account and permit information is essential to support participant access to current account balances for account management and regulatory compliance, and to monitor account transfers and GAF landings history. Management personnel need near real-time account information to manage permit accounts, conduct transfers, and assess fees. Enforcement personnel need real-time account information to monitor transfers between IFQ and GAF and monitor compliance with authorized GAF harvests and other program rules.
In the commercial IFQ program, regulations at § 679.5(e) require that Registered Buyers report fisheries landings electronically using a secure, password-protected Internet-based system approved by NMFS. The final steps of the electronic IFQ reporting process generate a time-stamped receipt displaying landings data. Commercial Registered Buyers must print, and along with the individual IFQ fisherman, must sign copies of the receipt, which must be maintained and made available for a specified time period for inspection by authorized NMFS or enforcement personnel. Printing of this receipt indicates the report sequence is complete and the IFQ account(s) has been properly debited.
Under the CSP GAF program, NMFS would also require secure electronic reporting. Multiple technologies may be needed to provide essential services to a GAF fleet that would be widely distributed throughout remote locations in Area 2C and Area 3A. NMFS is proposing an Internet-based reporting system for GAF electronic reporting because that is likely to be the most efficient and convenient method for charter operators to report GAF, given the prevalence of Internet use among the general public.
Although real-time data are necessary for accurate account management, the data requirements for inseason GAF account management are relatively minor and simple relative to that required for saltwater charter logbooks. GAF permit holders would be required to complete the GAF electronic report before 11:59 p.m. (Alaska local time) on the last day of a charter vessel fishing trip in which a charter vessel angler retained GAF using a GAF permit.
The GAF permit holder would be required to record the following information in the GAF electronic reporting system: (1) ADF&G saltwater charter logbook number in which GAF were recorded; (2) vessel identification number (State of Alaska issued boat registration number or U.S. Coast Guard documentation number) for the vessel on which GAF were retained; (3) GAF permit number used to retain GAF; (4) ADF&G Sport Fishing Guide license number held by the charter vessel guide who certified the ADF&G saltwater charter logbook sheet on which GAF were recorded; (5) total number of GAF caught and retained under the GAF permit number; and (6) total length in inches of each GAF retained. Charter vessel operators using a GAF permit assigned to a community charter halibut permit for a charter vessel fishing trip on which GAF were retained also would be required to report the community or port where the charter vessel fishing trip began and ended.
Upon receipt of an electronic GAF report from a GAF permit holder, NMFS would respond with a confirmation number as evidence that NMFS received the GAF harvest report and the GAF account was properly debited. The GAF permit holder would be required to record this confirmation number on the corresponding GAF permit.
The Council recommended that GAF permit holders landing GAF on private property be required to allow enforcement personnel access to the point of landing. The Council recognized, and NMFS agrees, that enforcing the harvest restrictions and GAF use restrictions may require enforcement staff to search for or inspect halibut retained by all charter vessel anglers in the charter fishery, including charter vessel anglers landing such halibut on private property. Section 773i(b) of the Halibut Act states that any authorized officer may, “at reasonable times, enter and search or inspect, shoreside facilities in which fish taken subject to this subchapter are processed, packed or held.”
The Council also recommended that GAF permit holders be required to allow ADF&G and IPHC scientific sampling personnel access to landed halibut on private property owned by the GAF permit holder, in addition to their
The Magnuson-Stevens Fishery Conservation and Management Act at section 304(d)(2)(A) requires that cost recovery fees be collected for the costs directly related to the management, data collection, and enforcement of any limited access privilege programs. This includes programs such as the commercial halibut IFQ program, under which a dedicated allocation is provided to IFQ permit holders. Fees owed are a percentage, not to exceed 3 percent, of the ex-vessel value of fish landed and debited from IFQ permits. Each year, NMFS sends fee statements to IFQ holders whose annual IFQ was used; and those holders must remit fees by January 31 of the following year. The fee percentage has rarely exceeded 2 percent of the ex-vessel value of sablefish and halibut landings.
NMFS does not expect allocation of additional funds to support the GAF program other than those derived from IFQ cost recovery fees. Therefore, under the proposed rule, commercial IFQ holders would be responsible for all cost recovery fees on IFQ equivalent pounds harvested for their IFQ permit(s) and also for net pounds transferred and harvested as GAF which originated from their IFQ account(s). NMFS would levy IFQ cost recovery fees on all net pounds of halibut harvested as IFQ in the commercial fishery and as GAF in the charter fishery.
The IFQ permit holders who transfer IFQ to GAF would owe cost recovery fees for those GAF retained in the charter fishery. Fees for unharvested GAF converted back to IFQ equivalent pounds and harvested as commercial IFQ pounds would be assessed fees as commercial landings with value estimated as specified in current regulations at § 679.45. IFQ holders might share these costs with GAF users through contractual agreements, but those contractual arrangements would not be regulated or reviewed under the provisions of this proposed rule. IFQ and GAF that are not harvested during the year would not be subject to the cost recovery fee. Fish harvested in excess of the amount authorized by a GAF permit, or in excess of allowed IFQ permit overages, would not result in cost recovery fees owed because such overages would be handled as enforcement actions.
NMFS establishes commercial cost recovery fee assessments in November each year. To determine cost recovery fee liabilities for IFQ holders, NMFS uses data reported by Registered Buyers to compute annual standard ex-vessel IFQ prices by month and port (or, if confidential, by port group). NMFS publishes these standard prices in the
NMFS would also apply standard ex-vessel values computed by area for commercial IFQ harvests to harvest of GAF. The proposed regulations specify that the IFQ permit holder may not challenge the standard ex-vessel value applied to GAF landings by NMFS.
Only “incremental” costs, i.e., those incurred as a result of IFQ management that include a GAF component, are assessable as cost recovery fees. Under the proposed rule, NMFS would determine the cost recovery liability for IFQ permit holders based on the value of all landed IFQ and GAF derived from his or her IFQ permits. NMFS would convert landings of GAF in Area 2C or Area 3A to IFQ equivalent pounds as specified in the “Conversion between IFQ and GAF” section above, and multiply the IFQ equivalent pounds by the standard ex-vessel value computed for that area to determine the value of IFQ landed as GAF. The value of IFQ landed as GAF as based on NMFS' standard prices would be added to the value of the IFQ permit holder's landed IFQ, and the sum would be multiplied by the IFQ fee percentage to estimate the person's IFQ fee liability. Additionally, the costs to develop the regulations, accounting, and reporting systems for the GAF program would be considered incremental and extensions of the IFQ program and would be submitted for cost recovery. Agency costs related to development of the GAF program in previous years have already been included in the IFQ cost recovery fee assessment, and costs associated with developing the GAF portion of this proposed rule would be submitted for cost recovery.
This action proposes four additional regulatory changes. These are minor changes that clarify existing regulations, but do not substantively change how the halibut fishery is managed. The first proposed change would clarify the regulations to describe the current process by which the IPHC Area 4 catch sharing plan is promulgated. The Area 4 catch sharing plan was codified in Federal regulations at § 300.65(b) in 1998. The Area 4 catch sharing plan allocates the Area 4 commercial catch limit among Areas 4C, 4D, and 4E. Each year, the Area 4CDE catch sharing plan subarea allocations are applied to the Area 4CDE commercial catch limit recommended by the IPHC and published in the final rule implementing the annual management measures. The proposed regulatory change would clarify the description of this process in § 300.65(b).
The second proposed change would update instructions in regulations at § 679.5(l)(7) for Registered Buyers to complete and submit the IFQ Registered Buyer Ex-vessel Value and Volume Report form. Registered Buyers submit this form to NMFS to report ex-vessel IFQ prices by month and port. These changes would remove unnecessary regulations listing specific information that is already provided on the IFQ Registered Buyer Ex-vessel Value and Volume Report form and IFQ Fee Submission form, and clarify the submission process. NMFS uses data reported by Registered Buyers to compute annual standard ex-vessel IFQ prices to determine cost recovery fee liabilities for IFQ holders.
The third proposed change would clarify regulations at § 679.40 to describe the separate processes for allocating halibut IFQ and sablefish IFQ. The proposed regulations would also clarify that commercial halibut fishery overage adjustments from the previous year will be subtracted from a person's IFQ, and commercial halibut fishery underage adjustments from the previous year will be added to a person's IFQ. Current regulations provide for administrative adjustment of IFQ permits as a result of under- and
The fourth proposed change would revise regulations at § 679.45(a)(4) to update instructions for IFQ permit holders for submitting cost recovery fee payments to NMFS. NMFS proposes to update the fee payment form and instructions to incorporate GAF in the calculation of an IFQ permit holder's cost recovery fee liability.
Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the North Pacific Fishery Management Council, and the Secretary of Commerce. Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c) allows the Regional Council having authority for a particular geographical area to develop regulations governing fishing for halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations. The Halibut Act at section 773c(a) and (b) provides the Secretary with the general responsibility to carry out the Convention with the authority to, in consultation with the Secretary of the department in which the U.S. Coast Guard is operating, adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act. This proposed action is consistent with the North Pacific Halibut Act and other applicable laws.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule also complies with the Secretary of Commerce's authority under the Halibut Act to implement management measures for the halibut fishery.
An initial regulatory flexibility analysis (IRFA) was prepared as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action may be found at the beginning of this preamble. A summary of the IRFA follows. Copies of the IRFA are available from the Council or NMFS (see
The action would establish a CSP for the commercial and charter halibut fisheries in Area 2C and Area 3A. In addition to establishing allocations to each fishery, the Council's preferred alternative (Alternative 3 for Area 2C and Alternative 4 for Area 3A) would establish a new management system for the charter halibut fishery in these areas. Beginning February 1, 2011, operators of vessels with charter vessel anglers on board were required to have on board the vessel a valid charter halibut permit issued by NMFS. Therefore, the universe of regulated entities for the proposed CSP would be the holders of one or more charter halibut permits in Area 2C and Area 3A. In October 2012, NMFS published an implementation report for the charter halibut limited access program after all interim permits had been adjudicated and resolved. This report is available at
The Small Business Administration (SBA) specifies that for marinas and charter or party vessels, a small business is one with annual receipts less than $7.0 million. The largest of these charter vessel operations, which are lodges, may be considered large entities under SBA standards, but that cannot be confirmed because NMFS does not have or collect economic data on lodges necessary to definitively determine total annual receipts. Thus, all charter vessel operations regulated by the proposed CSP would likely be considered small entities, based on SBA criteria, because they would be expected to have gross revenues of less than $7.0 million on an annual basis.
Regulations that directly regulate entities representing small, remote communities in Areas 2C and 3A are included in this action. These regulations would authorize holding community charter halibut permits or regular charter halibut permits to use GAF as proposed under the CSP. GAF would offer charter vessel anglers in Area 2C or Area 3A an opportunity to harvest halibut in addition to the halibut harvested under the charter halibut management measure, up to the harvest limits in place for unguided sport anglers in that area. Eligibility for community charter halibut permits required that the community be represented by a non-profit community quota entity approved by NMFS. Of the 22 CQEs that formed, 11 Area 2C communities were eligible and each received 4 halibut community charter halibut permits and 9 Area 3A communities were eligible and each received 7 halibut community charter halibut permits. A maximum of 18 communities in Area 2C and 14 communities in Area 3A are eligible to form CQEs and apply for charter halibut permits at any time. Therefore, there is a maximum of 32 eligible community entities that could be authorized by the proposed action to use GAF. All of these eligible communities would be considered small entities under the SBA definitions.
An IRFA is required to describe significant alternatives to the proposed rule that accomplish the stated objectives of the Halibut Act and other applicable statutes and that would minimize any significant economic impact of the proposed rule on small entities.
The status quo alternative (Alternative 1) specifies the GHL as a target amount of halibut that anglers in the charter fishery can harvest in Area 2C and Area 3A. However, charter halibut harvests that exceed the GHL may have a de facto allocation effect of reducing the amount of halibut that may be harvested by the commercial fishery in the following year. Additionally, charter halibut fishery harvests beyond the GHL also can undermine overall harvest strategy goals established by the IPHC for the halibut resource, which affects all users. The primary objectives of the CSP are to define an annual process for allocating halibut between the charter and commercial fisheries in Area 2C and Area 3A, establish allocations that balance the differing needs of the charter and commercial fisheries that vary with changing levels of annual halibut abundance, and specify a process for determining harvest restrictions for charter anglers that are intended to limit harvest to the annual charter fishery catch limit.
The Council considered four alternatives to the status quo for the proposed CSP. The Council selected a different preferred allocation alternative for Area 2C (Alternative 3) than Area 3A (Alternative 4). The Council's preferred alternative incorporated analysis, public testimony, and public comment provided on the first proposed rule for a CSP (76 FR 44156, July 22, 2011). The Council determined that Alternatives 3 and 4 were more likely than the status quo to meet its objective to establish a catch sharing plan for the commercial and charter fisheries by managing the charter halibut fishery to ensure that harvests stay within the fishery's allocated range. The Council also considered the charter halibut fishery's need to have a stable in-season regulatory environment. Management of the charter halibut fishery under the preferred alternatives is intended to ensure that it is given advance notice and predictability with respect to application of management tools (e.g., bag limits, size restrictions) and season length. The preferred alternatives would facilitate the recommended process for recommending and implementing annual management measures for the charter halibut fishery prior to the beginning of the fishing season. NMFS agrees that the annual implementation of the CSP allocations and GAF under the preferred alternatives likely would facilitate management of the charter fishery in a way that is timely and responsive to changes in halibut abundance while providing participants in the charter halibut fishery with advance notice of the charter fishery management measures to be effective in the upcoming season. The other alternatives that were considered are described below.
Alternatives 2 through 5 all recommend for Area 2C and Area 3A the implementation of a catch sharing plan with separate accountability by fishery for wastage, and a program to allow charter operators to lease IFQ from participants in the commercial halibut fishery, called the “guided angler fish” or GAF program. All alternatives include fixed allocation percentages to the charter and commercial halibut fisheries. The Council determined that a fixed percentage allocation best met its objectives with the least impact to affected entities. Additionally, a fixed percentage allocation would be equitable because both the commercial and charter halibut fisheries would have allocations that vary with the abundance of the halibut resource. Thus, both the charter and commercial halibut fisheries would share in the benefits and costs of managing the resource for long-term sustainability under a combined catch limit.
The main differences among Alternatives 2 through 5 are in how the allocation percentages are calculated. Allocation percentages to the charter halibut fishery are the lowest under Alternative 2 and highest under Alternative 5. Alternative 2 is the 2008 preferred alternative for a catch sharing plan. This alternative included allocation percentages that did not include upward adjustments for the switch from the Statewide Harvest Survey to ADF&G saltwater charter logbooks as the primary data source. Alternative 3 increased the allocations to the charter halibut fishery from Alternative 2 by the adjustment required to account for catch using the saltwater charter logbook instead of the SWHS. Alternative 4 would establish allocations for the charter halibut fishery based on the same methodology used in Alternative 2, plus an additional 3.5 percent of the combined catch limit at levels of combined catch limit less than 20 million pounds. At combined catch limits greater than 25 million pounds, the allocation would be the same as in Alternative 2. And finally, Alternative 5 was based on the allocations in Alternative 3, plus an additional 3.5 percent of the combined catch limit. The Council recommended Alternative 3 for Area 2C and Alternative 4 for Area 3A as its preferred alternative. When considering which charter allocation percentages were most appropriate and equitable for each management area, the Council took into account recent charter halibut harvests adjusted for both the logbook correction and crew harvest.
Alternatives 2 through 5 differ in how annual charter halibut harvest restrictions would be implemented. Alternative 2 contains a pre-determined and fixed set of harvest restrictions that would be triggered automatically under the CSP depending on the combined catch limit determined each year by the IPHC. The other alternatives did not prescribe annual charter harvest restrictions as part of this rule and the CSP. Instead, charter harvest restrictions would continue to be set through a separate annual process of Council recommendations to the IPHC that was first used in 2012 and detailed in the “Annual Process for Setting Charter Management Measures” section of this preamble. The fixed management measures proposed under Alternative 2 were determined to be too rigid and did not give managers enough discretion to modify those measures as needed to best achieve harvest objectives. The process proposed under Alternatives 3 through 5 was considered more flexible, responsive to the most recent information available on halibut removals, and allowed greater stakeholder input in the selection of annual harvest restrictions.
This action would impose new recordkeeping requirements. Applications to transfer between IFQ and GAF would be required to be submitted to and approved by NMFS for each transfer from IFQ to GAF. The application would require information about the IFQ permit holder and the charter halibut permit holder, including each permit holder's contact information, the IFQ permit holder's account from which halibut pounds are to be transferred, and the GAF account to which GAF are to be transferred. NMFS would rely on data already collected through the ADF&G saltwater charter logbooks for additional management and enforcement needs. In addition, CQEs eligible to receive community charter halibut permits would be required to submit information to NMFS (1) on the application for a transfer between IFQ and GAF, and (2) regarding the CQE's activity in an annual report by January 31 of the following year. NMFS would require charter vessel guides to record on the GAF permit the date and length of any GAF halibut caught and kept, immediately upon harvest. NMFS would also require GAF permit holders to report via an online system information about each GAF halibut caught and retained at the end of each fishing trip, and to record the GAF electronic reporting confirmation number on the GAF permit. The proposed recordkeeping and reporting requirements would not likely represent a “significant” economic burden on the small entities operating in this fishery.
NMFS has not identified other Federal rules that may duplicate, overlap, or conflict with the proposed rule.
This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements have been submitted to OMB for approval.
Public reporting burden per response is estimated to average 2 hours for the IFQ Permit Holder Fee Submission Form, and 2 hours for the IFQ Registered Buyer Ex-Vessel Value and Volume Report.
Public reporting burden per response is estimated to average 4 minutes for ADF&G Saltwater Charter Logbook entry for vessel guide and submittal; 1 minute per angler for angler signatures of ADF&G Saltwater Sport Fishing Charter Trip Logbook; 1 minute to measure each GAF, 1 minute to record GAF lengths on the GAF permit, 4 minutes to enter data into the GAF electronic reporting system, and 1 minute to record the GAF electronic reporting confirmation number on the GAF permit.
Public reporting burden per response is estimated to average 1 hour for an Application for Transfer Between IFQ and GAF; and 1 hour for an Application for Transfer Between IFQ and GAF by a Community Quota Entity.
The IFQ permit is mentioned in this proposed rule; however, the public reporting burden for the IFQ permit in this collection-of-information is not directly affected by this proposed rule.
Public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS at the above address, and by email to
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.
This proposed rule is consistent with Executive Order 12962 as amended September 26, 2008, which required Federal agencies to ensure that recreational fishing is managed as a sustainable activity and is consistent with existing law.
Administrative practice and procedure, Antarctica, Canada, Exports, Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, Reporting and recordkeeping requirements, Russian Federation, Transportation, Treaties, Wildlife.
Alaska, Fisheries, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 300 and 679 as follows:
16 U.S.C. 773–773k.
The additions and revision read as follows:
(b) The catch sharing plan for Commission regulatory area 4 allocates the annual commercial catch limit among Areas 4C, 4D, and 4E and will be adopted by the Commission as annual management measures and published in the
(c)
(i) Allocates the annual combined catch limit for Commission regulatory areas 2C and 3A in order to establish the annual commercial catch limit and the annual guided sport catch limit for the
(ii) Authorizes the use of Commission regulatory areas 2C and 3A halibut IFQ as guided angler fish (GAF) for harvest by charter vessel anglers in the corresponding area, pursuant to paragraph (c)(5) of this section.
(2)
(3)
(ii) Commercial fishing in Commission regulatory areas 2C and 3A is governed by the Commission's annual management measures and by regulations at 50 CFR part 679, subparts A, B, D, and E.
(4)
(ii) Sport fishing by charter vessel anglers in Commission regulatory areas 2C and 3A is governed by the Commission's annual management measures and by regulations at 50 CFR part 300, subparts A and E.
(5)
(i)
(B) A GAF permit authorizes a charter vessel angler to retain GAF that are caught in the Commission regulatory area specified on a GAF permit:
(
(
(C) NMFS will return unharvested GAF to the IFQ permit holder's account from which the GAF were derived on or after fifteen calendar days prior to the closing of the commercial halibut fishing season each year, subject to paragraph (c)(5)(ii) of this section and underage provisions at § 679.40(e) of this title.
(ii)
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(B)
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(C)
(D)
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(E)
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(iii)
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(B)
(C)
(iv)
(B) The total number of GAF on board a vessel cannot exceed the number of unharvested GAF in the GAF permit holder's GAF account at the time of harvest.
(C) The total number of halibut retained by a charter vessel angler harvesting GAF cannot exceed the sport fishing daily bag limit in effect for unguided sport anglers at the time of harvest adopted by the Commission as annual management measures and published in the
(D) Retained GAF are not subject to any length limit implemented by the Commission's annual management measures and published in the
(E) Each charter vessel angler retaining GAF must comply with the halibut possession requirements adopted by the Commission as annual management measures and published in the
(F) The charter vessel guide must ensure that each charter vessel angler complies with (c)(5)(iv)(A) through (E) of this section.
(G) The charter vessel guide must immediately remove the tips of the upper and lower lobes of the caudal (tail) fin to mark all halibut caught and retained as GAF.
(H) Except as provided in paragraph (c)(5)(iv)(I) of this section, during the halibut sport fishing season adopted by the Commission as annual management measures and published in the
(
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(I) The halibut QS equivalent of net pounds of halibut IFQ that is transferred to GAF is included in the computation of halibut QS use caps in § 679.42(f)(1)(i) and (ii) of this title.
(J) A CHP holder receiving GAF from a CQE is subject to § 679.42(f)(6) of this title. For a CHP holder who receives GAF from a CQE, the net poundage equivalent of all halibut IFQ received as GAF is included in the computation of that person's IFQ halibut holdings in § 679.42(f)(6) of this title.
(K) Applicability of GAF use restrictions to CQEs. The GAF use restrictions in paragraph (c)(5)(iv)(H) of this section do not apply if:
(
(
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(d)
(ii) The charter vessel guide is responsible for complying with the reporting requirements of this paragraph (d). The person to whom the Alaska Department of Fish and Game issues the Saltwater Sport Fishing Charter Trip Logbook is responsible for ensuring that the charter vessel guide complies with the reporting requirements of this paragraph (d).
(2)
(i) Retain the logbook for 2 years after the end of the fishing year for which the logbook was issued, and
(ii) Make the logbook available for inspection upon the request of an authorized officer (as defined in Commission regulations).
(3)
(4)
(ii)
(B)
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The revisions and addition read as follows:
(h) Conduct subsistence fishing for halibut and commercial fishing for halibut from the same vessel on the same calendar day, or possess on board a vessel, halibut harvested while subsistence fishing with halibut harvested while commercial fishing or sport fishing, as defined in § 300.61, except that persons authorized to conduct subsistence fishing under § 300.65(g), and who land their total annual harvest of halibut:
(i) Conduct commercial and sport fishing for halibut, as defined in § 300.61, from the same vessel on the same calendar day.
(n) Exceed any of the harvest or gear limitations specified at § 300.65(c)(5) or adopted by the Commission as annual management measures and published in the
(s) Be an operator of a vessel in Commission regulatory area 2C or 3A without an original valid charter halibut permit for the regulatory area in which the vessel is operating when one or more charter vessel anglers are on board that are catching and retaining halibut.
(t) Be an operator of a vessel in Commission regulatory area 2C or 3A with more charter vessel anglers on board catching and retaining halibut than the total angler endorsement number specified on the charter halibut permit or permits on board the vessel.
(u) Be an operator of a vessel in Commission regulatory area 2C or 3A with more charter vessel anglers on board catching and retaining halibut than the angler endorsement number specified on the community charter halibut permit or permits on board the vessel.
(v) Be an operator of a vessel on which one or more charter vessel anglers on board are catching and retaining halibut in Commission regulatory areas 2C and 3A during one charter vessel fishing trip.
(w) Be an operator of a vessel in Commission regulatory area 2C or 3A with one or more charter vessel anglers on board that are catching and retaining halibut without having on board the vessel a State of Alaska Department of Fish and Game Saltwater Charter Logbook that specifies the following:
(1) The person named on the charter halibut permit or permits being used on board the vessel;
(2) The charter halibut permit or permits number(s) being used on board the vessel; and
(3) The name and State issued boat registration (AK number) or U.S. Coast Guard documentation number of the vessel.
(i) * * *
(2) * * *
(v) The GAF permit is not assigned to a charter halibut permit for which the GAF account contains unharvested GAF, pursuant to § 300.65 (c)(5)(iii)(A)(
16 U.S.C. 773
(1) For purposes of the IFQ Program, any individual who:
(i) Is a citizen of the United States;
(ii) Has maintained a domicile in a rural community listed in Table 21 to this part for the 12 consecutive months immediately preceding the time when the assertion of residence is made, and who is not claiming residency in another community, state, territory, or country, except that residents of the Village of Seldovia shall be considered to be eligible community residents of the City of Seldovia for the purposes of eligibility to lease IFQ from a CQE; and
(iii) Is an IFQ crew member.
(2) For purposes of the Area 2C and Area 3A catch sharing plan (CSP) in § 300.65(c) of this title, means any individual or non-individual entity who:
(i) Holds a charter halibut permit as defined in § 300.61 of this title;
(ii) Has been approved by the Regional Administrator to receive GAF, as defined in § 300.61 of this title, from a CQE in a transfer between IFQ and GAF pursuant to § 300.65(c)(5)(ii) of this title; and
(iii) Begins or ends every charter vessel fishing trip, as defined in § 300.61 of this title, authorized by the charter halibut permit issued to that person, and on which halibut are retained, at a location(s) within the boundaries of the community represented by the CQE from which the GAF were received. The geographic boundaries of the eligible community will be those defined by the United States Census Bureau.
(a) * * *
(1) * * *
(2)
(l) * * *
(7) * * *
(i)
(B)
(C)
(
(
(D)
(E)
(ii)
(B)
(C)
(D)
(E)
(F)
(G)
The Regional Administrator shall annually divide the annual commercial fishing catch limit of halibut as defined in § 300.61 of this title and published in the
(c)
(ii) The annual allocation of sablefish IFQ to any person (person p) in any IFQ regulatory area (area a) will be equal to the product of the TAC of sablefish by fixed gear for that area (after adjustment for purposes of the Western Alaska CDQ Program) and that person's QS divided by the QS pool for that area. Overage adjustments will be subtracted from a person's IFQ pursuant to paragraph (d) of this section; underage adjustments will be added to a person's IFQ pursuant to paragraph (e) of this section. Expressed algebraically, the annual IFQ allocation formula is as follows:
(a) * * *
(3) Any transaction involving a transfer between IFQ and guided angler fish (GAF), as defined in § 300.61 of this title, is governed by regulations in § 300.65(c) of this title.
(f) * * *
(1) * * *
(i)
(ii)
(6) No individual that receives IFQ derived from halibut QS held by a CQE, including GAF as defined in § 300.61 of this title, may hold, individually or collectively, more than 50,000 pounds (22.7 mt) of IFQ halibut, including IFQ halibut received as GAF, derived from any halibut QS source.
The revisions read as follows:
(a) * * *
(1)
(2)
(A) Each year, the Regional Administrator will issue each IFQ permit holder a summary of his or her IFQ equivalent pounds landed as IFQ and GAF as part of the IFQ Landing and Estimated Fee Liability page described at § 679.5(l)(7)(ii)(D).
(B) The summary will include information on IFQ and GAF landings and an estimated IFQ fee liability using the IFQ standard ex-vessel value for IFQ and GAF landings. For fee purposes:
(
(
(C) The IFQ permit holder must either accept NMFS' estimate of the IFQ fee liability or revise NMFS' estimate of the IFQ fee liability using the IFQ Permit Holder Fee Submission Form described at § 679.5(l)(7)(ii), except that the standard ex-vessel value used to determine the fee liability for GAF is not subject to challenge. If the IFQ permit holder revises NMFS' estimate of his or her IFQ fee liability, NMFS may request in writing that the permit holder submit documentation establishing the factual basis for the revised calculation. If the IFQ permit holder fails to provide adequate documentation on or by the 30th day after the date of such request, NMFS will determine the IFQ permit holder's IFQ fee liability based on standard ex-vessel values.
(ii)
(A) NMFS will determine the IFQ equivalent pounds of GAF landed in IFQ regulatory area 2C or 3A that are derived from the IFQ permit holder's account.
(B) The IFQ equivalent pounds of GAF landed in IFQ regulatory area 2C or 3A are multiplied by the standard ex-vessel value computed for that area to determine the value of IFQ landed as GAF.
(iii) The value of IFQ landed as GAF is added to the value of the IFQ permit holder's landed IFQ, and the sum is multiplied by the annual IFQ fee percentage to estimate the IFQ permit holder's IFQ fee liability.
(3)
(4) * * *
(i)
(ii)
(iii)
(b)
(2)
(3)
(ii) All landed GAF must be valued using the standard ex-vessel value for the year and for the IFQ regulatory area of harvest—Area 2C or Area 3A.
(iii)
(iv)
(v)
(A) Landed net pounds by IFQ species, port-group, and month;
(B) Total ex-vessel value by IFQ species, port-group, and month; and
(C) Price adjustments, including IFQ retro-payments.
(d) * * *
(2)
(i) * * *
(A) The IFQ and GAF landings to which the IFQ fee will apply;
(B) The ex-vessel value of that landed IFQ and GAF; and
(C) The costs directly related to the management and enforcement of the IFQ program, which include GAF costs.
(ii)
(3) * * *
(i)
(4)
(e)
(i)
(ii)
(2) Upon final agency action determining that an IFQ permit holder has not paid his or her IFQ fee liability, as described in paragraph (f) of this section, any IFQ fishing permit held by the IFQ permit holder is not valid until all IFQ fee liabilities are paid.
(3) If payment is not received on or before the 30th day after the final agency action, the matter will be referred to the appropriate authorities for purposes of collection.
(f)
(i)
(ii)
(2) After the expiration of the 30-day period, the Regional Administrator will evaluate any additional documentation submitted by an IFQ permit holder in support of his or her payment. If the Regional Administrator determines that the additional documentation does not meet the IFQ permit holder's burden of proving his or her payment is correct, the Regional Administrator will send the permit holder an IAD indicating that the permit holder did not meet the burden of proof to change the IFQ fee liability as calculated by the Regional Administrator based upon the IFQ standard ex-vessel value. The IAD will set out the facts and indicate the deficiencies in the documentation submitted by the permit holder. An IFQ permit holder who receives an IAD may appeal the IAD, as described in paragraph (h) of this section.
(3) If the permit holder fails to file an appeal of the IAD pursuant to § 679.43, the IAD will become the final agency action.
(4) If the IAD is appealed and the final agency action is a determination that additional sums are due from the IFQ permit holder, the IFQ permit holder must pay any IFQ fee amount determined to be due not later than 30 days from the issuance of the final agency action.
(5) Upon final agency action determining that an IFQ permit holder has not paid his or her IFQ fee liability, any IFQ fishing permit held by the IFQ permit holder is not valid until all IFQ fee liabilities are paid.
(6) If payment is not received on or before the 30th day after the final agency action, the matter will be referred to the appropriate authorities for purposes of collection.
(b) Members of the Council shall include individuals with demonstrated experience or clear commitment to improving the financial capability of young people, such as individuals working with youth-serving organizations; educators and education policy experts; business leaders and employers of young workers; State, tribal, and local government policy makers; financial services providers; and innovators in financial capability. The composition of the Council shall reflect the views of diverse stakeholders.
(c) The Secretary shall invite the Director of the Bureau of Consumer Financial Protection to participate as a member of the Council, to the extent consistent with the Bureau's statutory authorities and legal obligations.
(d) The President shall designate a Chair and a Vice Chair from among the members of the Council appointed pursuant to subsection (a)(ii) of this section.
(e) Subject to the direction of the Secretary, the Chair shall convene and preside at meetings of the Council, determine its agenda, direct its work, and, as appropriate to deal with particular subjects, establish and direct the work of subgroups of the Council that shall consist exclusively of members of the Council.
(f) The Vice Chair shall perform:
(a) collect information and views concerning financial capability from:
(b) advise the President and the Secretary on means to effectively implement the policy set forth in section 1 of this order, including means to:
(c) periodically report to the President, through the Secretary, on:
(d) where appropriate in providing advice and recommendations, take into consideration the particular needs of traditionally underserved populations—including women and minorities.
(b) The heads of agencies shall provide, as appropriate and to the extent permitted by law, such assistance and information to the Council as the Secretary may request to implement this order.
(c) Members of the Council appointed under section 3(a)(ii) of this order shall serve without any compensation for their work on the Council.
(d) Members of the Council, while engaged in the work of the Council, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in Government service (5 U.S.C. 5701–5707), consistent with the availability of funds.
(e) The Secretary shall designate an official within the Department of the Treasury to serve as an Executive Director to supervise the administrative support for the Council.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.