Engineers Corps
Committee for Purchase From People Who Are Blind or Severely Disabled
Foreign-Trade Zones Board
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Engineers Corps
Federal Energy Regulatory Commission
Presidential Documents
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Justice Programs Office
Mine Safety and Health Administration
Occupational Safety and Health Administration
Trade Representative, Office of United States
Federal Aviation Administration
Federal Railroad Administration
Internal Revenue Service
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Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes 14 RNAV Q-routes and modifies 4 Q-routes to enhance the efficiency of the National Airspace System (NAS) by improving the flow of air traffic in the vicinity of Atlanta, GA, and Charlotte, NC.
Effective date 0901 UTC, April 3, 2014. The Director of the
Paul Gallant, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
On November 27, 2013, the FAA published in the
The order of points listed in the descriptions of Q–110 and Q–118 is reversed in this rule from that shown in the NPRM. This is only an editorial change for format standardization and does not affect the track of the two routes.
The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to establish 14 new RNAV Q-routes and modify 4 Q-routes to improve the flow of air traffic in the Atlanta, GA, and Charlotte, NC areas. The changes are described below.
High altitude RNAV routes are published in paragraph 2006 of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The RNAV routes listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as required to enhance the safe and efficient flow of air traffic in the eastern United States.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Federal Energy Regulatory Commission, Energy.
Final rule; correction.
This document contains corrections to the final rule (RM13–2–000) which was published in the
Effective on February 3, 2014.
146 FERC ¶ 61,019
On November 22, 2013, the Commission issued an order in the above-referenced docket.
In FR Doc. 2013–28515 appearing on page 73239 in the
1. On page 73256, in the second column, footnote 221 is corrected to read as follows:
“
However, Fast Track eligibility is distinct from the Fast Track Process itself, and eligibility does not imply or indicate that a Small Generating Facility will pass the Fast Track screens in section 2.2.1 below or the Supplemental Review screens in section 2.4.4 below.”
2. On page 73259, in the third column, the third sentence of paragraph 142 is corrected to read as follows:
“Regarding NRECA, EEI & APPA's assertion that the use of 100 percent of minimum load limits the flexibility to move loads and the ability to deploy additional sectionalizing devices for reliability enhancement, we note that one of the factors to be considered in the safety and reliability screen of the supplemental review asks whether operational flexibility is reduced by the proposed Small Generating Facility (see SGIP section 2.4.4.3.5).”
3. On page 73264, in the second column, the last sentence of paragraph 182 is corrected to read as follows:
“We do, however, modify section 2.4.5.2 to include language that the Transmission Provider will provide an interconnection agreement to the Interconnection Customer if the Interconnection Customer agrees to pay for the modifications to the Transmission Provider's system, similar to the language in section 2.3.1 of the SGIP.”
4. On page 73271, in the first column, footnote 449 is corrected to read as follows:
“
5. On page 73288, the last sentence of the first paragraph in section 2.1 of Appendix C, Revisions to the
“
6. On page 73293, the table in section 2.2.1.6 of Appendix C, Revisions to the
7. On page 73297, the first sentence of section 2.4.4.1.1 of Appendix C, Revisions to the
“
8. On pages 73299 and 73300, sections 2.4.5.1, 2.4.5.2, and 2.4.5.3 of Appendix C, Revisions to the
“
9. On page 73349, Section 10.0 of Attachment 8 (Facilities Study Agreement) to Appendix C, Revisions to the
“
Internal Revenue Service (IRS), Treasury.
Final regulations; correction.
This document contains corrections to final regulations (TD 9649) that were published in the
This correction is effective January 24, 2014 and applicable December 12, 2013.
Michelle R. Weigelt, at (202) 317–6798 (not a toll free number).
The final regulations (TD 9649) that are the subject of this correction is under section 3504 of the Internal Revenue Code.
As published, the final regulations (TD 9649) contain errors that may prove to be misleading and are in need of clarification.
Accordingly, the final regulations (TD 9649), that are the subject of FR Doc. 2013–29664, published in the
1. On page 75472, first column, in the preamble, under the caption “
Coast Guard, DHS.
Final rule; notice of enforcement of regulation.
The Coast Guard is adding a permanent security zone, which will be enforced 2 weeks each year, on the Detroit River, Detroit, Michigan. This security zone is intended to restrict vessels from a portion of the Detroit River in order to ensure the safety and security of participants, visitors, and public officials at the Annual North American International Auto Show (NAIAS), which is held at Cobo Hall in downtown Detroit, MI.
This rule is effective without actual notice January 24, 2014. For the purposes of enforcement in 2014, actual notice will be used from 7 a.m. January 13, 2014, until 11:59 p.m. January 26, 2014. For 2014, the North American International Auto Show, Detroit River, Detroit, MI security zone described in 33 CFR 165.915(a)(3) will be enforced from 7 a.m. to 11:59 p.m. daily, from January 13, 2014, through January 26, 2014.
Documents mentioned in this preamble are part of docket number USCG–2013–0034. 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 LT Adrian Palomeque, Prevention Department, Sector Detroit, Coast Guard; telephone (313) 568–9508, email
On March 29, 2013, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Security Zones; Captain of the Port Detroit in the
In addition to the aforementioned NPRM, the Coast Guard had published multiple temporary final rules (TFRs) in the past in response to the Annual North American International Auto Show (NAIAS), annually establishing a temporary security zone to protect participants and spectators associated with the NAIAS. Because this event will likely continue to recur annually, the Captain of the Port Detroit is establishing a permanent security zone, thus alleviating the need to publish annual TFRs in the future.
For two weeks in the month of January, the Annual North American International Auto Show will be held at Cobo Hall in downtown Detroit, MI. The NAIAS is the prime venue for introducing the world's most anticipated vehicles. In 2013, the NAIAS attendance for the public showing was nearly 800,000 people and press preview days attracted over 5,000 journalists representing 62 countries. Attendance and participation at the 2012 and 2011 NAIAS events were similar, and the attendance and participation at future NAIAS events is anticipated to be similar too.
In years past, NAIAS has attracted numerous protesters from various organizations due to the state of the economy, worker layoffs, and the closures of automotive dealerships
As stated previously, no comments were received in response to the NPRM published on March 29, 2013, and no public meetings were requested or held. We made no changes from the proposed rule in the NPRM.
As for the actual rule itself, the Captain of the Port Detroit has determined that establishing this permanent security zone is necessary to safeguard portions of the Detroit River during NAIAS events. Thus, the Coast Guard is amending 33 CFR 165.915 by adding paragraph (a)(3), which will establish a permanent security zone. The security zone will be enforced for the duration of the event and will encompass an area of the Detroit River beginning at a point of origin on land adjacent to the west end of Joe Lewis Arena at 42°19.44′ N, 083°03.11′ W; then extending offshore approximately 150 yards to 42°19.39′ N, 083°03.07′ W; then proceeding upriver approximately 2000 yards to a point at 42°19.72′ N, 083°01.88′ W; then proceeding onshore to a point on land adjacent the Tricentennial State Park at 42°19.79′ N, 083°01.90′ W; then proceeding downriver along the shoreline to connect back to the point of origin (NAD 83). Vessels in close proximity to the security zone will be subject to increased monitoring and boarding. The precise times and dates of enforcement for this security zone will be determined and published annually.
This final rule references an annual notice of enforcement that will announce the exact dates for the 2 weeks in January that the security zone will be enforced. See 33 CFR 165.915 (a)(3). For 2014, the North American International Auto Show, Detroit River, Detroit, MI security zone will be enforced from 7 a.m. to 11:59 p.m. daily, from January 13, 2014, through 26, 2014.
All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene representative. Entry into, transit, or anchoring within the security zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
The Captain of the Port will use all appropriate means to notify the public when the security zone in this rule will be enforced. Such means may include, among other things, publication 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 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The security zone created by this rule will be relatively small and enforced for relatively short time. Also, the security zone is designed to minimize its impact on navigable waters. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the security zone when permitted by the Captain of the Port.
Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered the impact of this rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the previously mentioned portion of the Detroit River, Detroit, MI between 8 a.m. and midnight on the dates of the event, which will be determined annually. The security zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security zone. In the event that this security zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the security zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment.
This rule involves the establishment of a security zone and is therefore, categorically excluded 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. Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
(a) * * *
(3)
Postal Service
Final rule; postponement of implementation date.
This document announces the postponement of the implementation date for the revised service standards for market-dominant mail products that were scheduled to take effect on February 1, 2014, as part of the Network Rationalization initiative. The new implementation date will be announced by the Postal Service in the
Dave Williams, Network Operations, at 202–268–4305.
On September 21, 2011, the Postal Service published an advance notice of proposed rulemaking (the Advance Notice) in the
On December 5, 2011, the Postal Service submitted a request to the Postal Regulatory Commission (PRC) for an advisory opinion on the service changes associated with Network Rationalization, in accordance with 39 U.S.C. 3661(b).
Having considered public input and the results of its market research, the Postal Service decided to implement Network Rationalization in a phased manner. The service standard changes associated with the first phase of Network Rationalization became effective on July 1, 2012.
The Postal Service's market-dominant service standards are contained in 39 CFR part 121. This document revises the service standards by announcing the postponement of the implementation date for the service standards scheduled to become effective on February 1, 2014, and establishing the continuation of service standards currently in effect. This revision is applied by replacing “February 1, 2014” with “the effective date identified by the Postal Service in a future
Administrative practice and procedure, Postal Service.
Accordingly, for the reasons stated in the preamble, the Postal Service adopts the following revisions to 39 CFR part 121:
39 U.S.C. 101, 401, 403, 404, 1001, 3691.
(a)(1) Until the effective date identified by the Postal Service in a future
(2) On and after the effective date identified by the Postal Service in a future
(b)(1) Until the effective date identified by the Postal Service in a future
(2) On and after the effective date identified by the Postal Service in a future
(a)
(1)(i) Until the effective date identified by the Postal Service in a future
(ii) On and after the effective date identified by the Postal Service in a future
The following tables reflect the service standard day ranges resulting from the application of the business rules applicable to the market-dominant mail products referenced in §§ 121.1 through 121.4:
Table 1. Prior to the effective date identified by the Postal Service in a future
Table 2. On and after the effective date identified by the Postal Service in a future
Table 3. Prior to the effective date identified by the Postal Service in a future
Table 4. On and after the effective date identified by the Postal Service in a future
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the State of North Carolina's April 12, 2013, State Implementation Plan (SIP) revision to its approved maintenance plan for the Greensboro/Winston-Salem/High Point 1997 8-hour Ozone Maintenance Area (Triad). Specifically, North Carolina's SIP revision, including updated modeling, shows that the Triad Area would continue to maintain the 1997 8-hour ozone standard if the currently applicable Federal Reid Vapor Pressure (RVP) standard for gasoline of 7.8 pounds per square inch (psi) were modified to 9.0 psi for four portions (Davidson, Forsyth, Guilford and Davie Counties) of the “Triad Area” during the high-ozone season. The State has included a technical demonstration with the SIP revision to demonstrate that a less-stringent RVP standard of 9.0 psi in these portions of this area would not interfere with continued maintenance of the 1997 8-hour ozone national ambient air quality standards (NAAQS) or any other applicable standard. Approval of this SIP revision is a prerequisite for EPA's consideration of an amendment to the regulations to remove the aforementioned portions of the Triad Area from the list of areas that are currently subject to the Federal 7.8 psi RVP requirements. In addition, the revised on-road mobile and non-road mobile source emissions modeling associated with the requested modification to the RVP standard utilizes the updated Motor Vehicle Emissions Simulator (MOVES) and NONROAD2008 models which are the most current versions of modeling systems available for these sources. EPA has determined that North Carolina's April 12, 2013, SIP revision with respect to the revisions to the modeling and associated technical demonstration associated with the State's request for the removal of the Federal 7.8 psi RVP requirements, and with respect to the updated on-road mobile, non-road mobile and area source emissions, is consistent with the applicable provisions of the Clean Air Act (CAA or Act). Should EPA decide to remove the subject portions of the Triad Area from those areas subject to the 7.8 psi Federal RVP requirements, such action will occur in a subsequent rulemaking.
This rule will be effective on February 24, 2014.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2013–0562. All documents in the docket are listed on the
Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9043. Mr. Lakeman can be reached via electronic mail at
I. Background of the Triad Area
II. Background of the Gasoline Volatility Requirement
III. This Action
IV. Final Action
V. Statutory and Executive Order Reviews
On November 6, 1991 (56 FR 56694), EPA designated the Counties of Davidson, Forsyth and Guilford in their entirety and the portion of Davie County bounded by the Yadkin River, Dutchmans Creek, North Carolina Highway 801, Fulton Creek and back to Yadkin River in the Triad Area as moderate nonattainment for the 1-hour ozone NAAQS. Among the requirements applicable to nonattainment areas for the 1-hour ozone NAAQS was the requirement to meet certain volatility standards (known as Reid Vapor Pressure or RVP) for gasoline sold commercially.
Following implementation of the 7.8 psi RVP requirement in the Triad Area, on September 9, 1993, the Triad Area was redesignated to attainment for the 1-hour ozone NAAQS, based on 1989–1992 ambient air quality monitoring data.
On April 30, 2004, EPA designated and classified areas for the 1997 8-hour ozone NAAQS (69 FR 23857) unclassifiable/attainment or nonattainment for the new 8-hour ozone NAAQS. The Triad Area was designated as nonattainment with a deferred effective date as part of the Early Action Compact (EAC)
On August 19, 1987 (52 FR 31274), EPA determined that gasoline nationwide had become increasingly volatile, causing an increase in evaporative emissions from gasoline-powered vehicles and equipment. Evaporative emissions from gasoline, referred to as volatile organic compounds (VOC), are precursors to the formation of tropospheric ozone and contribute to the nation's ground-level ozone problem. Exposure to ground-level ozone can reduce lung function (thereby aggravating asthma or other respiratory conditions), increase susceptibility to respiratory infection, and may contribute to premature death in people with heart and lung disease.
The most common measure of fuel volatility that is useful in evaluating gasoline evaporative emissions is RVP. Under section 211(c) of CAA, EPA promulgated regulations on March 22, 1989 (54 FR 11868), that set maximum limits for the RVP of gasoline sold during the high ozone season. These regulations constituted Phase I of a two-phase nationwide program, which was designed to reduce the volatility of commercial gasoline during the summer ozone control season. On June 11, 1990 (55 FR 23658), EPA promulgated more stringent volatility controls as Phase II of the volatility control program. These requirements established maximum RVP standards of 9.0 psi or 7.8 psi (depending on the State, the month, and the area's initial ozone attainment designation with respect to the 1-hour ozone NAAQS during the high ozone season).
The 1990 CAA Amendments established a new section, 211(h), to address fuel volatility. Section 211(h) requires EPA to promulgate regulations making it unlawful to sell, offer for sale, dispense, supply, offer for supply, transport, or introduce into commerce gasoline with an RVP level in excess of 9.0 psi during the high ozone season. Section 211(h) prohibits EPA from establishing a volatility standard more stringent than 9.0 psi in an attainment area, except that EPA may impose a lower (more stringent) standard in any former ozone nonattainment area redesignated to attainment.
On December 12, 1991 (56 FR 64704), EPA modified the Phase II volatility regulations to be consistent with section 211(h) of the CAA. The modified regulations prohibited the sale of gasoline with an RVP above 9.0 psi in all areas designated attainment for ozone, beginning in 1992. For areas designated as nonattainment, the regulations were retained as contained in the original Phase II Rule published on June 11, 1990 (55 FR 23658).
As stated in the preamble to the Phase II volatility controls and reiterated in the proposed change to the volatility standards published in 1991, EPA will rely on states to initiate changes to EPA's volatility program that they believe will enhance local air quality and/or increase the economic efficiency of the program within the statutory limits.
As explained in the December 12, 1991 (56 FR 64704), Phase II rulemaking, EPA believes that relaxation of an applicable RVP standard is best accomplished in conjunction with the redesignation process. As noted above, however, North Carolina did not request relaxation of the applicable 7.8 psi RVP standard when the Triad Area was redesignated to attainment for the either the 1-hour or the 1997 8-hour ozone NAAQS. Rather, North Carolina is now seeking to relax the 7.8 psi RVP standard after the Triad Area has been redesignated to attainment for the 1997 8-hour ozone NAAQS. Accordingly, the original modeling and maintenance demonstration supporting the 1997 8-hour ozone maintenance plan must be revised to reflect continued attainment under the relaxed 9.0 psi RVP standard that the State has requested.
On November 26, 2013 (78 FR 70516), EPA proposed approval of North Carolina's April 12, 2013, revision to the State's approved 1997 8-hour ozone maintenance plan for the Triad area. Specifically, North Carolina's revision, including updated modeling, shows that the Triad Area would continue to maintain the 1997 8-hour ozone standard if the currently applicable RVP standard for gasoline from 7.8 psi were modified to 9.0 psi during the high-ozone season. In addition, the revised on-road mobile and non-road mobile source emissions modeling associated with the requested modification to the RVP standard results in the use of the updated Motor Vehicle Emissions Simulator (MOVES) and NONROAD2008 models which are the most current versions of modeling systems available for these sources. No adverse comments and one supportive comment were received on this proposed action.
This rulemaking approves a revision to the 1997 8-hour ozone Maintenance Plan for the Triad Area submitted by the
Section 110(l) requires that a revision to the SIP not interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) (as defined in section 171), or any other applicable requirement of the Act. To determine the approvability of North Carolina's April 12, 2013, SIP revision, EPA considers whether the requested action complies with section 110(l) of the CAA. Because the modeling associated with the current maintenance plan for North Carolina is premised in part upon the 7.8 psi RVP requirements, a request to revise the maintenance plan modeling to no longer rely on the 7.8 psi RVP requirement is subject to the requirements of CAA section 110(l). Therefore, the State must demonstrate that this revision will not interfere with the attainment or maintenance of any of the NAAQS or any other applicable requirement of the CAA.
This section 110(l) non-interference demonstration is a case-by-case determination based upon the circumstances of each SIP revision. EPA interprets 110(l) as applying to all NAAQS that are in effect, including those that have been promulgated but for which the EPA has not yet made designations. The specific elements of the 110(l) analysis contained in the SIP revision depend on the circumstances and emissions analyses associated with that revision. EPA's analysis of North Carolina's April 12, 2013, SIP revision, including review of section 110(l) requirements can be found in the proposed rule published on November 26, 2013, at 78 FR 70516.
This rulemaking is only approving the State's revision to its existing maintenance plan for the Triad Area showing that the area can continue to maintain the standard without relying upon gasoline with an RVP of 7.8 psi being sold in the Triad Area during the high ozone season.
EPA is approving the State of North Carolina's April 12, 2013, revision to its 110(a)(1) Maintenance Plan for the Triad 1997 8-hour Ozone Maintenance Area. Specifically, EPA is approving the State's showing that the Triad Area can continue to maintain the 1997 ozone standard without emissions reductions associated with the use of gasoline with an RVP of 7.8 psi in the four Triad Area counties during the high ozone season—June 1 through September 15.
In addition, EPA is approving an updated on-road mobile, non-road mobile and area source emissions for the Triad Area. EPA has determined that North Carolina's April 12, 2013, SIP revision, including the technical demonstration associated with the State's request for the removal of the Federal RVP requirements, and the updated on-road mobile, non-road mobile and area source emissions are consistent with the applicable provisions of the CAA. Should EPA decide to remove subject portions of the Triad Area from those areas subject to the 7.8 psi Federal RVP requirements, such action will occur in a separate, subsequent rulemaking.
Under the CAA, the Administrator is required to approve a SIP submittal 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 CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, October 7, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 25, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Reporting and recordkeeping requirements and Volatile organic compounds.
40 CFR part 52, is amended as follows:
42 U.S.C. 7401
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Federal Emergency Management Agency, DHS.
Final rule.
This rule identifies communities where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the
If you want to determine whether a particular community was suspended on the suspension date or for further information, contact David Stearrett, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2953.
The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR Part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the
In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.
Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are
Flood insurance, Floodplains.
Accordingly, 44 CFR Part 64 is amended as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is amended as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR Part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR Part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.
The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is amended as follows:
42 U.S.C. 4001
Federal Emergency Management Agency, DHS.
Final rule.
Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.
The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.
Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
42 U.S.C. 4001
Nuclear Regulatory Commission.
Public workshop.
The U.S. Nuclear Regulatory Commission (NRC) plans to conduct a public workshop to discuss proposed revisions to its Low-Level Radioactive Waste (LLRW) disposal regulations and gather information on an update to the NRC's 2007 Strategic Assessment of the LLRW regulatory program from stakeholders and other interested members of the public. The staff is also seeking comments on developments that would affect the LLRW regulatory program in the next 5–7 years, including changes to the national landscape in the LLRW area that would affect licensees and sited States in the context of safety, security, and the protection of the environment. The NRC will accept written comments at the public workshop and welcomes active participation from those attending.
The public workshop will be held on March 7, 2014, from 8:00 a.m. to 1:00 p.m. (registration begins at 7:30 a.m.) in Phoenix, Arizona.
Please refer to Docket ID NRC–2011–0012 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this action by the following methods:
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The public workshop will be held at the Renaissance Phoenix Downtown Hotel, 50 East Adams Street, Phoenix, Arizona 85004. The phone number for the hotel is 1–602–333–0000. The public workshop will be held immediately following the 2014 Waste Management Conference.
Melanie C. Wong, telephone: 301–415–2432, email:
The Commission's licensing requirements for the disposal of LLRW in near-surface [the uppermost 30 meters (100 feet)] facilities reside in part 61 of Title 10 of the
Development of the 10 CFR Part 61 regulations in the early 1980s was based on several assumptions as to the types of wastes likely to go into a commercial LLRW disposal facility. To better understand what the likely inventory of wastes available for disposal might be, the NRC conducted a survey of existing LLRW generators. The survey, documented in Chapter 3 of NUREG–0782, “Draft Environmental Impact Statement [DEIS] on 10 CFR Part 61 Licensing Requirements for Land Disposal of Radioactive Waste” (ADAMS Accession No. ML052590347), revealed that there were 37 distinct commercial waste streams consisting of 25 radionuclides of potential regulatory interest. The specific waste streams in question were representative of the types of commercial LLRW being generated at the time. Waste streams associated with the U.S. Department of Energy's (DOE's) nuclear defense complex were not considered as part of the survey, since disposal of those wastes, at that time, was to be conducted at the DOE-operated sites. Over the last several years, there have been a number of developments that have called into question some of the key assumptions made in connection with the earlier 10 CFR Part 61 survey, including:
• The emergence of potential LLRW streams that were not considered in the original 10 CFR Part 61 rulemaking, including large quantities of Depleted Uranium (DU), and possibly incidental wastes associated with the commercial reprocessing of spent nuclear fuel;
• The DOE's increasing use of commercial facilities for the disposal of defense-related LLRW streams; and
• Extensive international operational experience in the management of LLRW and intermediate-level radioactive wastes that did not exist at the time 10 CFR Part 61 was promulgated.
In its March 18, 2009, Staff Requirements Memorandum (SRM) SRM–SECY–08–0147,
• Allowing licensees the flexibility to use International Commission on Radiological Protection (ICRP) dose methodologies in a site-specific performance assessment for the disposal of all radioactive waste.
• Developing a two-tiered approach that establishes a compliance period that covers the reasonably foreseeable future and a longer period of performance that is not
• Adding flexibility for disposal facilities to establish site-specific waste acceptance criteria based on the results of the site's performance assessment and intruder assessment.
• Establishing a compatibility category for the elements of the revised rule that establish the requirements for site-specific performance assessments and the development of the site-specific waste acceptance criteria that ensures alignment between the States and Federal Government on safety fundamentals, while providing the States with the flexibility to determine how to implement these safety requirements.
On July 18, 2013, the NRC staff submitted a revised draft proposed rule and guidance for Commission review and approval, SECY–13–0075, “Proposed Rule: Low-Level Radioactive Waste Disposal (10 CFR Part 61) (RIN 3150–A192)” (ADAMS Accession No. ML13129A268). The draft proposed rule would update the existing technical analysis requirements for protection of the general population (i.e., performance assessment); add a new site-specific technical analysis for the protection of inadvertent intruders (i.e., intruder assessment); add a new analysis for certain long-lived LLRW; and revise the technical analyses required at closure.
The draft proposed rule would also add a new requirement to develop criteria for the acceptance of LLRW for disposal based on either the results of these technical analyses or on the existing LLRW classification requirements. This would facilitate consideration of whether a particular disposal site is suitable for future disposal of DU, blended LLRW, or any other previously unanalyzed LLRW stream. Additionally, the draft proposed rule would facilitate implementation and better align the requirements with current health and safety standards.
In 2007, due to developments in the national program for LLRW disposal, as well as changes in the regulatory environment, the NRC's LLRW program faced new challenges and issues. New technical issues related to protection of public health and the environment and security emerged. These challenges and issues included (1) need for greater flexibility and reliability in LLRW disposal options; (2) increased storage of Class B and Class C LLRW because of the potential closing of the Barnwell, South Carolina disposal facility to out-of-compact waste generators; (3) the potential need to dispose of large quantities of power plant decommissioning waste, as well as DU from enrichment facilities; (4) increased safety concerns; (5) need for greater LLRW program resources than were available; (6) increased security concerns related to storing LLRW in general and sealed radioactive sources in particular; and (7) potential for generation of new waste streams (for example, by the next generation of nuclear reactors and the potential reemergence of nuclear fuel reprocessing in the United States).
Based on these challenges and issues, the NRC staff conducted a Strategic Assessment of the NRC's LLRW regulatory program. Based on extensive stakeholder input during meetings, the NRC staff received a variety of activities to be included in the Strategic Assessment and evaluated them based on the overall strategic objectives for ensuring safety, and security, and other factors. From these solicited activities, the NRC staff developed a list of 20 activities responsive to identified programmatic needs. These activities were assigned priorities of high, medium, or low and ranged from narrowly focused activities such as updating LLRW storage guidance to broader activities such as suggesting legislative changes to Congress to improve the national LLRW program.
The NRC staff published the Strategic Assessment in late 2007
Since 2007, the NRC staff has completed several high priority activities identified in the 2007 Strategic Assessment, including updating guidance for LLRW storage, evaluating the disposal of DU and the measures needed to ensure its safe disposal, and developing a procedure for the review of low-activity waste disposal in Resource Conservation and Recovery Act (RCRA) facilities not licensed by the NRC. In addition, the NRC staff continues to work on the revisions to 10 CFR part 61 and the 1995 Concentration Averaging and Encapsulation Branch Technical Position.
After 6 years, much progress has been made in completing several activities
The purpose of this public workshop is to discuss the status of an on-going rulemaking effort to revise 10 CFR part 61 and gather information on the update to the 2007 Strategic Assessment of the NRC's LLRW regulatory program from interested members of the public. This overall approach is consistent with the NRC's openness policy. The March 7, 2014, public workshop will be organized into two parts. In the first part, the NRC staff will discuss the status of the proposed revisions to 10 CFR part 61. In the second part, a panel of invited experts will discuss developments that would affect the LLRW regulatory program in the next 5–7 years, including changes to the national landscape in the LLRW area that would affect licensees and sited States in the context of safety, security, and the protection of the environment.
Following each of the two parts of the workshop, interested members of the public will have an opportunity to pose questions and comment.
Pre-registration for this workshop is not necessary. Members of the public choosing to participate in this workshop remotely can do so in one of two ways— online by webinar or via a telephone (audio) connection. This audio is the bridge line ID: 1–800–779–7381, passcode: 8375324.
For those interested members of the public that wish to attend the workshop remotely by Webinar, the Webinar workshop registration link can be found at:
To receive a call back, provide your phone number when you join the workshop, or call the following number and enter the access code:
Call-in toll-free number (US/Canada): 1–800–779–7381. The access code is 8375324.
The agenda for the public workshop will be noticed no fewer than 10 days prior to the workshop on the NRC's Public Meeting Schedule Web site at
Questions about participation in the public workshop should be directed to the point of contact listed in the
Commodity Futures Trading Commission.
Reopening of comment period.
On September 12, 2013, the Commodity Futures Trading Commission (“Commission”) published in the
The comment period for the Concept Release published September 12, 2013 (78 FR 56542) is reopened as of January 21, 2014, and extended until February 14, 2014.
You may submit comments, identified by RIN 3038–AD52, by any of the following methods:
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Sebastian Pujol Schott, Associate Director, Division of Market Oversight,
On September 12, 2013, the Commission published in the
The Commission is reopening the comment period for the Concept Release beginning on January 21, 2014, and ending on February 14, 2014. Parties who previously submitted comments on the Concept Release, but did so after the original December 11, 2013, comment deadline, are invited to resubmit their comments so that they may be properly considered. Parties presenting relevant materials during the January 21, 2014, meeting of the Commission's Technology Advisory Committee are invited to submit such materials for inclusion in the comment file. Parties may also submit new comments regarding any matter raised in the Concept Release. All comments must be received on or before February 14, 2014.
The following appendix will not appear in the Code of Federal Regulations.
On this matter, Acting Chairman Wetjen and Commissioners Chilton and O'Malia voted in the affirmative. No Commissioner voted in the negative.
Internal Revenue Service (IRS), Treasury.
Cancellation of a notice of public hearing on proposed rulemaking.
This document cancels a public hearing on proposed regulations that provide guidance on the recovery of overpayments of arbitrage rebate on tax-exempt bonds and other tax-advantaged bonds.
The public hearing originally scheduled for February 5, 2014 at 2 p.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 December 16, 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. As of January 17, 2014, no one has requested to speak. Therefore, the public hearing scheduled for February 5, 2014 at 2 p.m. is cancelled.
United States Patent and Trademark Office, Commerce.
Notice of proposed rulemaking.
The United States Patent and Trademark Office (Office) is proposing changes to the rules of practice to facilitate the examination of patent applications and to provide greater transparency concerning the ownership of patent applications and patents. This initiative is one of a number of executive actions issued by the Administration that are designed to ensure the highest-quality patents, enhance competition by providing the public with more complete information about the competitive environment in which innovators operate, enhance technology transfer and reduce the costs of transactions for patent rights by making patent ownership information more readily and easily available, reduce abusive patent litigation by helping the public defend itself against frivolous litigation, and level the playing field for innovators. The Office is proposing in this document to require that the attributable owner, including the ultimate parent entity, be identified during the pendency of a patent application and at specified times during the life of a patent. The Office is specifically proposing that the attributable owner be identified on filing of an application (or shortly thereafter), when there is a change in the attributable owner during the pendency of an application, at the time of issue fee and maintenance fee payments, and when a patent is involved in supplemental examination,
Comments should be sent by electronic mail message over the Internet addressed to:
Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site (
Although comments may be submitted by postal mail, the Office prefers to receive comments by electronic mail message over the Internet because sharing comments with the public is more easily accomplished. Electronic comments submitted in plain text are preferred, but also may be submitted in ADOBE® portable document format or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that facilitates convenient digital scanning into ADOBE® portable document format.
The comments will be available for public inspection at the Office of the Commissioner for Patents, currently located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia. Comments also will be available for viewing via the Office's Internet Web site (
James Engel, Senior Legal Advisor ((571) 272–7725), or Erin M. Harriman, Legal Advisor ((571) 272–7747), Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy.
Executive Summary:
The proposed changes will facilitate patent examination and other parts of the Office's internal processes by helping to: (1) Ensure that a “power of attorney” is current in each application or proceeding before the Office; (2) avoid potential conflicts of interest for Office personnel; (3) determine the scope of prior art under the common ownership exception under 35 U.S.C. 102(b)(2)(C) and uncover instances of double patenting; (4) verify that the party making a request for a post-issuance proceeding is a proper party for the proceeding; and (5) ensure that the information the Office provides to the public concerning published applications and issued patents is accurate and not misleading. Beyond providing these benefits to the Office, collecting attributable owner information and making it publicly available is expected to: (1) Enhance competition and increase incentives to innovate by providing innovators with information that will allow them to better understand the competitive environment in which they operate; (2) enhance technology transfer and reduce the costs of transactions for patent rights since patent ownership information will be more readily and easily accessible; (3) reduce risk of abusive patent litigation by helping the public defend itself against such abusive assertions by providing more information about all the parties that have an interest in patents or patent applications; and (4) level the playing field for innovators.
The Office is also seeking comments on whether the Office should enable patent applicants and owners to voluntarily report licensing offers and related information to the Office, which the Office will then make available to the public in an accessible online format. Such licensing information could include willingness to license, as well as licensing contacts, license offer terms, or commitments to license the patent, e.g., on royalty-free or reasonable and non-discriminatory terms. Further background and details about this request for comments are below.
In order to engage the public and provide as much opportunity for feedback and input as possible, the Office intends to hold two stakeholder input meetings at which members of the public can provide comment to the Office on this proposal. These meetings will be held during the public comment period for this proposal, at times and locations to be determined. The Office will publicize the times and locations of these meetings through the Office's Internet Web site (
The Office proposes that patent applicants identify the attributable owner or owners when an application is filed (or shortly thereafter), when attributable owner changes during the pendency of an application (within three months of such change), when the issue fee is due for an application that has been allowed, when a maintenance fee is due, and when a patent becomes involved in certain post-issuance proceedings at the Office, including in supplemental examination,
The Office plans to work with its user community to implement this reporting system in a user-friendly manner and welcomes input on how this can best be accomplished. Subject to financial and resource constraints, the Office anticipates, in particular, developing a system for the electronic uploading and updating of attributable owner information, including bulk uploading and updating of attributable owner information when any ownership transfers occur. This type of reporting system will also allow applicants and patentees to indicate that the information the Office has on file is accurate at future checkpoints, such as at the time of maintenance fee payments.
As with other procedural requirements of the Office, this proposal provides an applicant or patent owner with a means to correct omissions and
The Office proposes to make the proposed rules applicable to all applications filed on or after the effective date of the final rule. For already-filed, pending applications, the Office proposes to require the reporting of attributable owner or owners when the issue fee is due (if and when such application has been allowed) provided that the notice of allowance is mailed on or after the effective date of the final rule. For already-issued patents, the Office proposes to require the reporting of attributable owner or owners when the next maintenance fee is paid, if the payment occurs on or after the effective date of the final rule. For any trial proceeding in which the petition was filed on or after the effective date of the final rule and any supplemental examination or
While the Office would use attributable owner information for examination purposes in both published and unpublished applications, attributable owner information would be made available to the public for an application that has been published or issued as a patent.
With this notice of proposed rulemaking, the Office is proposing changes designed to increase transparency by collecting ownership information of not just the titleholder (
Before the White House initiatives were announced on June 4, 2013, the Office had begun the process of considering whether and how to collect assignment or real-party-in-interest information (referred to herein as the “attributable owner”) with a request for comments in 2011 and a roundtable held at the Office in January 2013.
As set forth in the Roundtable Notice, having accurate and up-to-date attributable owner information will facilitate patent examination and other parts of the Office's internal processes. As courts have previously recognized, the Office has the authority to promulgate regulations that “shall govern the conduct of proceedings in the Office.”
To this end, the Office seeks attributable owner information to ensure that a “power of attorney” is current in each application or each patent involved in a proceeding before the Office. The Office has a clear interest in ensuring that current representatives in any proceeding before the Office are authorized by the current owner of the application or patent.
In addition, it is important for the Office to know the attributable owner of each application or each patent involved in a proceeding before the Office in order to avoid potential conflicts of interest for Office personnel. This problem has been identified during the adoption of regulations for the PTAB. For example, “in the case of the Board, a conflict would typically arise when an official has an investment in a company with a direct interest in a Board proceeding. Such conflicts can only be avoided if the parties promptly provide information necessary to identify potential conflicts.”
There are recent trends towards greater liquidity in the markets for patent-related intellectual property.
Facilitating greater transparency of patent application and patent ownership is also an important part of the Office's ongoing efforts to modernize patent examination and to improve patent quality. Recent changes in title 35 under the AIA have expanded the role of ownership as part of determining what constitutes prior art.
35 U.S.C. 102(b)(2)(C) (2011) differs from the previous statutory provision on which it was based (pre-AIA 35 U.S.C. 103(c)(1)). While pre-AIA 35 U.S.C. 103(c)(1) concerned an exception to obviousness rather than an exception to what constitutes prior art, it otherwise recited virtually identical language to that of the 35 U.S.C. 102(b)(2)(C) (2011), except that pre-AIA 35 U.S.C. 103(c)(1) stated that patentability was not precluded where “the subject matter and the claimed invention were, at the time the claimed invention was made, owned by the same person or subject to an obligation of assignment to the same person.” Under pre-AIA 35 U.S.C. 103(c)(1), whether earlier subject matter was prior art was established at the time when the claimed invention in the later-filed application was “made,” by considering whether the earlier subject matter was owned by the same entity that owned (or had a right to own) the claimed invention that was just made. In contrast, under 35 U.S.C. 102(b)(2)(C) (2011), there may be an opportunity—in the period before the filing of the second application—for ownership to change in a way that affects whether the earlier patent or patent application is prior art for purposes of 35 U.S.C. 102(a)(2) (2011).
In the prosecution context, 35 U.S.C. 102(b)(2)(C) (2011) presents the possibility that a greater amount of prior art might be subject to this exemption than under pre-AIA 35 U.S.C. 103(c)(1), which, in turn, could render the current method of handling the possibility of common ownership under MPEP 706.02(l)(2) (the examiner presenting an initial rejection, and the applicant rebutting the rejection with proof of ownership) inefficient in a manner contrary to the principles of compact prosecution as explained in MPEP 706 (“The goal of examination is to clearly articulate any rejection early in the prosecution process so that the applicant has the opportunity to provide evidence of patentability and otherwise reply completely at the earliest opportunity.”). Accordingly, tracking attributable owner information for patent applications and issued patents is directly relevant to questions of whether a claimed invention is patentable over the prior art during prosecution.
Moreover, the availability of new types of third-party proceedings that may be filed with the Office, including
Accordingly, having updated ownership information would allow the Office to: (1) Verify that a
Finally, because the Office publishes information it possesses related to an application or patent (subject to 35 U.S.C. 122), the Office has an interest in ensuring that such information is not misleading. The Office currently receives (and publishes) only assignment information that is voluntarily submitted by the applicant or patent owner. There is no requirement that changes in assignment information be updated, though current law protects against certain types of fraud if such updating occurs.
Beyond providing these benefits to the Office, collecting attributable owner information and making it publicly available may have other potential benefits. In particular, collecting attributable owner information and making it publicly available may: (1) Enhance competition and increase incentives to innovate by providing innovators with information that will allow them to better understand the competitive environment in which they operate; (2) enhance technology transfer and reduce the costs of transactions for
Regarding enhanced competition and increased incentives to innovate, easier access to accurate and up-to-date attributable owner information will provide innovators with information to better understand the competitive environment in which they operate. This will enable them to better assess, for example, the risks and benefits of developing a new business in a different area of technology, thereby allowing them to allocate their limited research and development resources more judiciously. Chapters 1 and 2 of the
Regarding enhancing technology transfer and reducing the costs of transactions for patent rights, providing easy access to accurate and up-to-date attributable owner information to the public is expected to reduce information and search costs associated with identifying and then licensing or buying patent assets.
With regard to reducing abusive patent litigation, developing a record of attributable owners will help accused patent infringers identify: (i) The parties who control and/or influence the ability to enter into a settlement agreement or licensing arrangement; and (ii) the full range of patent rights held by the attributable owners so that a license to all desired rights may be taken at once. This point is also reflected in the White House's
The Office believes that the implementation of such a voluntary program would further enhance the transparency and efficiency of the marketplace for patent rights by providing a clearinghouse for patent holders to post licensing terms. Such a system would be expected to further enhance technology transfer and reduce the costs of transactions for patent rights. The World Intellectual Property Organization (WIPO) has offered a similar option to report licensing terms and information to PCT applicants since January 2012, in order to promote voluntary licensing. In November 2013, it introduced the WIPO GREEN online marketplace, to promote innovation and diffusion of green technologies. (
In many cases, these types of ownership interests may be coextensive. Specifically, the titleholder (or assignee) is often the same entity that has the right to enforce the patent, and is not controlled by any other entity (and so would not have to separately report an ultimate parent entity). Most additional reporting will need to be done by companies that have complicated corporate structures and licenses, which often include the complex structures used by certain patent assertion entities (“PAEs”) to hide their true identities from the public. Some of this additional reporting may include exclusive licensees. Although exclusive licensees are sometimes confidential now, they would only need to be disclosed where their rights are so substantial that they have enforcement rights in the patent. In such circumstances, the public has a strong interest in knowing their identities in order to have an accurate picture of the competitive patent landscape, to allocate their research and development efforts appropriately, and to take licenses or purchase patents proactively and efficiently from the
The Office proposes to collect this attributable owner information from applicants and patent owners, and invites public comments as to whether and when additional attributable owner information should be collected as well as whether changes could be made to the scope of the information proposed to be collected while still achieving the objectives of the Office set forth in this document.
The Office is proposing to require disclosure of the following ownership interests:
As discussed previously, the Office expects that this information will facilitate the Office's core function of examining patents. All of the ownership interests outlined previously will help the Office to avoid potential conflicts of interest, as required by regulation and statute, and the quasi-judicial roles of patent examiners. For example, the attributable owner information would allow Office employees to evaluate whether they own stock in companies that are appearing before them in patent examination or other Office proceedings. The related ultimate parent entity information would serve as an additional check to the extent that Office employees might not be aware of subsidiaries owned by companies in which they might own stock.
Information about the titleholder and its ultimate parent entity will also help the Office to determine the scope of prior art under the common ownership exception under 35 U.S.C. 102(b)(2)(C), to uncover instances of double patenting, and ensure that the power of attorney is current in applications under examination. The ultimate parent entity information in particular would facilitate searching by providing a common identifier for companies that have many subsidiaries that nominally hold title to the application or patent.
The Office plans to publish information about attributable owners in accordance with its duty to provide information to the public, 35 U.S.C. 2(a)(2), although such information will be made available only in accordance with 35 U.S.C. 122. The Office expects that the public provision of attributable owner information will increase transparency of the patent system, as outlined in the background section of this document.
The Office is proposing the following timing and handling of disclosures:
The following is a discussion of proposed amendments to title 37 of the Code of Federal Regulations, Part 1:
Section 1.271(b) as proposed provides that the attributable owner of a patent or application includes the ultimate parent entity as defined in 16 CFR 801.1(a)(3) of an entity described in § 1.271(a). The ultimate parent entity is an entity which is not controlled by any other entity. 16 CFR 801.1(a) provides the following illustrative examples for identifying the ultimate parent entity: “(1) If corporation A holds one hundred percent of the stock of subsidiary B, and B holds seventy-five percent of the stock of its subsidiary C, corporation A is the ultimate parent entity, since it controls subsidiary B directly and subsidiary C indirectly, and since it is the entity within the person which is not controlled by any other entity; (2) if corporation A is controlled by natural person D, natural person D is the ultimate parent entity; and (3) if P and Q are the ultimate parent entities within persons `P' and `Q,' and P and Q each own fifty percent of the voting securities of R, then P and Q are both ultimate parents of R, and R is part of both persons `P' and `Q.' ”
With regard to the definition of “ultimate parent entity” as “an entity which is not controlled by any other entity,” 16 CFR 801.1(b) defines “control” as follows: The term control (as used in the terms control(s), controlling, controlled by and under common control with) means: (1) Either (i) holding fifty percent or more of the outstanding voting securities of an issuer, or (ii) in the case of an unincorporated entity, having the right to fifty percent or more of the profits of the entity, or having the right in the event of dissolution to fifty percent or more of the assets of the entity; or (2) having the contractual power presently to designate fifty percent or more of the directors of a for-profit or not-for-profit corporation, or in the case of trusts that are irrevocable and/or in which the settlor does not retain a reversionary interest, the trustees of such a trust. 16 CFR 801.1(b) further provides a number of illustrative examples for identifying the ultimate parent entity based upon its definition of “control.”
Section 1.271(c) as proposed provides that any entity that, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling arrangement, or any other contract, arrangement, or device with the purpose or effect of temporarily divesting such entity of attributable ownership of a patent or application, or preventing the vesting of such attributable ownership of a patent or application, shall also be deemed for the purpose of § 1.271 to be an attributable owner of such patent or application.
Section 1.271(d) as proposed defines the term “entity” used in § 1.271. Section 1.271(d) as proposed specifically provides that the term “entity” used in § 1.271 includes: (1) Any natural person, corporation, company, partnership, joint venture, association, joint-stock company, trust, estate of a deceased natural person, foundation, fund, or institution, whether incorporated or not, wherever located and of whatever citizenship (proposed § 1.271(d)(1)); (2) any receiver, trustee in bankruptcy or similar official or any liquidating agent for any of the entities described in § 1.271(d)(1), in his or her capacity as such (proposed § 1.271(d)(2)); (3) a joint venture or other corporation which has not been formed but the acquisition of the voting securities or other interest in which, if already formed, would be an attributable owner as described in this section (proposed § 1.271(d)(3)); or (4) any other organization or corporate form not specifically listed in § 1.271(d)(1), (d)(2), or (d)(3) that holds an interest in an application or patent (proposed § 1.271(d)(4)). Section 1.271(d) as proposed (in combination with the exception in proposed § 1.271(e)) tracks the definition of entity in 16 CFR 801.1(a)(2).
Section 1.271(e) as proposed provides an “exception” to the term “entity” as used in § 1.271. Section 1.271(e) as proposed specifically provides that, notwithstanding the provisions of § 1.271(c), the term “entity” does not include any foreign state, foreign government, or agency thereof (other than a corporation or unincorporated entity engaged in commerce), and also does not include the United States, any of the States thereof, or any political subdivision or agency of either (other than a corporation or unincorporated entity engaged in commerce).
Section 1.271(f) as proposed sets out the information concerning an entity that must be provided when that entity is being identified as an attributable owner. Section 1.271(f) as proposed specifically provides that when there is a requirement to identify the attributable owner, each entity constituting the attributable owner must be identified as follows: (1) The identification of a public company must include the name of the company, stock symbol, and stock exchange where the company is listed (proposed § 1.271(f)(1)); (2) the identification of a non-public company must include the name of the company, place of incorporation, and address of the principal place of business (proposed § 1.271(f)(2)); (3) the identification of a partnership must include the name of the partnership and address of the principal place of business (proposed § 1.271(f)(3)); (4) the identification of a
Section 1.271(g) is proposed to clarify that a shareholder or partner in a corporate form, partnership, or other association (except for shareholders of a public company) must also be identified as an attributable owner if the shareholder or partner meets one of the definitions set forth in § 1.271(a), (b), or (c), even if the a corporate form, partnership, or other association is separately identified as an attributable owner.
The Office is proposing making this requirement applicable to applications under 35 U.S.C. 111(a) filed on or after the effective date of the final rule and to international applications that commenced the national stage under 35 U.S.C. 371(b) or (f) on or after the effective date of the final rule.
The Office is proposing making this requirement applicable to applications under 35 U.S.C. 111(a) filed on or after the effective date of the final rule and to international applications that commenced the national stage under 35 U.S.C. 371(b) or (f) on or after the effective date of the final rule.
The Office is proposing making this requirement applicable to applications in which a notice of allowance under 35 U.S.C. 151 and 1.311 is mailed on or after the effective date of the final rule.
Section 1.279 as proposed is limited to excusing failure or errors in a pending application. Where there has been a failure to identify the attributable owner within the time period set under § 1.273, or after mailing the notice of allowance, a failure either to confirm that the information on file at the Office is correct, or to identify the current
Section 1.381 as proposed also provides that if there has been no change to the attributable owner information most recently provided to the Office, the notice may simply indicate that there has been no change. The Office plans to provide a means (automated or a pre-printed form) such that if the current attributable owner has been previously provided to the Office, the patent owner may simply check the box or submit a pre-printed form to indicate that there has been no change to the attributable owner. Thus, a patent owner who provides updated attributable owner information whenever there is a change to the attributable owner during the life of the patent may simply check the box or submit a pre-printed form to indicate that that there has been no change to the attributable owner.
The Office is proposing making this requirement applicable to patents in which a maintenance fee is paid on or after the effective date of the final rule.
The Office is proposing making this requirement applicable to any trial proceeding in which the petition was filed on or after the effective date of the final rule.
Section 1.385(a) as proposed pertains to supplemental examination. Section 1.385(a) as proposed provides that a request for supplemental examination under § 1.610 must also be accompanied by a notice identifying the current attributable owner. Thus, a request for supplemental examination would not be accorded a filing date unless it is accompanied by a notice identifying the current attributable owner. A request for supplemental examination may be filed only by the patent owner and a supplemental examination proceeding will not last longer than three months (35 U.S.C. 257(a)). Therefore, there are no provisions for a request for supplemental examination by a party other than the patent owner or for a change to the attributable owner during a supplemental examination.
Section 1.385(b) as proposed pertains to a request for
Section 1.385(c) as proposed pertains to a request for
The Office is proposing making this requirement applicable to any supplemental examination or
This document proposes to require that the attributable owner, including the ultimate parent entity, be identified during the pendency of a patent application and at specified times during the life of a patent. The changes in this rulemaking do not change the substantive criteria of patentability and also do not place any limits or conditions on the patent owner's ability to transfer ownership of, or any other interest in, a patent or patent application. Therefore, the changes proposed in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules.
Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c) (or any other law).
The Office is proposing to amend the rules of patent practice to provide greater transparency concerning the ownership of pending patent applications and patents. The purpose of this rulemaking is to ensure the highest-quality patents, to facilitate patent examination at the Office, to enhance competition and increase incentives to innovate by providing innovators with information that will allow them to better understand the competitive environment in which they operate, enhance technology transfer and reduce the costs of transactions for patent rights by making patent ownership information more readily and easily available, to reduce risk of abusive patent litigation by helping the public defend itself against risk of abusive assertions by providing more information about the parties that have an interest in patents or patent applications, and to level the playing field for innovators.
The objective of the proposed rules is to provide greater transparency concerning the ownership of pending patent applications and patents to facilitate patent examination at the Office by requiring that the attributable owner, including the ultimate parent entity, be identified during the pendency of a patent application and at specified times during the life of a patent, and to further ensure that the ownership information the Office provides to the public is accurate and not misleading.
The proposed changes to require patent applicants and patent owners to regularly update ownership information when the applicant or patent owner is involved in a proceeding before the Office will facilitate patent examination and other parts of the Office's internal processes by helping to: (1) Ensure that a “power of attorney” is current in each application or proceeding before the Office; (2) avoid potential conflicts of interest for Office personnel; (3) determine the scope of prior art under the common ownership exception under 35 U.S.C. 102(b)(2)(C) and uncover instances of double patenting; (4) verify that the party making a request for a post-issuance proceeding is a proper party for the proceeding; and (5) ensure that the information the Office provides to the public concerning published applications and issued patents is accurate and not misleading.
Beyond providing these benefits to the Office, collecting attributable owner information and making it available may: (1) Enhance competition and increase incentives to innovate by providing innovators with information to allow them to better understand the competitive environment in which they operate; (2) enhance technology transfer and reduce the costs of transactions for patent rights since patent ownership information will be more readily and easily accessible; (3) help the public defend itself against abusive patent assertion or litigation by providing more information about all the parties that have an interest in the patent or patent application; and (4) level the playing field for innovators.
The legal basis for the proposed rules is 35 U.S.C. 2(b)(2), which authorizes the Office to establish regulations, not inconsistent with law, which “govern the conduct of proceedings in the Office.” 35 U.S.C. 2(a)(2)(A); see also
Further legal basis for the proposed rule comes from 35 U.S.C. 2(a). Because the Office publishes information it possesses related to an application or patent (subject to 35 U.S.C. 122), the Office has an interest in ensuring that such information is not misleading. The Office currently receives (and publishes) only assignment information that is voluntarily submitted by the applicant or patent owner. There is currently no requirement that changes in assignment information be updated, though current law protects against certain types of fraud if such updating occurs.
Unlike the SBA small business size standards set forth in 13 CFR 121.201, the size standard for the Office is not industry-specific. Specifically, the Office's definition of small business concern for Regulatory Flexibility Act purposes is a business or other concern that: (1) Meets the SBA's definition of a “business concern or concern” set forth in 13 CFR 121.105; and (2) meets the size standards set forth in 13 CFR 121.802 for the purpose of paying reduced patent fees, namely, an entity: (a) Whose number of employees, including affiliates, does not exceed 500 persons; and (b) which has not assigned, granted, conveyed, or licensed (and is under no obligation to do so) any rights in the invention to any person who made it and could not be classified as an independent inventor, or to any concern which would not qualify as a non-profit organization or a small business concern under this definition.
Based upon the information in the Office's PALM system, the Office received approximately 437,000 new applications (including continuing applications but not requests for continued examination) in fiscal year 2013, of which approximately 131,000 were by small or micro entity applicants. Thus, the Office estimates that 437,000 patent applicants, of which 131,000 are small or micro entities, will need to provide attributable owner information each year due to the requirement to identify the attributable owner at the time a patent application is initially filed (or shortly thereafter).
Based upon the information in the Office's PALM system, there are approximately 1,249,000 patent applications currently (in October of 2013) pending before the Office, of which 337,000 are by small or micro entity applicants. Since the Office does not currently require applicants and patent holders to disclose changes in the attributable owner of an application or patent, the Office does not have information on how often there is a change in attributable owner of an application during the pendency of a patent application. The Office's assignment records, however, indicate that about ninety-two percent of applications have recorded assignment documents at the time of patent grant, but fewer than four percent of applications have a second recorded assignment document each year reflecting some type of ownership transfer during the pendency of a patent application. The high percentage of patent applicants who currently submit an assignment document for recordation and the relatively low percentage of patent applicants who submit a second assignment document for recordation leads to the inference that changes in ownership during the pendency of a patent application are relatively infrequent (
Based upon the information in the Office's Revenue Accounting Management (RAM) system, the Office received the following fee payments in fiscal year 2013: (1) 296,481 issue fee payments (68,574 by small or micro entity applicants); (2) 153,875 first stage maintenance fee payments (27,076 by small or micro entity patent owners); (3) 99,249 second stage maintenance fee payments (16,692 by small or micro entity patent owners); and (4) 75,470 third stage maintenance fee payments (11,273 by small or micro entity patent owners). Thus, the Office estimates that 297,000 (266,481 rounded up to the nearest thousand) patent applicants, of which 69,000 (68,574 rounded up to the nearest thousand) are small or micro entities, will need to update attributable owner information each year due to the requirement to identify the attributable owner (or verify that the current attributable owner has been previously identified) at the time of issue fee payment, and the Office estimates that 329,000 (153,875 plus 99,249 plus 75,470, rounded up to the nearest thousand), of which 55,000 (27,076 plus 16,692 plus 11,273, rounded up to the nearest thousand) are small or micro entities, will need to update attributable owner information each year due to the requirement to identify the attributable owner (or verify that the attributable
Based upon the information from the Office's Central Reexamination Unit, there are fewer than 800 requests for
The supplemental examination provisions have been enacted as part of the AIA. The Office has received thirty-one requests for supplemental examination since September 16, 2012, the effective date of the supplemental examination provisions of the AIA. Thus, the Office estimates that approximately 100 (31 rounded up to the nearest hundred) patent owners will need to update attributable owner information each year due to the requirement to identify the attributable owner (or verify that the real party in interest information currently on record at the Office is correct) at the time the patent owner files a request for supplemental examination.
The PTAB trial provisions (post grant review under 35 U.S.C. 321,
4.
A patent attorney or general practice attorney would have the type of professional skills necessary for providing the attributable owner information required by the proposed rules. As discussed previously, the Office issued a request for comments in November of 2011 (
As noted previously, the Office's assignment records indicate that approximately ninety-two percent of patent applications have a recorded assignment at the time of grant, and four percent of patent applications have a second recorded assignment each year reflecting some kind of ownership change. Approximately eight percent of applications have no assignment transaction, and presumably are filed by the original owners. This suggests that for most applications, there would be a single reporting of attributable owner, with no changes needed to be reported at later times. At subsequent instances when reporting was required (
The Office welcomes comments from the public specifically on the issue of estimating costs of compliance with the proposed rule, including comments on possible transaction costs, frequencies of reporting changes in information, and possible economies of scale in reporting.
5.
With respect to the proposed requirement for updating any changes in attributable owners during the application process, the Office considered requiring updated attributable owner information with each reply to an Office action. The Office has instead proposed requiring updating only if there is a change to the attributable owner during the pendency of an application, with a single confirmation at the time of issuance, to reduce the need for a periodic review of attributable owner information.
With respect to the proposed requirement for updating any changes in attributable owners after the patent is granted, the Office considered requiring updating attributable owner information whenever there was a post patent proceeding (
With respect to differing compliance or reporting requirements or timetables that take into account the resources available to small entities, the Office considered requiring updating attributable owner information at fewer instances during the pendency of an application (
With respect to the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities, the proposed rules track existing regulations overseen by the Federal Trade Commission (
With respect to an exemption from coverage of the rule, or any part thereof, for such small entities, such an exemption would defeat the objective of having accurate and up-to-date ownership information and providing greater public transparency concerning the ownership of pending patent applications and patents.
Finally, the proposed rules do not involve design standards.
6.
Other countries, however, have their own patent laws, and an entity desiring a patent in a particular country must make an application for patent in that country, in accordance with the applicable law. Although the potential for overlap exists internationally, this cannot be avoided except by treaty
C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be significant for purposes of Executive Order 12866 (Sept. 30, 1993).
D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across Government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.
E. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).
F. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).
G. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).
H. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).
I. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).
J. Executive Order 12630 (Taking of Private Property): This rulemaking will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).
K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801–808), the United States Patent and Trademark Office will submit a report containing any final rule resulting from this rulemaking and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the Government Accountability Office.
L. Unfunded Mandates Reform Act of 1995: The changes set forth in this document do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
M. National Environmental Policy Act: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969.
N. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.
O. Paperwork Reduction Act: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This rulemaking proposes to require that patent applicants identify the attributable owner or owners on filing of an application (or shortly thereafter), within three months of any change in attributable owner during the pendency of the application, and when the issue fee is due for an application that has been allowed. This rulemaking also proposes to require that patent holders identify the attributable owner when a maintenance fee is due, and when a patent becomes involved in certain post-issuance proceedings at the Office, including in supplemental examination,
The collection of information that would be triggered by these proposed requirements has been submitted to OMB under OMB control number 0651–00xx. The proposed collection, containing the basis for the following summary of the estimated annual reporting burdens, will be available at OMB's Information Collection Review Web site:
The Office is soliciting comments to: (1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the Office, including whether the information will have practical utility; (2) evaluate the accuracy of the Office's estimate of the burden; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of collecting the information on those who are to respond, including by using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Please send comments related to this proposed collection of information under the Paperwork Reduction Act on or before March 25, 2014 to Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA, 22313–1450, marked to the attention of Raul Tamayo, Senior Legal Advisor, Office of Patent Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy. Comments should also be submitted to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the United States Patent and Trademark Office.
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number.
Administrative practice and procedure, Courts, Freedom of Information, Inventions and patents, Reporting and record keeping requirements, Small Businesses.
For the reasons set forth in the preamble, 37 CFR part 1 is proposed to be amended as follows:
35 U.S.C. 2(b)(2).
(g) For filing a petition under one of the following sections which refers to this paragraph:
§ 1.12—for access to an assignment record.
§ 1.14—for access to an application.
§ 1.46—for filing an application on behalf of an inventor by a person who otherwise shows sufficient proprietary interest in the matter.
§ 1.55(f)—for filing a belated certified copy of a foreign application.
§ 1.59—for expungement of information.
§ 1.103(a)—to suspend action in an application.
§ 1.136(b)—for review of a request for extension of time when the provisions of § 1.136(a) are not available.
§ 1.279—for correction of attributable owner in a pending application.
§ 1.377—for review of decision refusing to accept and record payment of a maintenance fee filed prior to expiration of a patent.
§ 1.387—for correction of attributable owner in a patent.
§ 1.550(c)—for patent owner requests for extension of time in
§ 1.956—for patent owner requests for extension of time in
§ 5.12—for expedited handling of a foreign filing license.
§ 5.15—for changing the scope of a license.
§ 5.25—for retroactive license.
(a) The attributable owner of a patent or application includes each of the following entities:
(1) An entity that, exclusively or jointly, has been assigned title to the patent or application; and
(2) An entity necessary to be joined in a lawsuit in order to have standing to enforce the patent or any patent resulting from the application.
(b) The attributable owner of a patent or application includes the ultimate parent entity as defined in 16 CFR 801.1(a)(3) of an entity described in paragraph (a) of this section.
(c) Any entity that, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling arrangement, or any other contract, arrangement, or device with the purpose or effect of temporarily divesting such entity of attributable ownership of a patent or application, or preventing the vesting of such attributable ownership of a patent or application, shall also be deemed for the purpose of this section to be an attributable owner of such patent or application.
(d) The term “entity” used in this section includes:
(1) Any natural person, corporation, company, partnership, joint venture, association, joint-stock company, trust, estate of a deceased natural person, foundation, fund, or institution, whether incorporated or not, wherever located and of whatever citizenship;
(2) Any receiver, trustee in bankruptcy or similar official or any liquidating agent for any of the entities described in paragraph (d)(1) of this section, in his or her capacity as such;
(3) Any joint venture or other corporation which has not been formed but the acquisition of the voting securities or other interest in which, if already formed, would be an attributable owner as described in this section; or
(4) Any other organization or corporate form not specifically listed in
(e) Notwithstanding the provisions of paragraph (d) of this section, the term “entity” does not include any foreign state, foreign government, or agency thereof (other than a corporation or unincorporated entity engaged in commerce), and also does not include the United States, any of the States thereof, or any political subdivision or agency of either (other than a corporation or unincorporated entity engaged in commerce).
(f) When there is a requirement to identify the attributable owner, each entity constituting the attributable owner must be identified as follows:
(1) The identification of a public company must include the name of the company, stock symbol, and stock exchange where the company is listed;
(2) The identification of a non-public company must include the name of the company, place of incorporation, and address of the principal place of business;
(3) The identification of a partnership must include the name of the partnership and address of the principal place of business;
(4) The identification of a natural person must include the full legal name, residence, and a correspondence address; and
(5) The identification of any other type of entity must include its name, if organized under the laws of a state, the name of that state and legal form of organization, and address of the principal place of business.
(g) Except for shareholders of a public company, the presence of a corporate form, partnership, or other association, does not preclude an entity who may also be a shareholder or partner in such an identified attributable owner from a requirement to be separately identified as an attributable owner if the entity is also described in paragraph (a), (b) or (c) of this section as an entity qualifying as an attributable owner.
The attributable owner as defined in § 1.271 must be identified in each application under 35 U.S.C. 111(a), including a reissue application, and in each international application that commenced the national stage under 35 U.S.C. 371(b) or (f). If an application under 35 U.S.C. 111(a) which has been accorded a filing date pursuant to §§ 1.53(b) or (d) does not identify the attributable owner as defined in § 1.271, or if an international application which complies with § 1.495(b) does not identify the attributable owner as defined in § 1.271, the applicant will be notified and given a period of time within which to file a notice identifying the attributable owner as defined in § 1.271 to avoid abandonment. The notice by the Office under this section may be combined with a notice under § 1.53(f) or § 1.495(c).
If there is a change to the attributable owner as defined in § 1.271 during the pendency of an application under 35 U.S.C. 111(a) or the pendency of an international application which complies with § 1.495(b), the applicant has three months from the date of the change to the attributable owner within which to file a notice identifying the current attributable owner as defined in § 1.271. This three-month period is not extendable.
If a notice of allowance under § 1.311 has been sent to the applicant, the applicant must file a notice identifying the current attributable owner as defined in § 1.271 within three months from the date of mailing of the notice of allowance to avoid abandonment of the application. This three-month period is not extendable. If there has been no change to the attributable owner as defined in § 1.271 that was most recently provided to the Office, the notice may simply indicate that there has been no change to the attributable owner as defined in § 1.271 most recently provided to the Office.
If, despite a good faith effort by the applicant to notify the Office of the initial attributable owner as defined in § 1.271, and of any changes to the attributable owner as defined in § 1.271, in the manner required by §§ 1.273, 1.275, and 1.277, the applicant has failed to notify the Office of a change to the attributable owner or has indicated an incorrect or an incomplete attributable owner, the failure or error may be excused in a pending application on petition accompanied by a showing of reason for the delay, error, or incompleteness, and the petition fee set forth in § 1.17(g).
A notice identifying the current attributable owner as defined in § 1.271 must be filed within the period specified in § 1.362(d) or (e), but prior to the date the maintenance fee is paid, for each maintenance fee payment. If there has been no change to the attributable owner as defined in § 1.271 most recently provided to the Office, the notice may simply indicate that there has been no change to the attributable owner as defined in § 1.271 that was most recently provided to the Office.
The mandatory notice filed by a patent owner as required by § 42.8(a)(2) of this chapter must also be accompanied by a notice identifying the current attributable owner as defined in § 1.271. If there is a change to the attributable owner as defined in § 1.271 during the pendency of the trial proceeding, the patent owner has twenty-one days from the date of the change to the attributable owner within which to file a notice identifying the current attributable owner as defined in § 1.271. This twenty-one-day period is not extendable.
(a) A request for supplemental examination under § 1.610 must also be accompanied by a notice identifying the current attributable owner as defined in § 1.271.
(b) A request for
(c) A reply or any other paper filed by the patent owner in an
If, despite a good faith effort by the patent owner to notify the Office of the initial attributable owner as defined in § 1.271, and of any changes to the attributable owner as defined in § 1.271, in the manner required by §§ 1.273, 1.275, 1.277, 1.381, 1.383, and 1.385, the patent owner has failed to notify the Office of a change to the attributable owner or has indicated an incorrect or an incomplete attributable owner, the failure or error may be excused on petition accompanied by a showing of reason for the delay, error, or incompleteness, and the petition fee set forth in § 1.17(g).
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the State of West Virginia's requests to redesignate to attainment the Charleston nonattainment area for the 1997 annual and the 2006 24-hour fine particulate matter (PM
Written comments must be received on or before February 24, 2014.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2013–0090 by one of the following methods:
A.
B. Email:
C. Mail: EPA–R03–OAR–2013–0090, Cristina Fernandez, Associate Director, Office of Air Quality Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street Philadelphia, Pennsylvania 19103.
D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
Rose Quinto, (215) 814–2182, or by email at
The first air quality standards for PM
On January 5, 2005 (70 FR 944, 1014), EPA published air quality area designations for the 1997 PM
On October 17, 2006 (71 FR 61144), EPA retained the annual average standard at 15 μg/m
In response to legal challenges of the annual standard promulgated in 2006, the DC Circuit Court remanded the 2006 annual standard to EPA for further consideration.
On October 11, 2011 (76 FR 62640) and November 18, 2011 (76 FR 71450), EPA determined that the Charleston Area has attained the 1997 annual and 2006 24-hour PM
On December 12, 2012 (77 FR 73923), EPA approved a 2002 emissions inventory for the 1997 annual PM
On December 6, 2012, the State of West Virginia through the West Virginia Department of Environmental Protection (WVDEP) formally submitted a request to redesignate the Charleston Area from nonattainment to attainment for the 1997 annual and the 2006 24-hour PM
In this proposed rulemaking action, EPA is taking into account two decisions of the DC Circuit Court. In the first of the two DC Circuit Court decisions, the DC Circuit Court, on August 21, 2012, issued
The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) EPA determines that the area has attained the applicable NAAQS; (2) EPA has fully
EPA has provided guidance on redesignation in the “State Implementation Plans; General Preamble for the Implementation of Title I of the CAA Amendments of 1990,” (57 FR 13498, April 16, 1992) (the “General Preamble”) and has provided further guidance on processing redesignation requests in the following documents: (1) “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the “1992 Calcagni Memorandum”); (2) “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and (3) “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A of the CAA, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future PM
The 1992 Calcagni Memorandum provides additional guidance on the content of a maintenance plan. The memorandum states that a PM
EPA is proposing to take several rulemaking actions related to the redesignation of the Charleston Area to attainment for both the 1997 annual and the 2006 24-hour PM
EPA is also proposing to approve the associated maintenance plans for the Charleston Area as a revision to the West Virginia SIP for the 1997 annual and the 2006 24-hour PM
EPA previously determined that the Charleston Area has attained both the 1997 annual and the 2006 24-hour PM
EPA recently promulgated CSAPR (76 FR 48208, August 8, 2011), to replace CAIR, which has been in place since 2005.
On December 30, 2011, the DC Circuit Court issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the DC Circuit Court stayed CSAPR pending resolution of the petitions for review of that rule in
On August 21, 2012, the DC Circuit Court issued a decision to vacate CSAPR. In that decision, it also ordered EPA to continue administering CAIR “pending the promulgation of a valid replacement.”
In light of these unique circumstances and for the reasons explained subsequently, to the extent that attainment is due to emission reductions associated with CAIR, EPA is here proposing to determine that those reductions are sufficiently permanent and enforceable for purposes of sections 107(d)(3)(E)(iii) and 175A of the CAA. EPA, therefore, proposes to approve the
As directed by the DC Circuit Court, CAIR remains in place and enforceable until substituted by a valid replacement rule. West Virginia's SIP revision lists CAIR as a control measure that was approved by EPA on August 6, 2009 (74 FR 38536) and became state-effective on May 1, 2008 for the purpose of reducing SO
To the extent that West Virginia is relying on CAIR in its maintenance plan, the recent directive from the DC Circuit Court in
Further, in vacating CSAPR and requiring EPA to continue administering CAIR, the DC Circuit Court emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.”
On January 4, 2013, in
EPA is proposing to determine that the DC Circuit Court's January 4, 2013 decision does not prevent EPA from redesignating the Charleston Area to attainment for either the 1997 annual or the 2006 24-hour PM
With respect to the 1997 PM
EPA's view that, for purposes of evaluating the redesignation of the Charleston Area, the subpart 4 requirements were not due at the time West Virginia submitted the redesignation requests is in keeping with the EPA's interpretation of subpart 2 requirements for subpart 1 ozone areas redesignated subsequent to the DC Circuit Court's decision in
EPA's interpretation derives from the provisions of section 107(d)(3) of the CAA. Section 107(d)(3)(E)(v) states that, for an area to be redesignated, a state must meet “all requirements `applicable' to the area under section 110 and part D.” Section 107(d)(3)(E)(ii) provides that EPA must have fully approved the “applicable” SIP for the area seeking redesignation. These two sections read together support EPA's interpretation of “applicable” as only those requirements that came due prior to submission of a complete redesignation request. First, holding states to an ongoing obligation to adopt new CAA requirements that arose after the state submitted its redesignation request, in order to be redesignated, would make it problematic or impossible for EPA to act on redesignation requests in accordance with the 18-month deadline Congress set for EPA action in section 107(d)(3)(D). If “applicable requirements” were interpreted to be a continuing flow of requirements with no reasonable limitation, states, after submitting a redesignation request, would be forced continuously to make additional SIP submissions that in turn would require EPA to undertake further notice-and-comment rulemaking actions to act on those submissions. This would create a regime of unceasing rulemaking that would delay action on the redesignation request beyond the 18-month timeframe provided by the CAA for this purpose.
Second, a fundamental premise for redesignating a nonattainment area to attainment is that the area has attained the relevant NAAQS due to emission reductions from existing controls. Thus, an area for which a redesignation request has been submitted would have already attained the NAAQS as a result of satisfying statutory requirements that came due prior to the submission of the request. Absent a showing that unadopted and unimplemented requirements are necessary for future maintenance, it is reasonable to view the requirements applicable for purposes of evaluating the redesignation request as including only those SIP requirements that have already come due. These are the requirements that led to attainment of the NAAQS. To require, for redesignation approval, that a state also satisfy additional SIP requirements coming due after the state submits its complete redesignation request, and while EPA is reviewing it, would compel the state to do more than is necessary to attain the NAAQS, without a showing that the additional requirements are necessary for maintenance.
In the context of this redesignation, the timing and nature of the D.C. Circuit Court's January 4, 2013 decision in
To require West Virginia's fully-completed and pending redesignation requests for both the 1997 annual and the 2006 24-hour PM
Even if EPA were to take the view that the D.C. Circuit Court's January 4, 2013 decision requires that, in the context of pending redesignations for either the 1997 annual or 2006 24-hour PM
With respect to evaluating the relevant substantive requirements of subpart 4 for purposes of redesignating the Charleston Area, EPA notes that subpart 4 incorporates components of subpart 1 of part D, which contains general air quality planning requirements for areas designated as nonattainment.
For the purposes of these redesignation requests, in order to identify any additional requirements which would apply under subpart 4, we are considering the Charleston Area to be a “moderate” PM
The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM
With respect to the specific attainment planning requirements under subpart 4,
The General Preamble also explained that: “[t]he section 172(c)(9) requirements are directed at ensuring RFP and attainment by the applicable date. These requirements no longer apply when an area has attained the standard and is eligible for redesignation. Furthermore, section 175A for maintenance plans . . . provides specific requirements for contingency measures that effectively supersede the requirements of section 172(c)(9) for these areas.”
It is evident that even if we were to consider the D.C. Circuit Circuit Court's January 4, 2013 decision in
Moreover, even outside the context of redesignations, EPA has viewed the obligations to submit attainment-related SIP planning requirements of subpart 4 as inapplicable for areas that EPA determines are attaining the 1997 annual and/or the 2006 24-hour PM
Elsewhere in this notice, EPA determined that the Charleston Area has attained both the 1997 annual and 2006 24-hour PM
The D.C. Circuit Circuit Court in
EPA's 1997 PM
The D.C. Circuit Court in its January 4, 2013 decision made reference to both section 189(e) and 40 CFR 51.1002, and stated that, “In light of our disposition, we need not address the petitioners' challenge to the presumptions in [40 CFR 51.1002] that VOCs and NH
Elsewhere in the D.C. Circuit Court's opinion, however, the D.C. Circuit Court observed: “NH
For a number of reasons, EPA believes that its proposed redesignations of the Charleston Area for the 1997 annual and the 2006 24-hour PM
Precursors in subpart 4 are specifically regulated under the provisions of section 189(e), which requires, with important exceptions, control requirements for major stationary sources of PM
In the General Preamble, EPA discusses its approach to implementing section 189(e).
EPA notes that its 1997 PM
Although, as EPA has emphasized, its consideration here of precursor requirements under subpart 4 is in the context of a redesignation to attainment, EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM
EPA is proposing several rulemaking actions for Charleston Area: (1) To redesignate Charleston Area to attainment for both the 1997 annual and the 2006 24-hour PM
As noted previously, in the final rulemaking action dated October 11, 2011 (76 FR 62640), EPA determined that the Charleston Area has attained the 1997 annual PM
EPA has reviewed the ambient air quality PM
In accordance with section 107(d)(3)(E)(v) of the CAA, the SIP revisions for the 1997 annual and 2006 24-hour PM
Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) of the CAA include, but are not limited to the following: (1) Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; (2) provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; (3) implementation of a source permit program; provisions for the implementation of Part C requirements PSD; (4) provisions for the implementation of Part D requirements for NSR permit programs; (5) provisions for air pollution modeling; and (6) provisions for public and local agency participation in planning and emission control rule development.
Section 110(a)(2)(D) of the CAA requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants in accordance with the NO
In addition, EPA believes that the other section 110(a)(2) elements of the CAA not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Charleston Area will still be subject to these requirements after it is redesignated. EPA concludes that the section 110(a)(2) of the CAA and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request, and that section 110(a)(2) elements of the CAA not linked in the area's nonattainment status are not applicable for purposes of redesignation. This approach is consistent with EPA's existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement.
EPA has reviewed the West Virginia SIP and has concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of West Virginia's SIP addressing section 110(a)(2) requirements, including provisions addressing PM
Subpart 1sets forth the basic nonattainment plan requirements applicable to PM
The General Preamble for Implementation of Title I discusses the evaluation of these requirements in the context of EPA's consideration of a redesignation request. The General Preamble sets forth EPA's view of applicable requirements for purposes of evaluating redesignation requests when an area is attaining the standard.
As noted previously, EPA has determined that the Charleston Area has attained both the 1997 annual and 2006 24-hour PM
Section 172(c)(3) of the CAA requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. As a result of EPA's determinations of attainment of the Area for the 1997 annual and 2006 24-hour PM
The December 6, 2012 submittal included the 2008 comprehensive emissions inventory for the 2006 24-hour PM
The NEI point data category contains emission estimates for sources that are individually inventory and located at a fixed, stationary location. Point sources include large industrial facilities and electric power plants. The NEI nonpoint data category contains emissions estimates for sources which individually are too small in magnitude or too numerous to inventory as individual point sources. The NEI onroad and nonroad data categories contain mobile sources which are estimated for the 2008 NEI version 3 via the MOVES2010b and NONROAD models, respectively. NONROAD was run within the National Mobile Inventory Model (NMIM).
EPA is proposing to approve the 2008 NH
Section 172(c)(4) of the CAA requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) of the CAA requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since the PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a nonattainment NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994 entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Nevertheless, West Virginia currently has an approved NSR program, codified in 45 CFR 19.
Section 172(c)(7) of the CAA requires the SIP to meet the applicable provisions of section 110(a)(2) of the CAA. As noted previously, EPA believes the West Virginia SIP meets the requirements of section 110(a)(2) of the CAA that are applicable for purposes of redesignation.
Section 175A of the CAA requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” In conjunction with its request to redesignate the Charleston Area to attainment status, West Virginia submitted SIP revisions to provide for maintenance of the 1997 annual and 2006 24-hour PM
Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under Title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other Federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability which EPA promulgated pursuant to its authority under the CAA. EPA interprets the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) of the CAA because state conformity rules are still required after redesignation and Federal conformity rules apply where state rules have not been approved.
Thus, for purposes of redesignating to attainment the Charleston Area for the 1997 annual PM
c. The Charleston Area Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA
For purposes of redesignation to attainment for the 1997 annual PM
For redesignating a nonattainment area to attainment, section 107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable reductions. EPA believes that West Virginia has demonstrated that the observed air quality improvement in the Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other state-adopted measures. In making this demonstration, West Virginia has calculated the change in emissions between 2005, one of the years used to designate the Area as nonattainment, and 2008, one of the years the Area monitored attainment as provided in Table 4. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Area and contributing areas have implemented in recent years. For more information on EPA's analysis of the 2005 and 2008 emissions inventory, see EPA's emissions inventory TSD dated August 29, 2013, available in the docket for this rulemaking action at
a. Federal Measures Implemented
Reductions in PM
EPA issued the Heavy-Duty Diesel Engine Rule in July 2000. This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007 which reduced PM
In May 2004, EPA promulgated the Nonroad Diesel Rule for large nonroad diesel engines, such as those used in construction, agriculture, and mining, to be phased in between 2008 and 2014. The rule also reduces the sulfur content in nonroad diesel fuel by over 99 percent. Prior to 2006, nonroad diesel fuel averaged approximately 3,400 ppm sulfur. This rule limited nonroad diesel sulfur content to 500 ppm by 2006, with a further reduction to 15 ppm by 2010.
The Area's air quality is strongly affected by regulation of SO
On March 10, 2005, EPA issued CAIR, which applies to 27 states and the District of Columbia. CAIR relied on 3 separate cap-and-trade programs to reduce SO
On August 8, 2011 (76 FR 48208), EPA promulgated CSAPR to replace CAIR, which has been in place since 2005. The D.C. Circuit Court initially vacated CAIR,
As noted earlier, EPA believes it is appropriate to allow states to rely on the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable pending a valid replacement rule, for purposes such as a redesignation. CAIR was in place and thus getting emission reductions when the Charleston Area monitored attainment of the 1997 annual and 2006 24-hour PM
Furthermore, EGUs in this Area are subject to Federal consent decrees that have reduced emissions of NO
On December 6, 2012, WVDEP submitted maintenance plans for the Charleston Area for the 1997 annual and 2006 24-hour PM
An attainment inventory is comprised of the emissions during the time period associated with the monitoring data showing attainment. WVDEP developed emissions inventories for NO
EPA has reviewed the documentation provided by WVDEP and found the emissions inventory to be acceptable. For more information on EPA's analysis of the 2008 emissions inventory, see Appendix B of the State submittal and the emissions inventory TSD dated August 29, 2013, available on line at
Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Where the emissions inventory method of showing maintenance is used, its purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory.
For a demonstration of maintenance, emissions inventories are required to be projected to future dates to assess the influence of future growth and controls; however, the maintenance demonstration need not be based on modeling.
The projection inventories for the 2018 and 2025 point, area, and nonroad sources were based on the 2012 and 2018 Visibility Improvement State and Tribal Association of the Southeast (VISTAS)/Association of Southeastern Integrated Planning (ASIP) modeling inventory. West Virginia developed the 2018 point source inventory by interpolation between VISTAS/ASIP 2012 and 2018 modeling inventory. The 2025 EGU inventory for PM
Area source emissions for 2018 were interpolated from the VISTAS/ASIP 2012 and 2018 inventories. The 2025 emissions were extrapolated from the VISTAS/ASIP 2012 and 2018 inventories. Growth and controls for emissions were based on the
Table 6 shows that between 2008 and 2018, the Area is projected to reduce SO
West Virginia's maintenance plans include a commitment to continue to operate its EPA-approved monitoring network, as necessary to demonstrate ongoing compliance with the 1997 annual and 2006 24-hour PM
To provide for tracking of the emission levels in the Area, WVDEP requires major point sources to submit air emissions information annually and prepares a new periodic inventory for all PM
The contingency plan provisions are designed to promptly correct a violation of either the 1997 annual or the 2006 24-hour PM
West Virginia's maintenance plans outline the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. West Virginia's contingency measures include a warning level response and an action level response. An initial warning level response is triggered for the 1997 annual PM
For the 1997 annual PM
West Virginia commits to adopt and expeditiously implement the necessary corrective actions. West Virginia's potential contingency measures include the following: (1) Diesel reduction emission strategies, (2) alternative fuels and diesel retrofit programs for fleet vehicle operations, (3) tighter PM
With regard to the redesignation of the Charleston Area in evaluating the effect of the DC Circuit Court's remand of EPA's 1997 PM
EPA proposes to determine that the West Virginia's maintenance plan shows continued maintenance of the 1997 annual and 2006 24-hour PM
First, as noted previously in EPA's discussion of section 189(e), VOC emission levels in the Charleston Area have historically been well-controlled under SIP requirements related to ozone and other pollutants. Second, total NH
West Virginia's maintenance plan shows that significant emissions of direct PM, NO
Indeed, projected emissions reductions for the precursors that West Virginia is addressing for purposes of the 1997 annual and 2006 24-hour PM
Even if VOC and NH
In addition,
Thus, EPA believes that there is ample justification to conclude that the Charleston Area should be redesignated, even taking into consideration the emissions of other precursors potentially relevant to PM
Transportation conformity is required under section 176(c) of the CAA to ensure that Federally supported highway, transit projects, and other activities are consistent with (conform to) the purpose of the SIP. The CAA requires Federal actions in nonattainment and maintenance areas to “conform to” the goals of the SIP. This means that such actions will not cause or contribute to violations of a NAAQS or any interim milestone. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the Transportation Conformity Rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, EPA, FHWA, and FTA to demonstrate that their metropolitan transportation plans and transportation improvement plans (TIPs) conform to applicable SIPs. This is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (MVEBs) contained in a SIP.
For MVEBs to be approvable, they must meet, at a minimum, EPA's adequacy criteria in 40 CFR 93.118(e)(4). However, in certain instances, the Transportation Conformity Rule allows areas to forgo establishment of a MVEB where it is demonstrated that the regional motor vehicle emissions for a particular pollutant or precursor are an insignificant contributor to the air quality problem in an area. The general criteria for insignificance determinations can be found in 40 CFR 93.109(f). Insignificance determinations are based on a number of factors, including the percentage of motor vehicle emissions in the context of the total SIP inventory; the current state of air quality as determined by monitoring data for the relevant NAAQS; the absence of SIP motor vehicle control measures; and the historical trends and future projections of the growth of motor vehicle emissions. EPA's rationale for providing for insignificance determinations is described in the July 1, 2004, revision to the Transportation Conformity Rule at 69 FR 40004. Specifically, the rationale is explained on page 40061 under the subsection XXIII.B entitled, “Areas With Insignificant Motor Vehicle Emissions.”
As part of the 1997 annual and the 2006 24-hour PM
Because EPA finds that West Virginia's submittals meet the criteria in the Transportation Conformity Rule for insignificance findings for motor vehicle emissions of PM
West Virginia did not provide emission budgets for SO
EPA issued conformity regulations to implement the 1997 annual PM
First, as noted above, EPA's conformity rule implementing the 1997 annual PM
EPA is proposing to approve the redesignation of the Charleston Area from nonattainment to attainment for the 1997 annual and 2006 24-hour PM
Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under section 107(d)(3)(E) of the CAA are actions that affect the status of geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. Accordingly, this rulemaking action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule proposing to approve West Virginia's redesignation requests, maintenance plans, and transportation conformity insignificance determinations for the 1997 annual and the 2006 24-hour PM
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment on its proposal to eliminate the sports blackout rules. Elimination of the sports blackout rules alone likely would not end sports blackouts, but it would leave sports carriage issues to private solutions negotiated by the interested parties in light of current market conditions and eliminate unnecessary regulation.
Comments for this proceeding are due on or before February 24, 2014; reply comments are due on or before March 25, 2014.
You may submit comments, identified by MB Docket No. 12–3, by any of the following methods:
Federal Communications Commission's Web site:
Mail: Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
For additional information, contact Kathy Berthot,
This is a summary of the Commission's
This document contains no proposed information collection requirements.
1. In this
2. Prior to 1953, National Football League (NFL) bylaws prohibited member teams from, among other things, (i) telecasting their games into the home territory of another team that was playing at home, and (ii) telecasting their games into the home territory of another team that was playing away from home and was telecasting its game into its home territory. In 1953, a federal court held that the NFL's prohibition on the telecast of outside games into the home territory of a team that was playing at home was a reasonable method of protecting the home team's gate receipts and was not illegal under the antitrust laws. The court found, however, that restricting the telecast of outside games into the home territory of a team not playing at home was an unreasonable restraint on trade because, when the home team was playing away, there was no gate to protect.
3. In 1961, the NFL entered into an agreement with the CBS television network under which the NFL's member teams pooled the television rights to their games and authorized the league to sell the rights to the network as a package, with the revenue from the league sales to be distributed equally among the member teams. Under this agreement, CBS was permitted to determine which games would be televised and where the games would be televised. The NFL then petitioned the court for a ruling on whether the terms of its contract with CBS violated the court's 1953 final judgment. The court concluded that the provision giving CBS the power to determine which games would be televised and where was contrary to the final judgment and that execution and performance of the contract was therefore prohibited. This ruling did not, however, apply to a similar contract between the newly formed American Football League (AFL) and the ABC television network, because the AFL was not a party to the court's 1953 final judgment. Concerned
4. Congress responded to the NFL's plea for relief with its passage of the Sports Broadcasting Act of 1961. The Sports Broadcasting Act exempts from the antitrust laws joint agreements among individual teams engaged in professional football, baseball, basketball, or hockey that permit the leagues to pool the individual teams' television rights and sell those rights as a package. This statute also expressly permits these four professional sports leagues to black out television broadcasts of home games within the home territory of a member team. At the time the Sports Broadcasting Act was enacted, television blackouts were believed to be necessary to protect gate receipts, and the packaging of individual teams' television rights was thought to be necessary to enhance the financial stability of the leagues by assuring equal distribution of revenues among all teams. The NFL subsequently instituted a practice of blacking out the television broadcast of all home games of its member teams in their home territory, irrespective of whether the games were sold out.
5. In August 1971, the Commission sent a letter to Congress seeking guidance on the Commission's proposed regulatory scheme for the then-nascent cable television industry, which included several proposals relating to sports programming. The Commission noted the exemptions from the anti-trust laws granted to professional sports leagues under the Sports Broadcasting Act and stated that “cable systems should not be permitted to circumvent the purpose of th[is] law by importing the signal of a station carrying the home game of a professional team if that team has elected to black out the game in its home territory.” The Commission indicated that it would follow the “spirit and letter” of the Sports Broadcasting Act “since it represents Congressional policy in this important area” and stated that it intended to initiate a rulemaking proceeding on this issue in the near future. The Commission commenced a rulemaking proceeding proposing a sports blackout rule for cable television systems in February 1972.
6. In 1973, during the pendency of the Commission's rulemaking proceeding, Congress enacted Public Law 93–107 in response to complaints from dissatisfied football fans who were unable to view the sold out home games of their local teams on the public airwaves due to the NFL's blackout policy. Public Law 93–107 added new section 331 to the Communications Act of 1934, as amended (Communications Act), which prohibited professional sports leagues from blacking out the television broadcast of a home game in a team's home territory if the game was televised elsewhere pursuant to a league television contract and the game sold out 72 hours in advance of game time. Public Law 93–107 was intended as a limited experiment to allow all affected parties to assess the impact of the statute and expired by its own terms effective December 31, 1975. Although the statute was not renewed, the NFL subsequently continued to follow the practice of blacking out the television broadcast of home games in a team's home territory only if the game was not sold out 72 hours in advance of game time.
7. In the meantime, the Commission adopted the cable sports blackout rule in 1975 to address concerns that cable systems could frustrate sports leagues' blackout policies by importing the distant signal of a television station carrying the home game of a sports team that has elected to black out the game in its home territory. Specifically, the Commission found that
[g]ate receipts are the primary source of revenue for sports clubs, and teams have a reasonable interest in protecting their home gate receipts from the potentially harmful financial effects of invading telecasts of their games from distant television stations. If cable television carriage of the same game that is being played locally is allowed to take place, the local team's need to protect its gate receipts might require that it prohibit the telecasting of its games on [distant] television stations which might be carried on local cable systems. If this were to result, the overall availability of sports telecasts would be significantly reduced.
The Commission emphasized that its concern was not in ensuring the profitability of organized sports, but rather in ensuring the overall availability of sports telecasts to the general public, which it found was “of vital importance to the larger and more effective use of the airwaves.” The cable sports blackout rule adopted by the Commission, which was originally codified in § 76.67 and later renamed, slightly revised, and renumbered as § 76.111, is designed to allow the holder of the exclusive distribution rights to the sports event (
8. The Telecommunications Act of 1996 (1996 Act) added a new section 653 to the Communications Act, which established a new framework for entry into the video programming distribution market, the open video system. Congress's intent in establishing the open video system framework was “to encourage telephone companies to enter the video programming distribution market and to deploy open video systems in order to `introduce vigorous competition in entertainment and information markets' by providing a competitive alternative to the incumbent cable operator.” As an incentive for telephone company entry into the video programming distribution market, section 653 provides for reduced regulatory burdens for open video systems subject to the systems' compliance with certain non-discrimination and other requirements set forth in Section 653(b)(1). Section 653(b)(1)(D) directed the Commission to extend to the distribution of video programming over open video systems the Commission's rules on sports blackouts, network nonduplication, and syndicated exclusivity. The Commission amended its rules in 1996 to directly apply the existing cable sports blackout rule to open video systems.
9. In November 1999, Congress enacted the Satellite Home Viewer Improvement Act of 1999 (SHVIA), which provides statutory copyright licenses for satellite carriers to provide additional local and national broadcast programming to subscribers. In enacting
10. The Commission adopted a sports blackout rule for satellite carriers in November 2000. This rule provides that, on the request of the holder of the rights to a sports event, a satellite carrier may not retransmit a nationally distributed superstation or a network station carrying the live television broadcast of the sports event to subscribers if the event is not being carried live by a local television broadcast station. This rule applies within the same 35-mile zone of protection that applies to cable systems applies to satellite carriers; that is, 35 miles surrounding the reference point of the broadcast station's community of license in which the live sporting event is taking place.
11. The Commission last examined the sports blackout rules more than seven years ago, in a 2005 report to Congress required by the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA). SHVERA directed the Commission to complete an inquiry and submit a report to Congress “regarding the impact on competition in the multichannel video programming distribution market of the current retransmission consent, network non-duplication, syndicated exclusivity, and sports blackout rules, including the impact of those rules on the ability of rural cable operators to compete with direct broadcast satellite (`DBS') industry in the provision of digital broadcast television signals to consumers.” SHVERA also directed the Commission to “include such recommendations for changes in any statutory provisions relating to such rules as the Commission deems appropriate.” The Commission concluded in its report that the sports blackout rules do not affect competition among MVPDs, that commenters failed to advance any link between the blackout rules and competition among MVPDs, and that no commenter pressed the case for repeal or modification of the sports blackout rules. The Commission therefore declined to recommend any regulatory or statutory revisions to modify the protections afforded to the holders of sports programming rights.
12. Today, sports leagues' blackout policies determine which games are blacked out locally. These policies are given effect primarily through contractual arrangements negotiated between the leagues or individual teams that hold the rights to the games and the entities to which they grant distribution rights, including television networks, local television broadcast stations, Regional Sports Networks (RSNs), and MVPDs. The Commission's rules, described above, supplement these contractual relationships by requiring MVPDs to black out games that are required by the sports leagues or individual teams to be blacked out on local television stations.
13. In November 2011, the Sports Fan Coalition, Inc., National Consumers League, Public Knowledge, League of Fans, and Media Access Project (collectively, Petitioners or SFC) filed a joint Petition for Rulemaking urging the Commission to eliminate the sports blackout rules. The Petitioners assert that, at a time when ticket prices for sports events are at historic highs and high unemployment rates persist, making it difficult for many consumers to afford attending local sports events, the Commission should not support the “anti-consumer” blackout policies of professional sports leagues. The Petitioners also argue that the sports leagues' blackout policies are no longer needed to protect gate receipts and therefore should not be facilitated by the Commission's sports blackout rules. The Petitioners maintain that, “without a regulatory subsidy from the federal government in the form of the [sports blackout rules], sports leagues would be forced to confront the obsolescence of their blackout policies and could voluntarily curtail blackouts.” On January 12, 2012, the Media Bureau issued a Public Notice seeking comment on the Petition. Comments in support of the petition were filed by SFC, a group of nine sports economists, several members of Congress, and thousands of individual consumers. The NFL, the Office of the Commissioner of Baseball (Baseball Commissioner), the National Association of Broadcasters, and a group of network television affiliates filed comments opposing the Petition.
14. We propose to eliminate the sports blackout rules. The sports blackout rules were first adopted nearly four decades ago to ensure that the potential loss of gate receipts resulting from cable system importation of distant stations did not lead sports clubs to refuse to sell their rights to sports events to distant stations, which would reduce the overall availability of sports programming to the public. The rules were extended to open video systems and then to satellite carriers to provide parity between cable and newer video distributors. The sports industry has changed dramatically in the last 40 years, however, and the Petitioners argue that the economic rationale underlying the sports blackout rules may no longer be valid. Below we seek comment on whether we have authority to repeal the sports blackout rules. Next, we examine whether the economic considerations that led to adoption of the sports blackout rules continue to justify our intervention in this area. Finally, we propose to eliminate the sports blackout rules and seek comment on the potential benefits and harms of that proposed action on interested parties, including sports leagues, broadcasters, and consumers.
15. We seek comment on whether we have the authority to repeal the sports blackout rules. As discussed above, Congress did not explicitly mandate that the Commission adopt the cable sports blackout rule. Rather, the Commission adopted the cable sports blackout rule as a regulatory measure premised on the policy established by Congress in the Sports Broadcasting Act, which exempts from the antitrust laws joint agreements among individual teams engaged in professional football, baseball, basketball, or hockey that permit the leagues to pool the individual teams' television rights and sell those rights as a package and expressly permits these four professional sports leagues to black out television broadcasts of home games within the home territory of a member team. Section 653(b)(1)(D) of the Act, as added by the 1996 Act, directed the Commission to extend to open video systems “the Commission's regulations concerning sports exclusivity (47 CFR 76.67).” Similarly, Section 339(b) of the Communications Act, as added by SHVIA in 1999, directed the Commission to “apply . . . sports blackout protection (47 CFR 76.67) to the retransmission of the signals of nationally distributed superstations by satellite carriers” and, “to the extent technically feasible and not economically prohibitive, apply sports blackout protection (47 CFR 76.67) to the retransmission of the signals of network stations by satellite carriers.” Reflecting the language used in these
16. We request comment on whether the economic rationale underlying the sports blackout rules remains valid in today's marketplace. Specifically, we invite commenters to submit information, and to comment on information currently in the record, regarding (i) the extent to which sports events continue to be blacked out locally as a result of the failure of the events to sell out, (ii) the relative importance of gate receipts vis-à-vis other revenues in organized sports today, and (iii) whether local blackouts of sports events significantly affect gate receipts. We invite commenters also to submit any other information that may be relevant in assessing whether the sports blackout rules are still needed to ensure the overall availability of sports telecasts to the public. We ask commenters to assess whether this information, as updated and supplemented, supports retaining or eliminating the sports blackout rules.
17. We seek comment on the extent to which sports events are blacked out locally today due to the failure of the events to sell out. The record indicates that professional football continues to be the sport most affected by blackouts. Under the NFL's longstanding blackout policy, the television broadcast of home games in a team's home territory has been blacked out if the game was not sold out 72 hours in advance of game time. In 1974, just prior to the Commission's adoption of the cable sports blackout rule, 59 percent of regular season NFL games were blacked out due to failure of the games to sell out. During the 2011 NFL season, only 16 out of 256 regular season games, or six percent of games, were blacked out. These 16 blackouts occurred in just four cities: Buffalo, Cincinnati, San Diego, and Tampa Bay. Thus, the percentage of NFL games that are blacked out today has dropped substantially since the sports blackout rules were adopted, and blackouts of NFL games are relatively rare. Does this substantial reduction in the number of blacked out NFL games suggest that the sports blackout rules are no longer needed? Conversely, does the relatively small number of blackouts of NFL games argue against the need to eliminate the sports blackout rules? To what extent are blackouts of NFL games averted when teams and local businesses work together to “sell” outstanding tickets, thereby allowing local coverage of games? Has the cable sports blackout rule had any impact on the number of NFL blackouts? How should this affect our analysis?
18. We note that in 2012, after the petition for rulemaking in this proceeding was put out for comment, the NFL modified its blackout policy to allow its member teams the option of avoiding a blackout in their local television market if the team sold at least 85 percent of game tickets at least 72 hours prior to the game. Specifically, under this new policy, individual teams are required to determine their own blackout threshold—anywhere from 85 percent to 100 percent—at the beginning of the season and adhere to that number throughout that season. If ticket sales exceed the threshold set by the team, the team must share a higher percentage of the revenue from those ticket sales than usual with the visiting team. We seek comment on the extent to which this new policy has impacted blackouts of NFL games. According to SFC, there were 15 NFL games blacked out affecting five NFL franchises during the 2012 season. Which teams opted to take advantage of the NFL's new blackout policy and what effect, if any, did the NFL's relaxation of its blackout policy have on ticket sales for the home games of these teams? Does the NFL's recent relaxation of its sports blackout policy weigh in favor of or against elimination of the Commission's sports blackout rules?
19. We note that the record is largely silent on the prevalence of blackouts affecting sports other than the NFL; thus we invite comment on the extent to which these sports events are blacked out locally today. As noted above, the sports blackout rules apply to all sports
[t]he FCC's rules currently have little relevance with respect to television rights that are sold by a team rather than the league. The FCC's rules apply only to games in the local area where they are being played. Thus, the FCC's blackout rules bear no relation to league policies that prevent telecasts in a team's home market of a game being played elsewhere. For games that are played locally, the vast majority of teams choose to sell television rights to all or most of their games. * * *
To what extent are the sports blackout rules still relevant for sports other than professional football, where individual teams, rather than the league, hold and sell the distribution rights for all or most of the games? In this regard, we seek comment on the importance of retaining the sports blackout rules to protect the viability of any nascent sports leagues that may emerge in the future.
20. Professional baseball is the only other sport for which commenters provided any information on blackouts. Commenters indicate that the number of MLB games blacked out is relatively small because individual MLB teams, rather than the league, negotiate with local broadcast television flagship stations or RSNs for exclusive rights to televise most of the teams' games, both home and away games, in the teams' home territories. According to the Baseball Commissioner, in 2011, 151 of 162 regular season games of each MLB team, on average, were televised on the team's local broadcast television station or RSN. Therefore, the Baseball Commissioner asserts, at most eleven of 162 regular season games of each MLB team were affected by the sports blackout rules. To the extent that more specific data are available regarding the number of home games of MLB teams blacked out pursuant to the Commission's sports blackout rules, as opposed to MLB's blackout policies, we request that commenters provide those data. Specifically, for each MLB team, we seek current data on whether exclusive rights to televise most of the teams' games have been granted to local broadcast flagship stations or RSNs and the number of home games that are blacked out pursuant to the Commission's rules. Does the number of games blacked out argue in favor of or weigh against repeal of the sports blackout rules? In addition, for home games that are blacked out under our rules, we seek information as to why they are blacked out. In this regard, the Baseball Commissioner states that “[t]he vast majority of MLB games are not sold out. While there are specific instances in which MLB clubs do take account of gate attendance in making decisions about telecasting patterns (and invoking the [Commission's sports blackout rules]), MLB clubs do not routinely black out games that are not sold out.” Accordingly, what factors other than attendance are taken into account in determining which MLB games are blacked out locally? How many MLB games were blacked out due to failure to sell out and how many were blacked out for other reasons? If, as reported, few MLB games are blacked out due to failure to sell out, does this support the conclusion that the sports blackout rules are not needed to promote attendance at sports events?
21. We likewise request specific data detailing the extent to which any other sports events, including games of other major professional sports leagues (
22. We seek comment on the relative importance of gate receipts vis-à-vis other revenues in sports today. As discussed above, when the Commission adopted the cable sports blackout rule in 1975, it found that “gate receipts were the
23. There is scant information in the record regarding the significance of gate receipts in relation to other sources of revenue for sports other than professional football. The Baseball Commissioner states only that, “in any given year, ticket sales and television revenues account for roughly the same portion of [MLB's] revenues and both are critically important to an MLB club's economic health.” To the extent that commenters assert that the sports blackout rules remain necessary to ensure the overall availability of telecasts of particular sports to the public, we request that they provide current revenue data for such sports, including total revenues, television revenues, and gate receipts. We note that, during recent years, MLB has entered into other revenue-generating ventures, such as the MLB Channel, a baseball-related programming channel available to MVPD subscribers, and Extra Innings, which offers regular season game premium (pay) packages through MVPDs to their subscribers. MLB also offers regular season game packages directly to customers through MLB.tv. Such programming is streamed over the Internet and can be viewed on computers and mobile devices, as well as on televisions using devices such as Apple TV. Moreover, many teams either own the RSNs that carry their game telecasts or have obtained ownership interests in RSNs. Does the emergence of these additional revenue sources impact the relative importance of gate receipts and, accordingly, the continued
24. We seek comment on the extent to which local blackouts of sports events affect attendance and gate receipts at those events and the extent to which the cable sports blackout rule itself affects attendance and gate receipts at sports events. As discussed above, the sports blackout rules are intended to address concerns that MVPDs' importation of a distant signal carrying a blacked-out sports event could lead to lost revenue from ticket sales, which might cause sports leagues to expand the reach of blackouts by refusing to sell their rights to sports events to all distant stations. The objective of the sports blackout rules is not to ensure the profitability or financial viability of sports leagues, but rather to ensure the overall availability of sports programming to the general public. Thus, we are interested in gate receipts and other revenues of sports leagues only to the extent that such revenues are relevant to this objective. Based on their review of several econometric studies of attendance at NFL games as well as other team sports in the U.S. and Europe, the Sports Economists conclude that there is no evidence that local blackouts of NFL games significantly affect either ticket sales or no-shows at those games. We seek comment on the Sports Economists' conclusion and the underlying studies on which it relies. Do these studies support the conclusion that our sports blackout rules are no longer needed? For example, if local blackouts of NFL games do not significantly affect either ticket sales or no-shows at those games, does it follow that the cable sports blackout rule has no significant effect on attendance? Additionally, we invite commenters to submit any additional studies or evidence showing the extent to which local blackouts of NFL games impact gate receipts at those games and the extent to which the cable sports blackout rule itself impacts gate receipts. In particular, we note that the NFL asserts that its blackout policy, as supported by the Commission's sports blackout rules, is designed to promote high attendance at games. We invite the NFL and other interested commenters to submit any available data or evidence indicating that the NFL's blackout policy in fact has the intended effect of promoting attendance at games. As noted above, only four cities were affected by local blackouts of NFL games in 2011: Buffalo, Cincinnati, San Diego, and Tampa Bay; in 2012, local blackouts of NFL games were limited to Buffalo, Cincinnati, Oakland, San Diego, and Tampa Bay. We seek comment on whether certain teams or cities are routinely disproportionately affected by local blackouts of NFL games and, if so, why. For example, some commenters suggest that certain cities are more severely impacted by blackouts because of conditions in the local economy (
25. Are the sports blackout rules necessary to sustain gate receipts and other revenues for NFL clubs? Commenters who assert that eliminating the sports blackout rules would result in a significant reduction in gate receipts or other revenues for NFL clubs should quantify or estimate the anticipated reduction and explain the basis for their estimates. We also seek comment on the connection between any such lost revenues and the willingness of teams to enter into agreements allowing broadcast coverage of their games, maximizing the availability of such broadcasts to the public.
26. There is no specific information in the record regarding the effect of blackouts on gate receipts for any other sports events. We seek comment on whether blackouts have any significant effect on gate receipts for any sports events other than NFL games. Commenters should provide any available data or evidence to support their positions. What impact, if any, would elimination of the sports blackout rules be expected to have on gate receipts and other revenues for these sports? To the extent that commenters argue that eliminating the sports blackout rules would result in a significant reduction in gate receipts or other revenues for these sports, we request that they quantify or estimate the anticipated reduction and explain the basis for their estimates.
27. Some commenters suggest that blacking out games may actually harm, rather than support, ticket sales. We seek comment on whether blacking out sports events may have the unintended effect of alienating sports fans and discouraging their attendance at home games. According to the Petitioners, recent empirical studies suggest that televising professional sports may actually have a positive effect on attendance at home games. Does televising sports events serve to generate interest among sports fans and thereby promote higher attendance at home games in the long run? If this is the case, then why would a professional sports league, such as the NFL, ever seek to black out games? For example, do commenters believe that the NFL is operating pursuant to a mistaken understanding of the relationship between blackouts and attendance? Or do commenters believe that the NFL has reason for maintaining its blackout policy other than attendance? Commenters are invited to submit any studies or evidence supporting the view that televising sports events encourages attendance at home games.
28. We invite commenters to submit any other information or data that they believe is relevant to our assessment of whether the sports blackout rules remain necessary to ensure the overall availability of sports telecasts to the public. For example, are changes in the video distribution market in the 40 years since the sports blackout rules were originally adopted, such as those described above, relevant to our assessment? To what extent do sports leagues distribute games via such premium services today and what impact do such premium services have on the leagues' revenues and blackout policies? Commenters should explain how any such information supports or undercuts the economic basis for the sports blackout rules.
29. We propose to eliminate the sports blackout rules. With respect to professional football, the sport most affected by the sports blackout rules, it appears from the existing record that television revenues have replaced gate receipts as the most significant source of revenue for NFL clubs in the 40 years since the rules were first adopted. Moreover, the record received thus far indicates no direct link between blackouts and increased attendance at NFL games. The record also suggests that the sports blackout rules have little relevance for sports other than professional football, because the distribution rights for most of the games
30. We seek comment on how elimination of the sports blackout rules would affect sports leagues and teams and their ability, as holders of the exclusive distribution rights to their games, to control the distribution of home games in the teams' home territories. As discussed above, the sports leagues, not the Commission, are the source of sports blackouts. And the Commission's rules supplement the contractual relationships between the leagues or individual teams that hold the rights to the games and the entities to which they grant distribution rights by requiring MVPDs to black out games that are required by the sports leagues or individual teams to be blacked out on local television stations. To the extent that the Commission's rules are no longer needed to assure the continued availability of sports programming to the public, does the Commission have any continued interest in supplementing these contractual relationships? Should it instead be left to the sports leagues and individual teams to negotiate in the private marketplace whatever local blackout protection they believe they need?
31. Several commenters argue that the compulsory copyright licenses granted to MVPDs under Sections 111 and 119 of the Copyright Act would make it difficult or impossible for sports leagues or teams to negotiate the protection provided by the sports blackout rules through private contracts. The compulsory licenses permit cable systems and, to a more limited extent, satellite carriers to retransmit the signals of distant broadcast stations without obtaining the consent of the sports leagues whose games are carried on those stations, when the carriage of such stations is permitted under FCC rules. Absent the sports blackout rules, these commenters argue, an MVPD would be able to take advantage of the compulsory license to retransmit the signal of a distant station carrying a game that has been blacked out locally by a sports league or team.
32. We seek comment on how the compulsory licenses would affect the ability of sports leagues and sports teams to obtain through market-based negotiations the same protection that is currently provided by the sports blackout rules. The NFL contends that, since it contracts with the CBS, NBC, and FOX networks for broadcast distribution of its games, it lacks privity with the local network affiliates that carry the games and with the MVPDs that retransmit the broadcast signals. Thus, it claims that ensuring that all of the other parties involved in the distribution of its games are contractually bound to honor the NFL's sports blackout policy would require rewriting hundreds of contracts, including contracts between the NFL and the CBS, NBC, and FOX networks, contracts between the networks and their affiliates, and contracts between the network affiliates and the MVPDs. The Petitioners assert that this argument ignores the direct privity of contract the sports leagues have with the MVPDs themselves, noting that virtually all MVPDs carry networks or game packages owned directly by the sports leagues, such as the NFL Network, MLB Network, NBA TV, NHL Network, and NFL Sunday Ticket (DIRECTV). We seek comment on the extent to which the sports leagues contract directly with MVPDs for carriage of networks or game packages owned directly by the sports leagues. Do such contracts already include some form of blackout protection and, if so, what protection do these contracts provide? In this connection, the Commission has previously found that sports leagues routinely negotiate with MVPDs greater blackout protection than that afforded by the sports blackout rules, and the comments in the record support this finding. For example, sports leagues and teams contractually negotiate with MVPDs blackouts of games throughout the teams' home territories, which generally extend well beyond the limited 35-mile zone of protection afforded by our sports blackout rules. In addition, the sports blackout rules afford blackout protection only to the home teams, whereas sports leagues or teams often negotiate blackout protection for both the home and away teams. Accordingly, if sports leagues and teams are able to obtain greater protection than that afforded under the sports blackout rules in arm's length marketplace negotiations, why do they need the sports blackout rules to avoid the impact of the compulsory licenses?
33. Moreover, the Commission has found that “[s]ports leagues control both broadcast carriage and MVPD retransmission of their programming.” It observed that a broadcaster cannot carry a sports event without the permission of the sports leagues or clubs that hold the rights to the event and, under the retransmission consent rules, MVPDs, with limited exceptions, cannot carry a broadcaster's signal without the permission of the broadcaster. Thus, the Commission reasoned that a sports league could prevent unwanted MVPD retransmission through its contracts with broadcasters by requiring, as a term of carriage, the deletion of specific sports events. Because the sports leagues could obtain local blackout protection through their contracts with broadcast stations, the Commission suggested that the sports leagues may not need the sports blackout rules to prevent MVPDs from using the compulsory licenses to carry blacked-out games. Instead, it stated that the sports blackout rules may serve primarily as an enforcement mechanism for existing contracts between broadcasters and sports leagues. We seek comment on this analysis. Could sports leagues or teams prevent MVPDs from retransmitting certain sports events through their contracts with broadcasters? If so, especially given the popularity of certain sports programming, would leagues such as the NFL be well positioned to secure blackout protection through private contractual negotiations? Would leagues need to renegotiate existing contracts with broadcasters to secure such protection? If so, should that affect our analysis? What effect, if any, would the NFL's lack of direct privity with the local network affiliates that carry the games have on its ability to control MVPD retransmission? What are the costs and benefits to sports leagues and teams of our elimination of the sports blackout rules? To the extent possible, we encourage commenters to quantify any costs and benefits and to submit supporting data.
34. We seek comment also on whether and how repeal of the sports blackout rules would affect consumers. We received more than 7,500 comments on the Petition from individual consumers who support elimination of the sports blackout rules. These comments indicate that sports blackouts, while less frequent now than when the sport blackout rules were first adopted, are still a significant source of frustration for consumers. Some of these consumers are disabled or elderly sports fans who are physically unable to attend games in
35. The Petitioners acknowledge that eliminating the Commission's sports blackout rules alone likely would not end local sports blackouts as sports fans may wish. We note that the leagues' underlying blackout policies would remain, and, as discussed above, the leagues may be able to obtain the same blackout protection provided under our rules through free market negotiations. The leagues could still require local television stations to black out games; thus, consumers that rely on over-the-air television would still be unable to view blacked-out games. Moreover, repeal of our sports blackout rules alone would not provide relief to consumers that are subject to blackouts resulting from the leagues' use of expansive home territories. Nevertheless, the Petitioners assert that, “unless and until the Commission eliminates the [sports blackout rules], the sports leagues will be under no pressure to contractually negotiate for the protection that they claim is necessary.” The Petitioners suggest that, if the leagues find that such negotiations would be too daunting, eliminating the sports blackout rules may compel the leagues to lower ticket prices until all seats are sold out or perhaps to end blackouts altogether. We seek comment on whether there is any benefit to consumers of repealing the sports blackout rules if the sports leagues' underlying blackout policies remain. Is removing unnecessary or obsolete regulations in itself a sufficient justification for eliminating the sports blackout rules, even if there is no direct or immediate benefit to consumers? If the evidence in this proceeding, including any data or studies submitted by commenters, suggests that there are no tangible benefits to retaining the sports blackout rules but that these rules also do not cause any tangible harms, should the Commission repeal the sports blackout rules? Would removing the Commission's tacit endorsement of the leagues' blackout policies serve the public interest? Are the leagues more likely to relax or reconsider their blackout policies if the Commission's sports blackout rules are repealed? How does our analysis of the issues differ between professional sports leagues which have been granted exemptions from the antitrust laws and sports leagues which have not been granted antitrust protections?
36. Further, we invite comment on any potential harm to consumers of eliminating the sports blackout rules. Some commenters express concern that eliminating the sports blackout rules could accelerate the migration of sports from free over-the-air television to pay TV, which would be harmful to consumers who cannot afford pay TV. As noted above, the compulsory copyright licenses granted to MVPDs apply to the retransmission of broadcast signals, not to pay TV content. According to NAB, if the sports blackout rules are eliminated, “sports leagues wishing to retain control over distribution of their content would have an incentive to move to pay platforms where the compulsory license would not undermine their private agreements.” Similarly, the NFL asserts that eliminating the sports blackout rules “would make broadcast television distribution more difficult, expensive and uncertain and accordingly would make cable network distribution a more appealing prospect.” What percentage of consumers watch the sports programming they view on broadcast television channels rather than pay TV or via the Internet using premium services such as MLB.tv? Would repeal of the sports blackout rules hasten the migration of NFL games from broadcast television channels to pay TV? If so, is it appropriate for the Commission to have the objective of preventing such a migration? We note that the NFL recently extended its contracts with the CBS, FOX, and NBC television networks, ensuring that many NFL games will remain on broadcast television channels at least through the 2022 season. In view of these contract extensions, it appears unlikely that NFL games would migrate further from broadcast television channels to pay TV in the near future. We nevertheless seek comment on whether repeal of the sports blackout rules would likely encourage migration of NFL games to pay TV in the immediate future or in the longer term. What effect, if any, would repeal of the sports blackout rules have on migration to pay TV of sports other than professional football? In this regard, the record suggests that other professional sports teams already distribute a majority of their regular season games via RSNs and other cable networks. Is elimination of the sports blackout rules likely to result in any further migration of these sports from broadcast television channels to pay TV? Are there any other potential harms to consumers from repealing the sports blackout rules? We encourage commenters to quantify, to the extent possible, any benefits and costs to consumers of eliminating the sports blackout rules and to submit supporting data.
37. Some commenters argue that eliminating the sports blackout rules would undermine broadcasters' local program exclusivity and harm localism. These commenters assert that the sports blackout rules, together with the network non-duplication and syndicated exclusivity rules, support local broadcasters' investments in high quality, diverse informational and entertainment programming. By hindering the ability of local broadcast stations to obtain and enforce exclusive local program rights, they assert, elimination of the sports blackout rules would make it more difficult for the stations to attract advertising, which in turn would reduce their ability to invest in local information programming and popular programming. Would elimination of the sports blackout rules have a negative impact on localism? What, if any, costs and benefits would repeal of the sports blackout rules have on broadcasters? To the extent possible, we encourage commenters to quantify any costs and benefits and to submit data supporting their positions.
38. We seek comment also on whether and how elimination of the sports blackout rules would affect any other entities. Some commenters assert that under the Copyright Act any change in the sports blackout rules will trigger a proceeding before the Copyright Royalty Tribunal to adjust the compulsory licensing rates that cable systems pay. Would such a rate adjustment proceeding be mandatory or discretionary on the part of the Copyright Royalty Tribunal? In this regard, we note that the Copyright Act provides that, if the sports blackout rules are changed, the compulsory licensing rates “
39. Finally, we seek comment on whether, as an alternative to outright repeal of the sports blackout rules, we should make modifications to these rules. If so, what modifications should we make, and why would such modifications be preferable to repeal of the sports blackout rules? Commenters that propose any such modifications should quantify the benefits and costs of their proposals and provide supporting data.
40. As required by the Regulatory Flexibility Act, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules considered in the attached
41. The
42. The
43. This
44. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
45.
46.
47.
48.
49.
50. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.
51. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396. These stations are non-profit, and therefore considered to be small entities.
52.
53.
54.
55.
56.
57. The proposed rule changes discussed in the
58. The RFA requires an agency to describe any significant alternatives that might minimize any significant economic impact on small entities. Such alternatives may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
59. As discussed in the NPRM, repeal of the sports blackout rules would not eliminate the sports leagues' underlying blackout policies. Rather, it would simply remove Commission support for these policies. Sports leagues would still be able to require local television broadcast stations to black out games. In addition, sports leagues would likely be able to obtain the same protection afforded under the sports blackout rules either through market-based negotiations with MVPDs or through their contracts with broadcasters by requiring, as a term of carriage, the deletion of specific sports events. Accordingly, we believe that repeal of the sports blackout rules would impose only minimal burdens on any affected entities. For this reason, an analysis of alternatives to the proposed rule changes is unnecessary. We invite comment on whether there are any alternatives we should consider that would minimize any adverse impact on small entities, but which maintain the benefits of our proposal.
60. None.
61. This
62.
63. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
1. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
2. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
3. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.
64.
65. For additional information on this proceeding, contact Kathy Berthot,
66. Accordingly,
67.
Cable television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 part 76 as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572 and 573.
Whenever, pursuant to the requirements of the network program non-duplication or syndicated program exclusivity rules, a satellite carrier is required to delete a television program from retransmission to satellite subscribers within a zip code area, such satellite carrier may, consistent with this subpart, substitute a program from any other television broadcast station for which the satellite carrier has obtained the necessary legal rights and permissions, including but not limited to copyright and retransmission consent. * * *
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Marine Mammal Protection Act exempts Alaskan natives from the prohibitions on taking, killing, or injuring marine mammals if the taking is done for subsistence or for creating and selling authentic native articles of handicraft or clothing. The natives need no permit, but non-natives who wish to act as a tanner or agent for such native products must register with NOAA and maintain and submit certain records. The information is necessary for law enforcement purposes.
Copies of the above information collection proposal can be obtained by calling or writing Jennifer Jessup, Departmental Paperwork Clearance Officer, (202) 482–0336, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a–81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
NOW, THEREFORE, the Board hereby approves subzone status at the facility of Philips 66 Company, located in Rodeo, California (Subzone 3E), as described in the application and
National Oceanic and Atmospheric Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before March 25, 2014.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instruments and instructions should be directed to Patsy A. Bearden, (907) 586–7008 or
This request is for extension of a currently approved information collection.
This information collection describes special permits issued to participants in the Pacific halibut subsistence fishery in waters off the coast of Alaska and any appeals resulting from denials. The National Marine Fisheries Service (NMFS) designed the permits to work in conjunction with other halibut harvest assessment measures. Subsistence fishing for halibut has occurred for many years among the Alaska Native people and non-Native people. Special permits are initiated in response to the concerns of Native and community groups regarding increased restrictions in International Pacific Halibut Commission Area 2C and include Community Harvest Permits, Ceremonial Permits, and Educational Permits.
A Community Harvest Permit allows the community or Alaska Native tribe to appoint one or more individuals from its respective community or tribe to harvest subsistence halibut from a single vessel under reduced gear and harvest restrictions. Ceremonial and Educational Permits are available exclusively to Alaska Native tribes. Eligible Alaska Native tribes may appoint only one Ceremonial Permit Coordinator per tribe for Ceremonial Permits or one authorized Instructor per tribe for Educational Permits.
Except for enrolled students fishing under a valid Educational Permit, special permits require persons fishing under them to also possess a Subsistence Halibut Registration Certificate (SHARC) (see OMB Control No. 0648–0460) which identifies those persons who are currently eligible for subsistence halibut fishing. Each of the instruments is designed to minimize the reporting burden on subsistence halibut fishermen while retrieving essential information.
Respondents have a choice of either electronic or paper forms. Methods of submittal include online, email of electronic forms, mail, and facsimile transmission of paper forms. Educational Permits may not be applied for online.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of meetings of the South Atlantic Fishery Management Council's Visioning Project (Port Meetings).
The South Atlantic Fishery Management Council (SAFMC) will hold a series of public port meetings as part of the Council Visioning Project.
The meetings will be held from February through April 2014. Meeting dates will be posted on the SAFMC Web site, sent out via email distribution, and other Council related outreach publications (newsletter, news releases, social media platforms, postcards, etc.).
Amber Von Harten, Fishery Outreach Specialist, SAFMC; telephone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769–4520; email:
The South Atlantic Fishery Management Council is developing a long-term vision and strategic plan for managing the snapper grouper fishery along with the process for engaging stakeholders in the project. The Council views this as a plan to work cooperatively with all stakeholders having fishery interests. The visioning and strategic planning project will evaluate and refine current goals, objectives and strategies for managing the snapper grouper fishery through informed public input via port meetings.
The items of discussion during the port meetings are as follows:
Participants will discuss ideas for future long-term management of the snapper grouper fishery.
Meetings will be hosted by fishermen and others with fishery interests and facilitated by Council staff. In addition, fishermen and others with fishery interests will assist with promoting the meetings in their communities. Members of the public are encouraged to view the SAFMC Web site for more details as they become available under the Visioning Project page at
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Mackerel, Squid, and Butterfish Advisory Panel will hold a public meeting.
The meeting will be held on February 10, 2014, from 2 p.m. until 5 p.m.
The meeting will be held via webinar. Webinar registration and connection details are available at:
Christopher M. Moore Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 526–5255.
The purpose of the meeting is to gather input from the Advisory Panel on upcoming Council actions, primarily Framework 9 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. Framework 9 addresses concerns about slippage events on observed fishing trips. Slippage events occur when all or a portion of a haul is released before observers can document/sample the catch.
Although issues not contained in this notice may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders at the Mid-Atlantic Council Office, (302) 526–5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meetings.
The Mid-Atlantic Fishery Management Council (Council) will hold public meetings.
The meetings will be held on Tuesday, February 11, 2014 through Thursday, February 13, 2014. See
The meetings will be held at the Double Tree by Hilton-Riverfront, 100 Middle St., New Bern, NC 28560; telephone: (252) 638–3585.
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526–5255.
9 a.m.—The Council will convene.
9 a.m. until 5 p.m.—The Climate Change and Fishery Science Workshop will be held.
9 a.m.—The Council will convene.
9 a.m. until 11:45 a.m.—The Mackerel, Squid, Butterfish Committee will meet as a Committee of the Whole.
11:45 a.m. until 12 p.m.—The Ricks E Savage Award will be presented.
1 p.m. until 2 p.m.—Meeting 1 for the Omnibus Allowable Biological Catch (ABC) Framework will be held.
2 p.m. until 3 p.m.—Meeting 1 for Framework 8 to the Summer Flounder, Scup, and Black Sea Bass Plan regarding Scup Gear Restricted Areas (GRAs) will be held.
3 p.m. until 4 p.m.—The Standardized Bycatch Reporting Methodology Amendment will be discussed.
4 p.m. until 5 p.m.—A Data Portal Presentation will be held.
5 p.m. until 6 p.m.—The South Atlantic Fishery Management Council (SAFMC) will hold a public hearing pertaining to Coastal Migratory Pelagics (CMP) Amendment 1.
8:30 a.m. until 9:30 a.m.—Monkfish Framework 8 will be discussed.
9:30 a.m. until 1 p.m.—The Council will hold its regular Business Session to receive Organizational Reports, the New England and South Atlantic Liaison Reports, the Executive Director's Report, the Science Report, Committee Reports, and conduct any continuing and/or new business.
Agenda items by day for the Council's Committees and the Council itself are:
On Tuesday, February 11—A Climate Change and Fishery Science Workshop will be held. The purpose of the workshop is to inform the Council about the state of climate science relative to prediction of climate change and the expected ecosystem impacts/changes which may occur over the next two decades. Workshop outcomes will help the Council in the development of an adaptive fishery management framework that will effectively deal with ecosystem responses related to climate change.
On Wednesday, February 12—The Mackerel, Squid, Butterfish Committee will meet as a Committee of the Whole to discuss the Slippage Framework (Framework Meeting 2—action to minimize slippage events on observed mackerel trips) and the Omnibus Observer Funding Amendment (review purpose, goals, and preliminary alternatives). The Ricks E Savage Award will be presented. Meeting 1 of the Omnibus ABC Framework (tier 2 assessment revision, multiyear issues, automatic incorporation of new reference points) will be discussed. Meeting 1 for Framework 8 to the Summer Flounders, Scup, and Black
On Thursday, February 13—Monkfish Framework 8 will be discussed to approve final measurements to consist of 2014–16 ABC/Annual Catch Target (ACT), Days-at-Sea, and Trip Limits and the northern boundary for Permit Category H vessels.
The Council will hold its regular Business Session to receive Organizational Reports, the New England Council Liaison Report, the Executive Director's Report, Science Report, Committee Reports, and conduct any continuing and/or new business.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526–5251, at least 5 days prior to the meeting date.
Committee for Purchase From People Who are Blind or Severely Disabled.
Additions to and deletions from the Procurement List.
This action adds products to the Procurement List that will be furnished by the nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and a service from the Procurement List 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.
Patricia Briscoe, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 11/8/2013 (78 FR 67129–67130), the Committee for Purchase From People Who are Blind or Severely Disabled published notice of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agency to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products 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 organization that will furnish the products to the Government.
2. The action will result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products proposed for addition to the Procurement List.
Accordingly, the following products are added to the Procurement List:
On 12/13/2013 (78 FR 75911–75912), the Committee for Purchase from People Who are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and service 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 service deleted from the Procurement List.
Accordingly, the following products and service are deleted from the Procurement List:
Committee for Purchase From People Who are Blind or Severely Disabled.
Proposed additions to and deletions from the Procurement List.
The Committee is proposing to add a service and products to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities and to delete products and a service 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.
Patricia Briscoe, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the service and products listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following service and products are proposed for addition to Procurement List for production by the nonprofit agencies listed:
The following products and service are proposed for deletion from the Procurement List:
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of intent.
The U.S. Army Corps of Engineers, New York District (District), is preparing a Supplemental Environmental Impact Statement (SEIS) to ascertain compliance with applicable Federal and State environmental laws for the authorized Raritan Bay and Sandy Hook Bay, New Jersey Feasibility Report for Hurricane and Storm Damage Reduction Union Beach, New Jersey Final Feasibility Report. The study area occupies an approximate 1.8 square mile area of land along the coast of Raritan Bay in the Borough of Union Beach, Monmouth County, New Jersey. The project was authorized for construction in the Water Resources Development Act of 2007 (Pub. L. 110–114) on November 8, 2007 but has yet to be constructed. An EIS for the authorized project was finalized in September 2003. This SEIS will identify any changes in the potential social, economic, cultural, and environmental affects through the implementation of the authorized plan since the EIS was published.
U.S. Army Corps of Engineers, New York District, Planning Division, Environmental Analysis Branch, 26 Federal Plaza, Room 2151, New York, NY 10278–0090.
Matthew Voisine, Project Biologist,
1. The area is located in low elevation regions with numerous small creeks providing drainage. Low-lying residential and commercial structures in the area experience flooding caused by coastal storm inundation. This problem has progressively worsened in recent years due to loss of protective beaches and increased urbanization in the area with structures susceptible to flooding from rainfall and coastal storm surges, erosion and wave attack, combined with restrictions to channel flow in the tidal creeks. This area was devastated by Hurricane Sandy in October 2012. A NJDEP Community Affairs Report described 1,096 houses and 84 rentals with minor damage, 136 houses and 107 rentals with major damage, and 194 houses and 88 rentals with severe damage in Union Beach as a result of Hurricane Sandy.
2. The authorized plan recommends the implementation of a storm damage reduction project consisting of a combination of levee, floodwalls, tide gates, pump stations, a dune, and a beach berm with terminal groins. The project would also construct wetland habitat to mitigate for the loss of wetlands due to the implementation of the recommended plan.
3. The SEIS is will evaluate any changes in the project that may be necessary due to changes in regulations or existing conditions, including natural resources and the affects of hurricane Sandy. In one such proposed change the original authorized plans included the use of I–walls, which will need to be replaced per USACE Engineering Technical Letter (ETL) 1110–2–575, Engineering Design Evaluation of I-walls. The replacement for I-walls may have a larger footprint, potentially impacting more resources.
4. It is anticipated that a Draft SEIS is will be made available for public review in May 2014. Anyone with comments as to the scope of the SEIS or information that should be included in such assessment should provide this in writing to Mr. Voisine (see
5. Individuals interested in obtaining a copy of the Draft SEIS for review should contact Matthew Voisine (see
6. All federal agencies interested in participating as a Cooperating Agency are requested to submit a letter of intent to COL Paul E. Owen, District Engineer, U.S. Army Corps of Engineers, 26 Federal Plaza, Room 2109, New York, NY 10278–0090.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission or FERC's) regulations, 18 Code of Federal Regulations (CFR) Part 380 (Order No. 486, 52
Staff prepared an environmental assessment (EA), which analyzes the potential environmental effects of licensing the project and concludes that licensing the project, with appropriate protective measures, would not constitute a major federal action significantly affecting the quality of the human environment.
A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
Any comments should be filed within 30 days from the date of this notice. The Commission strongly encourages electronic filing. Please file the requested information using the Commission's eFiling system at
Please contact Aaron Liberty by telephone at (202) 502–6862 or by email at
The Federal Energy Regulatory Commission hereby gives notice that members of the Commission and Commission staff may attend the following MISO-related meetings:
Except as noted, all of the meetings above will be held at: MISO Headquarters, 701 City Center Drive, 720 City Center Drive, and Carmel, IN 46032.
Further information may be found at
The above-referenced meetings are open to the public.
The discussions at each of the meetings described above may address matters at issue in the following proceedings:
For more information, contact Patrick Clarey, Office of Energy Markets Regulation, Federal Energy Regulatory Commission at (317) 249–5937 or
Take notice that on December 20, 2013, the Commission issued a notice of technical conference on the Revisions to Electric Quarterly Report (EQR) Filing Process. The conference will take place on Wednesday, January 22, 2014 from 10:00 a.m. to 1:00 p.m. (EST), in the Commission Meeting Room at 888 First Street NE., Washington, DC 20426. The public may attend.
This supplemental notice is to clarify logistics for this event. Participants, either attending in person or on the webcast, are encouraged to preregister at
This meeting/conference will be transcribed. Transcripts of the meeting/conference will be immediately available for a fee from Ace-Federal Reporters, Inc. (202–347–3700 or 1–800–336–6646). A free webcast of the meeting/conference is also available through
Any additional information regarding the agenda for the technical conference will be posted prior to the conference on the Calendar of Events on the Commission's Web site,
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about the technical conference, please contact:
Sarah McKinley, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502–8368,
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
This notice provides the names, addresses, professional affiliations, and selected biographical data of persons recently nominated to serve on the Scientific Advisory Panel (SAP) established under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Agency, at this time, anticipates selecting two new FIFRA SAP members to serve, as a result of membership terms that expire in 2014. Public comments on the current nominations are invited. These comments will be used to assist the Agency in selecting the new FIFRA SAP members.
Comments, identified by docket identification (ID) number EPA–HQ–OPP–2013–0776, must be received on or before February 10, 2014.
Submit your comments, identified by docket ID number EPA–
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Fred Jenkins, Designated Federal Officer (DFO), Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 564–3327; fax number: (202) 564–8382; email address:
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
When submitting comments, remember to:
1. Identify the document by docket ID number and other identifying information (subject heading,
2. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
4. Describe any assumptions and provide any technical information and/or data that you used.
5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
6. Provide specific examples to illustrate your concerns and suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline identified.
The FIFRA SAP serves as the primary scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide scientific advice, information, and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. The FIFRA SAP is a Federal advisory committee, established in 1975 under FIFRA, that operates in accordance with requirements of the Federal Advisory Committee Act (FACA). The FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Deputy Administrator from nominees provided by the National Institutes of Health (NIH) and the National Science Foundation (NSF). FIFRA, as amended by the Food Quality and Protection Act (FQPA), established a Science Review Board consisting of at least 60 scientists who are available to the FIFRA SAP on an ad hoc basis to assist in reviews conducted by the FIFRA SAP. As a peer review mechanism, the FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists. Members of the FIFRA SAP are scientists who have sufficient professional qualifications, including training and experience, to provide expert advice and recommendation to the Agency.
The Agency, at this time, anticipates selecting two new members to serve on the panel as a result of membership terms that expire in 2014. The Agency requested nominations of experts in the fields of human toxicology, environmental toxicology, pathology, risk assessment, and/or environmental biology with demonstrated experience and expertise in all phases of the risk assessment process including: Planning, scoping, and problem formulation; analysis; and interpretation and risk characterization (including the interpretation and communication of uncertainty). Nominees should be well published and current in their field of expertise. FIFRA stipulates that we publish the name, address, and professional affiliation of the nominees in the
A Charter for the FIFRA SAP, dated October 19, 2012, was issued in accordance with the requirements of FACA (5 U.S.C. App. I).
FIFRA SAP members are scientists who have sufficient professional qualifications, including training and experience, to be capable of providing expert comments as to the impact of pesticides on health and the environment. No persons shall be ineligible to serve on FIFRA SAP by reason of their membership on any other advisory committee to a Federal department or agency or their employment by a Federal department or agency (except EPA). The EPA Deputy Administrator appoints individuals to serve on FIFRA SAP for staggered terms of 3 years. FIFRA SAP members are subject to all ethics requirements applicable to Special Government Employees, which include rules regarding conflicts of interest. Each nominee selected by the EPA Deputy Administrator, before being formally appointed, is required to submit a confidential statement of employment and financial interests, which shall fully disclose, among other financial interests, the nominee's sources of research support, if any.
In accordance with FIFRA section 25(d)(1), all nominees considered for appointment to FIFRA SAP shall furnish information concerning their professional qualifications, educational background, employment history, and scientific publications.
With respect to the requirements of FIFRA section 25(d) that the EPA Administrator promulgate regulations regarding conflicts of interest, EPA's existing ethics regulations applicable to Special Government Employees, which include advisory committee members, will apply to the members of FIFRA SAP.
In accordance with FIFRA section 25(d), EPA, on September 27, 2013, requested that NIH and NSF nominate scientists to fill vacancies occurring on FIFRA SAP. The Agency requested nominations of experts in the fields of human toxicology, environmental toxicology, pathology, risk assessment, and/or environmental biology with demonstrated experience and expertise in all phases of the risk assessment
1. Asa Bradman, Ph.D., University of California—Berkeley, Berkeley, CA.
2. Aaron Blair, Ph.D., National Cancer Institute, Bethesda, MD.
3. William Bradshaw, Ph.D., University of Oregon, Eugene, OR.
4. Carlos Davidson, Ph.D., San Francisco State University, San Francisco, CA.
5. Vincent Hand, Ph.D., HandCompass Consulting LLC, Oxford, OH.
6. Lawrence M. Hanks, Ph.D., University of Illinois at Urbana—Champaign, Urbana, IL.
7. Charles Lynch, M.D., University of Iowa, Iowa City, IA.
8. Thomas A.E. Platts-Mills, M.D., University of Virginia, Charlottesville, VA.
9. Alvaro Puga, Ph.D., University of Cincinnati, College of Medicine, Cincinnati, OH.
10. Theodore Slotkin, Ph.D., Duke University School of Medicine, Durham, NC.
11. Rick Relyea, Ph.D., University of Pittsburgh, Pittsburgh, PA.
Following are the names, addresses, professional affiliations, and selected biographical data of current nominees being considered for membership on the FIFRA SAP. The Agency anticipates selecting two individuals to fill vacancies occurring in 2014.
1. Dana Boyd Barr, Ph.D., Emory University, Atlanta, GA—i.
ii.
iii.
2. Paul D. Blanc, M.D., University of California San Francisco (UCSF), San Francisco, CA—i.
ii.
iii.
3. Rachel M. Bowden, Ph.D., Illinois State University, Normal, IL—i.
ii.
iii.
4. Richard Thomas Di Giulio, Ph.D., Duke University, Durham, NC—i.
ii.
iii.
5. Hilary Godwin, Ph.D., University of California at Los Angeles (UCLA), Los Angeles, CA—i.
ii.
iii.
6. Jane A. Hoppin, Sc.D., North Carolina State University (NCSU), Raleigh, NC—i.
ii.
iii.
7. David Alan Jett, Ph.D., National Institutes of Health (NIH), Bethesda, MD—i.
ii.
iii.
8. Kurunthachalam Kannan, Ph.D., New York State Department of Health, Albany, NY and State University of New York at Albany, NY—i.
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iii.
9. Coby Schal, Ph.D., North Carolina State University (NCSU), Raleigh, NC—i.
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10. Judith Zelikoff, Ph.D., New York University School of Medicine, Tuxedo, NY—i.
ii.
iii.
Environmental protection, Administrative practice and procedure, Pesticides and pests.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10 a.m. on Tuesday, January 21, 2014, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters related to the Corporation's supervision, corporate, and resolution activities.
In calling the meeting, the Board determined, on motion of Vice Chairman Thomas M. Hoenig, seconded by Director Jeremiah O. Norton (Appointive), concurred in by Director Thomas J. Curry (Comptroller of the Currency), Director Richard Cordray (Director, Consumer Financial Protection Bureau), and Chairman Martin J. Gruenberg, that Corporation business required its consideration of the matters which were to be the subject of this meeting on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10) of the “Government in the Sunshine Act” (5 U.S.C. §§ 552b(c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10)).
The meeting was held in the Board Room of the FDIC Building located at 550—17th Street NW., Washington, DC.
Federal Election Commission.
Tuesday January 28, 2014 at 10 a.m.
999 E Street NW., Washington, DC
This meeting will be closed to the public.
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in
By Order of the Federal Maritime Commission.
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). The ICR is for revision of the approved information collection assigned OMB control number 0937–0198, which expires on June 25, 2015. Prior to submitting that ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before March 25, 2014.
Submit your comments to I
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS–OS–21329–60D for reference. Information Collection Request Title: Public Health Service Policies on Research Misconduct (42 CFR part 93)
Likely Respondents: Public Health Service (PHS) research sub-award recipient.
Burden Statement: Burden in this context means the time expended by persons to generate, maintain, retain, disclose or provide the information requested. This includes the time needed to review instructions, to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information, to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information, and to transmit or otherwise disclose the information. The total annual burden hours estimated for this ICR are summarized in the table below.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information
Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
As stipulated by the Federal Advisory Committee Act, the U.S. Department of Health and Human Service (DHHS) is hereby giving notice that the Presidential Advisory Council on HIV/AIDS (PACHA) will hold a meeting; the primary topic of discussion will be the Ryan White Program. The meeting will be open to the public.
The meeting will be held on February 27, 2014 from 9 a.m. to approximately 3 p.m. (EDT) and February 28, 2014 from 9 a.m. to approximately 12:30 p.m. (EDT).
U.S. Department of Health and Human Services, 200 Independence Avenue SW., Washington, DC 20201 in the Auditorium on February 27 and in the John M. Eisenberg Memorial Room (The Penthouse) on February 28, 2014.
Ms. Caroline Talev, Public Health Analyst, Presidential Advisory Council on HIV/AIDS, U.S. Department of Health and Human Services, 200 Independence Avenue SW., Room 443H, Washington, DC 20201; (202) 205–1178. More detailed information about PACHA can be obtained by accessing the Council's Web site
PACHA was established by Executive Order 12963, dated June 14, 1995 as amended by Executive Order 13009, dated June 14, 1996. The Council was established to provide advice, information, and recommendations to the Secretary regarding programs and policies intended to promote effective prevention of HIV disease and AIDS. The functions of the Council are solely advisory in nature.
The Council consists of not more than 25 members. Council members are selected from prominent community leaders with particular expertise in, or knowledge of, matters concerning HIV and AIDS, public health, global health, philanthropy, marketing or business, as well as other national leaders held in high esteem from other sectors of society. Council members are appointed by the Secretary or designee, in consultation with the White House Office on National AIDS Policy. The agenda for the upcoming meeting will be posted on the Council's Web site at
Public attendance at the meeting is limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the designated contact person. Due to space constraints, pre-registration for public attendance is advisable and can be accomplished by contacting Caroline Talev at
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call (404) 639–7570 or send an email to
Data Calls for the Laboratory Response Network—Extension—(OMB No. 0920–0881, expires 3/31/14)—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Laboratory Response Network (LRN) was established by the Department of Health and Human Services, Centers for Disease Control and Prevention (CDC) in accordance with Presidential Decision Directive 39, which outlined national anti-terrorism policies and assigned specific missions to Federal departments and agencies. The LRN's mission is to maintain an integrated national and international network of laboratories that can respond to acts of biological, chemical, or radiological terrorism and other public health emergencies. Federal, State, and local public health laboratories voluntarily join the LRN.
The LRN Program Office maintains a database of information for each member laboratory that includes contact information as well as staff and equipment inventories. However, semiannually or during emergency response, the LRN Program Office may conduct a Special Data Call to obtain additional information from LRN Member Laboratories in regards to biological or chemical terrorism preparedness. Special Data Calls may be conducted via queries that are distributed by broadcast emails or by survey tools (i.e. Survey Monkey). This is a request for an extension to this generic clearance. The only cost to respondents is their time to respond to the data call. The total annual burden hours requested is 400 hours.
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration (FDA) is announcing the following public workshop entitled “Biofilms, Medical Devices, and Anti-Biofilm Technology—Challenges and Opportunities.” FDA is cosponsoring this workshop with the Center for Biofilm Engineering of Montana State University. The purpose of the public workshop is to initiate dialogue between academia, industry, and U.S. Government scientists on the science of developing products to address biofilm formation. Topics of discussion include current scientific and medical research on biofilms, their impact on medical devices, and biofilm prevention strategies and their public health impact.
The public workshop will be held on February 20, 2014, from 8 a.m. to 5 p.m.
The public workshop will be held at FDA's White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (rm. 1503A), Silver Spring, MD 20993–0002. Entrance for the public workshop participants (non-FDA employees) is through Building 1 where routine security check procedures will be performed. For parking and security information, please refer to
Geetha Jayan, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 3622, Silver Spring, MD 20903–0002, 301–796–6300, email:
If you need special accommodations due to a disability, please contact Susan Monahan, (email:
To register for the public workshop, please visit FDA's Medical Devices News & Events—Workshops & Conferences calendar at
Regardless of attendance at the public workshop, interested persons may submit either electronic comments regarding this document to
Biofilms play a key role in the development of device-related and other healthcare associated infections. Published literature indicates that biofilms are a major culprit in the development of resistant infections. However, the biochemical and physiochemical characteristics of biofilms are not widely understood.
With the increasing use of implanted and indwelling devices, understanding biofilm development on these devices and factors that impact biofilm formation is critical. Research on the basic science of biofilms may provide insight on device-associated biofilms, ultimately advancing research on technologies that are intended to prevent biofilm formation.
This public workshop seeks to share scientific information between academia, industries interested in developing products to address biofilm contamination, and U.S. Government scientists.
FDA seeks to address and receive comments on the following topics:
1. Research on biofilms and their public health impact.
2. Challenges faced by the scientific community, government, and industry on addressing biofilm contamination of medical devices.
3. Critical areas of research that will address the scientific and clinical challenges faced by the stakeholders when developing technologies that are intended to prevent biofilm formation.
This public workshop may also form the basis for future discussions related to novel biofilm prevention technologies that could benefit U.S. public health.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a summary report of the pediatric studies of sodium nitroprusside conducted in accordance with the Public Health Service Act (the PHS Act) and is making available requested labeling changes for sodium nitroprusside. The Agency is making this information available consistent with the PHS Act.
Lori Gorski, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, rm. 6415, Silver Spring, MD 20993–0002, 301–796–2200, Fax: 301–796–9855, email:
In the
A written request (WR) for pediatric studies of sodium nitroprusside was issued on July 8, 2002, to Abbott Laboratories, the holder of the new drug application for sodium nitroprusside. FDA did not receive a response to the written request. Accordingly, the National Institutes of Health (NIH) issued a request for proposals to conduct the pediatric studies described in the written request in July 2004 and awarded funds to Duke University and Stanford University in September 2004 to complete the studies described in the written request.
The Eunice Kennedy Shriver National Institute of Child Health and Human Development (NICHD) submitted clinical study reports for SNP. The two studies are:
• NICHD–2003–09–DR–SNP1: A randomized double-blind, parallel group, dose-ranging, effect-controlled, multicenter study of intravenous infusions of SNP in pediatric patients who require deliberate, controlled relative-induced hypotension for at least 2 hours.
• NICHD–2003–09–LT–SNP2: A multicenter, randomized, double-blind, placebo-controlled, parallel group study to determine the pharmacodynamics of sodium nitroprusside during the prolonged infusion in pediatric subjects. This study was a withdrawal to placebo study.
Upon completion of these pediatric studies, a report of the pediatric studies of sodium nitroprusside was submitted to NIH and FDA. In the
The sodium nitroprusside docket remained opened for public comment from October 3, 2012, through November 2, 2012. There were no comments submitted to the docket during that time, and a memorandum for the record stating such was posted to the docket on November 5, 2012.
During the review of the submission, the Division of Cardiovascular and Renal Products identified inconsistencies in subject numbers between the pharmacokinetic/pharmacodynamic (PK/PD) analysis set and the ITT–E (intent to treat-efficacy) population in the study report NICHD–2003–09–DR–SNP1 and notified NIH. In a meeting with FDA on November 29, 2012, NIH indicated that that they identified treatment assignment inconsistencies between the two datasets and provided a strategy for addressing the concern and performing reanalysis. The need for reanalysis resulted in suspension of the review as of November 29, 2012. The corrected datasets and reanalysis were provided to the Agency and submitted to the docket on September 26, 2013.
The key findings of this submission are:
• The blood pressure lowering effect of SNP was demonstrated in both of the trials.
• A higher proportion of patients in the high-dose group achieved target mean arterial pressure (MAP) compared to the lowest dose of 0.3 microgram/kilogram/minute (µg/kg/min). The time-to-target MAP was also significantly shorter for the high-dose groups.
• With a starting dose of 0.3 µg/kg/min, ~25 percent of patients achieved target MAP in 5 minutes. Maintaining on a stable dose of 0.3 µg/kg/min for 10 minutes resulted in ~50 percent of patients reaching target MAP. Hence, a starting dose of 0.3 µg/kg/min is reasonable. It should also be noted that it may be prudent to maintain the infusion rate for an additional 5 to 10 minutes before titrating.
• The proportion of patients with MAP reductions of >20 percent below target increased in a dose-dependent manner.
• The safety profile of SNP in both the trials was largely consistent with the expected events as a result of the underlying disease and preoperative setting. Only blood pressure reduction events were clearly drug- and dose-related.
• Even though only four neonates were studied in the trial, there is no expectation that the PK/PD relationship and the safety profile would be any different in this age group.
• The FDA Adverse Event Reporting System (FAERS) search (up to October 25, 2012) retrieved only 26 pediatric cases with SNP use. Of these, four cases of elevated carboxyhemoglobin associated with SNP treatment were reported. The Office of Surveillance and Epidemiology review outlines several reasons why these data cannot be used to calculate incidence of adverse events in the population.
• For this submission, one large site (N = 36 enrolled in Protocol NICHD–2003–09–LT–SNP2; Investigator: Dr. David Rosen) was inspected. The Office of Scientific Investigations recommends the data be accepted.
• As a part of the WR, long-term safety data and a 1-year followup period for patients enrolled in the trial were sought. Information from followup was not available in the submission. However, the value of such information is limited and is not expected to have an impact on the ability to overcome the labeling gap. The complete report can be found at docket number FDA–2012–N–0284.
The submission provides a reasonable algorithm for administration of sodium nitroprusside to allow its use in perioperative settings to achieve controlled hypotension for pediatric patients from birth to 18 years. FDA's requested labeling changes are available on the FDA Web site at
The following reference has been placed on display in the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested person between 9 a.m. and 4 p.m., Monday through Friday, and is available electronically at
1. FDA Requested Labeling Changes.
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 meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
60-day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) invites the general public and other Federal agencies to comment upon this proposed extension of a currently approved collection of information or new collection of information]. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until March 25, 2014.
All submissions received must include the OMB Control Number 1615–0099 in the subject box, the agency name and Docket ID USCIS USCIS–2006–0059. To avoid duplicate submissions, please use only one of the following methods to submit comments:
(1)
(2)
(3)
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
30-day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection notice was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until February 24, 2014. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, must be directed to the OMB USCIS Desk Officer via email at
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument with supplementary documents, or need additional information, please visit
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 s uitability 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
For more information regarding particular properties identified in this Notice (i.e., acreage, floor plan, existing sanitary facilities, exact street address), providers should contact the appropriate landholding agencies at the following addresses:
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities endangered species, marine mammals, or both. With some exceptions, the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities.
We must receive comments or requests for documents on or before February 24, 2014. We must receive requests for marine mammal permit public hearings, in writing, at the address shown in the
Brenda Tapia, Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358–2280; or email
Brenda Tapia, (703) 358–2104 (telephone); (703) 358–2280 (fax);
Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under
Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the street address listed under
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests amendment to their captive-bred wildlife registration under 50 CFR 17.21(g) to include golden parakeet (
The applicant requests amendment to their captive-bred wildlife registration under 50 CFR 17.21(g) to include the following species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal of their captive-bred wildlife registration under 50 CFR 17.21(g) for the family Crocodylidae, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal and amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests renewal and amendment of their captive-bred wildlife registration under 50 CFR 17.21(g) for the following species, to enhance their propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for barasingha (
The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for radiated tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for Galapagos tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) to include the following species, to enhance the species' propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
The applicant requests a permit to photograph northern sea otters (
Concurrent with publishing this notice in the
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 18, 2013, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Pragmatus Mobile, LLC of Alexandria, Virginia. Letters supplementing the complaint were filed on January 2 and 8, 2014. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain wireless devices, including mobile phones and tablets by reason of infringement of U.S. Patent No. 8,149,124 (“the '124 patent”) and U.S. Patent No. 8,466,795 (“the '795 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2013).
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain wireless devices, including mobile phones and tablets by reason of infringement of one or more of claims 1–5, 7–17, and 19–21 of the '124 patent and claims 1–33 of the '795 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to extend the target date for completion of the above-captioned investigation and to solicit additional briefing from the parties and the public.
James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–3065. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server (
This investigation was instituted on April 5, 2012, based upon a complaint filed on behalf of Align Technology, Inc., of San Jose, California (“Align”), on March 1, 2012, as corrected on March 22, 2012. 77 FR 20648 (April 5, 2012). The complaint alleged violations of Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337 (“Section 337”) in the sale for importation, importation, or sale within the United States after importation of certain digital models, digital data, and treatment plans for use in making incremental dental appliances, the appliances made therefrom, and methods of making the same by reason of infringement of certain claims of U.S. Patent No. 6,217,325 (“the ‘325 patent”); U.S. Patent No. 6,471,511 (“the ‘511 patent”); U.S. Patent No. 6,626,666; U.S. Patent No. 6,705,863 (“the ‘863 patent”); U.S. Patent No. 6,722,880 (“the ‘880 patent”); U.S. Patent No. 7,134,874 (“the ‘874 patent”); and U.S. Patent No. 8,070,487 (the ‘487 patent”). The notice of institution named as respondents ClearCorrect Pakistan (Private), Ltd. of Lahore, Pakistan and ClearCorrect Operating, LLC of Houston, Texas (collectively, “the Respondents”).
On May 6, 2013, the administrative law judge issued the final ID, finding a violation of Section 337 with respect to the ‘325 patent, the ‘880 patent, the ‘487 patent, the ‘511 patent, ‘863 patent, and the ‘874 patent. The ALJ recommended the issuance of cease and desist orders.
On May 20, 2013, Align, the Respondents, and the Commission investigative attorney each filed a petition for review. On May 28, 2013, each of the parties filed a response thereto. On June 5, 2013, Align filed a statement on the public interest. On June 13, 2013, the Respondents filed a statement on the public interest.
On June 7, 2013, the Commission issued notice of its determination to extend the deadline for determining whether to review the final ID to July 25, 2013, and to extend the target date to September 24, 2013.
On July 25, 2013, the Commission issued notice of its determination to review the final ID in its entirety and to solicit briefing on the issues on review and on remedy, the public interest, and bonding. 78 FR 46611 (August 1, 2013). On August 8, 2013, each of the parties filed written submissions. On August 15, 2013, each filed reply submissions.
On September 24, 2013, the Commission issued notice of its determination to extend the target date to November 1, 2013.
On November 18, 2013, the Commission issued notice of its determination to extend the target date to January 17, 2014.
The Commission has determined to extend the target date for completion of the above-captioned investigation to March 21, 2014, and to solicit briefing as follows.
The Commission is interested in receiving public comment on the following question:
In addition, the Commission is interested in public comment and also encourages submissions by the parties to the investigation, interested government agencies, the Office of Unfair Import Investigations, and any other interested persons on the following questions, with reference to the applicable law, and the existing evidentiary record:
Persons filing written submissions must do so in accordance with Commission rule 210.4(f), 19 CFR 210.4(f), which requires electronic filing. The original document and 8 true copies thereof must also be filed on or before the deadlines stated above with the Office of the Secretary. Any person desiring to submit a document to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on December 23, 2013, under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, on behalf of Tela Innovations, Inc. of Los Gatos, California. A letter supplementing the complaint was filed on January 6, 2014. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain standard cell libraries, products containing or made using the same, integrated circuits made using the same, and products containing such integrated circuits by reason of infringement of certain claims of U.S. Patent No. 8,490,043 (“the `043 patent”). The complaint further alleges that an industry in the United States exists as required by subsection (a)(2) of section 337.
The complainants request that the Commission institute an investigation and, after the investigation, issue a general exclusion order and cease and desist orders.
The complaint, except for any confidential information contained therein, is available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112, Washington, DC 20436, telephone (202) 205–2000. Hearing impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at (202) 205–2000. General information concerning the Commission may also be obtained by accessing its internet server at
The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205–2560.
The authority for institution of this investigation is contained in section 337 of the Tariff Act of 1930, as amended, and in section 210.10 of the Commission's Rules of Practice and Procedure, 19 CFR 210.10 (2013).
Scope of Investigation: Having considered the complaint, the U.S. International Trade Commission, on January 7, 2014,
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain standard cell libraries, products containing or made using the same, integrated circuits made using the same, and products containing such integrated circuits by reason of infringement of one or more of claims 1–16 of the `043 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337;
(2) Pursuant to Commission Rule 210.50(b)(1), 19 CFR 210.50(b)(1), the presiding administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons with respect to the public interest in this investigation, as appropriate, and provide the Commission with findings of fact and a recommended determination on this issue, which shall be limited to the statutory public interest factors set forth in 19 U.S.C. 1337(d)(1), (f)(1), (g)(1);
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainant is: Tela Innovations, Inc., 485 Alberto Way, Suite 115, Los Gatos, CA 95032.
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW., Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the
By order of the Commission.
Dated: January 17, 2014.
60-Day Notice.
The Department of Justice (DOJ), Office of Justice Programs, will be submitting the following information collection to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for “sixty days” until March 25, 2014. This process is conducted in accordance with 5 CFR 1320.10.
If you have comments especially regarding the estimated public burden and associated response time, or need a copy of the proposed information collection instrument with instructions or additional information, please contact E. Ann Carson by email at
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses.
(1)
(2)
(3)
(a)
(b)
(4)
(a) As of December 31, the number of male and female inmates within their custody and under their jurisdiction with maximum sentences of more than one year, one year or less; and unsentenced inmates;
(b) The number of inmates housed in privately operated facilities, county or other local authority correctional facilities, or in other state or Federal facilities on December 31;
(c) Prison admission information in the calendar year for the following categories: new court commitments, parole violators, other conditional release violators returned, transfers from other jurisdictions, AWOLs and escapees returned, and returns from appeal and bond;
(d) Prison release information in the calendar year for the following categories: expirations of sentence, commutations, other conditional releases, probations, supervised mandatory releases, paroles, other conditional releases, deaths by cause, AWOLs, escapes, transfers to other jurisdictions, and releases to appeal or bond;
(e) Number of inmates under jurisdiction on December 31 by race and Hispanic origin;
(f) Number of inmates in custody classified as non-citizens and/or under 18 years of age;
(g) Testing of incoming inmates for HIV; and HIV infection and AIDS cases on December 31; and
(h) The aggregated rated, operational, and/or design capacities, by sex, of the state/BOP's correctional facilities at year-end.
For the NPS–1B(T) form, five central reporters from the U.S. Territories and Commonwealths of Guam, Puerto Rico, the Northern Mariana Islands, the Virgin Islands, and American Samoa will be asked to provide information for the following categories for the calendar year just ended, and, if available, for the previous calendar year:
(a) As of December 31, the number of male and female inmates within their custody and under their jurisdiction with maximum sentences of more than one year, one year or less; and unsentenced inmates; and an assessment of the completeness of these counts (complete, partial, or estimated)
(b) The number of inmates under jurisdiction on December 31 but in the custody of facilities operated by other jurisdictions' authorities solely to reduce prison overcrowding;
(c) Number of inmates under jurisdiction on December 31 by race and Hispanic origin;
(d) The aggregated rated, operational, and/or design capacities, by sex, of the territory's/Commonwealth's correctional facilities at year-end.
The Bureau of Justice Statistics uses this information in published reports and for the U.S. Congress, Executive Office of the President, practitioners, researchers, students, the media, and others interested in criminal justice statistics.
(5)
(a)
(b)
Burden hours remain the same for the 51 respondents to the NPS–1B form. An additional 10 hours are added for the 5 respondents to the NPS–1B(T) form.
(6)
If additional information is required contact: Jerri Murray, Department
Mine Safety and Health Administration, Labor.
Notice.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and 30 CFR part 44 govern the application, processing, and disposition of petitions for modification. This notice is a summary of petitions for modification submitted to the Mine Safety and Health Administration (MSHA) by the parties listed below to modify the application of existing mandatory safety standards codified in Title 30 of the Code of Federal Regulations.
All comments on the petitions must be received by the Office of Standards, Regulations and Variances on or before February 24, 2014.
You may submit your comments, identified by “docket number” on the subject line, by any of the following methods:
1.
2.
3.
MSHA will consider only comments postmarked by the U.S. Postal Service or proof of delivery from another delivery service such as UPS or Federal Express on or before the deadline for comments.
Barbara Barron, Office of Standards, Regulations and Variances at 202–693–9447 (Voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. That the application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, the regulations at 30 CFR 44.10 and 44.11 establish the requirements and procedures for filing petitions for modification.
(1) All other test and diagnostic equipment used within 150 feet of longwall faces and pillar workings will be permissible.
(2) All nonpermissible testing and diagnostic equipment used within 150 feet of longwall faces and pillar workings will be examined, by a qualified person as defined in 30 CFR 75.153, prior to being used to insure the equipment is being maintained in a safe operating condition. The examination results will be recorded in the weekly examination book and will be made available to an authorized representative of the Secretary and the miners at the mine.
(3) A qualified person as defined in 30 CFR 75.151 will continuously monitor for methane immediately before and during use of nonpermissible electronic testing and diagnostic equipment within 150 feet of the longwall faces and pillar workings.
(4) Nonpermissible electronic test and diagnostic equipment will not be used if methane is detected in concentrations at or above 1.0 percent methane. When 1.0 percent or more of methane is detected while the nonpermissible electronic equipment is being used, the equipment will be deenergized immediately, and the nonpermissible electronic equipment will be withdrawn to outby the last open crosscut.
(5) All hand-held methane detectors will be MSHA-approved and maintained in permissible and proper operating condition as defined in 30 CFR 75.320.
(6) Except for time necessary to trouble shoot under actual mining conditions, coal production in the section will cease during use of the nonpermissible equipment. However, coal may remain in or on the equipment to test and diagnose the equipment under “load”.
(7) Nonpermissible electronic testing and diagnostic equipment will not be used to test equipment when float coal dust is in suspension.
(8) All electronic testing and diagnostic equipment will be used in accordance with the manufacturer's recommended safe use procedures.
(9) Qualified personnel engaged in the use of electronic testing and diagnostic equipment will be properly trained to recognize the hazards and limitations associated with the use of electronic testing and diagnostic equipment.
(10) Nonpermissible electronic testing and diagnostic equipment will not be put into service underground until MSHA has initially inspected the equipment.
(11) Within 60 days after the Proposed Decision and Order becomes final, the petitioner will submit proposed revisions for its approved 30 CFR part 48 training plan to the District Manager. The revisions will specify initial and
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure of protection as that afforded by the existing standard.
(1) The unit contains enough air, water, and nutriments at prescribed levels to sustain occupants for 48 hours. The source of both air and water would not be dependent on exterior air and water lines, which are inherently susceptible to external physical damage and deliver a substandard quality product.
(2) The refuge chamber is constructed of airtight steel and designed to sustain up to 20 miners for a period of no less than 48 hours by provision of fresh air, water, and food. The unit is portable, providing the ability to relocate as necessary during the advancement of mine workings. The unit is equipped with lights, a siren, and a carbon dioxide scrubber. Battery backup power is provided in case of electrical outage, and will provide standby power. The unit will also be provided with a fire extinguisher.
(3) The ability to supply air, water, and reserve power within the refuge chamber itself reduces the susceptibility of the unit to damage from normal mining operations and conditions that may be found in an emergency where the severing of lines may be of concern. To ensure these stored supplies are readily available as needed, daily visual inspections will be performed to ensure that neither exterior damage nor unauthorized entry of the unit has occurred. Detailed monthly inspections will be performed to ensure supplies are within satisfactory expiration periods.
(4) The self-contained properties of the refuge chamber will additionally increase the portability of the unit, providing the flexibility to continuously install the unit closer to working areas of the mine, as appropriate, while maintaining a sanitary environment for its occupants.
(5) The Chesney Mine employs approximately 88 people. The mine produces a high quality, non-gassy limestone that is used in the production of lime via one kiln located on site. Due to the deposit's approximate dip of 35 degrees, a non-traditional room and pillar design is used in which multiple levels are developed in a stepped pattern.
(6) Ordinarily, less than 20 miners are in the workings at any given moment. The operation uses 11 production miners and one supervisor on the day shift, and five production miners and one supervisor on the night shift. Three mechanical/electrical technicians may work in the mine on either shift and four additional managerial employees may be in the mine intermittently on an as needed basis. As the workings are readily accessible via a traversable slope and portal, the facility has not located office or maintenance shops underground. There is no established access to potable water or compressed air in the mine
(7) The mine is naturally ventilated, and has no significant history of gas liberation. A 13-foot diameter airshaft and fan located atop the eastern portion of the mine, aid ventilation and is capable of exhausting approximately 160,000 cubic feet per minute. An assortment of auxiliary fans is used underground for localized air control. The mine also has a history of stable roof conditions and, while not required, installs 8-foot grouted roof bolts in a 5×5 foot pattern as part of the regular mining cycle.
(8) A water source delivered in any form of conduit of pipeline has the potential to be damaged in a geologic event or equipment activity. As pipes age, contamination is possible and stagnated water has the potential to deliver bacterial agents to the recipient. Air from the surface would require a compressor to deliver air to the chamber at an elevated pressure. Air from a compressor may be laden with water vapor and lubricants that may reduce its purity. An underground refuge chamber will be fitted with compressed air and sealed water provides remediation to both of these problems.
(9) Training on proper use of the refuge chamber will be provided for all affected personnel annually and additionally upon any relocation of the chamber.
The petitioner asserts that the proposed alternative method will at all times guarantee no less than the same measure or protection afforded by the existing standard.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend OMB approval of the information collection requirements specified in the Standard on Ethylene Oxide (EtO) (29 CFR 1910.1047). The standard protects workers from adverse health effects from occupational exposure to ethylene oxide.
Comments must be submitted (postmarked, sent, or received) by March 25, 2014.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (i.e, employer) burden, conducts a preclearance consultation program to provide the public with an opportunity to comment on proposed and continuing information collection requirements in accord with the Paperwork Reduction Act of 1995 (PRA–95) (44 U.S.C. 3506(c)(2)(A)). This program ensures that information is in the desired format, reporting burden (time and costs) is minimal, collection instruments are clearly understood, and OSHA's estimate of the information collection burden is accurate. The Occupational Safety and Health Act of 1970 (the OSH Act) (29 U.S.C. 651 et seq.) authorizes information collection by employers as necessary or appropriate for enforcement of the OSH Act or for developing information regarding the causes and prevention of occupational injuries, illnesses, and accidents (29 U.S.C. 657). The OSH Act also requires OSHA to obtain such information with minimum burden upon employers, especially those operating small businesses, and to reduce to the maximum extent feasible unnecessary duplication of efforts in obtaining information (29 U.S.C. 657).
The EtO Standard specifies a number of paperwork requirements. The following is a brief description of the collection of information requirements contained in the standard.
The information collection requirements specified in the Ethylene Oxide Standard protect workers from the adverse health effects that may result from occupational exposure to ethylene oxide. The principal information collection requirements in the EtO Standard include conducting worker exposure monitoring, notifying workers of the exposure, implementing a written compliance program, and implementing medical surveillance of workers. Also, the examining physician must provide specific information to ensure that workers receive a copy of their medical examination results. The employer must maintain exposure-monitoring and medical records for specific periods, and provide access to these records by OSHA, the National Institute for Occupational Safety and Health, the affected workers, and their authorized representatives and other designated parties.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirements specified in the Ethylene Oxide Standard. The Agency is requesting an overall adjustment decrease of 6,433 burden hours, from 41,484 to 35,051 burden hours. The decrease in burden hours is primarily due to the decrease in the number of hospital facilities, from 4,001 to 3,155 facilities. The Agency will summarize the comments submitted in response to this notice, and will include this summary in its request to OMB.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 et seq.) and Secretary of Labor's Order No. 1–2012 (77 FR 3912).
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in the OSHA–7 Form.
Comments must be submitted (postmarked, sent or received) by March 25, 2014.
Todd Owen or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3909, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (i.e., workers filing occupational safety or health complaints) burden, conducts a preclearance consultation program to provide the public with an opportunity to comment on proposed and continuing information collection requirements in accord with the Paperwork Reduction Act of 1995 (PRA–95) (44 U.S.C. 3506(c)(2)(A)). This program ensures that information is in the desired format, reporting burden (time and costs) is minimal, collection instruments are clearly understood, and OSHA's estimate of the information collection burden is accurate. The Occupational Safety and Health Act of 1970 (the OSH Act) (29 U.S.C. 651
Under paragraphs (a) and (c) of 29 CFR 1903.11 (“Complaints by employees”) workers and their representatives may notify the OSHA area director or an OSHA compliance officer of safety and health hazards regulated by the Agency that they believe exist in their workplaces at any time. These provisions state further that this notification must be in writing and “shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employee or representative of the employee.”
In addition to providing specific hazard information to the Agency, paragraph (a) permits workers/worker representatives to request an inspection of the workplace. Paragraph (c) also addresses situations in which workers/worker representatives may provide the information directly to the OSHA compliance officer during an inspection. An employer's former workers may also submit complaints to the Agency.
To address the requirements of paragraphs (a) and (c), especially the requirement that the information be in writing, the Agency developed the OSHA–7 Form; this form standardized and simplified the hazard reporting process. For paragraph (a), they may complete an OSHA–7 Form obtained from the Agency's Web site and then send it to OSHA online, or deliver a hardcopy of the form to the OSHA area office by mail or facsimile, or by hand. They may also write a letter containing the information and hand deliver it to the area office, or send it by mail or facsimile. In addition, they may provide the information orally to the OSHA area office or another party (
The information on the hard copy version of the OSHA–7 Form includes information about the employer and alleged hazards, including: the establishment's name; the site's address and telephone and facsimile numbers; the name and telephone number of the management official; the type of business; a description and the specific location of the hazards, including the approximate number of workers exposed or threatened by the hazards; and whether or not the worker/worker representative informed another government agency about the hazards (and the name of the agency if so informed).
Additional information on the hard copy version of the form concerns the complainant including: whether or not the complaintant is a worker or a worker representative, or for information provided orally, a member of a federal safety and health committee or another party (with space to specify the party); the complainant's name, telephone number, and address; and the complainant's signature attesting that they believe a violation of an OSHA standard exists at the named establishment; and the date of the signature. A worker representative must also provide the name of the organization they represent and their title.
The information contained in the online version of the OSHA–7 Form is similar to the hard copy version. However, the online version requests the complainant's email address, and does not ask for the site's facsimile number or the complainant's signature and signature date.
The Agency uses the information collected on the OSHA–7 Form to determine whether reasonable grounds exist to conduct an inspection of the workplace. The description of the hazards, including the number of exposed workers, allows the Agency to assess the severity of the hazards and the need to expedite the inspection. The completed form also provides the employer with notice of the complaint and may serve as the basis for obtaining a search warrant if the employer denies the Agency access to the workplace.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirements relating to the OSHA–7 Form. The Agency is requesting an increase in burden hours from 13,414 to 13,659 (a total increase of 245 burden hours). The Agency will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the paperwork Reduction Act of 1995 (44 U.S.C. 3506
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning its proposal to extend OMB approval of the information collection requirements specified in the Gear Certification Standard (29 CFR part 1919).
Comments must be submitted (postmarked, sent, or received) by March 25, 2014.
Theda Kenney or Todd Owen, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor, Room N–3609, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693–2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (i.e., employer) burden, conducts a preclearance consultation program to provide the public with an opportunity to comment on proposed and continuing information collection requirements in accord with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506(c)(2)(A)). This program ensures that information is in the desired format, reporting burden (time and costs) is minimal, collection instruments are clearly understood, and OSHA's estimate of the information collection burden is accurate. The Occupational Safety and Health Act of 1970 (the OSH Act) (29 U.S.C. 651
The ICR addresses the burden hours associated with gathering information to complete the OSHA 70 Form. The OSHA 70 Form is used by applicants seeking accreditation from OSHA to be able to test or examine certain equipment and material handling devices as required under the maritime regulations, part 1917 (Marine Terminals), and part 1918 (Longshoring). The OSHA 70 Form application for accreditation provides an easy means for companies to apply for accreditation.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the Agency's functions, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection and transmission techniques.
OSHA is requesting that OMB extend its approval of the information collection requirements contained in the Standard on Gear Certification (29 CFR part 1919). The Agency is requesting an adjustment decrease in the number of burden hours from 190 hours to 184 hours, a total decrease of 6 burden hours. The decrease is based on updated data on the number of OSHA 70 forms submitted. The Agency will summarize the comments submitted in response to this notice and will include this summary in the request to OMB.
You may submit comments in response to this document as follows: (1) Electronically at
Because of security procedures, the use of regular mail may cause a significant delay in the receipt of comments. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger, or courier service, please contact the OSHA Docket Office at (202) 693–2350, (TTY (877) 889–5627).
Comments and submissions are posted without change at
David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation announces the following meeting:
Committee on Equal Opportunities in Science and Engineering (CEOSE) Advisory Committee Meeting (1173)
February 11, 2014, 1 p.m.–5:30 p.m. February 12, 2014, 9 a.m.–3:30 p.m.
National Science Foundation (NSF), 4201 Wilson Boulevard, Arlington, VA 22230
To help facilitate your entry into the building, contact the individual listed below. Your request to attend this meeting should be received by email (
Open
Dr. Bernice Anderson, Senior Advisor and CEOSE Executive Secretary, Office of International and Integrative Activities, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230. Telephone Numbers: (703) 292–5151/703–292–8040
Meeting minutes and other information may be obtained from the CEOSE Executive Secretary at the above address or the Web site at
To study data, programs, policies, and other information pertinent to the National Science Foundation and to provide advice and recommendations concerning broadening participation in science and engineering.
Opening Statement by the CEOSE Chair
• Delivery of the 2011–2012 Biennial CEOSE Report
• Discussion of Key Points from the Meetings with the National Science Foundation Acting Director and/or CEOSE officers
• Update of Broadening Participation Activities by the CEOSE Executive Liaison
• Reports of CEOSE Liaisons to NSF Advisory Committees
• Interdisciplinarity and Inclusion
• International Engagement
• Discussion by Federal Agency Liaisons About Interagency Broadening Participation Activities
• Transparency and Accountability
• Panel Discussion about the Significance of Financial Support for Underrepresented Groups in STEM
• Discussion with Dr. Cora B. Marrett, Acting Director of the National Science Foundation
Discussion of CEOSE Unfinished Business and New Business
Postal Regulatory Commission.
Notice.
The Commission is adjusting its approach to issuing a report on the Postal Service's Performance Report and Performance Plan. Previously, the Commission has included its report as part of the Annual Compliance Determination. Starting with FY 2013, the Commission will issue this report as a separate document. This order addresses related administrative steps and invites public comments.
Submit comments electronically via the Commission's Filing Online system at
Brian Corcoran, Acting General Counsel, at 202–789–6820.
Each fiscal year (FY), the Postal Service is required to prepare an annual performance plan (Performance Plan) and a report on program performance (Performance Report) pursuant to 39 U.S.C. 2803 and 2804. Pursuant to 39 U.S.C. 3652(g), on
The Commission is required to evaluate whether the Postal Service has met the goals established in its FY 2013 Performance Report and FY 2014 Performance Plan.
To accommodate that schedule, the Commission is establishing a separate comment period for the FY 2013 Performance Report and FY 2014 Performance Plan. Comments by interested persons are due no later than by March 10, 2014. Reply comments are due no later than March 20, 2014.
Kenneth E. Richardson, previously designated to serve as the Public Representative in this proceeding, will continue in that capacity.
1. Comments on the Postal Service's FY 2013 Performance Report and FY 2014 Performance Plan are due no later than March 10, 2014.
2. Reply comments are due no later than March 20, 2014.
3. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing requesting the addition of Priority Mail Contract 75 to the competitive product list. 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
Brian Corcoran, Acting General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product.
• Attachment A—a redacted copy of Governors' Decision No. 11–6, authorizing the new product;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list with the addition underlined;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and related financial information under seal.
In the Statement of Supporting Justification, Dennis R. Nicoski, Manager, Field Sales Strategy and Contracts, asserts that the contract will cover its attributable costs and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2014–16 and CP2014–25 to consider the Request pertaining to the proposed Priority Mail Contract 75 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than January 24, 2014. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Pamela A. Thompson to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–16 and CP2014–25 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Pamela A. Thompson is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than January 24, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing requesting the addition of Priority Mail Contract 76 to the competitive product list. 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
Brian Corcoran, Acting General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product.
• Attachment A—a redacted copy of Governors' Decision No. 11–6, authorizing the new product;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list with the addition underlined;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and related financial information under seal.
In the Statement of Supporting Justification, Dennis R. Nicoski, Manager, Field Sales Strategy and Contracts, asserts that the contract will cover its attributable costs and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2014–17 and CP2014–26 to consider the Request pertaining to the proposed Priority Mail Contract 76 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than
The Commission appoints Curtis E. Kidd to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–17 and CP2014–26 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Curtis E. Kidd is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than January 24, 2014.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on January 16, 2014, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on January 16, 2014, it filed with the Postal Regulatory Commission a
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend BOX Rule 8130 (Automatic Quote Cancellation) to require Market Makers to enter values in at least one of the Exchange-provided risk parameters. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend BOX Rule 8130 (Automatic Quote Cancellation) to require Market Makers
BOX Rule 8040 (Obligations of Market Makers) requires Market Makers to enter and maintain continuous quotations for the options classes to which they are appointed. This requirement creates a possibility of “rapid fire” executions that could result in large and unintended principal positions and expose the Market Maker to unnecessary market risk. To lessen this risk, many
Specifically, under BOX Rule 8130 there are five triggering parameters that Market Makers can enable on a class-by-class basis. These are when the Market Maker: (1) Experiences a duration of no technical connectivity for between one and nine seconds; (2) trades a specified number of contracts in the aggregate across all series of an options class; (3) trades a specified absolute dollar value of contracts bought and sold in a class; (4) trades a specified number of contracts in a class of the net between (i) calls purchased plus puts sold, and (ii) calls sold and puts purchased; or, (5) trades a specified absolute dollar value of the net position in a class between (i) calls purchased and sold, (ii) puts and calls purchased; (iii) puts purchased and sold; or (iv) puts and calls sold.
The risk to Market Makers is not limited to a single option series. Market Makers have exposure in all series of a particular options class in which they are appointed, requiring them to offset or hedge their overall position in each option to minimize risk. By limiting a Market Maker's exposure across series, the Exchange believes that a Market Maker is able to provide quotations at better prices. The Exchange believes that the Exchange-provided risk parameters help Market Makers, as key liquidity providers, to better manage their risk, aiding them in providing deeper and more liquid markets, beneficial to all Participants.
Under Rule 8130, Market Makers are currently not required to use the Exchange-provided risk parameters and can program their own systems to perform similar functions if they prefer. The Exchange proposes to amend Rule 8130 to prevent Market Makers from inadvertently entering quotes without any internal or external risk-management parameters. Specifically, the Exchange proposes to make it mandatory for a Market Maker to enter values in at least one triggering parameter for each of their appointed options classes. The Exchange is not proposing to require values be entered for all five triggering parameters, as the Exchange is aware that Market Makers have different internal risk control mechanisms and therefore will use the tool differently. Additionally, Market Makers that currently use this feature have elected to use different parameters based on their specific needs.
While entering values into at least one of the risk parameters will now be mandatory to prevent an inadvertent exposure to risk, Market Makers who prefer to use their own risk-management systems can enter values that will ensure the Exchange-provided parameters will not be triggered.
The Exchanges notes that nothing under this proposed rule change relieves a Market Maker of its obligations to provide continuous, two sided quotes under Rule 8050.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that requiring Market Makers to enter values for at least one of the triggering parameters will not be unreasonably burdensome, as Market Makers who prefer to use their own risk-management systems can enter out-of-range values so that the Exchange-provided parameters will not be triggered. Moreover, the Exchange is proposing this rule change in order to reduce the risk of a Market Marker inadvertently entering quotes without populating any of the triggering parameters. Reducing such risk will enable Market Makers to enter quotations with larger size, which in turn will benefit investors through increased liquidity for the execution of their orders. Such increased liquidity benefits investors because they receive better prices and because it lowers volatility in the options market.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the proposed rule change is substantially similar to a filing submitted by ISE that was recently approved by the Commission.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest, because the Exchange will be able to implement promptly an amended automatic quote cancellation feature that will require a Market Maker to enter values for at least one of the triggering parameters, and thus the proposal may help Market Makers mitigate their quoting risk exposure.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Number SR–BOX–2014–02. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to amend its Quote Risk Monitor Mechanism. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The operation of the Exchange's Quote Risk Monitor (“QRM”) Mechanism is codified in Rule 8.18. The purpose of this proposed rule change is to add three new functions to QRM Mechanism to help Hybrid Market-Makers (as defined in Rule 8.18) and TPH organizations control the risk of multiple, nearly-simultaneous executions across related option series. The use of the new functions is voluntary. The proposed rule change also makes clear that the TPH organization with which a Hybrid Market-Maker is associated (as well as the Hybrid Market-Maker himself) may establish parameters by which the Exchange will activate the QRM Mechanism for the Hybrid Market-Maker (the current rule text only explicitly permits Hybrid Market-Makers to establish such parameters). The Exchange also proposes to make some changes to the Rule 8.18 text to
The first new function available to Hybrid Market Makers allows each Hybrid Market-Maker the ability to specify a maximum cumulative percentage that the Hybrid Market-Maker is willing to trade (the “Cumulative Percentage Limit”). Under the proposal, the cumulative percentage is the sum of the percentages of the original quoted size of each side of each series within a class that traded, and a rolling time period in milliseconds within which such Cumulative Percentage Limit is to be measured (the “Measurement Interval”). When the QRM Mechanism determines that the Hybrid Market-Maker has traded at least the Cumulative Percentage Limit for any option class on a trading platform during any rolling Measurement Interval, the QRM Mechanism will automatically cancel all of the electronic quotes being disseminated on that trading platform with respect to that Hybrid Market-Maker in that option class and any other classes with the same underlying security until the Hybrid Market-Maker refreshes those electronic quotes.
By way of example, assume a Hybrid Market-Maker is quoting the following series:
If the Cumulative Percentage Limit is set at 150% for the Hybrid Market-Maker and an order to buy 40 contracts of Series A is received, the series percentage would be 80% (
Percentages are also calculated based on the original quote size, not the remaining quote size. Using the quotes set forth above as an example, if an order to buy 40 contracts of Series A is received, the series percentage would be 80% (
The proposed rule change adds a second new function to the QRM Mechanism that would allow each Hybrid Market-Maker to specify the maximum number of series for which either side of the quote is fully traded (the “Number of Series Fully Traded”) and a Measurement Interval. When the QRM Mechanism determines that the Hybrid Market-Maker has traded at least the Number of Series Fully Traded for any option class on a trading platform during any rolling Measurement Interval, the QRM mechanism will automatically cancel all of the Hybrid Market-Maker's electronic quotes being disseminated on the same trading platform in that option class and any other classes with the same underlying security until the Hybrid Market-Maker refreshes those electronic quotes.
To illustrate this functionality, assume that a Hybrid Market-Maker is quoting the following series:
If the Number of Series Fully Traded is set at two, and an order to buy 50 contracts of Series A is received, the number of series traded in full will be one. If a second order to sell 25 contracts of Series B is received, the number of series traded in full will still be one because Series B did not trade in full. If a third order to buy 100 contracts of Series C is received, the number of series traded in full will then be two. Since two meets the parameter set for Number of Series Fully Traded, the Hybrid Market-Maker's quotes on that trading platform in that class (and any other classes with the same underlying security traded on that trading platform) would be cancelled.
Whenever one of the QRM functions (
The Exchange has above proposed that, when the QRM Mechanism automatically cancels all of a Hybrid Market-Maker's electronic quotes in an option class, the Exchange will also cancel all of the Hybrid Market-Maker's electronic quotes in any other classes with the same underlying security. The
However, the Exchange has also limited cancellation of quotes to those being disseminated on the same trading platform. When a Hybrid Market-Maker has traded at least the Contract Limit or Cumulative Percentage Limit, on an option class on a trading platform during any rolling Measurement Interval, or has traded the Number of Series Fully Traded on an option class on a trading platform during any rolling Measurement Interval, the QRM Mechanism shall cancel all electronic quotes being disseminated on the same trading platform. This qualification is proposed because of the Exchange's SPX options class. SPX options (and QIXs on the S&P 500) are traded on the Exchange's Hybrid 3.0 platform, while SPX options with End-of-Week expiration (“SPXW”) trade on the Exchange's Hybrid platform. The Exchange believes that the differences between trading on the two platforms are such that a Market-Maker exceeding his risk profile trading on one platform will not necessarily mean that the Market-Maker will have exceeded his risk profile on the other platform. This will also allow a Market-Maker to set different QRM limits on SPX and SPXW.
Finally, the proposed amendment adds a third function that allows the Exchange to cancel all quotes and orders of a Hybrid Market-Maker or TPH Organization once a specified number of QRM Incidents has been reached. Under this proposed functionality, a Hybrid Market-Maker or a TPH organization may specify a maximum number of QRM Incidents with respect to all QRM Functions (
Once the QRM Mechanism is triggered and quotes (and in the case of an Exchange-wide cancellation, orders) are cancelled, all counters that determine whether the QRM Mechanism is triggered and a QRM Incident occurs will be reset for all classes for which quotes (and in the case of an Exchange-wide cancellation, orders) were canceled for all parties for whom such quotes (and in the case of an Exchange-wide cancellation, orders) were canceled. This means that, if the QRM Mechanism is triggered due to a party's reaching the Contract Limit, Cumulative Percentage Limit, or Number of Series Fully Traded for a class, and quotes (and in the case of an Exchange-wide cancellation, orders) are canceled, the number of contracts traded in all classes for which quotes and orders were canceled would be reset to zero, the cumulative percentage for all classes for which quotes and orders were canceled would be reset to zero, and the number of series that are fully traded for all classes for which quotes and orders were canceled would be reset to zero. If the Exchange cancels all of the Hybrid Market-Maker's or TPH organization's electronic quotes and Market-Maker orders resting in the Book, and the Hybrid Market-Maker or TPH organization does not reactivate its ability to send quotes or orders, the block will be in effect only for the trading day that the Hybrid Market-Maker or TPH organization reached its QRM Incident limit.
As with the Contract Limit, Cumulative Percentage Limit or Number of Series Fully Traded QRM functions, Hybrid Market-Makers and TPH organizations are not required to set parameters for the Exchange-wide QRM. All QRM Mechanism functionalities are currently optional.
The Exchange represents that it has the systems capacity to permit the operation of these enhanced QRM Mechanism functions. The Exchange does note that, in a situation in which the QRM Mechanism is triggered, and quotes (and in the case of an Exchange-wide cancellation, orders) must be canceled for multiple classes related to the same underlying security or across multiple business clusters,
The Exchange believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the Exchange believes that investors and market participants will benefit from the proposed new functionality of the QRM Mechanism. Hybrid Market-Makers are vulnerable to the risk that, through an error in pricing or due to market events, they will receive multiple, automatic executions at disadvantageous or erroneous prices before they can adjust their quotes. Without adequate risk management tools such as the QRM, Hybrid Market-Makers could widen their quotes, quote less aggressively or limit their quote size. Such actions may undermine the quality of the markets available to customers and other market participants.
Accordingly, with the enhancements proposed by the Exchange to QRM, the use of the QRM Mechanism will encourage more aggressive and narrower quoting, thereby removing impediments to and perfecting the mechanism of a
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the Exchange believes that the functions of the QRM mechanism help promote fair and orderly markets.
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the use of the QRM Mechanism including the new enhancements is voluntary. Further, the proposed changes do not change to whom any aspects of the QRM Mechanism applies, as the proposed changes apply to all market participants to whom the QRM Mechanism previously applied. Similarly, the Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because, again, the use of the QRM Mechanism including the new enhancements is voluntary. Moreover, the proposed enhancements to the QRM Mechanism apply only to trading on CBOE. To the extent that the proposed changes may make CBOE a more attractive trading venue for market participants on other exchanges, such market participants may elect to become CBOE market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange is filing a proposal to modify the language of NASDAQ Rule 7047 to establish that the NASDAQ Basic market data product currently includes and has, since its inception, included last sale transaction reports from the FINRA/NASDAQ Trade Reporting Facility (“TRF”). The text of the proposed rule change is below. Proposed new language is italicized; proposed deletions are in brackets.
(a) NASDAQ shall offer proprietary data feeds containing real-time market information from the NASDAQ Market Center
(1) “NASDAQ Basic for NASDAQ” shall contain NASDAQ's best bid and offer and last sale for NASDAQ-listed stocks
(2) “NASDAQ Basic for NYSE” shall contain NASDAQ's best bid and offer and last sale for NYSE-listed stocks
(3) “NASDAQ Basic for [Alternext]
(b) User Fees
(1) Except as provided in (b)(2) and (b)(3), for the NASDAQ Basic product there shall be a per subscriber monthly charge of $10 for NASDAQ-listed stocks, $5 for NYSE-listed stocks, and $5 for [Alternext]
(2) For each non-professional subscriber, as defined in Rule 7011(b), there shall be a per subscriber monthly charge of $0.50 for NASDAQ-listed stocks, $0.25 for NYSE-listed stocks, and $0.25 for [Alternext]
(3) There shall be a per query fee for NASDAQ Basic of $0.0025 for NASDAQ-listed stocks, $0.0015 for NYSE-listed stocks, and $0.0015 for [Alternext]
(4) No change.
(c) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
In June of 2008, NASDAQ received Commission approval to offer the NASDAQ Last Sale (“NLS”) market data product on a pilot basis. NLS is a non-core market data product designed for distribution through internet portals and broadcast television, as well as distribution to individuals that access the data via a username/password-identified account and/or quote-counting mechanisms.
In March of 2009, NASDAQ received Commission approval for a pilot to offer NASDAQ Basic, another non-core market data product.
NASDAQ has determined through an internal review that the NASDAQ Basic market data product currently includes and has included since its inception last sale transaction reports for the NASDAQ/FINRA TRF.
Through this proposed rule change, NASDAQ seeks to establish that it may disseminate last sale transaction reports for the FINRA/NASDAQ TRF through NASDAQ Basic, and to modify the language of Rule 7047 to reflect their inclusion in that product. NASDAQ is also proposing a clerical change to reflect the correct name for the NYSE MKT, previously known as the NYSE Alternext market. NASDAQ is proposing no change to the fees for NASDAQ Basic through this filing.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act
NASDAQ further notes that the current fees for NASDAQ Basic have been previously established, and that the Commission has either specifically determined them to be consistent with the Act or has permitted them to become effective on an immediately effective basis.
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers (“BDs”) increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. NASDAQ believes that its NASDAQ Basic market data product, as amended, is precisely the sort of market data product that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
By removing unnecessary regulatory restrictions on the ability of exchanges to sell their own data, Regulation NMS advanced the goals of the Act and the principles reflected in its legislative history. If the free market should determine whether proprietary data is sold to BDs at all, it follows that the price at which such data is sold should be set by the market as well.
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The Court in
Moreover, as discussed in the order approving the initial pilot, and as further discussed below in NASDAQ's Statement on Burden on Competition, data products such as NASDAQ Basic are a means by which exchanges compete to attract order flow. To the extent that exchanges are successful in such competition, they earn trading revenues and also enhance the value of their data products by increasing the amount of data they are able to provide. Conversely, to the extent that exchanges are unsuccessful, the inputs needed to add value to data products are diminished. Accordingly, the need to compete for order flow places substantial pressure upon exchanges to keep their fees for both executions and data reasonable. The inclusion of FINRA/NASDAQ TRF data in NASDAQ Basic increases the value of the product, the fees for which have previously been established as reasonable.
The fees for NASDAQ Basic also continue to reflect an equitable allocation and continue not be unfairly discriminatory, because NASDAQ Basic is a voluntary product for which market participants can readily substitute core data feeds that provide additional quotation and last sale information not available through NASDAQ Basic. Accordingly, NASDAQ is constrained from pricing the product in a manner that would be inequitable or unfairly discriminatory. Moreover, the fee schedule for NASDAQ Basic is designed to ensure that the fees charged are tailored to the specific usage patterns of a range of potential customers. Thus, low per-query fees are designed for customers that use the product only sporadically. Fees for non-professional subscribers, as well as the derived data fee and enterprise license fee that provide for unlimited distribution to non-professional users, are intended to provide a means to provide for low-cost availability of the product to retail investors through brokerage firms and market data vendors. Finally, professional subscriber fees provide a means for brokerage customers to use the information internally. The distinction between fees for professional and non-professional users is consistent with the distinction made under Commission-approved fees for core data, and the applicable fees are lower than applicable fees for core data to reflect the lesser quantum of data made available. The range of fee options further ensures that customers are not charged a fee that is inequitably disproportionate to the use that they make of the product.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. NASDAQ's ability to price NASDAQ Basic is constrained by (1) competition among exchanges, other trading platforms, and TRFs that compete with each other in a variety of dimensions; (2) the existence of inexpensive real-time consolidated data and market-specific data and free delayed consolidated data; and (3) the inherent contestability of the market for proprietary data.
The market for proprietary data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market. Similarly, with respect to the TRF data, allowing exchanges to operate TRFs has permitted them to earn revenues by providing technology and data in support of the non-exchange segment of the market. This revenue opportunity has also resulted in fierce competition between the two current TRF operators, with both TRFs charging extremely low trade reporting fees and rebating the majority of the revenues they receive from core market data to the parties reporting trades.
Transaction executions and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content and content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to upgrade the software), but once the software is developed, the incremental cost of providing that software to an additional user is typically small, or even zero (
An exchange's BD customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A BD will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the BD chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD's trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing orders will become correspondingly more valuable.
Similarly, in the case of products such as NASDAQ Basic that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail BDs, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: they can simply refuse to purchase any proprietary data product that fails to provide sufficient value. Exchanges, TRFs, and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully. Moreover, NASDAQ believes that products such as NASDAQ Basic can enhance order flow to NASDAQ by providing more widespread distribution of information about transactions in real time, thereby encouraging wider participation in the market by investors with access to the data through their brokerage firm or other distribution sources. Conversely, the value of such products to distributors and investors decreases if order flow falls, because the products contain less content.
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create exchange data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products. Similarly, the inclusion of trade reporting data in a product such as NASDAQ Basic may assist in attracting customers to the product, thereby assisting in covering the additional costs associated with operating and regulating a TRF.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. NASDAQ pays rebates to attract orders, charges relatively low prices for market information and charges relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower liquidity rebates to attract orders, setting relatively low prices for accessing posted liquidity, and setting relatively high prices for market information. Still others may provide most data free of charge and rely exclusively on transaction fees to recover their costs. Finally, some platforms may incentivize use by providing opportunities for equity ownership, which may allow them to charge lower direct fees for executions and data.
In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. Such regulation is unnecessary because an “excessive” price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm will experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including thirteen SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated TRFs compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate single or multiple BDs' production of proprietary data products. The potential sources of proprietary products are virtually limitless. Notably, the potential sources of data include the BDs that submit trade reports to TRFs and that have the ability to consolidate and distribute their data without the involvement of FINRA or an exchange-operated TRF.
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the internet. Second, because a single order or transaction report can appear in a core data product, an SRO proprietary product, and/or a non-SRO proprietary product, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Indeed, in the case of NASDAQ Basic, the data provided through that product appears both in (i) real-time core data products offered by the SIPs for a fee, and (ii) free SIP data products with a 15-minute time delay, and finds a close substitute in similar products of competing venues.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While BDs have previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg and Thomson Reuters. In Europe, Markit aggregates and disseminates data from over 50 brokers and multilateral trading facilities.
In the case of TRFs, the rapid entry of several exchanges into this space in 2006–2007 following the development and Commission approval of the TRF structure demonstrates the contestability of this aspect of the market.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available
The competitive nature of the market for non-core “sub-set” products such as NASDAQ Basic is borne out by the performance of the market. In May 2008, the Internet portal Yahoo! began offering its Web site viewers real-time last sale data (as well as best quote data) provided by BATS. In response, in June 2008, NASDAQ launched NLS, which was initially subject to an “enterprise cap” of $100,000 for customers receiving only one of the NLS products, and $150,000 for customers receiving both products. The majority of NASDAQ's sales were at the capped level. In early 2009, BATS expanded its offering of free data to include depth-of-book data. Also in early 2009, NYSE Arca announced the launch of a competitive last sale product with an enterprise price of $30,000 per month. In response, NASDAQ combined the enterprise cap for the NLS products and reduced the cap to $50,000 (
In this environment, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
In establishing the price for NASDAQ Basic, NASDAQ considered the competitiveness of the market for quotation and last sale data and all of the implications of that competition. NASDAQ believes that it has considered all relevant factors and has not considered irrelevant factors in order to establish fair, reasonable, and not unreasonably discriminatory fees and an equitable allocation of fees among all users. The existence of numerous alternatives to NASDAQ Basic, including real-time consolidated data, free delayed consolidated data, and proprietary data from other sources ensures that NASDAQ cannot set unreasonable fees, or fees that are unreasonably discriminatory, without losing business to these alternatives. Accordingly, NASDAQ believes that the acceptance of the NASDAQ Basic product in the marketplace demonstrates the consistency of these fees with applicable statutory standards.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the operation of its New Market Model Pilot, currently scheduled to expire on January 31, 2014, until the earlier of Securities and Exchange Commission (“Commission”) approval to make such pilot permanent or July 31, 2014. 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
The Exchange proposes to extend the operation of its New Market Model Pilot (“NMM Pilot”) that was adopted pursuant to its merger with the New York Stock Exchange LLC (“NYSE”).
The Exchange notes that parallel changes are proposed to be made to the rules of NYSE.
In December 2008, the Exchange implemented significant changes to its equities market rules, execution technology and the rights and obligations of its equities market participants all of which were designed to improve execution quality on the Exchange. These changes are all elements of the Exchange's enhanced market model that it implemented through the NMM Pilot.
As part of the NMM Pilot, the Exchange eliminated the function of equity specialists on the Exchange creating a new category of market participant, the Designated Market Maker or DMM.
In addition, the Exchange implemented a system change that allowed DMMs to create a schedule of additional non-displayed liquidity at various price points to interact with interest and provide price improvement to orders in the Exchange's system. This schedule is known as the DMM Capital Commitment Schedule (“CCS”).
The NMM Pilot further modified the logic for allocating executed shares among market participants having trading interest at a price point upon execution of incoming orders. The modified logic rewards displayed orders that establish the Exchange's BBO. During the operation of the NMM Pilot, orders or portions thereof that establish priority
The NMM Pilot was originally scheduled to end operation on October 1, 2009, or such earlier time as the Commission may determine to make the rules permanent. The Exchange filed to extend the operation of the Pilot on several occasions
The Exchange established the NMM Pilot to provide incentives for quoting, to enhance competition among the existing group of liquidity providers and to add a new competitive market participant. The Exchange believes that the NMM Pilot allows the Exchange to provide its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity, facilitate the trading of larger orders more efficiently and operates to reward aggressive liquidity providers. As such, the Exchange believes that the rules governing the NMM Pilot should be made permanent. Through this filing the Exchange seeks to extend the current operation of the NMM Pilot until July 31, 2014, in order to allow the Exchange time to formally submit a filing to the Commission to convert the pilot rules to permanent rules.
The proposed change is not otherwise intended to address any other issues and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with
The Exchange believes the proposed rule change is designed to facilitate transactions in securities and to remove impediments to, and perfect the mechanisms of, a free and open market and a national market system because the NMM Pilot provides its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity, facilitate the trading of larger orders more efficiently and operates to reward aggressive liquidity providers. The Exchange also believes the proposed rule change is designed to prevent fraudulent and manipulative acts and practices and to promote just and equitable principles of trade because it seeks to extend a pilot program that has already been approved by the Commission. Moreover, requesting an extension of the NMM Pilot will permit adequate time for: (i) The Exchange to prepare and submit a filing to make the rules governing the NMM Pilot permanent; (ii) public notice and comment; and (iii) completion of the 19b–4 approval process. Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition. For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting the services it offers and the requirements it imposes to remain competitive with other U.S. equity exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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–2014–02. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
NASDAQ is filing with the Commission a proposal to make permanent the fee pilot program pursuant to which NASDAQ distributes the NASDAQ Last Sale (“NLS”) market data products. NLS allows data distributors to have access to real-time market data for a capped fee, enabling those distributors to provide free access to the data to millions of individual investors via the internet and television. Specifically, NASDAQ offers the “NASDAQ Last Sale for NASDAQ” and “NASDAQ Last Sale for NYSE/NYSE MKT” data feeds containing last sale activity in U.S. equities within the NASDAQ Market Center and reported to the FINRA/NASDAQ Trade Reporting Facility (“FINRA/NASDAQ TRF”), which is jointly operated by NASDAQ and the Financial Industry Regulatory Authority (“FINRA”).
The pilot program has supported the aspiration of Regulation NMS to increase the availability of proprietary data by allowing market forces to determine the amount of proprietary market data information that is made available to the public and at what price. During the pilot period, the program has vastly increased the availability of NASDAQ proprietary market data to individual investors. Based upon data from NLS distributors, NASDAQ believes that since its launch in July 2008, the NLS data has been viewed by millions of investors on Web sites operated by Google, Interactive Data, and Dow Jones, among others. Accordingly, NASDAQ believes that it would be consistent with the protection of investors and the public interest to make the product permanent.
The text of the proposed rule change is below. Proposed new language is italicized; proposed deletions are in brackets.
(a) [For a three month pilot period commencing on January 1, 2014,] NASDAQ [shall] offer
(1)–(2) No change.
(b)–(c) No change.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Prior to the launch of NLS, public investors that wished to view market data to monitor their portfolios generally had two choices: (1) pay for real-time market data or (2) use free data that is 15 to 20 minutes delayed. To increase consumer choice, NASDAQ proposed a pilot to offer access to real-time market data to data distributors for a capped fee, enabling those distributors to disseminate the data at no cost to millions of internet users and television viewers. NASDAQ now proposes to make the existing pilot program permanent, subject to the same fee structure as is applicable today.
NLS consists of two separate “Level 1” products containing last sale activity within the NASDAQ market and reported to the jointly-operated FINRA/NASDAQ TRF. First, the “NASDAQ Last Sale for NASDAQ” data product is a real-time data feed that provides real-time last sale information including execution price, volume, and time for executions occurring within the NASDAQ system as well as those reported to the FINRA/NASDAQ TRF. Second, the “NASDAQ Last Sale for NYSE/NYSE MKT” data product provides real-time last sale information including execution price, volume, and time for NYSE- and NYSE MKT-securities executions occurring within the NASDAQ system as well as those reported to the FINRA/NASDAQ TRF. By contrast, the securities information processors (“SIPs”) that provide “core” data consolidate last sale information from all exchanges and trade reporting facilities (“TRFs”). Thus, NLS replicates a subset of the information provided by the SIPs.
In the pilot programs, NASDAQ established two different pricing models, one for clients that are able to maintain username/password entitlement systems and/or quote counting mechanisms to account for usage, and a second for those that are not. NASDAQ is proposing to maintain this existing structure for the permanent version of the product. Specifically, firms with the ability to maintain username/password entitlement systems that enable them to track the number of entitled users and/or quote counting
The per query model is well suited to subscribers that expect to access the product on a sporadic basis, while the per user model allows unlimited usage by a fixed number of users, at a per month cost that is less than the daily price of a major newspaper. Moreover, a per query user may cap its fees such that they would not exceed the applicable per user charge. The per user and per query fee schedules are as follows:
The higher price for NLS for NASDAQ, in comparison to NLS for NYSE/NYSE MKT, reflects NASDAQ's higher market share in the securities that it lists and the correspondingly larger amount of data made available through the product.
Firms that are unable to maintain username/password entitlement systems and/or quote counting mechanisms also have multiple options for purchasing the NASDAQ Last Sale data. These firms choose between a “Unique Visitor” model for internet delivery or a “Household” model for television delivery. Unique Visitor and Household populations must be reported monthly and must be validated by a third-party vendor or ratings agency approved by NASDAQ at NASDAQ's sole discretion. In addition, to reflect the growing confluence between these media outlets, NASDAQ offers a reduction in television fees when a single distributor distributes NASDAQ Last Sale Data Products via multiple distribution mechanisms. The applicable fee schedules are as follows:
NASDAQ also established a cap on the monthly fee, currently set at $50,000 per month, for all NASDAQ Last Sale products. The fee cap enables NASDAQ to compete effectively against other exchanges that also offer last sale data for purchase or at no charge. The fee cap also ensures that users with large numbers of users or viewers can make the product available at a per user/viewer fee measured in fractions of a penny per month, with the per user/viewer fee dropping as the number of persons receiving the data increases.
As with the distribution of other NASDAQ proprietary products, all distributors of the NASDAQ Last Sale for NASDAQ and/or NASDAQ Last Sale for NYSE/NYSE MKT products pay a single $1,500/month NASDAQ Last Sale Distributor Fee in addition to any applicable usage fees. The $1,500 monthly fee applies to all distributors and does not vary based on whether the distributor distributes the data internally or externally or distributes the data via both the internet and television.
NASDAQ believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
NASDAQ further notes that the pilot program fees for NLS have been previously established, and that the Commission has either specifically determined them to be consistent with the Act or has permitted them to become effective on an immediately effective basis.
In adopting Regulation NMS, the Commission granted self-regulatory organizations (“SROs”) and broker-dealers (“BDs”) increased authority and flexibility to offer new and unique market data to the public. It was believed that this authority would expand the amount of data available to consumers, and also spur innovation and competition for the provision of market data. NASDAQ believes that its NLS market data products are precisely the sort of market data product that the Commission envisioned when it adopted Regulation NMS. The Commission concluded that Regulation NMS—by deregulating the market in proprietary data—would itself further the Act's goals of facilitating efficiency and competition:
[E]fficiency is promoted when broker-dealers who do not need the data beyond the prices, sizes, market center identifications of the NBBO and consolidated last sale information are not required to receive (and pay for) such data. The Commission also believes that efficiency is promoted when broker-dealers may choose to receive (and pay for) additional market data based on their own internal analysis of the need for such data.
The decision of the United States Court of Appeals for the District of Columbia Circuit in
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All of the information made available through NLS is also included in the core data feeds made available pursuant to the joint-SRO plans, the fees for which have been approved by the Commission. As the Commission determined in approving the initial pilot program for NASDAQ Basic, another product that offers a subset of information also made available through the joint-SRO plans,
Moreover, as further discussed below in NASDAQ's Statement on Burden on Competition, data products such as NLS are a means by which exchanges compete to attract order flow. To the extent that exchanges are successful in such competition, they earn trading revenues and also enhance the value of their data products by increasing the amount of data they are able to provide. Conversely, to the extent that exchanges are unsuccessful, the inputs needed to add value to data products are diminished. Accordingly, the need to compete for order flow places substantial pressure upon exchanges to keep their fees for both executions and data reasonable.
The fees for NLS also continue to reflect an equitable allocation and continue not to be unfairly discriminatory, because NLS is a voluntary product for which market participants can readily substitute core data feeds that provide additional last sale information not available through NLS. Accordingly, NASDAQ is constrained from pricing the product in a manner that would be inequitable or unfairly discriminatory. Moreover, the fee schedule for NLS is designed to ensure that the fees charged are tailored to the specific usage patterns of a range of potential customers, in a manner designed to avoid charging fees that are inequitably allocated or unfairly discriminatory. Thus, customers that intend to distribute data through the internet or television can avail themselves of a pricing model under which per “unique visitor” or “household” charges drop as the number of persons receiving the data through these media increases. Likewise, subscribers distributing data through both television and the internet receive a discount for their use of both media. Similarly, for users that limit usage to a finite number of users, or that wish to avail themselves of the data on a limited per query basis, pricing models are available to ensure that fees bear an equitable relation to the volume of usage, with per user and per query fees dropping as the volume of usage increases and with per query fees subject to a cap to ensure that users opting for this method do not exceed corresponding per user fees in a month of high usage. In all instances, charges for NASDAQ Last Sale for NYSE/NYSE MKT are lower than charges for NASDAQ Last Sale for NASDAQ to reflect the lower volume of data available through the former product and to provide users with a choice of receiving all NASDAQ Last Sale data or only a portion of it. Finally, all fees are subject to a monthly cap. Thus, the range of fee options ensures that customers are not charged a fee that is inequitably disproportionate to the use that they make of the product; rather, depending on the use that they intend to make of the product, they may select the fee model that will best minimize their costs.
NASDAQ does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. NASDAQ's ability to price its Last Sale Data Products is constrained by (1) competition between exchanges and other trading platforms that compete with each other in a variety of dimensions; (2) the existence of inexpensive real-time consolidated data and market-specific data and free delayed consolidated data; and (3) the inherent contestability of the market for proprietary last sale data.
The market for proprietary last sale data products is currently competitive and inherently contestable because there is fierce competition for the inputs necessary to the creation of proprietary data and strict pricing discipline for the proprietary products themselves. Numerous exchanges compete with each other for listings, trades, and market data itself, providing virtually limitless opportunities for entrepreneurs who wish to produce and distribute their own market data. This proprietary data is produced by each individual exchange, as well as other entities, in a vigorously competitive market. Similarly, with respect to the FINRA/NASDAQ TRF data that is a component of NLS, allowing exchanges to operate TRFs has permitted them to earn revenues by providing technology and data in support of the non-exchange segment of the market. This revenue opportunity has also resulted in fierce competition between the two current TRF operators, with both TRFs charging extremely low trade reporting fees and rebating the majority of the revenues they receive from core market data to the parties reporting trades.
Transaction execution and proprietary data products are complementary in that market data is both an input and a byproduct of the execution service. In fact, market data and trade execution are a paradigmatic example of joint products with joint costs. The decision whether and on which platform to post an order will depend on the attributes of the platform where the order can be posted, including the execution fees, data quality and price, and distribution of its data products. Without trade executions, exchange data products cannot exist. Moreover, data products are valuable to many end users only insofar as they provide information that end users expect will assist them or their customers in making trading decisions.
The costs of producing market data include not only the costs of the data distribution infrastructure, but also the costs of designing, maintaining, and operating the exchange's transaction execution platform and the cost of regulating the exchange to ensure its fair operation and maintain investor confidence. The total return that a trading platform earns reflects the revenues it receives from both products and the joint costs it incurs. Moreover, the operation of the exchange is characterized by high fixed costs and low marginal costs. This cost structure is common in content and content distribution industries such as software, where developing new software typically requires a large initial investment (and continuing large investments to upgrade the software), but once the software is developed, the incremental cost of providing that software to an additional user is typically small, or even zero (
An exchange's BD customers view the costs of transaction executions and of data as a unified cost of doing business with the exchange. A BD will direct orders to a particular exchange only if the expected revenues from executing trades on the exchange exceed net transaction execution costs and the cost of data that the BD chooses to buy to support its trading decisions (or those of its customers). The choice of data products is, in turn, a product of the value of the products in making profitable trading decisions. If the cost of the product exceeds its expected value, the BD will choose not to buy it. Moreover, as a BD chooses to direct fewer orders to a particular exchange, the value of the product to that BD decreases, for two reasons. First, the product will contain less information, because executions of the BD's trading activity will not be reflected in it. Second, and perhaps more important, the product will be less valuable to that BD because it does not provide information about the venue to which it is directing its orders. Data from the competing venue to which the BD is directing orders will become correspondingly more valuable.
Similarly, in the case of products such as NLS that are distributed through market data vendors, the vendors provide price discipline for proprietary data products because they control the primary means of access to end users. Vendors impose price restraints based upon their business models. For example, vendors such as Bloomberg and Reuters that assess a surcharge on data they sell may refuse to offer proprietary products that end users will not purchase in sufficient numbers. Internet portals, such as Google, impose a discipline by providing only data that will enable them to attract “eyeballs” that contribute to their advertising revenue. Retail BDs, such as Schwab and Fidelity, offer their customers proprietary data only if it promotes trading and generates sufficient commission revenue. Although the business models may differ, these vendors' pricing discipline is the same: They can simply refuse to purchase any proprietary data product that fails to provide sufficient value. Exchanges, TRFs, and other producers of proprietary data products must understand and respond to these varying business models and pricing disciplines in order to market proprietary data products successfully. Moreover, NASDAQ believes that products such as NLS can enhance order flow to NASDAQ by providing more widespread distribution of information about transactions in real time, thereby encouraging wider participation in the market by investors with access to the internet or television. Conversely, the value of such products to distributors and investors decreases if order flow falls, because the products contain less content.
Analyzing the cost of market data distribution in isolation from the cost of all of the inputs supporting the creation of market data will inevitably underestimate the cost of the data. Thus, because it is impossible to create data without a fast, technologically robust, and well-regulated execution system, system costs and regulatory costs affect the price of market data. It would be equally misleading, however, to attribute all of the exchange's costs to the market data portion of an exchange's joint product. Rather, all of the exchange's costs are incurred for the unified purposes of attracting order flow, executing and/or routing orders, and generating and selling data about market activity. The total return that an exchange earns reflects the revenues it receives from the joint products and the total costs of the joint products. Similarly, the inclusion of TRF trade reporting data in a product such as NLS may assist in attracting customers to the product, thereby assisting in covering the additional costs associated with operating and regulating a TRF.
Competition among trading platforms can be expected to constrain the aggregate return each platform earns from the sale of its joint products, but different platforms may choose from a range of possible, and equally reasonable, pricing strategies as the means of recovering total costs. NASDAQ pays rebates to attract orders, charges relatively low prices for market information and charges relatively high prices for accessing posted liquidity. Other platforms may choose a strategy of paying lower liquidity rebates to attract orders, setting relatively low prices for accessing posted liquidity, and setting relatively high prices for market information. Still others may provide most data free of charge and rely exclusively on transaction fees to recover their costs. Finally, some platforms may incentivize use by providing opportunities for equity ownership, which may allow them to charge lower direct fees for executions and data.
In this environment, there is no economic basis for regulating maximum prices for one of the joint products in an industry in which suppliers face competitive constraints with regard to the joint offering. Such regulation is unnecessary because an “excessive” price for one of the joint products will ultimately have to be reflected in lower prices for other products sold by the firm, or otherwise the firm will experience a loss in the volume of its sales that will be adverse to its overall profitability. In other words, an increase in the price of data will ultimately have to be accompanied by a decrease in the cost of executions, or the volume of both data and executions will fall.
The level of competition and contestability in the market is evident in the numerous alternative venues that compete for order flow, including thirteen SRO markets, as well as internalizing BDs and various forms of alternative trading systems (“ATSs”), including dark pools and electronic communication networks (“ECNs”). Each SRO market competes to produce transaction reports via trade executions, and two FINRA-regulated TRFs compete to attract internalized transaction reports. It is common for BDs to further and exploit this competition by sending their order flow and transaction reports to multiple markets, rather than providing them all to a single market. Competitive markets for order flow, executions, and transaction reports provide pricing discipline for the inputs of proprietary data products.
The large number of SROs, TRFs, BDs, and ATSs that currently produce proprietary data or are currently capable of producing it provides further pricing discipline for proprietary data products. Each SRO, TRF, ATS, and BD is currently permitted to produce proprietary data products, and many currently do or have announced plans to do so, including NASDAQ, NYSE, NYSE MKT, NYSE Arca, BATS, and Direct Edge.
Any ATS or BD can combine with any other ATS, BD, or multiple ATSs or BDs to produce joint proprietary data products. Additionally, order routers and market data vendors can facilitate
The fact that proprietary data from ATSs, BDs, and vendors can by-pass SROs is significant in two respects. First, non-SROs can compete directly with SROs for the production and sale of proprietary data products, as BATS and Arca did before registering as exchanges by publishing proprietary book data on the internet. Second, because a single order or transaction report can appear in a core data product, an SRO proprietary product, and/or a non-SRO proprietary product, the data available in proprietary products is exponentially greater than the actual number of orders and transaction reports that exist in the marketplace. Indeed, in the case of NLS, the data provided through that product appears both in (i) real-time core data products offered by the SIPs for a fee, and (ii) free SIP data products with a 15-minute time delay, and finds a close substitute in last-sale products of competing venues.
In addition to the competition and price discipline described above, the market for proprietary data products is also highly contestable because market entry is rapid, inexpensive, and profitable. The history of electronic trading is replete with examples of entrants that swiftly grew into some of the largest electronic trading platforms and proprietary data producers: Archipelago, Bloomberg Tradebook, Island, RediBook, Attain, TracECN, BATS Trading and Direct Edge. A proliferation of dark pools and other ATSs operate profitably with fragmentary shares of consolidated market volume.
Regulation NMS, by deregulating the market for proprietary data, has increased the contestability of that market. While BDs have previously published their proprietary data individually, Regulation NMS encourages market data vendors and BDs to produce proprietary products cooperatively in a manner never before possible. Multiple market data vendors already have the capability to aggregate data and disseminate it on a profitable scale, including Bloomberg and Thomson Reuters. In Europe, Markit aggregates and disseminates data from over 50 brokers and multilateral trading facilities.
In the case of TRFs, the rapid entry of several exchanges into this space in 2006–2007 following the development and Commission approval of the TRF structure demonstrates the contestability of this aspect of the market.
Moreover, consolidated data provides two additional measures of pricing discipline for proprietary data products that are a subset of the consolidated data stream. First, the consolidated data is widely available in real-time at $1 per month for non-professional users. Second, consolidated data is also available
The competitive nature of the market for products such as NLS is borne out by the performance of the market. In May 2008, the Internet portal Yahoo! began offering its Web site viewers real-time last sale data (as well as best quote data) provided by BATS. In response, in June 2008, NASDAQ launched NLS, which was initially subject to an “enterprise cap” of $100,000 for customers receiving only one of the NLS products, and $150,000 for customers receiving both products. The majority of NASDAQ's sales were at the capped level. In early 2009, BATS expanded its offering of free data to include depth-of-book data. Also in early 2009, NYSE Arca announced the launch of a competitive last sale product with an enterprise price of $30,000 per month. In response, NASDAQ combined the enterprise cap for the NLS products and reduced the cap to $50,000 (
In this environment, a super-competitive increase in the fees charged for either transactions or data has the potential to impair revenues from both products. “No one disputes that competition for order flow is `fierce'.”
In establishing the price for the NASDAQ Last Sale Products, NASDAQ considered the competitiveness of the market for last sale data and all of the
Three comment letters were filed regarding NLS as originally published for comment. NASDAQ responded to these comments in a letter dated December 13, 2007. Both the comment letters and NASDAQ's response are available on the SEC Web site at
It appears to NASDAQ that SIFMA's contentions in this new proceeding are similar to the contentions in its numerous prior comment letters, which have repeatedly argued that market data fees are improper unless established through public utility-style rate-making proceedings that are nowhere contemplated by the Act. In making its arguments, SIFMA has sought to rely upon
The petitioners believe that the SEC's market-based approach is prohibited under the Exchange Act because the Congress intended “fair and reasonable” to be determined using a cost-based approach. The SEC counters that, because it has statutorily-granted flexibility in evaluating market data fees, its market-based approach is fully consistent with the Exchange Act. We agree with the SEC.
While the court noted that cost data could sometimes be relevant in determining the reasonableness of fees, it acknowledged that submission of cost data may be inappropriate where there are “difficulties in calculating the direct costs . . . of market data,”
SIFMA further contended that prior filings lacked evidence supporting a conclusion that the market for NLS is competitive, asserting that arguments about competition for order flow and substitutability were rejected in
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to add Rule 7290 (Price Protection for Limit Orders) to codify an existing price protection feature. The text of the proposed rule change is available from the principal office of the Exchange, 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to add BOX Rule 7290 (Price Protection for Limit Orders) to codify and clarify a price protection feature already available on the Exchange. Specifically, the Exchange currently has a price check feature in place that prevents incoming limit orders
Proposed Rule 7290 will codify the price protection feature in the BOX Rulebook and provide clarity on its functionality. As set forth in proposed Rule 7290, the Exchange employs a filter on all incoming limit orders and limit order modifications, pursuant to which the Trading Host will cancel these orders if priced outside an acceptable price parameter set by the Exchange. Specifically, as the Exchange receives limit orders and limit order
Unless determined otherwise by the Exchange and announced to the Participants via Informational Circular, the price parameters will be set at the price 100% greater than the NBO (for incoming buy orders), and 100% less than the NBB (for incoming sell orders), when the NBB/NBO is priced at or below $0.25; and the price parameters will be set at the price 50% greater than the NBO (for incoming buy orders), and 50% less than the NBB (for incoming sell orders), when the NBB/NBO is priced above $0.25. The Exchange will reject all incoming buy (sell) orders that are priced above (below) those parameters. For example, if the NBO is $1.20, a buy order priced at or above $1.80 ($1.20 * 1.50) will be rejected. Likewise, if the NBB is $1.10, a sell order priced at or below $0.55 ($1.10 * 0.50) will be rejected. If the NBO is $0.10, a buy order priced at or above $0.20 ($0.10*2.00) will be rejected. However, if the NBB is less than or equal to $0.25, the default limits set above will result in all incoming sell orders being accepted regardless of their limit.
The price protection feature will be operational each trading day after the opening until the close of trading, and will apply only to incoming limit orders and limit order modifications.
The Exchange believes this feature will prevent the entry of limit orders that are priced so significantly beyond the prevailing market price that the execution of such orders could cause substantial price dislocation in the market. The Exchange also believes that this feature will further serve to mitigate the occurrence of erroneous executions.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal will provide market participants with additional protection against erroneous executions. The Exchange does not believe the proposed rule change imposes any burden on intramarket competition as the feature is available to all Participants. The Exchange also notes that it is not mandatory for Participants to use this feature and it is only enabled when requested by the Participant. Thus, the Exchange does not believe the proposal creates any significant impact on competition.
The Exchange has neither solicited nor received comments on the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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 November 27, 2013, Boston Stock Exchange Clearing Corporation (“BSECC”), NASDAQ OMX BX, Inc. (“BX”), the NASDAQ Stock Market LLC (“NASDAQ”), NASDAQ OMX PHLX LLC (“Phlx”), and the Stock Clearing Corporation of Philadelphia (“SCCP” and, together with BSECC, BX, NASDAQ and Phlx, the “SROs” or “Self-Regulatory Subsidiaries”), filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
The SROs are proposing amendments to provisions of the Charter to replace each supermajority voting requirement in the Charter with a “majority of outstanding shares” voting requirement. The Charter currently includes the following three supermajority voting requirements pertaining to the: (1) Removal of directors;
Article Fourth, Paragraph C sets forth the 5% voting limitation, which provides that holders of NASDAQ OMX's voting securities may not cast votes in excess of 5% of NASDAQ OMX's outstanding voting securities. The SROs note that NASDAQ OMX is not proposing any change to the 5% voting limitation itself. According to the SROs, NASDAQ OMX only proposes that any future amendment of the 5% voting limitation will require the approval of stockholders holding a majority of the outstanding shares, rather than stockholders holding 66
The SROs state that, in developing this proposal, NASDAQ OMX considered the relative weight of the arguments for and against supermajority voting requirements.
The SROs also propose to amend and restate the Charter to make non-substantive changes, as described in greater detail in the Notices.
The SROs note that this cross-reference, which should refer to Section 6 without further reference to a subsection (b), cannot be corrected without NASDAQ OMX seeking further approval of its stockholders, which would require NASDAQ OMX to call and hold a stockholder meeting. Generally, NASDAQ OMX holds stockholder meetings only once or twice a year. The SROs note that it is atypical for a large public company like NASDAQ OMX to submit a proposal to its stockholders solely to correct a cross-reference in its Charter. The SROs state that following consultation by NASDAQ OMX with outside counsel, it is clear, based on the drafting history of this provision, that the intent of the cross-reference is to refer to Section 6 of Article Fourth, Paragraph C of the Charter. In other words, the second sentence of Article Fourth, Paragraph C(6) should read: “The Board, however, may not approve an exemption under Section 6: (i) For a registered broker or dealer or an Affiliate thereof or (ii) an individual or entity that is subject to a statutory disqualification under Section 3(a)(39) of the Exchange Act.” The SROs state that, under no circumstances will the obsolete cross-reference be read to imply that the Board could grant an exemption to the ownership limitation in Article Fourth, Paragraph C(6) of the Charter for a registered broker or dealer or an Affiliate (as defined in Article Fourth, Paragraph C(3)(a)) thereof, or an individual or entity that is subject to a statutory disqualification under Section 3(a)(39) of the Exchange Act. The SROs remark that the proposed amendments to Section 12.5 of the By-Laws will eliminate cross-references to the now obsolete subsection (b) of Article Fourth, Paragraph C(6) of the Charter. According to the SROs, NASDAQ OMX recognizes that there are some differences in language between the second sentence of Article Fourth, Paragraph C(6) of the Charter and the second sentence of Section 12.5 of the By-Laws. To the extent that these differences would cause a difference in interpretation, the SROs state that, following consultation by NASDAQ OMX with outside counsel, the Charter language shall prevail. The SROs state that, as soon as feasible, NASDAQ OMX plans to present a proposal to the stockholders to conform this provision of the Charter to the By-Laws.
The SROs propose to eliminate NASDAQ OMX's Certificate of Designation, Preferences and Rights of Series A Convertible Preferred Stock (“Series A Convertible Preferred Stock”), and all matters set forth therein.
Current Section 3.2 of the By-Laws provides that only NASDAQ OMX may call special meetings of its stockholders. The SROs state that, in response to feedback from NASDAQ OMX's stockholders, this provision will be deleted and replaced with language that will allow the stockholders to call special meetings, subject to certain procedures. The SROs note that, similar to the elimination of the supermajority voting requirements, the implementation of the right of stockholders to call a special meeting has received recent attention from investor and corporate governance advocates.
Section 3.1 of NASDAQ OMX's By-Laws, which is the “advance notice” provision,
The SROs propose to add new Section 3.5 to the By-laws to require nominees for director to deliver to NASDAQ OMX, in accordance with the time periods prescribed for delivery of a stockholder's notice: (i) A written questionnaire with respect to the background and qualifications of the nominee; and (ii) a written representation and agreement as to certain matters. The provisions of the specific written representation and agreement are discussed in greater detail in the Notices.
The SROs propose to amend each provision of the By-Laws that currently requires a supermajority vote of stockholders to instead require a “majority of votes outstanding.” The By-Laws currently include the following two supermajority voting requirements, each of which conforms to an analogous provision in the Charter. The SROs propose conforming replacements to the supermajority voting requirements in Section 4.6 (pertaining to removal of directors) and Section 11.1 (pertaining to adoption, alteration, amendment or repeal of the By-Laws) with a voting standard requiring the affirmative vote of a majority of the outstanding Voting Stock.
Section 4.8 of the By-Laws sets forth the procedures to fill a director position that has become vacant, whether because of death, disability, disqualification, removal or resignation. Under the current provisions, if such a vacancy occurs, the Nominating & Governance Committee of the Board shall nominate, and the Board shall elect by majority vote, a person to fill the vacancy. In light of the addition of a right for stockholders to call a special meeting, as discussed above, the SROs propose amendments to Section 4.8 to state explicitly that vacancies on the Board are to be filled by a majority vote of the Board, and not by stockholders.
The SROs propose amendments to Sections 4.12(a) and (b) of the By-Laws to provide that both notices of meetings of the Board, and waivers of such notices, can be given by email or other means of written electronic transmission.
The SROs propose amendments to Section 4.13(f) of the By-Laws, which relate to the composition of the Management Compensation Committee of NASDAQ OMX's Board, to conform to the recent amendments to NASDAQ's listing rules. Specifically, the SROs propose to state that NASDAQ OMX's Management Compensation Committee must consist of at least two members and that each member shall meet the eligibility requirements set forth in the NASDAQ Stock Market Rules (“Rules”). As explained in the Notices, as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act and Rule 10C–1 under the Exchange Act,
The SROs propose to add a proviso to Section 11.2 of the Bylaws to state that no By-Law adopted by the stockholders shall be amended or repealed by the Board if the By-Law so adopted so provides. The SROs state that this is a stockholder-friendly provision that is intended to prevent the Board from subsequently overriding stockholder
Finally, the SROs propose additional non-substantive changes, as described in greater detail in the Notices,
After careful review, the Commission finds that the proposed rule changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, in the case of the proposals by BX, NASDAQ and Phlx, and to a clearing agency, in the case of the proposals by BSECC and SCCP.
The Commission also finds that the proposed rule changes by BSECC and SCCP are consistent with Section 17A of the Act,
The Commission discusses below certain proposed revisions to the Charter and the By-Laws.
Specifically, the Commission believes that the proposed rule changes to adopt a “majority of outstanding shares” standard for changes to NASDAQ OMX's Charter and By-Laws and to implement a stockholder right to call a special meeting are consistent with the Act. The Commission notes that the SROs have represented that these proposed changes are responsive to individual stockholder proposals that were either approved or had significant support from stockholders at the most recent annual meeting for NASDAQ OMX. The Commission notes that the change to a “majority of outstanding shares” standard is designed to allow certain corporate changes to occur in a manner that closely reflects the desires of NASDAQ OMX's shareholders.
The SROs also have proposed to prevent the Board from amending or repealing By-Law amendments approved by the stockholders. The SROs have stated that the prohibition on the NASDAQ OMX Board amending or repealing By-Law amendments approved by the stockholders is a stockholder-friendly provision that is intended to prevent the Board from subsequently overriding stockholders' wishes. The Commission notes that, pursuant to Section 11.3 of the By-laws, for so long as NASDAQ OMX shall control, directly or indirectly, any SRO, any proposed adoption, alteration, amendment, change or repeal of any By-Law shall be submitted to the Board of each SRO, and if any such proposed amendment must, under Section 19 of the Act and the rules promulgated thereunder, be filed with, or filed with and approved by, the Commission before such amendment may be effective, then such amendment shall not be effective until filed with, or filed with and approved by, the Commission, as the case may be.
The SROs have also proposed to amend the NASDAQ OMX By-Laws: (i) To enhance the “advance notice” procedures; (ii) to require certain information and agreements from director-nominees; (iii) to clarify the procedures for filling Board vacancies; and (iv) to allow the use of electronic means for certain notices and waivers.
The Commission notes that the SROs have stated that the additional procedural requirements relating to special and annual meetings by NASDAQ OMX are designed protect investors by stating clearly and explicitly the procedures stockholders must follow to propose business at such meetings. The SROs have further stated that the requirement for certain information and agreements from director-nominees will enhance investor protection by ensuring that nominees provide adequate information about themselves and comply with applicable law and certain NASDAQ OMX policies and procedures relating to the Board. The remaining procedural changes relating to stockholder meetings appear to be clarifying in nature. The Commission believes that these proposed changes should provide stockholders with adequate notice and information for special and annual meetings of NASDAQ OMX.
The SROs have proposed certain changes to: (i) Eliminate the Certificate of Designation relating to the Series A Convertible Preferred Stock, which is no longer outstanding; (ii) to conform the composition requirements for the Management Compensation Committee of the Board with the NASDAQ listing rules;
For the foregoing reasons, the Commission finds that the proposed rule changes are consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange, in the case of BX, NASDAQ and Phlx, and to a registered clearing agency, in the case of BSECC and SCCP.
On September 30, 2013, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On December 4, 2013, FINRA granted the Commission an extension of time to act on the proposal until January 20, 2014. On January 15, 2014, FINRA filed Amendment No. 1 with the Commission to respond to the comment letters and to propose additional clarifying guidance, including the addition of supplementary material to one of the proposed rules.
FINRA filed the proposed rule change to impose certain reporting requirements on trading venues that have filed a Form ATS with the Commission.
Specifically, FINRA states that the proposal would allow it to better determine whether an ATS is subject to the provisions of Regulation ATS that are triggered by exceeding certain volume thresholds. For instance, Regulation ATS requires an ATS to provide to a national securities exchange or association for display the prices and sizes of orders at the ATS's highest buy price and lowest sell price for any NMS stock, displayed to more than one person in the ATS, with respect to which the ATS has had an average daily trading volume of 5% or more of the aggregate average daily share volume for such NMS stock during at least four of the preceding six calendar months.
To achieve these objectives, the proposal would impose two new requirements on ATSs. First, ATSs would be required to report aggregate weekly trade volume information to FINRA, some of which data FINRA would then make publicly available. Second, the proposal would require each ATS to obtain and use a unique MPID in its regulatory reporting to FINRA.
Proposed Rule 4552 would require each FINRA member that operates an ATS that has filed a Form ATS with the Commission to report to FINRA its aggregate weekly volume information
The proposed rule change contains guidance on how ATSs should calculate their volumes to ensure consistency and to avoid potential over-counting of volume. Proposed Rule 4552 provides that, “[w]hen calculating and reporting the volume of securities traded and the number of trades, an alternative trading system shall include only those trades executed within the alternative trading system. If two orders are crossed by the alternative trading system, the volume shall include only the number of shares or par value of bonds crossed as a single trade (
In addition, FINRA would make some of this reported ATS trade data available to the public. Specifically, FINRA would publish on its Web site the trading information (volume and number of trades) reported for each equity security, with appropriate disclosures that the information is based on ATS-submitted reports and not on reports produced or validated by FINRA. FINRA would do so on a delayed basis: aggregate information concerning trades in NMS stocks in Tier 1 of the NMS Plan to Address Extraordinary Market Volatility
While the reporting obligations in the proposal would apply to transactions in both equity securities (NMS stocks and OTC Equity Securities) and debt securities (TRACE-Eligible Securities), FINRA would not initially publish the data that it receives concerning transaction volume in TRACE-Eligible Securities. FINRA stated that it would not intend to begin publishing self-reported data for TRACE-Eligible Securities “until it has had the opportunity to evaluate the data received from such ATSs and the differences between the existing trade reporting regimes applicable to equity and debt securities.”
The proposed rule change also would require a member operating an ATS to obtain for each such ATS a single, unique MPID that is designated for exclusive use for reporting the ATS's transactions. Members that operate multiple ATSs or engage in other lines of business requiring the use of MPIDs would therefore be required to obtain and use multiple MPIDs. A firm would not be permitted to use multiple MPIDs for a single ATS, and if a firm operates multiple ATSs, each ATS would be required to have its own MPID.
The proposal would prohibit a member from using a separate MPID assigned to an ATS to report any transaction that is not executed within the ATS and require members to have policies and procedures in place to ensure that trades reported with a separate MPID obtained under the rules are restricted to trades executed within the ATS. FINRA noted that this feature of the proposal would be consistent with obligations that already exist for ATSs, which are required by Regulation ATS “to have in place safeguards and procedures to . . . separate alternative trading system functions from other broker-dealer functions, including proprietary and customer trading.”
FINRA currently has three rules that permit the use of multiple MPIDs on FINRA facilities: Rule 6160 (Multiple MPIDs for Trade Reporting Facility Participants), Rule 6170 (Primary and Additional MPIDs for Alternative Display Facility Participants), and Rule 6480 (Multiple MPIDs for Quoting and Trading in OTC Equity Securities). All three rules are permissive, and none of the rules currently requires the use of multiple MPIDs. These three rules would be revised to include language that affirmatively requires any participant of any of these facilities that operates an ATS to obtain a unique MPID for each ATS.
FINRA noted that member firms currently are required to notify FINRA before changing the usage of the MPID in any way (for example, repurposing an MPID from reflecting ATS activity to other trading activity at the firm). After an ATS is provided its MPID, any reporting by the ATS (either reporting trades to a FINRA TRF, the ADF, the ORF, TRACE, or reporting orders to the Order Audit Trail System (“OATS”)) would need to include the MPID assigned to the particular ATS, and the member would need to use the
FINRA noted further that it would leave in place a voluntary program it adopted in 2010 that allows allow members operating an ATS dark pool to have their daily aggregate trading data published by the TRFs.
FINRA stated that it would announce the implementation date of the proposed rule change in a
The Commission points out that, in the Notice of Original Proposal, FINRA stated that it would announce the “effective date” of the proposed rule change by
As noted above, the Commission received ten comment letters concerning the proposal.
Several of these commenters, in fact, expressed support for an even broader proposal that would apply to all trading venues, rather than only to ATSs.
In response to these comments concerning the scope of the proposal, FINRA noted that it considered various alternatives and concluded that ATS trade information was an appropriate first step toward increased transparency in the off-exchange, OTC market. FINRA stated further that it would consider additional steps, including those suggested by the commenters, in the future.
Some commenters voiced concern with certain elements of the proposal or sought further guidance on how the new requirements would be applied. Of these commenters, a majority argued that the self-reporting requirement should be limited in some fashion because it would soon become unnecessary in light of the proposal's MPID requirement.
In its response to these comments, FINRA reiterated that it intends to evaluate the necessity of the self-reporting requirement after the MPID requirement is in place. However, FINRA noted that it would plan to use, for comparison purposes, data reported by ATSs under the self-reporting requirement even when those ATSs have unique MPIDs used exclusively to report trades for the ATS. Moreover, FINRA said that the self-reporting requirement would allow the proposal to more quickly recognize its objective of enhancing ATS transparency. Accordingly, FINRA believes that the self-reporting requirement is a necessary first phase of the proposal. FINRA stated that it would eliminate the self-reporting requirement for ATSs subject to FINRA trade reporting requirements
Aside from the self-reporting requirement, several commenters also expressed concern with FINRA's intent to charge a fee for professionals to access and use the data.
Additionally, one commenter took the position that, if the proposal is approved, FINRA should open up a second formal comment period one year after the rule is implemented to allow for an empirical “retrospective review” of the proposal's costs and benefits.
Lastly, one commenter questioned how the proposal would apply to fixed income ATSs in light of the fact that trades from fixed income ATSs may be reported to FINRA by one of the trade counterparties, rather than by the ATS.
Furthermore, FINRA submitted Amendment No. 1 to adopt supplementary material to FINRA Rule 4552 to clarify when trades should be considered to have occurred “within an ATS.” Specifically, the proposed supplementary material would provide that a trade should be considered to have occurred within the ATS for purposes of the rule “if the ATS (i) executes the trade; (ii) is considered the `executing party' to the trade under FINRA rules; or (iii) otherwise matches orders constituting the trade in a manner as contemplated by SEC Rule 3b–16 or SEC Regulation ATS.”
The proposed supplementary material would further provide a non-exhaustive list of scenarios to illustrate how the “within an ATS” standard would be applied. The list would include: if the trade was executed as a result of the ATS bringing together the purchaser and seller on or through its systems; if the trade was executed by an ATS's subscribers where the subscribers used the ATS system to negotiate the trade, even if the ATS did not itself execute the trade; if the ATS takes either side of the trade for clearance or settlement or in any other way inserts itself into a trade. The supplementary material would also provide that a trade would not be considered to have occurred “within the ATS” if an ATS were to route an order to another member firm or execution venue for handling or execution where that initial order matches against interest resident at the other venue.
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—FINRA–2013–042. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
After carefully considering the proposed rule change, as modified by
The Commission believes that the stated objectives of the proposal—to enhance FINRA's regulatory capabilities with respect to ATSs and to increase public transparency with respect to ATS activity—would further the purposes of the Act. By better enabling FINRA to surveil ATSs for compliance with Regulation ATS, and the display and fair access requirements applicable to ATSs that exceed certain volume thresholds, the proposal is reasonably designed to help prevent fraudulent and manipulative acts and practices and to protect investors and the public interest. By collecting and publishing weekly volume statistics (first, through the self-reporting requirement, and later, potentially, through the MPID requirement), the proposal would increase the amount of information that is publicly available concerning trades that occur in equity ATSs. As many commenters noted, such added transparency would allow regulators and the public to more fully understand the role that equity ATSs play in the marketplace.
The Commission further believes that the proposal is reasonably tailored to achieve these objectives. The self-reporting requirement, which is meant to constitute the first phase of the proposal, will more quickly deliver the benefits of the proposal, and also provide a comparsion for the data that FINRA will receive once the MPID requirement is fully in effect. While the Commission acknowledges that some commenters took issue with the additional costs that could potentially be incurred as a result of the weekly self-reporting requirement, the Commission notes, as FINRA did in its Notice of Original Proposal, that ATSs are already required by Regulation ATS to maintain daily summaries of their trading activities.
In addition, the method of making the ATS trade data publicly available—a two-week delay for Tier 1 NMS stocks and a four-week delay for all other NMS stocks and OTC Equity Securities—appears reasonably designed to balance the desire to inform the public about ATS trading activity with the desire to protect the trading strategies of ATS subscribers. The Commission notes that three commenters supported this element of the proposal,
The Commission believes that requiring a member operating an ATS to obtain for each such ATS a single, unique MPID that is designated for exclusive use by the ATS is consistent with the Act. This aspect of the proposal is reasonably designed to create a more reliable and consistent audit trail for ATS activity, from the time an order is received until the time it is executed or cancelled. This is especially important for firms that conduct both ATS and other broker-dealer activities. Currently, if a member uses a single MPID for both its ATS activity and traditional broker-dealer activity, or uses a single MPID to report the activity of two or more ATSs, it could be difficult if not impossible to track the flow of orders through these systems. The Commission agrees with FINRA's assessment that the fact that many firms already use separate MPIDs in the manner now required by this proposed rule change is evidence that the costs of using multiple MPIDs as contemplated by the proposal is not unduly burdensome. Because the proposal requires some firms to obtain and use multiple MPIDs, FINRA has proposed to make permanent certain rules, currently operating on a pilot basis, that allow firms to use multiple MPIDs. The Commission also believes that it is consistent with the Act to make those rules permanent.
Lastly, the Commission believes that the supplementary material included in Amendment No. 1 is consistent with the Act. In response to the initial proposal, one commenter questioned how the proposal would apply to fixed income ATSs, where it is common practice for trades to be given up to the broker-dealer counterparties.
The Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
FINRA is proposing to adopt FINRA Rule 7640A (Data Products Offered By Nasdaq) to (1) describe FINRA's practices relating to the distribution of market data for over-the-counter (“OTC”) transactions in NMS stocks generated through the operation of the FINRA/Nasdaq Trade Reporting Facility (“FINRA/Nasdaq TRF”) by The NASDAQ OMX Group, Inc. (“NASDAQ OMX”) and its affiliate, The NASDAQ Stock Market LLC (“Nasdaq”); and (2) identify Nasdaq rules relating to products that distribute FINRA/Nasdaq TRF data to third parties, and specifically Nasdaq Rules 7039 (Nasdaq Last Sale Data Feeds), 7047 (Nasdaq Basic) and 7037 (Nasdaq FilterView Service).
The text of the proposed rule change is available on FINRA's Web site at
In its filing with the Commission, FINRA included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Background
The FINRA Trade Reporting Facilities (“TRFs”) are facilities solely for the reporting of OTC transactions in NMS stocks that allow the TRF “Business Members,” which themselves are affiliates of self-regulatory organizations (“SROs”), to retain commercial use of the market data reported to the respective TRFs.
Under the terms of the business arrangement between FINRA and the Business Members, each TRF owns data resulting from its operation. Each Business Member has a non-exclusive, irrevocable, worldwide, perpetual, royalty-free right and license to use market data generated by its TRF, other than data generated exclusively for regulatory purposes (“covered market data”),
In addition to real-time interaction with Business Member staff when operational issues arise, FINRA currently executes its SRO oversight functions by performing a three-part regularly recurring review of TRF operations. First, before initial operation of the TRF can commence, the Business Member is required to certify in writing that TRF operations will comply with all relevant FINRA rules and federal securities laws, and on a quarterly basis thereafter, the Business Member must submit its current TRF procedures and a certification of compliance with those procedures. Second, FINRA staff conducts monthly conference calls with each Business Member to review TRF operations. These monthly calls follow an established agenda, which includes, among other things, whether there were any system outages or issues since the prior monthly conference call (and if so, to confirm that they were reported to FINRA and the SEC, as applicable), the status of pending systems changes, and TRF market data products, including data latency and whether the Business Member has or is developing any new products that would use TRF data. Third, FINRA oversees a regular assessment cycle and extensive review of TRF operations, as measured against the TRF business requirements document and coding guidelines established by FINRA, by an outside independent audit firm. FINRA also will require the Business Members to begin submitting on a quarterly basis an attestation that (1) identifies all products that use TRF data, and (2) certifies that the Business Member has no other products that use TRF data and that any future products that use TRF data will be developed in consultation with FINRA.
Under the TRF framework, the Business Member must ensure, among other things, that the distribution and sale of market data products that use TRF data are consistent with the requirements of the Act. In addition to FINRA's general oversight of TRF operations, and in furtherance of FINRA's SRO responsibilities with respect to OTC market data, FINRA requires that each Business Member (and its SRO affiliate) make specific commitments and undertakings with respect to its products that use TRF data. Among other things, the Business Member must represent that, consistent with the Commission's interpretation of Rule 603(a) under SEC Regulation NMS, it will not transmit any TRF transaction data to a vendor or user any sooner than the TRF transmits the data to the SIPs.
(1) Any exclusive processor, or any broker or dealer with respect to information for which it is the exclusive source, that distributes information with respect to quotations for or transactions in an NMS stock to a securities information processor shall do so on terms that are fair and reasonable.
(2) Any national securities exchange, national securities association, broker, or dealer that distributes information with respect to quotations for or transactions in an NMS stock to a securities information processor, broker, dealer, or other persons shall do so on terms that are not unreasonably discriminatory.
Rule 603 would not prevent the distribution of data that is not required to be provided to the SIPs, provided that such distribution is not unreasonably discriminatory and is otherwise consistent with the Exchange Act.
In this regard, NASDAQ OMX, as the Business Member for the FINRA/Nasdaq TRF, has implemented a tool to monitor for potential latency by comparing the time of dissemination of FINRA/Nasdaq TRF data to the SIPs and to Nasdaq's proprietary data feeds that use corresponding TRF data (e.g., the Nasdaq Last Sale feeds) that is capable of detecting whether data was distributed to a proprietary vendor or user sooner than to the SIP. In addition, NASDAQ is developing the capability to monitor overall performance of respective data feeds on a real-time basis. FINRA and NASDAQ OMX are also in the process of developing escalation procedures in the event that certain latency thresholds are met. It is anticipated that these tools and procedures would be used for purposes of monitoring for potential latency for any future products developed by NASDAQ OMX that use and distribute TRF data on a real-time basis (provided such data is also required to be provided to the SIPs).
FINRA is proposing to adopt new Rule 7640A to address the distribution of FINRA/Nasdaq TRF data in market data products developed by NASDAQ OMX, as the Business Member, and its wholly owned SRO subsidiary, Nasdaq.
The Nasdaq Last Sale (“NLS”) market data product combines both Nasdaq Market Center and FINRA/Nasdaq TRF last sale data and provides real-time execution price, volume and time information for each reported sale. The NLS product currently operates on a pilot basis pursuant to Nasdaq Rule 7039. Nasdaq has submitted a companion filing, SR–NASDAQ–2014–006, proposing to make the NLS product pilot permanent.
The NLS product provides distributors access to real-time market data through multiple pricing models that allow for flexible and very broad distribution to millions of investors via the internet and television at no cost to the end user. Based upon information from NLS distributors, Nasdaq has represented that since its launch in 2008, the NLS data has been viewed by millions of investors. Thus, FINRA believes that the NLS product has increased the availability of market data to individual investors during the pilot period.
As further detailed in its companion filing, Nasdaq has established two pricing models, one for clients that are able to maintain username/password entitlement systems and/or quote counting mechanisms to account for usage, and a second for those that are not. Nasdaq also has established a cap
Because the NLS product provides a subset of the same last sale data that is disseminated by the SIPs, the feeds are structured so that data is not provided to the NLS product sooner than it is provided to the SIPs. NASDAQ OMX, as the Business Member, is responsible for monitoring for data latency, and to date, using the monitoring tool described above, no latency has been detected between the dissemination of FINRA/Nasdaq TRF data to the SIPs and to the NLS product.
Nasdaq Basic under Nasdaq Rule 7047 is a real-time data feed combining Nasdaq's Best Bid and Offer (“QBBO”) with Nasdaq Market Center last sale information. Nasdaq has submitted a companion filing, SR–NASDAQ–2014–005, to authorize inclusion of FINRA/Nasdaq TRF data in the product.
Nasdaq Rule 7047 sets forth a number of pricing models for Nasdaq Basic: (1) A model in which a charge is assessed for each subscriber to the product to receive unlimited access,
Because the NLS product is the source of the FINRA/Nasdaq TRF last sale information included in Nasdaq Basic, the latency monitoring performed by the Business Member with respect to the NLS product also provides a means to monitor the dissemination of data through the Nasdaq Basic product. As noted above, to date the Business Member has detected no latency between the dissemination of FINRA/Nasdaq TRF data to the SIPs and to the NLS product.
The Nasdaq FilterView Service (“Nasdaq FilterView”) under Nasdaq Rule 7037 allows a distributor to receive a subset of any existing real-time data feed distributed by Nasdaq. Thus, the service could be used to receive FINRA/Nasdaq TRF data derived from NLS or Nasdaq Basic. Nasdaq FilterView was originally adopted in 2006
Because distribution of data through Nasdaq FilterView may be more streamlined than the distribution of data through the data feeds from which it may be derived, such as NLS or Nasdaq Basic, Nasdaq has committed to perform separate latency monitoring of the dissemination of TRF last sale information through Nasdaq FilterView. Although Nasdaq FilterView is not a distinct data product, but rather a means of receiving a modified form of other data products, Nasdaq Rule 7037 is nonetheless cross-referenced in proposed Rule 7640A.
FINRA believes that using FINRA/Nasdaq TRF data in the NLS, Nasdaq Basic and Nasdaq FilterView data products will enhance transparency and increase the information regarding trading activity that is available to market participants and investors. FINRA also believes that the products satisfy the requirement that FINRA/Nasdaq TRF transaction data not be disseminated to a vendor or user any sooner than such data is transmitted to the SIPs. NASDAQ OMX, as the Business Member, must comply with the requirements and commitments described above, including monitoring for latency, and as part of FINRA's regular oversight of the FINRA/Nasdaq TRF, FINRA monitors for such compliance.
FINRA anticipates that for any future products that use FINRA/Nasdaq TRF data, Nasdaq will submit a proposed rule change and FINRA will submit a companion filing proposing to amend Rule 7640A(c). In addition, NASDAQ OMX and Nasdaq will be required to make the specific commitments and undertakings described above regarding the inclusion of TRF data in any new product.
FINRA has filed the proposed rule change for immediate effectiveness and requested waiver of the 30-day operative delay. FINRA is proposing that the proposed rule change will be operative immediately upon filing.
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
FINRA also believes that the proposed rule change is consistent with the provisions of Section 15A(b)(5) of the Act,
Finally, FINRA believes that use of FINRA/Nasdaq TRF market data, as set forth in proposed Rule 7640A, is consistent with Rule 603(a) of SEC Regulation NMS, which requires, among other things, that distributions of certain data by FINRA not be unreasonably discriminatory.
FINRA does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to provide a framework to increase the amount of market data available from the FINRA/Nasdaq TRF while ensuring that the dissemination of such data by the Business Member is subject to the oversight of FINRA. FINRA believes that, as described more fully in Nasdaq's filings, the existence of numerous alternatives to NLS and Nasdaq Basic (or Nasdaq FilterView, through which FINRA/Nasdaq TRF data derived from NLS or Nasdaq Basic can be obtained)—including real-time consolidated data, free delayed consolidated data and proprietary data from other sources—is a strong incentive to Nasdaq to avoid setting unreasonable or discriminatory fees. Subscription to the NLS, Nasdaq Basic and Nasdaq FilterView products is wholly voluntary, and members can elect not to buy any products that, in their determination, would not add value or enhance their business model.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the operation of its New Market Model Pilot, currently scheduled to expire on January 31, 2014, until the earlier of Securities and Exchange Commission (“Commission”) approval to make such pilot permanent or July 31, 2014.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to extend the operation of its New Market Model Pilot (“NMM Pilot”),
The Exchange notes that parallel changes are proposed to be made to the rules of NYSE MKT LLC.
In October 2008, the NYSE implemented significant changes to its market rules, execution technology and the rights and obligations of its market participants all of which were designed to improve execution quality on the Exchange. These changes are all elements of the Exchange's enhanced market model. Certain of the enhanced market model changes were implemented through a pilot program.
As part of the NMM Pilot, NYSE eliminated the function of specialists on the Exchange creating a new category of market participant, the Designated Market Maker or DMM.
In addition, the Exchange implemented a system change that allowed DMMs to create a schedule of additional non-displayed liquidity at various price points to interact with interest and provide price improvement to orders in the Exchange's system. This schedule is known as the DMM Capital Commitment Schedule (“CCS”).
The NMM Pilot further modified the logic for allocating executed shares among market participants having trading interest at a price point upon execution of incoming orders. The modified logic rewards displayed orders that establish the Exchange's BBO. During the operation of the NMM Pilot, orders or portions thereof that establish priority
The NMM Pilot was originally scheduled to end operation on October 1, 2009, or such earlier time as the Commission may determine to make the rules permanent. The Exchange filed to extend the operation of the Pilot on several occasions in order to prepare a rule filing seeking permission to make the above described changes permanent.
The NYSE established the NMM Pilot to provide incentives for quoting, to enhance competition among the existing group of liquidity providers and to add a new competitive market participant. The Exchange believes that the NMM Pilot allows the Exchange to provide its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity, facilitate the trading of larger orders more efficiently and operates to reward aggressive liquidity providers. As such, the Exchange believes that the rules governing the NMM Pilot should be made permanent. Through this filing the Exchange seeks to extend the current operation of the NMM Pilot until July 31, 2014, in order to allow the Exchange time to formally submit a filing to the Commission to convert the pilot rules to permanent rules.
The proposed change is not otherwise intended to address any other issues and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes the proposed rule change is designed to facilitate transactions in securities and to remove impediments to, and perfect the mechanisms of, a free and open market and a national market system because the NMM Pilot provides its market participants with a trading venue that utilizes an enhanced market structure to encourage the addition of liquidity, facilitate the trading of larger orders more efficiently and operates to reward aggressive liquidity providers. The Exchange also believes the proposed rule change is designed to prevent fraudulent and manipulative acts and practices and to promote just and equitable principles of trade because it seeks to extend a pilot program that has already been approved by the Commission. Moreover, requesting an extension of the NMM Pilot will permit adequate time for: (i) The Exchange to prepare and submit a filing to make the rules governing the NMM Pilot permanent; (ii) public notice and comment; and (iii) completion of the 19b–4 approval process. Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition. For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting the services it offers and the requirements it imposes to remain competitive with other U.S. equity exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to add Rule 7280 (Bulk Cancellation of Trading Interest) to codify and clarify a protection mechanism already available on the Exchange. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's Internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to add BOX Rule 7280 (Bulk Cancellation of Trading Interest) to codify and clarify protection mechanisms already available on the Exchange. The Exchange currently has the ability to cancel all of a Participant's bids, offers and orders when directed by the Participant. In addition, when requested by the Participant, the Exchange can block any incoming orders from the Participant. The Exchange believes that these bulk cancellation mechanisms provide value to Participants by helping them quickly mitigate the risk of erroneous trades when faced with technology issues.
The Exchange is proposing to add BOX Rule 7280 to codify these existing mechanisms and provide clarity on how they function. As set forth in proposed Rule 7280, when instructed by a Participant, the Exchange can simultaneously cancel all the bids, offers, and orders of a Participant in all series in all classes of options. In order for the Exchange to remove the bids, offers and orders of a Participant, the Participant must call the BOX Market Operations Center (“MOC”).
Proposed Rule 7280 also states that when requested, the Exchange will block all new incoming orders submitted by the Participant until the Participant contacts the MOC to have the block removed. The Exchange believes this feature provides an additional layer of protection by blocking new orders that could have been sent in error or with incorrect prices when a Participant's systems were compromised. Blocking all new incoming orders can give the Participant time to address the particular system issue without having to continually cancel any new orders being sent to the Exchange. Once the issue is resolved, the Participant must contact the MOC to remove the block.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposal will provide Participants with additional protection from anomalous executions when the Participant is experiencing system problems or difficulties connecting with the Trading Host. The Exchange notes that this functionality is available to all Participants. Additionally, this functionality does not require any changes or upgrades to any Participant's system. Thus, the Exchange does not believe the proposal creates any significant impact on competition.
The Exchange has neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (1) Significantly affect the protection of investors or the public interest; (2) impose any significant burden on competition; and (3) by its terms does not become operative for 30 days after the date of this filing, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
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–BOX–2014–03. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to reflect a change to the means of achieving the investment objective applicable to the STAR
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
The Commission has approved the listing and trading on the Exchange of shares (“Shares”) of the Fund under NYSE Arca Equities Rule 8.600
In this proposed rule change, the Exchange proposes to make the following change, described below, to the investment strategy the Sub-Adviser will use to obtain the Fund's investment objective (the “Proposed Amendment”).
As stated in the Prior Release, the Fund, through its investment in Underlying ETPs, may purchase equity securities traded in the U.S. on registered exchanges or the over-the-counter market.
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in equity securities (including Underlying ETPs and other exchange-traded equity securities), and exchange-traded options with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in equity securities (including Underlying ETPs and other exchange-traded equity securities), and exchange-traded options from such markets and other entities. In addition, the Exchange may obtain information regarding trading in equity securities (including Underlying ETPs and other exchange-traded equity securities), and exchange-traded options from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
For purposes of calculating net asset value (“NAV”) of Shares of the Fund, price information for valuation of equity securities held by the Fund will be taken from the exchange where the security is primarily traded. Quotation and last-sale information for the equity securities held by the Fund will be available via the Consolidated Tape Association (“CTA”) high-speed line and from major market data vendors.
The Adviser represents that there is no change to the Fund's investment objective. The Adviser also represents that the Proposed Amendment is consistent with the Exemptive Order under the 1940 Act and the rules thereunder. Except for the changes noted regarding the Proposed Amendment above, all other facts presented and representations made in the Prior Release remain unchanged.
The Fund will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600.
Terms used herein but not otherwise defined shall have the meanings
The Exchange notes that the Commission has previously approved for listing other actively-managed exchange-traded funds that invest in U.S. exchange-listed equity securities.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in equity securities (including Underlying ETPs and other exchange-traded equity securities), and exchange-traded options with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in equity securities (including Underlying ETPs and other exchange-traded equity securities), and exchange-traded options from such markets and other entities. In addition, the Exchange may obtain information regarding trading in equity securities (including Underlying ETPs and other exchange-traded equity securities), and exchange-traded options from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Adviser represents that there is no change to the Fund's investment objective. The Fund will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600. The Adviser represents that the purpose of the proposed rule change is to provide additional flexibility to the Sub-Adviser to meet the Fund's investment objective by investing directly in U.S. exchange-listed equity securities.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the continued listing and trading of an actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. The Fund will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes the proposed rule change will permit the Adviser and Sub-Adviser additional flexibility in achieving the Fund's investment objective, and will permit the Fund to better compete with other issues of Managed Fund Shares that hold equity securities traded in the U.S. on national securities exchanges.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days after the date of filing. However, Rule 19b–4(f)(6)(iii) permits the Commission to designate a shorter time if such action is consistent with the protection of investors and the public interest. The Exchange requests that the Commission waive the 30-day operative delay to accommodate certain investments by the Fund and Exchange trading of the Shares of the Fund without delay. The Commission believes that waiving the 30-day operative delay is consistent with the protection of investors and the public interest.
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
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal 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.
Office of the United States Trade Representative.
Request for written submissions.
In the 2013 Special 301 Report (
Friday, February 14, 2014—Deadline for the public, except foreign governments, to submit written comments.
Friday, February 21, 2014—Deadline for foreign governments to submit written comments.
Please note that on January 3, 2014, USTR issued a request for comments from the public and provided notice of a public hearing related to the 2014 Special 301 Review (
All written comments must be in English and submitted electronically via
George York, Deputy Assistant USTR for Intellectual Property and Innovation, Office of the United States Trade Representative, at (202) 395–6126.
Section 182 of the Trade Act requires USTR to identify countries that deny adequate and effective protection of IPR or deny fair and equitable market access to U.S. persons who rely on intellectual property protection. The provisions of Section 182 are commonly referred to as the “Special 301” provisions of the Trade Act.
Those countries that have the most onerous or egregious acts, policies, or practices and whose acts, policies, or practices have the greatest adverse impact (actual or potential) on relevant U.S. products are to be identified as Priority Foreign Countries. In addition, USTR has created a “Priority Watch List” and a “Watch List” under Special 301 provisions. Placement of a trading partner on the Priority Watch List or Watch List indicates that particular problems exist in that country with respect to IPR protection, enforcement, or market access for persons relying on intellectual property.
In the 2013 Special 301 Report, USTR noted that although Spain was not listed in the report, USTR would conduct an OCR of Spain focusing in particular on Spain's concrete steps to combat copyright piracy over the Internet. An OCR is a tool that USTR uses to encourage progress on IPR issues of concern. It provides an opportunity for heightened engagement with a trading partner to address and remedy such issues. Successful resolution of specific IPR issues of concern or lack of action on that concern can lead to a change in a trading partner's status on a Special 301 list outside of the typical time frame for the annual Special 301 Report.
To facilitate the review, written comments should be as detailed as possible and provide all necessary information for identifying and assessing the effect of the acts, policies, and practices of Spain. USTR requests that interested parties provide specific references to laws, regulations, policy statements, executive, presidential or other orders, administrative, court or other determinations that should factor in the review. USTR also requests that submissions include data, loss estimates, and other information regarding the economic impact on the United States, U.S. industry, and the U.S. workforce caused by the denial of adequate and effective intellectual
Comments must be in English. All comments should be sent electronically via
A submitter requesting that information contained in a comment submitted by that submitter be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. The filenames of both documents should reflect their status—“BCI” for the business confidential version and “PUBLIC” for the public version. In the document, confidential business information must be clearly designated as such, the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page, and the submission should indicate, via brackets, the specific information that is confidential. Additionally, the submitter should write “Business Confidential” in the “Type Comment” field. Anyone submitting a comment containing business confidential information must also submit, as a separate submission, a non-business confidential version of the submission, indicating where the business confidential information has been redacted. The non-business confidential version will be placed in the docket at
Submissions will be placed in the docket and open to public inspection pursuant to
Office of the United States Trade Representative.
Notice; request for comments.
The Office of the United States Trade Representative (“USTR”) is providing notice that on December 3, 2013, the People's Republic of China (“China”) requested consultations with the United States under the
That request may be found at
Although USTR will accept any comments received during the course of the dispute settlement proceedings, comments should be submitted on or before February 14, 2014, to be assured of timely consideration by USTR.
Public comments should be submitted electronically to
If (as explained below) the comment contains confidential information, then the comment should be submitted by fax only to Sandy McKinzy at (202) 395–3640.
J. Daniel Stirk, Associate General Counsel, or Mayur Patel, Assistant General Counsel, Office of the United States Trade Representative, 600 17th Street NW., Washington, DC 20508, (202) 395–3150.
USTR is providing notice that consultations have been requested pursuant to the WTO
On December 3, 2013, China requested consultations concerning antidumping measures on a number of products from China, including certain coated paper suitable for high-quality
With respect to the antidumping measures on coated paper, OCTG, and steel cylinders, China challenges the application by the Department of Commerce (“Commerce”) in investigations of what China describes as a “targeted dumping methodology” and the use of “zeroing” in connection with the application of such methodology. China's challenge includes Commerce's final determinations in the antidumping investigations of these products, any modification, replacement, or amendment of such final determinations, and “any closely connected, subsequent measures” that involve the “targeted dumping methodology.”
With respect to the antidumping measure on PET film, China challenges Commerce's application in an administrative review of what China describes as a “targeted dumping methodology” and the use of “zeroing” in connection with the application of such methodology. China's challenge includes Commerce's final determination in the antidumping duty administrative review of PET film, any modification, replacement, or amendment of such final determination, and “any closely connected, subsequent measures” that involve the “targeted dumping methodology.”
With respect to the antidumping measures on aluminum extrusions, coated paper, shrimp, tires, OCTG, solar cells, sawblades, steel cylinders, wood flooring, ribbons, bags, PET film, and furniture, China challenges Commerce's application in investigations and administrative reviews of what China describes as a “single rate presumption for non-market economies.” China's challenge includes Commerce's final determinations, any modification, replacement, or amendment of such final determinations, and “any closely connected, subsequent measures” that involve the application of the “single rate presumption.” China also challenges the “single rate presumption” “as such,” and alleges that it has been consistently applied pursuant to the regulation set forth in 19 CFR 351.107(d), Import Administration Policy Bulletin Number 05.1 of 5 April 2005, and the Import Administration Antidumping Manual, 2009, Chapter 10.
With respect to the antidumping measures on aluminum extrusions, coated paper, shrimp, tires, OCTG, solar cells, sawblades, steel cylinders, wood flooring, ribbons, bags, PET film, and furniture, China challenges Commerce's application in investigations and administrative reviews of what China describes as a “NME-wide methodology,” which includes as “features” the “failure to request information,” the “failure to provide rights of defense,” and the “recourse to facts available.” China's challenge includes Commerce's final determinations, any modification, replacement, or amendment of such final determinations, and “any closely connected, subsequent measures” that involve the application of the “NME-wide methodology.”
Finally, with respect to the antidumping measures on aluminum extrusions, coated paper, shrimp, tires, OCTG, solar cells, sawblades, steel cylinders, wood flooring, ribbons, bags, PET film, and furniture, China challenges Commerce's application in investigations and administrative reviews of what China describes as “adverse facts available.” China's challenge includes Commerce's final determinations, any modification, replacement, or amendment of such final determinations, and “any closely connected, subsequent measures” that involve the application of the “NME-wide methodology.” China also challenges the use of “adverse facts available” “as such,” and alleges that it has been consistently applied pursuant to section 776(b) of the Tariff Act of 1930, codified at 19 U.S.C. 1677e(b) and regulations set forth in 19 CFR 351.308.
China alleges inconsistencies with Articles 2.4.2, 6.1, 6.8, 6.10, 9.2, 9.3, 9.4, and Annex II of the AD Agreement and Article VI:2 of the
Interested persons are invited to submit written comments concerning the issues raised in this dispute. Persons may submit public comments electronically to
To submit comments via
The
A person requesting that information contained in a comment that he/she submitted be treated as confidential business information must certify that such information is business confidential and would not customarily be released to the public by the submitter. Confidential business information must be clearly designated as such and the submission must be marked “BUSINESS CONFIDENTIAL” at the top and bottom of the cover page and each succeeding page. Any comment containing business confidential information must be submitted by fax to Sandy McKinzy at (202) 395–3640. A non-confidential summary of the confidential information must be submitted to
USTR may determine that information or advice contained in a comment submitted, other than business confidential information, is confidential in accordance with Section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If the submitter believes that information or advice may qualify as such, the submitter—
(1) Must clearly so designate the information or advice;
(2) Must clearly mark the material as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page; and
(3) Must provide a non-confidential summary of the information or advice.
Any comment containing confidential information must be submitted by fax. A non-confidential summary of the confidential information must be submitted to
Pursuant to section 127(e) of the Uruguay Round Agreements Act (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding, docket number USTR–2014–0001, accessible to the public at
In the event that a dispute settlement panel is convened, or in the event of an appeal from such a panel, the report of the panel, and, if applicable, the report of the Appellate Body, will also be available on the Web site of the World Trade Organization, at
Departmental Office, 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 comment on a revision of an existing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). This clearance will allow the Office of Financial Stability, within the Department of the Treasury, to collect information from homeowners that have received mortgage modifications under the Home Affordable Modification Program (HAMP), in order to study the performance of HAMP modifications.
Written comments should be received on or before February 24, 2014 to be assured of consideration.
Comments regarding these information collections should be addressed to the Department of the Treasury, Departmental Offices, Office of Financial Stability, ATTN: Jay Warden, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
Requests for additional information should be directed to the Department of the Treasury, Departmental Offices, Office of Financial Stability, ATTN: Jay Warden, 1500 Pennsylvania Avenue NW., Washington, DC 20220.
The study will likely involve up to 4800 subjects. Each individual data collection session will be approximately 15 to 20 minutes long.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Final rule.
FRA is amending the Federal Track Safety Standards to promote the safety of railroad operations by enhancing rail flaw detection processes. In particular, FRA is establishing minimum qualification requirements for rail flaw detection equipment operators, as well as revising requirements for effective rail inspection frequencies, rail flaw remedial actions, and rail inspection records. In addition, FRA is removing regulatory requirements concerning joint bar fracture reporting. This final rule is intended to implement section 403 of the Rail Safety Improvement Act of 2008 (RSIA).
This final rule is effective March 25, 2014. Petitions for reconsideration must be received on or before March 25, 2014. Comments in response to petitions for reconsideration must be received on or before May 9, 2014.
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Carlo Patrick, Staff Director, Office of Railroad Safety, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202–493–6399); or Elisabeth Galotto, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., Washington, DC 20950 (telephone: 202–493–0270).
Having considered the public comments in response to FRA's October 19, 2012, proposed rule on Track Safety Standards, Improving Rail Integrity,
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The final rule provides track owners with a four-hour period in which to verify that certain, suspected defects exists in a rail section. The primary purpose of the four-hour, deferred-verification option is to assist track owners in improving detector car utilization and production, increase the opportunity to detect more serious defects, and help ensure that all rail that the detector car is intended to travel over while in service is inspected. Additionally, the rule revises the remedial action table in areas such as transverse defects, longitudinal weld defects, and crushed head defects.
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Formerly, Class 4 and 5 track, as well as Class 3 track over which passenger trains operate, were required to be tested for internal rail defects at least once every accumulation of 40 million gross tons (mgt) or once a year (whichever time was shorter). Class 3 track over which passenger trains do not operate was required to be tested at least once every accumulation of 30 mgt or once per year (whichever time was longer). When these inspection requirements were drafted, track owners were already initiating and implementing the development of a performance-based risk management concept for determination of rail inspection frequency, which is often referred to as the “self-adaptive scheduling method.” Under this method, inspection frequency is established annually based on several factors, including the total detected defect rate per test, the rate of service failures between tests, and the accumulated tonnage between tests. Track owners then utilize this information to generate and maintain a service failure performance target.
This final rule codifies standard industry good practices. The final rule requires track owners to maintain service failure rates of no more than 0.1 service failure per year per mile of track for all Class 4 and 5 track; no more than 0.09 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains or is a hazardous materials route; and no more than 0.08 service failure per year per mile of track for all Class
The final rule also requires that internal rail inspections on Class 4 and 5 track, and Class 3 track with regularly-scheduled passenger trains or that is a hazardous materials route, not exceed a time interval of 370 days between inspections or a tonnage interval of 30 mgt between inspections, whichever is shorter. Internal rail inspections on Class 3 track without regularly-scheduled passenger trains and that is not a hazardous materials route must be inspected at least once each calendar year, with no more than 18 months between inspections, or at least once every 30 mgt, whichever interval is longer, but in no case may inspections be more than 5 years apart.
The final rule adds a new provision requiring that each provider of rail flaw detection have a documented training program to ensure that a flaw detection equipment operator is qualified to operate each of the various types of equipment utilized in the industry for which he or she is assigned to operate. For a rail flaw detection test to be valid, the test must be performed by a qualified operator. Qualified operators are in turn subject to minimum training, evaluation, and documentation requirements to help ensure the validity of a rail flaw detection test. It is the responsibility of the track owner to reasonably ensure that any provider of rail flaw detection is in compliance with these training and qualification requirements.
The final rule removes the requirement that track owners generate a Joint Bar Fracture Report (Fracture Report) for every cracked or broken continuous welded rail (CWR) joint bar that the track owner discovers during the course of an inspection. The reports were providing little, useful research data to prevent future failures of CWR joint bars. Instead, a new study will be conducted to determine what conditions lead to CWR joint bar failures and include a description of the overall condition of the track in the vicinity of the failed joint(s), track geometry (gage, alignment, profile, cross-level) at the joint location, and the maintenance history at the joint location, along with photographic evidence of the failed joint.
The final rule ensures that a railroad's rail inspection records include the date of inspection, track identification and milepost for each location tested, type of defect found and size if not removed prior to traffic, and initial remedial action as required by § 213.113. The final rule also requires that when tracks do not receive a valid inspection they are documented in the railroad's rail inspection records.
On October 16, 2008, the RSIA (Pub. L. 110–432, Division A) was enacted. Section 403(a) of the RSIA required the Secretary of Transportation (Secretary) to conduct a study of track issues, known as the Track Inspection Time Study (Study), to determine whether track inspection intervals needed to be amended; whether track remedial action requirements needed to be amended; whether different track inspection and repair priorities and methods were required; and whether the speed of track inspection vehicles should be regulated. As part of the Study, section 403(b) of the RSIA instructed the Secretary to consider “the most current rail flaw, rail defect growth, rail fatigue, and other relevant track- or rail-related research and studies,” as well as new inspection technologies, and National Transportation Safety Board (NTSB) and FRA accident information. The Study was completed and presented to Congress on May 2, 2011. Section 403(c) of the RSIA further provided that FRA prescribe regulations based on the results of the Study two years after its completion.
FRA tasked the Railroad Safety Advisory Committee (RSAC) to address the recommendations of the Study. After several meetings, the Association of American Railroads (AAR) together with the Brotherhood of Maintenance of Way Employes Division (BMWED) proposed that FRA had met its obligations under section 403(c) of the RSIA, specifically through its rulemakings on vehicle/track interaction, concrete crossties, and the proposals contained in the NPRM related to rail integrity. They also stated that no additional action on the RSAC task was necessary and recommended that the task be closed. FRA took AAR's and BMWED's proposal under advisement and conducted its own analysis as to the fulfillment of the mandates under section 403. FRA concluded that these statutory obligations were being fulfilled. Subsequently, the full RSAC concurred that FRA's rulemakings were sufficiently addressing the statutorily-mandated topics and that no additional work by the RSAC was necessary.
The bulk of the final rule revises FRA's Track Safety Standards by codifying current industry good practices. In analyzing the economic impacts of the final rule, FRA does not believe that any existing operation will be adversely affected by these changes, nor does FRA believe that the changes will induce any material costs.
Through its regulatory evaluation, FRA explains what the likely benefits for this final rule are and provides a cost-benefit analysis. FRA anticipates that the final rule will enhance the Track Safety Standards by allocating more time to rail inspections, increasing the opportunity to detect more serious defects sooner, providing assurance that qualified operators are inspecting the rail, and causing inspection records to be updated with more useful information. The main benefit associated with this final rule is derived from granting track owners a four-hour window to verify certain defects found in a rail inspection. Without the additional time to verify these defects, track owners must stop their inspections anytime a suspect defect is identified, to avoid civil penalty liability, and then resume their inspections after the defect is verified. The defects subject to the deferred verification allowance are usually considered less likely to cause immediate rail failure, and require less restrictive remedial action. The additional time permits track owners to avoid the cost of paying their internal inspection crews or renting a rail flaw detector car an additional half day, saving the industry $8,400 per day. FRA believes the value of the anticipated benefits easily justifies the cost of implementing the final rule.
The final rule's total net benefits are estimated to be about $62.9 million over a 20-year period. The benefits are approximately $48.1 million, discounted at a 3-percent rate, or about $35.5 million, discounted at a 7-percent rate. In the final rule, the estimated benefit showed an overall increase of 2.6% compared to the estimates provided in the NPRM. Part of this increase is due to the application of the Congressional Budget Office (CBO) real wage forecast which adjusts the annual growth rate by 1.07 percent annually. FRA also determined that the implementation year would be 2014; therefore, all wages were adjusted accordingly. The change in the implementation year accounts for the remainder of the increased benefits.
On March 17, 2001, the
The NTSB discovered a broken rail at the point of derailment. The broken pieces of rail were reassembled at the scene, and it was determined that they came from a 15
During the course of the accident investigation, the NTSB could not reliably determine the source of the plug rail. While differing accounts were given concerning the origin of the rail prior to its installation in the track, the replacement rail would most likely have been rail which was removed from another track location for reuse. Analysis of the rail found that the rail failed due to fatigue initiating from cracks associated with the precipitation of internal hydrogen. If the rail had been ultrasonically inspected prior to its reuse, it is likely that the defects could have been identified and that section of rail might not have been used as plug rail.
As a result of its investigation of the Nodaway, Iowa, railroad accident, the NTSB recommended that FRA require railroads to conduct ultrasonic or other appropriate inspections to ensure that rail used to replace defective segments of existing rail is free from internal defects.
On October 20, 2006, Norfolk Southern Railway Company (NS) train 68QB119 derailed while crossing the Beaver River railroad bridge in New Brighton, Pennsylvania. The train was pulling eighty-three tank cars loaded with denatured ethanol, a flammable liquid. Twenty-three of the tank cars derailed near the east end of the bridge, causing several of the cars to fall into the Beaver River. Twenty of the derailed cars released their loads of ethanol, which subsequently ignited and burned for forty-eight hours. Some of the unburned ethanol liquid was released into the river and the surrounding soil. Homes and businesses within a seven-block area of New Brighton and in an area adjacent to the accident had to be evacuated for days. While no injuries or fatalities resulted from the accident, NS estimated economic and environmental damages to be $5.8 million.
This accident demonstrated the potential for rail failure with subsequent derailment if a railroad's internal rail defect detection process fails to detect an internal rail flaw. This accident also indicated a need for adequate requirements that will ensure rail inspection and maintenance programs identify and remove rail with internal defects before they reach critical size and result in catastrophic rail failures.
On February 24, 2009, the DOT's Office of Inspector General (OIG) issued a report presenting the results of its audit of FRA's oversight of track-related safety issues, and making two findings. First, the OIG found that FRA's safety regulations for internal rail flaw testing did not require the railroads to report the specific track locations, such as milepost numbers or track miles that were tested during these types of inspections. Second, the OIG found that FRA's inspection data systems did not provide adequate information for determining the extent to which FRA's track inspectors have reviewed the railroads' records for internal rail flaw testing and visual track inspections to assess compliance with safety regulations. The OIG recommended that FRA revise its track safety regulations for internal rail flaw testing to require railroads to report track locations covered during internal rail flaw testing, and that FRA develop specific inspection activity codes for FRA inspectors to use to report on whether the record reviews FRA inspectors conduct were for internal rail flaw testing or visual track inspections.
The single
To maximize the service life of rail, railroads must accept a certain rate of defect development. This results in railroads relying on regular rail inspection cycles, and strategically renewing rail that is showing obvious evidence of fatigue. The development of internal rail defects is an inevitable consequence of the accumulation and effects of fatigue under repeated loading. The challenge for the railroad
The effectiveness of a rail inspection program depends on the test equipment being properly designed and capable of reliably detecting rail defects of a certain size and orientation, while also ensuring that the test frequencies correspond to the growth rate of critical defects. The objective of a rail inspection program is to reduce the annual costs and consequences resulting from broken rails, which involve several variables.
The predominant factor that determines the risk of rail failure is the rate of development of internal flaws. Internal rail flaws have a period of origin and a period often referred to as slow crack growth life. The risk is introduced when internal flaws remain undetected during their growth to a critical size. This occurs when the period in which the crack develops to a detectable size is significantly shorter than the required test interval.
In practice, the growth rate of rail defects is considered highly inconsistent and unpredictable. Rail flaw detection in conjunction with railroad operations often presents some specific problems. This is a result of high traffic volumes that load the rail and accelerate defect growth, while at the same time decreasing the time available for rail inspection. Excessive wheel loading can result in stresses to the rail that can increase defect growth rates. Consequently, heavy axle loading can lead to rail surface fatigue that may prevent detection of an underlying rail flaw by the test equipment. Most railroads attempt to control risk by monitoring test reliability through an evaluation process of fatigue service failures that occur soon after testing, and by comparing the ratio of service failures or broken rails to detected rail defects.
The tonnage required to influence defect development is also considered difficult to predict; however, once initiated, transverse defect development is influenced by tonnage. Rapid defect growth rates can also be associated with rail where high-tensile residual stresses are present in the railhead and in CWR in lower temperature ranges where the rail is in high longitudinal tension.
It is common for railroads to control risk by monitoring the occurrence of both detected and service defects. For railroads in the U.S., risk is typically evaluated to warrant adjustment of test frequencies. The railroads attempt to control the potential of service failure by testing more frequently.
In conducting rail integrity research, the general approach is to focus on confirming whether rail defects can be detected by periodic inspection before they grow large enough to cause a rail failure. In the context of rails, damage tolerance is the capability of the rail to resist failure and continue to perform safely with damage (i.e., rail defects). This implies that a rail containing a crack or defect is weaker than a normal rail, and that the rail's strength decreases as the defect grows. As growth continues, the applied stresses will eventually exceed the rail's strength and cause a failure. Such information can be used to establish guidelines for determining the appropriate frequency of rail inspections to mitigate the risk of rail failure from undetected defects.
Current detection methods that are performed in the railroad industry utilize various types of processes with human involvement in the interpretation of the test data. These include the:
• Portable test process, which consists of an operator pushing a test device over the rail at a walking pace while visually interpreting the test data;
• Start/stop process, where a vehicle-based, rail flaw detection system tests at a slow speed (normally not exceeding 20 mph) gathering data that is presented to the operator on a test monitor for interpretation;
• Chase car process, which consists of a lead test vehicle performing the flaw detection process in advance of a verification chase car; and
• Continuous test process, which consists of operating a high-speed, vehicle-based test system non-stop along a designated route, analyzing the test data at a centralized location, and subsequently verifying suspect defect locations.
The main technologies utilized for non-destructive testing on U.S. railroads are the ultrasonic and induction methods. Ultrasonic technology is the primary technology used, and induction technology is currently used as a complementary system. As with any non-destructive test method, these technologies are susceptible to physical limitations that allow poor rail head surface conditions to negatively influence the detection of rail flaws. The predominant types of these poor, rail head surface conditions are shells, engine driver burns, spalling, flaking, corrugation, and head checking. Other conditions that are encountered include heavy lubrication or debris on the rail head.
Induction testing requires the introduction of a high-level, direct current into the top of the rail and establishing a magnetic field around the rail head. An induction sensor unit is then passed through the magnetic field. The presence of a rail flaw will result in a distortion of the current flow, and it is this distortion of the magnetic field that is detected by the search unit.
Ultrasonics can be briefly described as sound waves, or vibrations, that propagate at a frequency that is above the range of human hearing, normally above a range of 20,000 Hz or cycles per second. The range normally utilized during current flaw detection operations is 2.25 MHz (million cycles per second) to 5.0 MHz. Ultrasonic waves are generated into the rail by piezo-electric transducers that can be placed at various angles with respect to the rail surface. The ultrasonic waves produced by these transducers normally scan the entire rail head and web, as well as the portion of the base directly beneath the web. Internal rail defects represent a discontinuity in the steel material that constitutes the rail. This discontinuity acts as a reflector to the ultrasonic waves, resulting in a portion of the wave being reflected back to the respective transducer. These conditions include rail head surface conditions, internal or visible rail flaws, weld upset/finish, and known reflectors within the rail geometry such as drillings or rail ends. The information is then processed by the test system and recorded in the permanent test data record. Interpretation of the reflected signal is the responsibility of the test system operator.
Railroads have always inspected track visually to detect rail failures, and have been using crack-detection devices in rail-test vehicles since the 1930s. Meanwhile, the railroad industry has trended towards increased traffic density and average axle loads. Current rail integrity research recognizes and addresses the need to review and update rail inspection strategies and preventive measures. This includes the frequency interval of rail inspection, remedial action for identified rail defects, and improvements to the performance of the detection process.
FRA has sponsored railroad safety research for several decades. One part of this research program is focused on rail integrity. The general objectives of FRA rail integrity research have been to improve railroad safety by reducing rail failures and the associated risks of train derailment, and to do so more efficiently through new maintenance practices that increase rail service life. The studies sponsored by FRA focus on
Due to the limitations of current technology to detect internal rail flaws beneath surface conditions and in the base flange area, FRA's research has been focusing on other rail flaw detection technologies. One laser-based, ultrasonic rail defect detection prototype, which is being developed by the University of California-San Diego under an FRA Office of Research and Development grant, has produced encouraging results in ongoing field testing. The project goal is to develop a rail defect detection system that provides better defect detection reliability at a higher inspection speed than is currently achievable. The primary target is the detection of transverse defects in the rail head. The method is based on ultrasonic guided waves, which can travel below surface discontinuities, hence minimizing the masking effect of transverse cracks by surface shelling. The inspection speed can also be improved greatly because guided waves run long distances before attenuating.
Non-destructive test systems perform optimally on perfect test specimens. However, rail in track is affected by repeated wheel loading that results in the plastic deformation of the rail running surface, which can create undesirable surface conditions as described previously. These conditions can influence the development of rail flaws. These conditions can also affect the technologies currently utilized for flaw detection by limiting their detection capabilities. Therefore, it is important that emerging technology development continue, in an effort to alleviate the impact of adverse rail surface conditions.
The first Federal Track Safety Standards (Standards) were published on October 20, 1971, following the enactment of the Federal Railroad Safety Act of 1970, Public Law 91–458, 84 Stat. 971 (October 16, 1970), in which Congress granted to the Secretary comprehensive authority over “all areas of railroad safety.”
Pursuant to 49 U.S.C. 20103, the Secretary may prescribe regulations as necessary in any area of railroad safety. As described in the next section, FRA began its examination of rail integrity issues through RSAC on October 27, 2007. Then, on October 16, 2008, the RSIA was enacted. As previously noted, section 403(a) of the RSIA required the Secretary to conduct a study of track issues. In doing so, section 403(b) of the RSIA required the Secretary to consider “the most current rail flaw, rail defect growth, rail fatigue, and other relevant track- or rail-related research and studies.” The Study was completed and submitted to Congress on May 2, 2011. Section 403(c) of the RSIA also required the Secretary to promulgate regulations based on the results of the Study. As delegated by the Secretary,
FRA notes that section 403 of the RSIA contains one additional mandate, which FRA has already fulfilled, promulgating regulations for concrete crossties. On April 1, 2011, FRA published a final rule on concrete crosstie regulations per this mandate in section 403(d). That final rule specifies requirements for effective concrete crossties, for rail fastening systems connected to concrete crossties, and for automated inspections of track constructed with concrete crossties.
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. RSAC includes representation from all of the agency's major stakeholders, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. An alphabetical list of RSAC members follows:
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
If a working group comes to a unanimous consensus on recommendations for action, the package 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 the Administrator of 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 recommendation, and the agency exercises its independent judgment on whether a recommended rule achieves the agency's regulatory goals, 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. However, to the maximum extent practicable, FRA utilizes RSAC to provide consensus recommendations with respect to both proposed and final agency action. If RSAC is unable to reach consensus on a recommendation for action, the task is withdrawn and FRA determines the best course of action.
The Track Safety Standards Working Group (Working Group) was formed on February 22, 2006. On October 27, 2007, the Working Group formed two subcommittees: the Rail Integrity Task Force (RITF) and the Concrete Crosstie Task Force. Principally in response to NTSB recommendation R–02–05,
However, after the New Brighton accident, and in response to NTSB recommendations R–08–9, R–08–10, and R–08–11,
The RITF met on November 28–29, 2007; February 13–14, 2008; April 15–16, 2008; July 8–9, 2008; September 16–17, 2008; February 3–4, 2009; June 16–17, 2009; October 29–30, 2009; January 20–21, 2010; March 9–11, 2010; and April 20, 2010. The RITF's findings were reported to the Working Group for approval on July 28–30, 2010. The Working Group reached a consensus on the majority of the RITF's work and forwarded proposals to the full RSAC on September 23, 2010 and December 14, 2010. The RSAC voted to approve the Working Group's recommended text, which provided the basis for the NPRM in this proceeding and ultimately this final rule.
In addition to FRA staff, the members of the Working Group include the following:
• AAR, including the Transportation Technology Center, Inc., and members from BNSF, Canadian National Railway (CN), Canadian Pacific Railway (CP), CSX Transportation, Inc. (CSX), The Kansas City Southern Railway Company (KCS), NS, and Union Pacific Railroad Company (UP);
• Amtrak;
• APTA, including members from Northeast Illinois Regional Commuter Railroad Corporation (Metra), Long Island Rail Road (LIRR), and Southeastern Pennsylvania Transportation Authority (SEPTA);
• ASLRRA (representing short line and regional railroads);
• BLET;
• BMWED;
• BRS;
• John A. Volpe National Transportation Systems Center (Volpe Center)
• NTSB; and
• UTU.
Through RSAC discussions, the Working Group determined that it would focus its efforts on rail inspection processes. FRA regulations were reviewed during the meetings, and areas were identified that were potentially inconsistent or out of date with rail inspection practice that was considered standard in the industry. This included rail defect nomenclature, inspection frequencies, operator training, and rail inspection records. The group reached consensus on the necessary changes. These changes were presented to RSAC for approval, and these recommendations provided the basis for the NPRM.
FRA worked closely with RSAC in developing these recommendations. FRA believes that RSAC effectively addressed rail inspection safety issues regarding the frequency of inspection, rail defects, remedial action, and operator qualification. FRA greatly benefited from the open, informed exchange of information during the RITF meetings. The NPRM was developed based on a general consensus among railroads, rail labor organizations, State safety managers, and FRA concerning rail safety. FRA believes that the expertise possessed by RSAC representatives enhanced the value of the recommendations, and FRA made every effort to incorporate them into the NPRM, which was published on October 19, 2012.
Nevertheless, the Working Group was unable to reach consensus on one item that FRA elected to include in the NPRM, and subsequently in this final
FRA notified the public of its options to submit written comments on the NPRM and to request an oral hearing on the NPRM as well. No request for a public hearing was received; however, some interested parties submitted written comments to the docket in this proceeding, and FRA considered all of these comments in preparing the final rule. FRA received a total of eleven comments on the NPRM, including comments from RSAC or Working Group members AAR, NTSB, BMWED, ARM, TRAIN, and UP, as well as comments from two private individuals.
On April 16, 2013, the RITF reconvened through a conference call to discuss all public comments received on the NPRM and help achieve consensus on the recommendations concerning their incorporation into this final rule. FRA had reviewed and analyzed each issue mentioned in the comments, and during the call, FRA presented the comments and any proposed changes to the NPRM. The RITF expressed few concerns about FRA's approach to address the comments received, and decided it did not need to take a formal vote on the proposed changes.
Having considered the public comments, and finding that the RSAC's recommendations help fulfill the agency's regulatory goals, are soundly supported, and are in accord with policy and legal requirements, FRA issues this final rule. Each of the comments FRA received is addressed below in the specific section of the final rule to which it applies.
FRA notes that throughout the preamble discussion of this final rule, FRA refers to comments, views, suggestions, or recommendations made by members of the RITF or full RSAC, or comments made by the public, as they are contained in meeting minutes or other materials in the public docket. FRA does so to show the origin of certain issues and the nature of discussions during the development of the final rule. FRA believes that this serves to illuminate factors it has considered in making its regulatory decisions, as well as the rationale for those decisions.
As noted previously, section 403(a) of the RSIA required the Secretary to conduct a study of track issues to determine whether track inspection intervals needed to be amended; whether track remedial action requirements needed to be amended; whether different track inspection and repair priorities and methods were required; and whether the speed of track inspection vehicles should be more specifically regulated. In conducting the Study, section 403(b) of the RSIA instructed the Secretary to consider “the most current rail flaw, rail defect growth, rail fatigue, and other relevant track- or rail-related research and studies,” as well as new inspection technologies, and NTSB and FRA accident information. The Study was completed and presented to Congress on May 2, 2011. Section 403(c) of the RSIA further provided that FRA prescribe regulations based on the results of the Study two years after its completion.
On August 16, 2011, RSAC accepted Task 11–02, which was generated in response to the RSIA and to address the recommendations of the Study. Specifically, the purpose of the task was “[t]o consider specific improvements to the Track Safety Standards or other responsive actions to the Track Inspection Time Study required by [section] 403 (a) through (c) of the RSIA and other relevant studies and resources.” The first meeting of the Working Group assigned to the task occurred on October 20, 2011, and a second meeting was held on December 20, 2011. At the third meeting on February 7–8, 2012, the AAR together with the BMWED stated that FRA had met its obligations under section 403(c) of the RSIA through its rulemakings on vehicle/track interaction, concrete crossties, and the proposals made in this rulemaking on rail integrity. They also suggested that additional action on RSAC Task 11–02 was unnecessary and recommended that the task should be closed. FRA took the proposal under advisement after the February meeting and conducted its own analysis as to the fulfillment of the mandates under section 403. FRA concluded that these statutory obligations were being fulfilled and on April 13, 2012, the Working Group approved a proposal to conclude RSAC Task 11–02. On April 26, 2012, the full RSAC approved the proposal and closed RSAC Task 11–02. The recommendation approved by the full RSAC is described below.
In determining whether regulations were necessary based on the results of the Study, RSAC examined the Study's four issues for improving the track inspection process:
• Expanding the use of automated inspections;
• Developing additional training requirements for track inspectors;
• Considering a maximum inspection speed for track inspection vehicles; and
• Influencing safety culture through a safety reporting system.
The Study's first recommendation was that FRA consider expanding the use of automated inspections to improve inspection effectiveness. Specifically, the Study cited two specific track defects that are more difficult to detect through visual track inspection and could benefit from the use of automated inspection: rail seat abrasion (RSA) and torch cut bolt holes. Through discussion among the affected parties, it was determined that these areas of concern already had been covered under previous rulemaking and regulations. The Concrete Crossties final rule published on April 1, 2011, contained a new § 213.234, “Automated inspection of track constructed with concrete crossties,” which specifically employs the use of automated inspection “to measure for rail seat deterioration.” In addition, torch cut bolt holes have been prohibited on track Classes 2 and above since 1999, as codified in §§ 213.121(g) and 213.351(f), and they are easily identifiable through the rail flaw detection technology currently in use. Thus, the RSAC concluded that additional regulations to find such defects would be unnecessary.
Outside of these two specific defects, the RSAC concluded that the instant rulemaking on rail integrity would also revise automated inspection standards in other areas, such as ultrasonic testing. For example, this rulemaking changes the ultrasonic testing of rail from a standard based on time and tonnage to one based on self-adaptive performance goals. Thus, the full RSAC concluded that the use of automated inspection has been sufficiently expanded in the areas that currently are most ideally suited for development. While FRA and RSAC noted that they may wish to make changes to the automated inspection standards in the future, FRA and RSAC nevertheless maintained that the changes stated above sufficiently satisfy the RSIA's mandate.
However, RSAC concurred with FRA, BMWED and AAR that it was important to ensure that any type of report generated from the automated inspection of track, regardless of whether it is mandated by regulation or voluntarily utilized by a railroad, be made available to track inspectors. Therefore, in this final rule, FRA is
When automated track inspection methods are used by the track owner, FRA recommends that the information from that inspection be provided or made readily available to those persons designated as fully qualified under 49 CFR 213.7 and assigned to inspect or repair the track over which the automated inspection was made.
Next, the Study addressed whether FRA should develop additional training requirements for track inspectors. RSAC found that it was unnecessary to generate additional training standards under RSAC Task 11–02 for two reasons. First, the instant rulemaking would create a new § 213.238 to address an area of training that requires new standards. Section 213.238 defines a qualified operator of rail flaw detection equipment and requires that each provider of rail flaw detection service have a documented training program to ensure that a rail flaw detection equipment operator is qualified to operate each of the various types of equipment for which he or she is assigned, and that proper training is provided in the use of newly-developed technologies. Second, the NPRM on Training, Qualification, and Oversight for Safety-Related Railroad Employees, 77 FR 6412 (proposed Feb. 7, 2012) (to be codified at 49 CFR parts 214, 232, and 243), would require that employers develop and submit for FRA review a program detailing how they will train their track inspectors, among other personnel. As proposed in the NPRM, employees charged with the inspection of track or railroad equipment are considered safety-related railroad employees that each employer must train and qualify. The proposed formal training for employees responsible for inspecting track and railroad equipment is expected to cover all aspects of their duties related to complying with the Federal standards. FRA would expect that the training programs and courses for such employees would include techniques for identifying defective conditions and would address what sort of immediate remedial actions need to be initiated to correct critical safety defects that are known to contribute to derailments, accidents, incidents, or injuries.
Third, the Study addressed whether track hi-rail inspection speed should be specified. The Study concluded that specifying limits to hi-rail inspection speeds could be “counterproductive.” With the currently-available data in this area, the RSAC concurred with the Study's recommendation and determined that no further action needed to be taken in this area at this time. The RSAC found that the existing reliance on the “inspector's discretion” as noted in § 213.233, should generally govern track inspection speed. This point will be emphasized in the next publication of FRA's Track Safety Standards Compliance Manual. FRA also makes clear that, in accordance with § 213.233, if a vehicle is used for visual inspection, the speed of the vehicle may not be more than 5 m.p.h. when passing over track crossings and turnouts.
Finally, the Study addressed ways to enhance the track safety culture of railroads through programs such as a safety reporting system, like the Confidential Close Call Reporting System piloted by FRA. The RSAC was aware that the Risk Reduction Working Group was in the process of developing recommendations for railroads to develop risk reduction programs, which should incorporate many safety concerns in this area. Therefore, the RSAC concluded that additional, overlapping discussion was unnecessary given the specific, concurrent focus of the Risk Reduction Working Group.
FRA notes that, in addition to addressing the Study's recommendations, RSAC Task 11–02 also incorporated other goals Congress had for the Study, which are described in section 403(a) of the RSIA, such as reviewing track inspection intervals and remedial action requirements, as well as track inspection and repair priorities. The RSAC concluded that FRA's recent and ongoing rulemakings are sufficiently addressing these areas and that no additional work is currently necessary. Specifically, the instant rulemaking on rail integrity is intended to amend inspection intervals to reflect a new performance-based inspection program, revise the remedial action table for rail, and alter inspection and repair priorities involving internal rail testing and defects such as a crushed head and defective weld. The Concrete Crossties final rule also established new inspection methods and intervals requiring automated inspection, as well as new remedial actions for exceptions that can be field-verified within 48 hours. Finally, in addition to other requirements, the Vehicle/Track Interaction Safety Standards (VTI) rulemaking, Vehicle/Track Interaction Safety Standards; High-Speed and High Cant Deficiency Operations, 78 FR 16052 (March 13, 2013) (codified at 49 CFR parts 213 and 238), addresses track geometry, inspection, and VTI safety requirements for high speed operations and operations at high cant deficiency over any track class. Overall, FRA believes that the recent and ongoing work of the RSAC and FRA, including recent and ongoing rulemakings, sufficiently address the statutorily-mandated topics in section 403 of the RSIA.
Nonetheless, as part of its comments submitted to the docket on the NPRM, NTSB included comments on the Study and RSAC resolution of Task 11–02. NTSB voiced concern regarding the ability of track inspectors to detect hazards when they inspect multiple tracks from a hi-rail inspection vehicle. While this issue was not specifically addressed by the Study or RSAC, FRA's Office of Research and Development is formulating a study to look at the effectiveness of different inspection methodologies, including hi-rail inspection, for detecting various types of defects. Knowing the effectiveness of each system will allow for the development of optimal inspection methodologies and optimal inspection frequencies.
NTSB's comments also suggested “that a combination of visual and automated track inspections should be required for use not just in track with concrete ties but in all high-tonnage routes, passenger train routes, and hazardous materials routes.” While FRA recognizes the important role automated track inspections play in defect detection, FRA concurs with the recommendation of the full RSAC that the current level of required automated inspections is satisfactory at this time.
FRA modifies paragraph (b) of this section to clarify the exclusion of track located inside a plant railroad's property from the application of this part. In this paragraph, “plant railroad” means a type of operation that has traditionally been excluded from the application of FRA regulations because it is not part of the general railroad system of transportation (general system). In the past, FRA has not defined the term “plant railroad” in other regulations that it has issued
The definition clarifies that when an entity operates a locomotive to move rail cars in service for other entities, rather than solely for its own purposes or industrial processes, the services become public in nature. Such public services represent the interchange of goods, which characterizes operation on the general system. As a result, even if a plant railroad moves rail cars for entities other than itself solely on its property, the rail operations will likely be subject to FRA's safety jurisdiction because those rail operations bring plant track into the general system.
The definition of the term “plant railroad” is consistent with FRA's longstanding policy that it will exercise its safety jurisdiction over a rail operation that moves rail cars for entities other than itself because those movements bring the track over which the entity is operating into the general system.
FRA also makes clear that FRA's Policy Statement addresses circumstances where railroads that are part of the general system may have occasion to enter a plant railroad's property (e.g., a major railroad goes into a chemical or auto plant to pick up or set out cars) and operate over its track. As explained in the Policy Statement, the plant railroad itself does not get swept into the general system by virtue of the other railroad's activity, except to the extent it is liable, as the track owner, for the condition of its track over which the other railroad operates during its incursion into the plant. Accordingly, the rule makes clear that the track over which a general system railroad operates is not excluded from the application of this part, even if the track is located within the confines of a plant railroad.
During the comment period on the NPRM, FRA received a joint comment from ARM and TRAIN that claimed that part 213 had not been applied to non-general system tourist railroads in the past, and that in past rulemakings, FRA had expressly explained that the exclusory language—“located inside an installation which is not part of the general railroad system of transportation”—included non-general system tourist railroads. By way of example, the joint comments referred to the conductor certification rulemaking (49 CFR part 242), which included a standard “installation” exclusion that expressly provided that part 242 does not apply to non-general system tourist railroads.
Additionally, the joint comments stated that proposed § 213.3(b)(2) focused on plant railroads, especially as that subsection specifically defined the term “plant railroad.” ARM and TRAIN concluded that the proposed revision to the applicability section effectively makes the “installation” exclusion applicable only to plant railroads and they sought clarification from FRA on that point. Moreover, if that exclusion were to be limited to “plant railroads,” they requested that a new exclusion be added for non-general system tourist railroads.
FRA did not intend to alter the current “installation” exclusion in part 213 regarding tourist, scenic, historic, or excursion operations that are not part of the general system. Thus, as stated above, in § 213.3(b)(2) of the final rule, FRA incorporates language similarly utilized in part 242 to explicitly exclude tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation from part 213.
An anonymous commenter on the NPRM requested clarification as to whether plant railroads must comply with the requirements of part 213 for track over which general system railroads operate. The comment stated that if plant railroads must comply with part 213 for track within the plant over which general system railroads operate, it would be a large departure from past FRA practice and would burden the plant railroads. However, as stated above, FRA has always held that plant track over which general system railroads operate is subject to part 213, and FRA makes this clear in § 213.3(b)(1). The Policy Statement also specifically states that when a general system railroad enters a plant, its activities are covered by FRA's regulations during that period. The Policy Statement explains that, “[t]he plant railroad itself, however, does not get swept into the general system by virtue of the other railroad's activity,
In addition, an individual commenter recommended that specific language be included in § 213.3, requiring that certain subparts of part 213 (B, C, D, and E) apply to track within a plant over which a general system railroad operates. The commenter further suggested specifying that if the plant railroad designates such track as excepted track, the plant must comply with all provisions of part 213. FRA is not incorporating these suggestions into the regulation at this time. FRA has always held that plant track over which general system railroads operate is subject to part 213, as explained above, and FRA is making that clear in § 213.3(b)(1), as revised by this final rule.
The four-hour timeframe provides flexibility to allow the rail flaw detector car to continue testing in a non-stop mode, without requiring verification of less serious, suspected defects that may require remedial action under notes “C” through “I.” This flexibility also helps to avoid the need to operate the detector car in a non-test, “run light” mode over a possibly severe defective rail condition that could cause a derailment, when having to clear the track for traffic movement. However, any suspected defect encountered that may require remedial action notes “A,” “A2, “or “B” requires immediate verification. Overall, the four-hour, deferred-verification period will help to improve rail flaw detector car utilization, increase the opportunity to detect more serious defects, and ensure that all the rail a detector car is intended to travel over while in service is inspected.
FRA is in agreement with the railroad industry that most tracks are accessible by road or hi-rail, and supports a deferred-verification process where the operator can verify the suspect defect location with a portable type of test unit. FRA also agrees that it is more beneficial to continue the car's inspection past the location instead of leaving a possibly serious internal defect undetected in the track ahead.
FRA's revisions to the remedial action table also reduce the current limit of eighty percent of the rail head cross-sectional area requiring remedial action notes “A2” or “E and H” to sixty percent of the rail head cross-sectional area. FRA reviewed the conclusions of the most recent study performed by the Transportation Technology Center, Inc., concerning the development of transverse-oriented detail fracture defects:
FRA also adds a required remedial action for a longitudinal defect that is associated with a defective weld. This addition is based on current industry detection and classification experience for this type of defect. FRA adds this defect to the remedial action table and includes all longitudinal defects within one group subject to identical remedial actions based on their reported sizes. These types of longitudinal defects all share similar growth rates and the same remedial actions are considered appropriate for each type. FRA makes clear that defective weld also continues to be identified in the remedial action table for transverse-oriented defects.
The final rule expressly adds “crushed head” to the remedial action table. This type of defect may affect the structural integrity of the rail section and impact vehicle dynamic response in the higher speed ranges. AAR and NTSB pointed out in their comments on the NPRM that the remedial action table had several changes that were not included in the consensus language generated by the Task Force meetings. In particular, AAR mentioned that a flattened rail/crushed head defect has always been defined in the remedial action table as having a depth greater than or equal to
FRA did not intend to change the consensus language in this area of the remedial action table. It appears that the changes were inadvertent, and FRA agrees with these commenters that the entries for flattened rail and crushed head defects should be defined in the remedial action table as having a depth greater than or equal to
AAR and an individual commenter recommended in their comments on the NPRM that the proposed changes to this section should be also be made to subpart G of the Track Safety Standards to ensure consistency in the remedial
FRA notes that, during the RITF discussions, AAR expressed some concern regarding Footnote 1 to the remedial action table, which identifies conditions that could be considered a “break out in rail head.” AAR pointed out that there had been previous incidents where an FRA inspector would consider a chipped rail end as a rail defect under this section, and at times the railroad was issued a defect or violation regarding this condition. FRA makes clear that a chipped rail end is not a designated rail defect under this section and is not, in itself, an FRA-enforceable defective condition. FRA also intends to make clear in the Track Safety Standards Compliance Manual guidance for FRA inspectors that a chipped rail end is not to be considered as a “break out in rail head.”
FRA adds a second footnote, Footnote 2, to the remedial action table. The footnote provides that remedial action “D” applies to a moon-shaped breakout, resulting from a derailment, with a length greater than 6 inches but not exceeding 12 inches and a width not exceeding one-third of the rail base width. FRA has made this change to allow relief because of the occurrence of multiple but less severe “broken base” defects that result from a dragging wheel derailment and may otherwise prevent traffic movement if subject to more restrictive remedial action. FRA also recommends that track owners conduct a special visual inspection of the rail pursuant to § 213.239, before the operation of any train over the affected track. A special visual inspection pursuant to § 213.239, which requires that an inspection be made of the track involved in a derailment incident, should be done to assess the condition of the track associated with these broken base conditions before the operation of any train over the affected track.
FRA removes the former requirement under paragraph (h)(7)(ii) of this section to generate a Joint Bar Fracture Report (Fracture Report) for every cracked or broken CWR joint bar that the track owner discovers during the course of an inspection. Under former paragraph (h)(7)(ii)(C) of this section any track owner, after February 1, 2010, could petition FRA to conduct a technical conference to review fracture report data submitted through December 2009 and assess the necessity for continuing to collect this data. One Class I railroad submitted a petition to FRA, and on October, 26, 2010, a meeting of the RSAC Track Safety Standards Working Group served as a forum for a technical conference to evaluate whether there was a continued need for the collection of these reports. The Group ultimately determined that the reports were costly and burdensome to the railroads and their employees, while providing little useful research data to prevent future failures of CWR joint bars. The Group found that Fracture Reports were not successful in helping to determine the root cause of CWR joint bar failures because the reports gathered only a limited amount of information after the joint bar was already broken.
Instead, the Group recommended that a new study be conducted to determine what conditions lead to CWR joint bar failures and include a description of the overall condition of the track in the vicinity of the failed joint(s), track geometry (gage, alignment, profile, cross-level) at the joint location, and the maintenance history at the joint location, along with photographic evidence of the failed joint. Two Class I railroads volunteered to participate in a new joint bar study, which is expected to provide better data to pinpoint why CWR joint bars fail. In the meantime, given that FRA does not find it beneficial to retain the requirement for railroads to submit the Fracture Reports, FRA removes the requirement and reserves the paragraph.
This final rule revises paragraph (a) to require track owners to maintain service failure rates of no more than 0.1 service failure per year per mile of track for all Class 4 and 5 track; no more than 0.09 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains or is a hazardous materials route; and no more than 0.08 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains and is a hazardous materials route.
The changes to this section codify standard industry good practices. With the implementation of the self-adaptive scheduling method, track owners have generally tested more frequently than they have been required, and the test intervals align more closely with generally-accepted maintenance practices. The frequency of rail inspection cycles varies according to the total detected defect rate per test; the rate of service failures, as defined in paragraph (j) below, between tests; and the accumulated tonnage between tests—all of which are factors that the railroad industry's rail quality managers generally consider when determining test schedules.
In 1990, as a result of its ongoing rail integrity research, FRA released report DOT/FRA/ORD–90/05;
The research determined that a minimum requirement for annual rail testing is a baseline figure of 0.1 service failure per mile for freight railroads. This baseline value can then be adjusted depending on the characteristics of the individual railroad's operation and internal risk control factors. For instance, a rail segment that handles high-tonnage unit trains and also supports both multiple passenger trains and trains carrying hazardous materials each day may require scheduling rail test frequencies adequate to maintain a performance goal of 0.03 service failure. The baseline value applied for determining rail test frequencies should also be adjusted based on specific conditions that may influence rail flaw development such as age of the rail, rail wear, climate, etc. As a result, the RITF reached consensus that 0.1 service failure per mile was established as an appropriate minimum performance requirement for use in the U.S. freight railroad system. The RITF also reached consensus that the minimum performance requirement should be adjusted to no more than 0.09 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains or is a hazardous materials route, and no more than 0.08 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains and is a hazardous materials route.
The AAR, on the other hand, maintained that each individual railroad is in the best position to determine its own segment lengths based on factors that are unique to the railroad's classification system. The AAR noted that each railroad has distinct segment configurations and challenges for which each railroad has developed specific approaches to identify and address them. The AAR believed that it was not possible to define a single methodology to appropriately address every railroad's specific configurations and factors, and that any approach established in a regulation would be extremely difficult and costly to implement. The AAR stated that the large amount of route miles, complex networks, and vast quantities of data being analyzed on Class I railroads requires an automated, electronic approach that integrates satisfactorily with each railroad's data system, which currently Class I railroads utilize. Arbitrary segmentation limitations developed through regulation would not be compatible with some of those systems and would create an onerous and costly burden of redesigning systems, with little overall improvement to safety, according to the AAR. The AAR maintained that each individual service failure represents a certain risk which is not affected by whether it is close to other service failures. The AAR asserted that the railroads want the service failure rate to be as low as possible and look for any patterns in service failures that suggest ways to reduce the service failure rate. Noting that these patterns can be affected by a myriad of different factors, the AAR stated that trying to create artificial boundaries on the length of a segment could lead to a less than optimal use of internal rail inspection capabilities, as well as decreased safety.
In the NPRM, FRA acknowledged the BMWED's and NTSB's concerns regarding identifying localized areas of failure. However, FRA also recognized that track owners have designed their current rail inspection segment lengths over a decade of researching their own internal rail testing requirements. FRA noted that this research takes into consideration pertinent criteria such as rail age, accumulated tonnage, rail wear, track geometry, and other conditions specific to these individually-defined segments. FRA stated that altering existing rail inspection segment lengths, such as by requiring a designated segment length without extensive data and research, could disrupt current engineering policies and result in problematic and costly adjustments to current maintenance programs without providing significant safety benefits.
FRA also concluded that track owners, as well as FRA, would be able to capture rail failure data, even in large segment areas, by simply looking at rail failure records and comparing milepost locations. Therefore, in the NPRM, FRA decided not to require a uniform segment length to be applied by all track owners. Instead, FRA proposed to require that track owners utilize their own designated segment lengths in place by the effective date of this final rule. However, in order to maintain consistency and uniformity, FRA proposed to require that if a track owner wished to change or deviate from its designated segment lengths, the track owner must receive FRA approval to make any such change. This would ensure that the track owner does not have the ability to freely alter a defined segment length in order to compensate for a sudden increase of detected defects and service failures that could require an adjustment to the test frequency as a result of accelerated defect development.
In its comments on the NPRM, BMWED acknowledged that the NPRM provisions in § 213.237(b) for rail inspection segment codify current industry practices, but stated that they thought that the proposal would do little to improve upon them. Rather, BMWED asserted that FRA's proposal would undermine the intent and effectiveness of the rule as it relates to service failure rates. BMWED proposed that FRA amend the rule to require each track owner to review rail service failure records annually per “variable” mile of track (i.e., a “floating mile” within an inspection segment) for compliance with § 213.237(a), and apply the provisions of § 213.237(d) to any variable mile of track exceeding the service failure rates identified in § 213.237(a). Additionally, BMWED proposed that FRA annually audit each
NTSB also asserted through its comments on the NPRM that there were problems with relating segment length to the “milepost limits for the individual rail inspection frequency” in this section. NTSB stated that track owners may need to adjust inspection frequency on portions of a segment and that could vary from year to year. According to NTSB, the track owner would have to inspect the entire segment at the same frequency or file with FRA to establish smaller segments with different inspection frequencies, which NTSB believed could provide a disincentive to conducting targeted inspections of problem areas.
While FRA continues to recognize BMWED's and NTSB's concerns, FRA has decided not to alter the text as proposed in the NPRM. FRA is concerned that defining a specific segment length that would apply uniformly to all track owners would greatly exceed the expectations of minimum track safety standards and result in an excessive amount of segments that would be too large for the current fleet of rail inspection vehicles to cover. This would become too costly and burdensome for track owners to manage, and ultimately render this part of the rule ineffective.
Nonetheless, in its comments on the NPRM, AAR disagreed with the proposed requirement that FRA must grant approval for any change to a railroad's designated test segments. AAR contended that FRA approval for such changes would be unnecessary, since FRA approval would not be required for the initial designation of a segment. Instead, AAR suggested that if after a railroad notifies FRA of any change to a designated segment, FRA detects any problem with the change, the new provisions proposed under § 213.241 regarding FRA's review of inspection records would determine compliance.
FRA supports the intent of the text as proposed in the NPRM and makes clear that FRA approval to change a segment length is required to ensure that the segment change will not have any detrimental impact on overall safety. To change the designation of a rail inspection segment or to establish a new segment pursuant to this section, a track owner must submit a detailed request to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer (Associate Administrator). Within 30 days of receipt of the submission, FRA will review the request. FRA will then approve, disapprove or conditionally approve the submitted request, and will provide written notice of its determination. Consequently, while track owners will be able to designate their rail inspection segment lengths as of the effective date of the final rule, FRA approval of proposed changes to these segment lengths will ensure that the changes do not negatively impact safety, such as a change to a segment length specifically to absorb an area of defect development and rail failure to unacceptably reduce the test inspection frequency.
In its comments on the NPRM, New Jersey Transit Rail Operations (NJTR) took issue with the NPRM's proposed changes to paragraph (c). NJTR stated that requiring a test to be completed within 370 calendar days would result in NJTR scheduling successive tests earlier in each calendar year, to the point that a test may have to be scheduled at a time when it is impractical to conduct a test, such as during “leaf” season, which affects commuter rail agencies in the Northeast. NJTR proposed that the paragraph be revised to replace both the 370-day interval and the 18-month interval with a uniform 15-month or 450-day interval.
The Metropolitan Transit Authority (MTA) also raised concern with the proposed changes to paragraph (c). According to MTA, it has certain crossovers that trains operate over at Class 3 and Class 4 speeds that it currently tests once per year and it has difficulty in scheduling testing on these crossovers with the current high volume of service and availability of testing equipment. MTA proposed that paragraph (c) be revised to replace the 370-day interval with a uniform 400-day interval.
FRA does not agree with extending the timeframe between testing on certain portions of Class 3 and Class 4 tracks as a result of difficulty in scheduling testing on these tracks due to the volume of service or the availability of testing equipment. It is standard practice that many track owners maintain a predictable and consistent test schedule throughout the year. However, other track owners do schedule their tests as determined by seasonal issues or resource availability. This can vary from region to region. Nonetheless, FRA believes that 370 days allows all track owners sufficient time to plan their test schedules to account for the volume of traffic, availability of testing equipment, change of seasons, or similar issues that they each may face. In particular, FRA notes that 370 days is the maximum inspection interval allowed and is not intended in any way to restrict a railroad's ability to conduct inspections more frequently. Indeed, FRA expects that most railroads would conduct annual inspections on a relatively fixed schedule, using the additional days allowed for scheduling flexibility.
FRA notes that the maximum tonnage interval for testing internal rail defects on Class 4 and 5 track, and certain Class 3 track, has decreased from 40 mgt in former paragraph (a) of this section to 30 mgt. This change results from studies showing that, while the predominant factor that determines the risk of rail failure is the rate of development of internal rail flaws, the development of internal rail flaws is neither constant nor predictable. Earlier studies on the development of transverse-oriented rail defects showed the average development period to be 2% of the cross-sectional area of the rail head per mgt, which meant that rail testing would have to be completed with every 50 mgt. However, the RITF took into consideration the conclusions of a more recent study performed by the Transportation Technology Center, Inc.,
Selecting an appropriate frequency for rail testing is a complex task involving many different factors including rail head wear, accumulated tonnage, rail surface conditions, track geometry, track support, steel specifications, temperature differentials, and residual stresses. Taking into consideration the above factors, FRA's research suggests that all of these criteria influence defect development (and ultimately rail service failure rates) and are considered in the determination of rail inspection frequencies when utilizing the performance-based, self-adaptive test method.
For track owners without access to a sophisticated self-scheduling algorithm to determine testing frequencies, FRA has posted an algorithm program designed by the Volpe Center on the FRA Web site at
In paragraph (c)(2), the final rule also includes the addition of requirements for inspection of rail intended for reuse, or “plug rail.” On March 8, 2006, FRA issued Notice of Safety Advisory 2006–02 (SA), which promulgated recommended industry guidelines for the reuse of plug rail. 71 FR 11700. The recommendations in the SA consisted of two options for assuring that reused rail was free from internal defects. Specifically, FRA's SA recommended that the entire length of any rail that is removed from track and stored for reuse be retested for internal flaws. FRA also recommended that, recognizing that some track owners do not have the equipment to test second-hand rail in accordance with the recommendation above, track owners were encouraged to develop a classification program intended to decrease the likelihood that a second-hand rail containing defects would be installed back into active track. In addition, FRA recommended that a highly visible, permanent marking system be developed and used to mark defective rails that railroads remove from track after identifying internal defects in those rails.
During some of the first RITF discussions, NTSB expressed concern over one aspect of FRA's SA: The guidance that provides that rail is suitable for reuse if it has not accumulated more than 15 mgt since its last valid rail test. NTSB suggested that such rail could experience up to 55 mgt before its next inspection if it were put in track at a location that had just been inspected and whose inspection frequency is every 40 mgt. NTSB believed that all plug rail should be immediately inspected prior to reuse.
NTSB also had concerns regarding the proposed rule language in paragraph(c)(2), which would allow the accumulation of 30 mgt before ensuring replacement rail is free from detectable defects. In its comments on the NPRM, NTSB did not agree with FRA that some track owners do not have the equipment to test secondhand rail in accordance with NTSB's Safety Recommendation R–02–05, which NTSB believed should be incorporated into the final rule in its entirety. R–02–05 states that FRA should “require railroads to conduct ultrasonic or other appropriate inspections to ensure that rail used to replace defective segments of existing rail is free from internal defects.”
During RITF discussions, track owners described their method for assuring that rail intended for reuse is free of internal defects. In general, it was found that most track owners perform an ultrasonic inspection on rail intended for reuse while in the track and allow accumulation of tonnage prior to removal, or they perform an inspection and certification process of the rail after it has been taken out of service and prior to re-installation. However, they stressed that plug rail inspection requirements should not be overly burdensome and should meet the same standards as any other rail inspections per the regulations.
FRA shares the track owners' concerns about creating a standard for rail inspection that would allow up to a 30-mgt accumulation on in-service rail, but would mandate immediate inspection of plug rail prior to reuse. Consequently, the final rule requires plug rail to be inspected at the same frequency as conventional rail. This requirement therefore supersedes FRA Safety Advisory 2006–02 and codifies current industry practice by allowing the use of rail that has been previously tested to be placed in track and retested at the normal frequency for that track segment. Nonetheless, all else being equal, FRA does recommend that the rail be tested prior to installation in track for reuse, even though FRA believes that requiring the track owner to test the rail immediately prior to re-installation is too restrictive. Alternatively, FRA believes that the track owner should have knowledge of the date the rail was last tested and ensure that the 30-mgt maximum tonnage accumulation is not exceeded prior to retesting the rail. In this regard, paragraph (c)(2) requires that the track owner be able to verify that any plug installed after the effective date of this final rule has not accumulated more than a total of 30 mgt in previous and new locations since its last internal rail flaw test, before the next test on the rail required by this section is performed. Thereafter, the rail must be tested in accordance with the test frequency of the designated segment in which it is installed.
FRA notes that the AAR, in its comments on the NPRM, requested that the verification language proposed in paragraph (c)(2) be revised to clarify that the regulation applies only to plug rail installed after the regulation's effective date. Otherwise, AAR believed the text as proposed in the NPRM would require railroads to identify each location where rail was installed in the past and retest each plug location, causing extra burden and expense.
FRA makes clear that it is not FRA's intent to require track owners to identify each location where rail was installed prior to the effective date of the final rule and retest each plug location, which would be too costly and burdensome for most track owners. FRA is aware that the majority of the plug rails that were previously installed have been absorbed into the track owners' current inspection cycles and have been tested while in track. Therefore, a requirement to re-inspect the previously installed plug rails would be unnecessarily restrictive and would not
In its comments on the NPRM, NTSB disagreed with the language proposed in paragraph (d)(1) concerning the service failure rate. NTSB stated that the performance-based, risk management approach proposed in the NPRM may be a step in the right direction to mitigate risk of rail failure. However, according to NTSB, in order to be consistent with damage tolerance principles, the algorithms and methods used by the track owners should have the capability to identify areas of high stress that would suggest worn rail conditions, poor track support, rail with high accumulated tonnage, or rail with high residual stresses. NTSB stated that there was no systematic approach in the NPRM that would assure that FRA could use the data to ensure acceptable performance. Consequently, NTSB recommended that track owners should be required to regularly report service failure information to FRA and that FRA should review service failure data on a regular basis not only across entire segments to assess the overall performance of the track owner as proposed in the NPRM, but also in shorter lengths of track to assess track owner performance in timely identification and remediation of areas that are at high risk of failure.
In the final rule, FRA continues to support the rule text as proposed in the NPRM. FRA believes that the remedial action for inspection frequency in paragraph (d)(1)(i), which requires that the segment be tested every 10 mgt if the performance target is not met for two consecutive years, ensures that an optimal amount of inspection is conducted in order to capture areas where accelerated defect development is occurring and not restrict railroads so significantly that they cannot inspect other segments as required by paragraph (a). Further, during RITF meetings there was much discussion that the practice of increased test frequency on localized areas would lead to unmanageable amounts of test frequencies. The AAR noted that there is a limited supply of inspection vehicle resources and test operators, and that a greatly increased amount of test frequencies would not be achievable by the railroads. FRA agrees, and notes that its rail integrity specialists will be reviewing service failure data on a regular basis. During these reviews, FRA will seek to identify any instances where shorter lengths of track have high failure rates and will follow up as necessary.
In its comments on the NPRM, UP raised concern that the definition of “hazardous materials route” proposed in the NPRM did not mirror the intent of the RITF. UP believed that, as proposed in the NPRM, the definition would apply to certain movements of hazardous materials over “any track of any class,” when the intent was to apply the definition only to Class 3 or higher track classes.
In the final rule, FRA defines “hazardous materials route” consistent with the RITF's intent that the term apply only to track Classes 3 through 5, as the meaning was inadvertently changed in preparing the NPRM. However, FRA believes that it is
FRA adds this new section to require that any entity that conducts rail flaw detection have a documented training program to ensure that a rail flaw detection equipment operator is qualified to operate each of the various types of equipment currently utilized in the industry for which he or she is assigned, and that proper training is provided when new rail flaw detection technologies are utilized.
In its comments on the NPRM, the AAR noted that this proposed section was inconsistent in specifying who bears the responsibility for evaluating a rail flaw detector car operator's training. The AAR believed the NPRM suggested that railroads must ensure that there are training programs in place and qualified operators but that the operators' employers are responsible for actually providing the training and qualifying the operators. The AAR also noted that the responsibility of the employer of the personnel operating the rail flaw detection equipment is to provide training and qualification requirements, conduct training and testing, and supply training and qualification credentials. The AAR stated that in many cases the rail flaw detection equipment is proprietary and that the railroads would have neither the information nor the expertise necessary for such training and qualification. The AAR therefore recommended that FRA clarify § 213.238 to state that the provider of the rail flaw detection operator is responsible for the training and qualification requirements.
FRA is aware that it is the responsibility of the employer of the personnel operating the rail flaw detection equipment to develop training and qualification requirements, conduct training and testing, and supply training and qualification credentials. FRA concurs that the rail flaw detection equipment is often proprietary and that the track owner may not have the information or the expertise necessary for such training and qualification. For that reason, the final rule imposes the responsibility for implementing this section principally on the provider of the rail flaw detection equipment, which may of course be the track owner itself. However, FRA does believe that it is the responsibility of the track owner to reasonably ensure that any operator of rail flaw detection equipment over its track is qualified to conduct an inspection in accordance with the training and qualification requirements in this section, because the track owner is ultimately responsible for the conformance of its track and rail with the requirements of the Track Safety Standards. This responsibility is incorporated into paragraph (a).
As provided in paragraph (b), each operator of rail flaw detection equipment must have documentation from his or her employer that designates his or her qualifications to perform the various functions associated with the flaw detection process. Specifically, the requirements help ensure that each operator is able to conduct a valid search for internal rail flaws, determine that the equipment is functioning properly at all times, properly interpret the test results, and understand test equipment limitations.
In paragraph (c), the operator must receive a minimum amount of documented, supervised training according to the rail flaw detection equipment provider's training program. FRA understands that this training may not be entirely held within the classroom environment and is in agreement that the employer should have the flexibility to determine the training process that is appropriate for demonstrating compliance. The operator is required to demonstrate proficiency for each type of equipment the employer intends the operator to use, and documentation must be available to FRA to verify the qualification.
As provided in paragraph (d), operator reevaluation and, as necessary, refresher training is required in accordance with the documented training program. The employer is provided flexibility to determine the process used in reevaluating qualified operators, including the frequency of operator reevaluation. The reevaluation process shall require that the employee successfully complete a recorded examination and demonstrate proficiency to the employer on the specific equipment type(s) to be operated. The reevaluation and recurrent training may also consist of a periodic review of test data submitted by the operator.
In paragraph (e), FRA requires that the employer maintain a written or electronic record of each operator's qualification. The record must include the operator's name, type of equipment qualification, date of initial qualification, and most recent re-evaluation of his or her qualifications, if any. This paragraph is intended to ensure consistent recordkeeping and allow FRA to accurately verify compliance.
FRA provides in paragraph (f) that rail flaw detection equipment operators who have demonstrated proficiency in the operation of rail flaw detection equipment prior to publication of this final rule be considered qualified to operate the equipment as designated by the employer. Such an operator must thereafter undergo reevaluation in accordance with paragraph (d) of this section. Any employee that is considered for the position of qualified operator subsequent to the publication of this final rule must be qualified in accordance with paragraph (c) of this section.
Finally, in paragraph (g) FRA requires that the records specifically associated with the operator qualification process be maintained at a designated location and made available to FRA as requested, to assist in verifying compliance.
This section contains requirements for keeping, handling, and making available records of track inspections required in accordance with subpart F.
Paragraphs (a) and (b) remain unchanged.
FRA revises paragraph (c) to require that internal rail inspection records include the date of inspection, track identification and milepost for each location tested, type of defect found and size if not removed prior to the resumption of rail traffic, and initial remedial action as required by § 213.113. Paragraph (c) also requires that the records document all tracks that do not receive a valid test pursuant to § 213.237(g). These changes respond to a recommendation arising out of the report by DOT's OIG, “
FRA redesignates former paragraph (d) as paragraph (f). In its place, FRA slightly modifies the last sentence in former paragraph (c) and redesignates it as paragraph (d). Paragraph (d) requires the track owners to maintain the rail inspection records at least for two years after an inspection has occurred and for one year after the initial remedial action has been taken. This information is vital for FRA to determine compliance with the rail integrity and inspection requirements in § 213.113 and § 213.237.
FRA redesignates former paragraph (e) as paragraph (g) without substantive change. In new paragraph (e), rail inspection records must be maintained to demonstrate compliance with § 213.237(a). This requirement is intended to provide sufficient information to determine that accurate data concerning detected defects is utilized by the railroads as input into the performance-based test frequency formula. During RITF discussions, track owners asked that FRA requests for records of rail inspections demonstrating compliance with required test frequencies be made by a designated FRA Rail Integrity Specialist; each track owner would then designate a person within its organization whom the Rail Integrity Specialists would contact when requesting records of rail inspections. FRA agrees that this suggested approach is an efficient way to obtain inspection records and FRA intends to adopt this approach through guidance in FRA's Track Safety Compliance Manual.
As discussed above, FRA redesignates former paragraph (d) as paragraph (f) without substantive change. Paragraph (f) provides that track inspection records be made available for inspection and copying by FRA upon request.
Finally, as discussed above, FRA redesignates former paragraph (e) as paragraph (g) without substantive change. Paragraph (g) contains the requirements for maintaining and retrieving electronic records of track and rail inspections.
Appendix B to part 213 contains a schedule of civil penalties for use in connection with this part. Because such penalty schedules are statements of agency policy, notice and comment are not required prior to their issuance.
This final 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.
As part of the regulatory evaluation, FRA has assessed the quantitative costs from the implementation of this rule and has a high degree of confidence that the majority of the rail industry is already in compliance with the new requirements; therefore, there are minimal costs associated with this rule. 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 CBO, DOT's guidance estimates that there will be 1.07 percent annual growth rate in median real wages over a 20-year period (2014–2034). Real wages represent the purchasing power of nominal wages. FRA assumed an income elasticity of 1.0 and adjusted the Value of Statistical Life (VSL) in future years in the same way. 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.
In analyzing the benefits of the final rule, FRA estimates that over a 20-year period the industry will save $62.9 million, with a present value (PV), discounted at 7 percent, of $35.5 million. This cost-benefit analysis shows that the potential benefits from the rule will exceed the total costs. In fact, the estimated benefit shows an overall increase of 2.6% compared to the estimates provided in the NPRM. Part of this increase is due to the application of the CBO's real wage forecast, which adjusts the annual growth rate by 1.07 percent annually. FRA also determined that the initial implementation year would be 2014; therefore, all wages have been adjusted accordingly. The change in the initial implementation year accounts for the remainder of the increased benefits.
FRA considered the industry costs associated with the final rule, which include: New requirements for effective rail inspection frequencies, changes to rail flaw remedial actions, minimum qualification requirements for rail flaw detection equipment operators, and new requirements for rail inspection records. The bulk of this regulation revises FRA's Track Safety Standards by codifying the industry's current good practices. The only entities that may be impacted by portions of this rule are Class III railroads with Class 3, 4, or 5 track. For more details, please see the regulatory evaluation found in the docket.
FRA anticipates that this rulemaking will enhance safety by helping to allocate more time to rail inspections, increasing the likelihood of detecting more serious rail defects sooner, ensuring that qualified operators conduct rail inspections, and including more specific information in rail inspection records for analysis and compliance purposes. The main benefit associated with this rule is derived from granting railroads a four-hour window to verify certain defects found during an inspection. The defects subject to the deferred verification allowance are considered less likely to cause immediate rail failure, and require less restrictive remedial action. However, without the additional time to verify these defects, railroads must stop their inspections to avoid a possible civil penalty. The additional time both permits railroads to continue their
To ensure potential impacts of rules on small entities are properly considered, FRA has developed this final rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.).
The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must prepare a regulatory flexibility analysis (RFA) unless it determines and certifies that a rule, if promulgated, would not have a significant economic impact on a substantial number of small entities.
This final rule amends the Federal Track Safety Standards to improve rail flaw detection processes and promote safety in railroad operations. In particular, FRA is specifying minimum qualification requirements for rail flaw detection equipment operators, as well as revising the requirements for effective rail inspection frequencies, rail flaw remedial actions, and rail inspection records. FRA is also removing regulatory requirements concerning joint bar fracture reporting.
“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 this term not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operation. The U.S. 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 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.
The level of costs incurred by each railroad should generally vary in proportion to the number of miles of Class 3, 4, or 5 track. For instance, railroads with less track should have lower overall costs associated with implementing the standards. There are 738 Class III railroads, of which, only 58 are affected by this rule. However, FRA has confirmation that the practices of 51 of these small railroads already conform with the requirements of this regulation. FRA believes that the practices of the remaining 7 Class III railroads also conform with the requirements of this regulation, and that no small entity will be negatively impacted by this regulation as a result. FRA published this analysis in the Initial Regulatory Flexibility Analysis (IRFA) that accompanied the NPRM and requested comments. No comments were received on FRA's analysis of the rule's impact on small entities. Even if the 7 Class III railroads were impacted, the economic impact on them would likely not be significant.
If these 7 small railroads that FRA believes are in compliance with the rule are in fact not in compliance, the added costs would be minimal. Seven railroads would not be a substantial number of the 738 Class III railroads. FRA estimates that it would cost a Class III railroad $2,000 per day to rent a rail flaw detector car. The average Class III railroad that owns Class 3, 4, or 5 track has approximately 70 miles of track. FRA estimates it would take 3 days to inspect each railroad's entire track. The total cost per railroad would be $6,000 per year, for the base year. FRA has a high level of confidence that these railroads are already inspecting their track at least once a year. However, if these entities are not in compliance, FRA believes a cost of $6,000 per year would not be a significant economic impact on any railroad.
During the public comment period following the NPRM, FRA did not receive any comments discussing the IRFA or Executive Order 13272. FRA certifies that the final rule will not have any significant economic impact on the competitive position of small entities, or on the small entity segment of the railroad industry as a whole.
The information collection requirements in this final rule are being 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. For information or a copy of the paperwork package that is being submitted to OMB, please contact Mr. Robert Brogan, Information Clearance Officer, Federal Railroad Administration, at 202–493–6292 (
Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to the Office of Management and Budget at the following address:
OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the
FRA cannot impose a penalty on persons for violating information collection requirements that 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 this final rule. The OMB control number, when assigned, will be announced by separate notice in the
FRA has evaluated this final 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 final rule in accordance with the principles and criteria contained in Executive Order 13132. This final rule will 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 final rule will 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 recommended the majority of this final rule, has as permanent members two organizations representing State and local interests: AASHTO and ASRSM. Both of these State organizations concurred with the RSAC recommendations 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 final rule from these representatives or from any other representatives of State government.
However, this final rule could have preemptive effect by operation of law under 49 U.S.C 20106 (sec. 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 final rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this final rule has no federalism implications, other than the possible preemption of State laws under sec. 20106. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this final 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) 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 final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more (as adjusted annually for inflation) 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 has evaluated this final rule in accordance with Executive Order 13211. FRA has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this final rule is not a “significant energy action” within the meaning of the Executive Order.
Anyone is able to search the electronic form of any comment or petition for reconsideration received into any of DOT's dockets by the name of the individual submitting the comment or petition (or signing the comment or petition, if submitted on behalf of an association, business, labor union, etc.). Please see the privacy notice at
Penalties, Railroad safety, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FRA amends part 213 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:
49 U.S.C. 20102–20114 and 20142; Sec. 403, Div. A, Public Law 110–432, 122 Stat. 4885; 28 U.S.C. 2461, note; and 49 CFR 1.89.
(b) This part does not apply to track:
(1) Located inside an installation that is not part of the general railroad system of transportation (i.e., a plant railroad). As used in this part, a plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to switch cars throughout the plant or installation, and is moving goods solely for use in the facility's own industrial processes. The plant or installation could include track immediately adjacent to the plant or installation if the plant railroad leases the track from the general system railroad and the lease provides for (and actual practice entails) the exclusive use of that track by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or installation that operates a locomotive to switch or move cars for other entities, even if solely within the confines of the plant or installation, rather than for its own purposes or industrial processes, will not be considered a plant railroad because the performance of such activity makes the operation part of the general railroad system of transportation. Similarly, this exclusion does not apply to track over which a general system railroad operates, even if that track is located within a plant railroad;
(2) Used exclusively for tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation. As used in this part, tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation means a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose (i.e., there is no freight, intercity passenger, or commuter passenger railroad operation on the track); or
(3) Used exclusively for rapid transit operations in an urban area that are not connected to the general railroad system of transportation.
(a) When an owner of track learns that a rail in the track contains any of the defects listed in the table contained in paragraph (c) of this section, a person designated under § 213.7 shall determine whether the track may continue in use. If the designated person determines that the track may continue in use, operation over the defective rail is not permitted until—
(1) The rail is replaced or repaired; or
(2) The remedial action prescribed in the table contained in paragraph (c) of this section is initiated.
(b) When an owner of track learns that a rail in the track contains an indication of any of the defects listed in the table contained in paragraph (c) of this section, the track owner shall verify the indication. The track owner must verify the indication within four hours, unless the track owner has an indication of the existence of a defect that requires remedial action A, A2, or B identified in the table contained in paragraph (c) of this section, in which case the track owner must immediately verify the indication. If the indication is verified, the track owner must—
(1) Replace or repair the rail; or
(2) Initiate the remedial action prescribed in the table contained in paragraph (c) of this section.
(c) A track owner who learns that a rail contains one of the following defects shall prescribe the remedial action specified if the rail is not replaced or repaired, in accordance with this paragraph's table:
A. Assign a person designated under § 213.7 to visually supervise each operation over the defective rail.
A2. Assign a person designated under § 213.7 to make a visual inspection. After a visual inspection, that person may authorize operation to continue without continuous visual supervision at a maximum of 10 m.p.h. for up to 24 hours prior to another such visual inspection or replacement or repair of the rail.
B. Limit operating speed over the defective rail to that as authorized by a person designated under § 213.7(a), who has at least one year of supervisory experience in railroad track maintenance. The operating speed cannot be over 30 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower.
C. Apply joint bars bolted only through the outermost holes to the defect within 10 days after it is determined to continue the track in use. In the case of Class 3 through 5 track, limit the operating speed over the defective rail to 30 m.p.h. until joint bars are applied; thereafter, limit the speed to 50 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower. When a search for internal rail defects is conducted under § 213.237, and defects are discovered in Class 3 through 5 track that require remedial action C, the operating speed shall be limited to 50 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower, for a period not to exceed 4 days. If the defective rail has not been removed from the track or a permanent repair made within 4 days of the discovery, limit operating speed over the defective rail to 30 m.p.h. until joint bars are applied; thereafter, limit speed to 50 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower. When joint bars have not been applied within 10 days, the speed must be limited to 10 m.p.h. until joint bars are applied.
D. Apply joint bars bolted only through the outermost holes to the defect within 7 days after it is determined to continue the track in use. In the case of Class 3 through 5 track, limit operating speed over the defective rail to 30 m.p.h. or less as authorized by a person designated under § 213.7(a), who has at least one year of supervisory experience in railroad track maintenance, until joint bars are applied; thereafter, limit speed to 50 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower. When joint bars have not been applied within 7 days, the speed must be limited to 10 m.p.h. until the joint bars are applied.
E. Apply joint bars to the defect and bolt in accordance with § 213.121(d) and (e).
F. Inspect the rail within 90 days after it is determined to continue the track in use. If the rail remains in the track and is not replaced or repaired, the reinspection cycle starts over with each successive reinspection unless the reinspection reveals the rail defect to have increased in size and therefore become subject to a more restrictive remedial action. This process continues indefinitely until the rail is removed from the track or repaired. If not inspected within 90 days, limit speed to that for Class 2 track or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower, until it is inspected.
G. Inspect rail within 30 days after it is determined to continue the track in use. If the rail remains in the track and is not replaced or repaired, the reinspection cycle starts over with each successive reinspection unless the reinspection reveals the rail defect to have increased in size and therefore become subject to a more restrictive remedial action. This process continues indefinitely until the rail is removed from the track or repaired. If not inspected within 30 days, limit speed to that for Class 2 track or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower, until it is inspected.
H. Limit operating speed over the defective rail to 50 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower.
I. Limit operating speed over the defective rail to 30 m.p.h. or the maximum allowable speed under § 213.9 for the class of track concerned, whichever is lower.
(d) As used in this section—
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(a) In addition to the inspections required by § 213.233, each track owner shall conduct internal rail inspections sufficient to maintain service failure rates per rail inspection segment in accordance with this paragraph (a) for a 12-month period, as determined by the track owner and calculated within 45 days of the end of the period. These rates shall not include service failures that occur in rail that has been replaced through rail relay since the time of the service failure. Rail used to repair a service failure defect is not considered relayed rail. The service failure rates shall not exceed—
(1) 0.1 service failure per year per mile of track for all Class 4 and 5 track;
(2) 0.09 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains or is a hazardous materials route; and
(3) 0.08 service failure per year per mile of track for all Class 3, 4, and 5 track that carries regularly-scheduled passenger trains and is a hazardous materials route.
(b) Each rail inspection segment shall be designated by the track owner no later than March 25, 2014 for track that is Class 4 or 5 track, or Class 3 track that carries regularly-scheduled passenger trains or is a hazardous materials route and is used to determine the milepost limits for the individual rail inspection frequency.
(1) To change the designation of a rail inspection segment or to establish a new segment pursuant to this section, a track owner must submit a detailed request to the FRA Associate Administrator for Railroad Safety/Chief Safety Officer (Associate Administrator). Within 30 days of receipt of the submission, FRA will review the request. FRA will approve, disapprove, or conditionally approve the submitted request, and will provide written notice of its determination.
(2) The track owner's existing designation shall remain in effect until the track owner's new designation is approved or conditionally approved by FRA.
(3) The track owner shall, upon receipt of FRA's approval or conditional approval, establish the designation's effective date. The track owner shall advise in writing FRA and all affected railroad employees of the effective date.
(c) Internal rail inspections on Class 4 and 5 track, or Class 3 track with regularly-scheduled passenger trains or that is a hazardous materials route, shall not exceed a time interval of 370 days between inspections or a tonnage interval of 30 million gross tons (mgt) between inspections, whichever is shorter. Internal rail inspections on Class 3 track that is without regularly-scheduled passenger trains and not a hazardous materials route must be inspected at least once each calendar year, with no more than 18 months between inspections, or at least once every 30 mgt, whichever interval is longer, but in no case may inspections be more than 5 years apart.
(1) Any rail used as a replacement plug rail in track that is required to be tested in accordance with this section must have been tested for internal rail flaws.
(2) The track owner must verify that any plug rail installed after March 25, 2014 has not accumulated more than a total of 30 mgt in previous and new locations since its last internal rail flaw test, before the next test on the rail required by this section is performed.
(3) If plug rail not in compliance with this paragraph (c) is in use after March 25, 2014, trains over that rail must not exceed Class 2 speeds until the rail is tested in accordance with this section.
(d) If the service failure rate target identified in paragraph (a) of this section is not achieved, the track owner must inform FRA of this fact within 45 days of the end of the defined 12-month period in which the performance target is exceeded. In addition, the track owner may provide to FRA an explanation as to why the performance target was not achieved and provide a remedial action plan.
(1) If the performance target rate is not met for two consecutive years, then for the area where the greatest number of service failures is occurring, either:
(i) The inspection tonnage interval between tests must be reduced to 10 mgt; or
(ii) The class of track must be reduced to Class 2 until the target service failure rate is achieved.
(2) In cases where a single service failure would cause the rate to exceed the applicable service failure rate as designated in paragraph (a) of this section, the service failure rate will be considered to comply with paragraph (a) of this section unless a second such failure occurs within a designated 12-month period. For the purposes of this paragraph (d)(2), a period begins no earlier than January 24, 2014.
(e) Each defective rail shall be marked with a highly visible marking on both sides of the web and base except that, where a side or sides of the web and base are inaccessible because of permanent features, the highly visible marking may be placed on or next to the head of the rail.
(f) Inspection equipment shall be capable of detecting defects between joint bars, in the area enclosed by joint bars.
(g) If the person assigned to operate the rail defect detection equipment (i.e., the qualified operator) determines that a valid search for internal defects could not be made over a particular length of track, that particular length of track may not be considered as internally
(h) If a valid search for internal defects could not be conducted, the track owner shall, before expiration of the time or tonnage limits in paragraph (a) or (c) of this section—
(1) Conduct a valid search for internal defects;
(2) Reduce operating speed to a maximum of 25 m.p.h. until such time as a valid search can be made; or
(3) Replace the rail that had not been inspected.
(i) The person assigned to operate the rail defect detection equipment must be a qualified operator as defined in § 213.238 and have demonstrated proficiency in the rail flaw detection process for each type of equipment the operator is assigned.
(j) As used in this section—
(1)
(2)
(3)
(4)
(a) Each provider of rail flaw detection shall have a documented training program in place and shall identify the types of rail flaw detection equipment for which each equipment operator it employs has received training and is qualified. A provider of rail flaw detection may be the track owner. A track owner shall not utilize a provider of rail flaw detection that fails to comply with the requirements of this paragraph.
(b) A qualified operator shall be trained and have written authorization from his or her employer to:
(1) Conduct a valid search for internal rail defects utilizing the specific type(s) of equipment for which he or she is authorized and qualified to operate;
(2) Determine that such equipment is performing as intended;
(3) Interpret equipment responses and institute appropriate action in accordance with the employer's procedures and instructions; and
(4) Determine that each valid search for an internal rail defect is continuous throughout the area inspected and has not been compromised due to environmental contamination, rail conditions, or equipment malfunction.
(c) To be qualified, the operator must have received training in accordance with the documented training program and a minimum of 160 hours of rail flaw detection experience under direct supervision of a qualified operator or rail flaw detection equipment manufacturer's representative, or some combination of both. The operator must demonstrate proficiency in the rail defect detection process, including the equipment to be utilized, prior to initial qualification and authorization by the employer for each type of equipment.
(d) Each employer shall reevaluate the qualifications of, and administer any necessary recurrent training for, the operator as determined by and in accordance with the employer's documented program. The reevaluation process shall require that the employee successfully complete a recorded examination and demonstrate proficiency to the employer on the specific equipment type(s) to be operated. Proficiency may be determined by a periodic review of test data submitted by the operator.
(e) Each employer of a qualified operator shall maintain written or electronic records of each qualification in effect. Each record shall include the name of the employee, the equipment to which the qualification applies, date of qualification, and date of the most recent reevaluation, if any.
(f) Any employee who has demonstrated proficiency in the operation of rail flaw detection equipment prior to January 24, 2014, is deemed a qualified operator, regardless of the previous training program under which the employee was qualified. Such an operator shall be subject to paragraph (d) of this section.
(g) Records concerning the qualification of operators, including copies of equipment‐specific training programs and materials, recorded examinations, demonstrated proficiency records, and authorization records, shall be kept at a location designated by the employer and available for inspection and copying by FRA during regular business hours.
(c) Records of internal rail inspections required by § 213.237 shall specify the—
(1) Date of inspection;
(2) Track inspected, including beginning and end points;
(3) Location and type of defects found under § 213.113;
(4) Size of defects found under § 213.113, if not removed prior to the next train movement;
(5) Initial remedial action taken and the date thereof; and
(6) Location of any track not tested pursuant to § 213.237(g).
(d) The track owner shall retain a rail inspection record under paragraph (c) of this section for at least two years after the inspection and for one year after initial remedial action is taken.
(e) The track owner shall maintain records sufficient to demonstrate the means by which it computes the service failure rate on all track segments subject to the requirements of § 213.237(a) for the purpose of determining compliance with the applicable service failure rate target.
(f) Each track owner required to keep inspection records under this section shall make those records available for inspection and copying by FRA upon request.
(g) For purposes of complying with the requirements of this section, a track owner may maintain and transfer records through electronic transmission, storage, and retrieval provided that—
(1) The electronic system is designed so that the integrity of each record is maintained through appropriate levels of security such as recognition of an electronic signature, or another means, which uniquely identifies the initiating person as the author of that record. No two persons shall have the same electronic identity;
(2) The electronic storage of each record shall be initiated by the person making the inspection within 24 hours following the completion of that inspection;
(3) The electronic system shall ensure that each record cannot be modified in any way, or replaced, once the record is transmitted and stored;
(4) Any amendment to a record shall be electronically stored apart from the record which it amends. Each
(5) The electronic system shall provide for the maintenance of inspection records as originally submitted without corruption or loss of data;
(6) Paper copies of electronic records and amendments to those records that may be necessary to document compliance with this part shall be made available for inspection and copying by FRA at the locations specified in paragraph (b) of this section; and
(7) Track inspection records shall be kept available to persons who performed the inspections and to persons performing subsequent inspections.
(a) support agencies in transitioning to a strategic partnership with the governments of Afghanistan and Pakistan in the economic, diplomatic, cultural, technology, and security fields, particularly in the areas of program management, rule of law, and program oversight;
(b) coordinate the final drawdown of the Department of State's civilian field operations and staff in Afghanistan;
(c) coordinate and oversee the administration of certain State Department assistance funds; and
(d) perform such other functions related to the specific project set forth in section 2 of this order as the Secretary of State (Secretary) may assign.
(b) Nothing in this order shall be construed to impair or otherwise affect:
(c) 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.